Access to Justice, Time to Log-in?

The unprecedented situation that we are faced with today has thrown-in new challenges. While we learn to live under the new scenario, the Justice Delivery System is grappling with problems of its own. Could these ‘problems’ be turned into ‘opportunity’?

While the working of Our Courts is nowhere near normal, there have been continued attempts at making things work, as best as possible. Have we succeeded? Only time will tell. However, this might have thrown up an opportunity, one we ought to grab with both hands. Many of us have had a fair opportunity at sampling this. Holding of ‘Virtual Courts’ may not appear to be the ideal scenario, especially with the very concept being in its nascent stage. There may be many wrinkles, but the same can be ironed-out as we go along.

One of the fundamental principles of the universally accepted Rule of Law is ‘Access to Justice’. Can this be our opportunity to work towards the same? I believe the opportunity is right at our doors and we must gleefully let it in.

A Constitution Bench of the Supreme Court in Anita Khushwa v. Pushpa Sadan went on to hold that – “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21.

“We have; therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. The Citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.”

Therefore, while underlining the immense importance of ‘access to justice”, the Hon’ble Supreme Court went on to highlight the ‘inadequacy of adjudicatory mechanism’ as well as the need to address the Citizen’s inability to access Courts and other adjudicatory mechanism provided for determination of rights and obligations. So far, we have fallen woefully short of making Justice accessible to all. The last available statistics mention there being over 30 million cases that await adjudication in India. Further, there is a sea of difference between people who have strong basis for initiating legal cases and those who go on and assert the legal right. Much of this wide gap is a direct result of lack of ‘access’ to Justice. The United Nations in its Report on Commission on Legal Empowerment of the Poor put this gap to a total of 4 billion people.

Going online seems like a successful model to make justice more accessible to the people and the same should not be seen with a limited scope. It does not only consist of making Courts available to as many people as possible, but making people aware of their rights and entitlements is as much a part of the concept of ‘access of justice’ as a wide and robust justice delivery system is. Not many people in India are aware of the benefits they are eligible for. These benefits could range from government sponsored health schemes to free education, food or monthly allowance. There is also a large population that despite being aware is not able to reach out and pluck the fruit. They need assistance for achieving complete justice which is at the heart of many Supreme Court Judgments. In a large country like India, people living in far flung areas are often far-off from the seat of the government. This is where organizations like Haqdarshak are doing a great job by creating an online platform that shows people the benefits they are entitled to, and then supports them through the process of applying for them. Importantly, they also provide work for women across the country as advocates to represent the individual applicants in these cases, increasing literacy levels amongst women, who often carry the knowledge and experience back to the rural areas that they come from. While organizations like these are just a drop in the ocean, they are gigantic in the message they are delivering and in charting-out the right way forward.

Further, it would not be out of place to consider a couple of online justice delivery models that seem to have met reasonable success and certainly seem to be a great way forward in trying to make justice accessible and affordable. Canada, the United States, China, Singapore, and Australia have been leading the way in this regard.

The Civil Resolution Tribunal (CRT) in Canada has been functioning with success. The CRT is Canada’s first online Tribunal and has been a revolutionary step towards making justice accessible to the people of Canada. The jurisdiction of the tribunal is restricted to Motor Vehicle Disputes up to $ 50,000, Condominium (shared apartments) disputes and small disputes up to $ 5,000. While the jurisdiction is limited, one can well imagine the number of people that would stand to access justice as a result. There could be a determination of cases by human judges working in non-traditional ways outside of the traditional courtroom. Online filing could be considered and there can always be checks and balances akin to the Court Registries. Parties can appear online and Judgments can very well be pronounced much in the same manner. This could go a long way in making Justice accessible to a greater section of the society and (with help from experts and volunteers) in making a larger number of people aware of their rights.

Australia has been successfully using the concept of eCourtroom, an online courtroom used by Judges and Judicial Registrars to lend a hand with the management and hearing of some cases before the Federal Court of Australia. These matters include ex parte applications for substituted service in bankruptcy proceedings, applications for examination summonses, giving of directions and other orders in general federal law matters. eCourtroom is integrated with eLodgment, providing parties with a link between eCourtroom and eLodgment to facilitate the electronic filing of documents.

A transcript facility which keeps a complete record is viewable by parties as well as the public. However, documents that are filed can be viewed by the parties to the proceedings, the Judicial Officer and other Court officers only. An eCourtroom Protocol sets out the ground rules for the eCourtroom. Each party or participant to the eCourtroom has their own account name and password. It is important that these details remain confidential and are kept in a secure place.

An analysis of the successful online justice delivery system all over the World primarily seems to consist of two essentials – An online determination of cases where human judges handle the cases in non-traditional ways outside of the traditional courtroom. The whole process continues online right from filing till the pronouncement of Judgment. The second aspect is use of artificial intelligence to guide people through the legal procedure, helping them to understand the law and their legal position.

The prevailing situation has thrown-up numerous challenges, but this could hold the key to a long pending epidemic within the Justice Delivery System, one of not being able to make Justice accessible to all and the lack of effort in that direction. We must make the most of this little experience that we have gained with the concept of ‘virtual courts’ , combine it with the lessons we can take from the various examples we have from other Nations and look to make a hard and consolidated effort towards achieving the universally accepted fundamental norm of the Rule of Justice – access to all. As Shakespeare said:

“There is a tide in the affairs of men

Which, taken at the flood, leads on to fortune”.

Advocate Wasim Beg is Former Additional Advocate General (J&K)