Judiciary must adapt to post-coronavirus scene, says SC

Justice S Ravindra Bhat of the Supreme Court tells ET’s Ajmer Singh that if the legal world does not move ahead with the rest of the world, the judiciary could fall behind the times, especially in the time of Covid when every sector is trying to transition to a contactless platform. Edited excerpts:

In the wake of Corona, how would a future courtroom look like?
Courts have traditionally been places where those aggrieved, because of disputes with private parties, or the state’s agencies, approach for justice. That role will continue; the interface with normal court i.e. a place which the litigant approaches, may change. The present pandemic has shown, with the way IT has been adapted by policymakers, that it is possible to dispense justice, without the interface of a court as a physical entity.

The availability of virtual courtrooms and digital filing can reshape the manner in which litigants and lawyers access them. E-filing inaugurated by the Supreme Court recently, visualises a state-of-the-art system. Cases can be lodged by lawyers, digitally, from the comfort of their homes; elaborate protocols have been devised. Once this system is launched and used, the integration with video-enabled courts can yield great benefits. Further, if the pending hard copy files are also digitised and records in the Supreme Court or any high court, are integrated, the transition to a completely digital environment can be easier.

How do you make this successful?
It would be necessary that lawyers and judges take to using digital files, which would be hassle-free and entail minimum risk of infecting the user. Unlimited time for arguments would have to be given up. If parties are willing, time slots can be scheduled in advance; the parties should co-operate and file written submissions, within a page or word limit, at least two weeks before the hearing and agree on the documents they would refer to during the hearing, so that a paper book is prepared. If such co-operation can be achieved, in regular hearing cases, a time limit of half an hour for each side can be given. In this manner, each bench can hear at least 5-6 regular hearing cases.

If the same approach is adopted for cases during admission day, i.e about 7-8 minutes per case, no less than 50 cases can be heard in the Supreme Court on Mondays and Fridays. Similar approaches can be adopted by the high court, to limit the time for each case. This is what is called “less for more”, i.e. less hearing in each case, leading to more cases being heard. It can increase productivity and avoid crowding in courts, and endless wait for litigants and lawyers.

How challenging is the transition from actual court to virtual court?
The biggest challenge is in our minds. If bandwidth speed and connectivity is as it should be, the transition would be seamless. However, that is not so. Therefore, though for urgent cases, courts have been using technology, to make the experience more permanent, it would be necessary to ensure better connectivity. Both lawyers and judges do experience some transitional difficulties, such as operating the system: many times, lawyers are unable to communicate because they might not have switched on the microphone, or might accidentally go off the air, etc. These early transitional problems can be overcome without much difficulty. The normal style of advocacy, where lawyers take time to warm up and build their case, would have to undergo a change. Advocacy has to adhere to one crucial objective: direct and impactful communication. Coupled with reference to the most apt precedents, and documents, the counsel’s submissions can be curtailed to a limited time. The acceptance of this model is crucial to a virtual court. The advantages are manifold: a lawyer may be able to choose to argue from wherever she or he wishes, at a designated time. This will eliminate long waiting.

What about technology challenges like connectivity/bandwidth and resistance to adapt?
Many studies have revealed that internet usage is most common among those younger than 30 years. So, when we talk of widespread use of technology in courts, we have to factor the relative unpreparedness and reluctance of older lawyers, and the ignorance of older or uneducated litigants. For lower courts, therefore, even if bandwidth and connectivity is at optimum, it is essential that a model that would achieve the one of the preambular guarantees, i.e. equality before law, is always kept in mind. The e-filing system should be easy to understand and accessible to the layperson. All portals which have any concern with e-courts or e-filing should explain the several steps towards filing, processing, listing, procuring certified copies, and other matters, in a step by step FAQ (frequently asked questions) for reference of users. Further, helplines should be available. E-kiosks, or computer terminals should be available for users –– lawyers and litigants –– to make e-filing easier. Members of the bar should be given training in easy language; they should also be given access to digital libraries and databases at nominal cost. Legal services, available in each district, can be tasked for helping litigants to file, and train lawyers periodically, in each court complex.

There are many concerns; the e-filing system, at least in the district court level should be such that the discretion of initially accepting hard copy filing, and later giving time to file online should be retained, at least for some time. As far as use of video technology in trial courts goes, I am not aware of the policy on the anvil. In criminal and civil trials, the valuable insight of a judge hearing crucial witness deposition cannot be substituted through a video hearing. But many processes, such as deciding applications, examining formal witnesses, framing issues, e-discovery, etc, can be done through video conferencing hearings. Whenever a model for e-filing in the lower courts and video hearing is framed, it should factor the concerns of the marginalised and those who are barely educated, and who cannot access technology. As they are the most vulnerable, they are the weakest. And the web or chain of technology is only as strong as its weakest link. If we address their concerns, digital courts can be a substitute for physical courts. I am not of the opinion that everything should be digitised immediately. The broadband in India is not the best. The Supreme Court has declared access to internet a fundamental right, but India is still ranked 134th in the world when it comes to broadband speed.

From virtual court to actual court, when do you think normal functioning of courts could begin?
This is a very difficult question. The spread of Covid-2019 continues unabated. Throwing open courts would mean that every court complex would be thronged by people. For example, the largest district court complex in Delhi, sees about 50,000 footfalls each day, on a modest estimate. Jaipur Metropolitan district has 180 courts. On average, during normal times, each court deals with 40 cases. Each case potentially has four people attending the court: two litigants and two lawyers. On a rough estimate, no less than 35,000 individuals would be visiting the courts daily. Even in the Supreme Court, the average footfall is over 5,000; for listing even 80-100 cases before four or five benches, at least 300-400 staff members have to attend the courts. Even if one staff member tests positive, or if a lawyer tests positive, the resulting effect on all others is serious. Even during lockdown, benches functioned to hear urgent cases; also, many cases were heard where bail was sought. Since last week, three single judge benches have held court. All these have been virtual court hearings. About 365 cases were heard and orders made; judges who had heard appeals and petitions previously and reserved judgements, issued such judgements in 75 cases, which disposed of 417 matters. From 18 May, 2020, 12-14 judges have been sitting each day, in five bench combinations. Each bench deals with 20 cases. In addition, 3 single judge benches are hearing 20 cases each. Yet, these are all in video hearing format.

Those involved in justice dispensation, such as lawyers and others involved in related activities are affected because their normal earnings are meagre. But those concerns cannot at present outweigh the concern that opening the courts fully would expose all to a real danger of infection.

In the wake of Corona, what model could be adopted for SC/HCs?
It would be impossible to follow one tech model for all courts. The role of the appellate courts is very different from courts dealing with trials and other original side matters. It would be easier for appellate courts to adapt to digital. For subordinate and district courts, digitisation would be a challenge. While at trial court, cross-examinations have to be conducted on a daily basis and some witnesses crucial to the case have to be present in court so that the court can assess the demeanor of the witness. It is an absolute right of an accused person to be present in court after the commencement of trial. Appellate courts should minimise the use of paper. In the post-Covid era, appellate courts should try to conduct hearings through video-conferencing. Efficiency should be the way forward. If the legal world does not adapt, and not move ahead with the rest of the world, the third pillar –– the judiciary could fall behind the times and the same would be detrimental to the citizens of this country.

And, what about Artificial intelligence and machine learning, How can it help litigants and lawyers?
Essentially, these are based on patterns of past behavior, actions or decisions, which enable the creation of the algorithm, that ultimately tells the user, what the most likely outcome or the best option available is. There are certain underlying assumptions for such predictive coding, or programming, i.e. that the data is based on structured outcomes, for example, logical reasoning. However, if the database does not contain any structured decisions, but rather randomized behavior, the program would not be of use; similarly, other processes, such as human interactions, pose challenges to predictive coding.

And the the last limitation, in my opinion, is that if there is an underlying bias in the structured database, that gets reflected in the prediction, and if used further, magnified. Thus, inherent biases (which are not captured on the record) based on gender, or other inarticulate premises would likely be reflected in the outcome. Predictive coding can be used for pointed purposes like mining the file on particular points, such as in criminal appeals, any and all evidence which deal with one or other issue. Much depends on how questions and queries are seeded by the user; this would define the scope of the search. The results can be startling; what might otherwise take several hours- maybe hundreds of hours of manual work can efficiently be cut down to a couple of hours.