By: Justice Madan Lokur
Justice Madan Lokur is a retired justice of the Supreme Court of India and a current justice of the Supreme Court of Fiji. All opinions expressed in this piece are solely those of the author as an external expert and do not necessarily reflect the official position of UNODC.
Ever since 1979, the Indian Supreme Court has accepted access to justice as a basic human right, a view propounded by legal scholars Mauro Cappelletti and Bryant Garth. 1 Towards achieving this goal, the Legal Services Authority Act was passed by parliament in 1987. As a result of this legislation, free legal aid and advice is available to all women, children, persons in custody, and other disadvantaged persons.
Access to justice has been challenged by COVID-19 in an unimaginable way. The first reaction of the courts in India was to limit the number of lawyers and litigants entering the court premises. However, because of the sheer volume of pending and listed cases, this did not dramatically reduce daily footfall. This led to another decision by many courts to restrict the listing of cases only to 'urgent' matters and finally only to 'very urgent' cases. Now, the coronavirus pandemic has overtaken us, India is in lockdown and the courts are shut.
Can access to justice be denied to the millions of litigants? To overcome the lockdown, some constitutional courts, including the Supreme Court of India, are experimenting with videoconferencing for hearing cases. This has made news because it is the first time that it has been tried out in the superior courts. However, hearing select cases through videoconferencing has been the norm for more than 10 years in many trial courts in different parts of the country. They have utilized videoconference facilities for extending the remand of prisoners under trial. To effectuate this, all prisons and court complexes were provided with videoconferencing units and trained in their operation. The units have also been used in a few trials for recording the testimony of alleged terrorists and insurgents. Finally, some family law cases have been heard and decided through videoconferencing particularly where one of the parties is not resident in India.
On 23 March 2020, the Supreme Court of India heard three cases through videoconferencing. Accounts suggest that the experiment was quite successful, but a full-fledged schedule of hearings has not yet been announced. Other constitutional courts have also heard a few cases through videoconferencing without any apparent glitch. Access to justice through videoconferencing technology has been found possible and it has several advantages, including no travel time and reduced footfall in overcrowded courts.
Another use of technology by the Supreme Court to benefit litigants is in translating its judgments into nine Indian languages. This has been made possible through machine learning and about 200 judgments have been so translated since last November. The plan is to increase the number of judgments and the languages in which they will be available. This is in line with the overall access to justice programme of the Indian judiciary.
Harnessing technology for the benefit of litigants - seekers of justice - is of utmost importance and this is eminently achievable through visionary leadership.
1"State of Haryana vs. Darshana Devi" (MANU/SC/0609/1979) "Effective access to justice can thus be seen as the most basic requirement - the most basic "human right" -- of a modern, egalitarian legal system which purports to guarantee, and not merely proclaim, the legal rights of all."
Bryant G. Garth and Mauro Cappelletti, "Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective"