E-Courts In India (2007)

The traditional legal system primarily relies upon litigation as a premier method of dispute resolution and the same equally applies to India as well. This dependence upon a single medium of dispute resolution has unnecessarily overburdened Indian courts. There are certain matters that can be effectively taken care of by “Alternative Dispute Resolution (ADR) Mechanism” (ADRM). This ADRM consists of methods like Arbitration, Mediation, etc. These methods are not only effective but also economical and efficacious. They will go a long way in empowering people with right to speedy trial in India that is a Fundamental Right within the meaning of Article 21 of the Constitution of India.

With the advent of Information and Communication Technology (ICT) both the traditional legal system as well as the ADRM got empowerment and strength. As a natural corollary the tool of ADRM also got a transformed counterpart in the form of “Online Dispute Resolution (ODR) Mechanism (ODRM). The ultimate solution to the “backlog” problem in Indian courts is the optimum use of ODRM in India. The same may, however, face the jurisdictional issues arising within India as well as outside India. Although ODR in India has started gaining momentum yet there is lot to be done. If we analyse the culture of ADR in India then one fact is very clear. In India we have not yet given due importance to the ADRM, much less to ODRM. The e-governance plan of India is silent in this regard. This is one of the flaws of the ICT strategy of India that is not in conformity with the contemporary standards. The e-governance in India is not taking care of the ODR perspective and the same will be a fatal mistake by all counts. We do not have a base for Intellectual Property Rights and International Trade related disputes. Even the domain name dispute resolution in India is missing. Similarly, International Commercial Arbitration in India also needs a different outlook in the present circumstances. We need to capatilise “collective expertise” and an “ideal public-private partnership” base in India. The launch of PTLB as the premier authority for ADR and ODR in India would go a long way in transforming ADR into ODR in India. The initiative titled ICT HELPDESK and WTO will cover the International Trade segment. If India has to survive the increasing dispute resolution pressure then it must cover the journey from ADR to ODR as soon as possible.

Similarly, efforts must be undertaken for the establishment of electronic courts in India. The establishments of digital evidencing and techno-legal base[1] are absolute requirements in India. There is also a dire need of judicial reforms in India keeping in mind the requirements of ICT. The establishment of e-courts in India would be a good step in this direction. These mandates have been sufficiently indicated and suggested in the annual evaluation of Perry4Law titled ICT trends in India in 2006. We have to take care of both technological as well as legal issues associated with the use of ICT. Thus, a techno-legal base is the need of the hour. We have launched the first ever Techno-Legal Base in India that is known as Perry4Law’s Techno-Legal Base TM/SM * (PTLB TM/SM*). PTLB TM/SM* and ICT HELPDESK TM/SM* are coordinating various International and National initiatives that primarily rely upon ICT for their successful operation and existence. PTLB TM/SM* would develop and implement an Inter-Country teaching and research infrastructure in the legal field that would be capable of meeting the challenges posed by the ICT regime. It would try to improve the current legal education practices by adapting them as per the ICT mandates.[2]

The Government must change gears now as the speed of reforms is grossly inadequate. It is high time that the Government must establish a specialised institution as per the requirements of UNDP and European Union so that foreign aid and grants can be utilised appropriately and legally. We must have a suitable e-infrastructure that is capable of meeting the needs of contemporary society. Perry4Law’s famous Techno-Legal and ICT Segment PTLB TM/SM* will provide Techno-Legal and ICT service pertaining to Cyber Law, Cyber Forensics Cyber Security, Techno-Legal E-learning Services, Due Diligence Compliance, Techno-Legal Audit, E-commerce, E-governance, ADR and ODR, IPRs, International Trade etc. We would also provide a “legislative framework” that could be effective for meeting the requirements of e-courts in India and an ODR base in India. In fact Perry4Law is receiving tons of appreciation letters and requests for extending its Techno-Legal and ICT related expertise for the establishment of e-courts in foreign countries.[3] We hope that our initiatives would prove effective for providing a Techno-legal direction to Indian ICT strategy. Some of the International and National initiatives, collaborations and coordinating efforts of Perry4Law, PTLB TM/SM* and ICT HELPDESK TM/SM are as follow:

(a) E-governance and justice in India
(b) Online Dispute Resolution in India
(c) Judicial reforms in India through use of ICT
(d) Enforcing rule of justice through e-governance
(e) Dataquest-Changing the order
(f) E-judiciary and e-lawyering in India, etc.

Let us hope that the initiatives of e-judiciary segment in general and Perry4Law in particular would prove a good step in the right direction and that also at a time when we need it most.

[1] http://perry4law.blogspot.com/2006/06/need-of-techno-legal-compliance-in.html
[2] Praveen Dalal, “ Techno-Legal Education in India”, http://cyberlawindia.blogspot.com/2006/12/techno-legal-education-in-india.html
[3] One of the e-mails to Perry4Law reads like this “Recently, Brazilian congress has approved a law which adopts the use of ICT in judicial acts. This new law is very advanced and wishes to replace physical process for a total virtual one. I have many doubts about it and I really would like to share your ideas and to understand how India is adopting this technology for judicial purposes”.

Source: Electronic Courts In India.

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Judiciary And ICT Base (2006)

The increasing backlog of cases is posing a big threat to our judicial system. The same was even more in the early 90 but due to the computerisation process in the Supreme Court and other courts that was reduced to a great extent. However, the backlog is still alarming. This is because mere computerisation of Courts or other Constitutional offices will not make much difference. What we need is a will and desire to use the same for speedy disposal of various assignments. There is a lack of training among Judges regarding use of IT. We need a sound training of Judges first before we wish to capatilise the benefits of IT. A good initiative taken in this regards is available at http://www.indianjudiciary.in/ . However, the same appears to be dormant for the time being. Thus, we need a public initiative as well.

I tried the same and it is available at http://indian-judiciary.blogspot.com/ . This resource is based on the ground reality that mere computerisation will not serve the purpose. The resource titled “Electronic Courts in India” is making a database of different situations that the e-courts in India may face while discharging the judicial functions. As far as the computerisation is concerned, the Judges of all courts in Delhi have their own computers that are as per the latest configurations. However, the need of the hour is greater than mere computers providing. For instance, there was a proposal in the Delhi High Court where every computer of the concerned Judges was to be connected to the Central computer. Thus, whenever something is typed it would automatically go to the central computer and from there we can have the “Certified copies” of the concerned documents. That proposal has been applied to a greater extent and now it is much easier to get the certified copies. Further, cause lists, name of the Judges, Court numbers, name of the lawyers, etc are all available on the Internet. That has also facilitated the speedier disposal of cases.

However, we need more. We need a complete utilisation of IT for the effective disposal of cases and witness protection. For instance we can use the facility of “Video Conferencing” on a large scale. Presently, it is used in some cases. We can use the concept of electronic governance for Witness protection. We can use the medium of Internet for filing of cases, bail applications, serving of notices, etc. Thus, much is still to be achieved.

Kindly see:

(a) http://perry4law.blogspot.com/2006/04/concept-of-locus-standi-and-due.html

(b) http://perry4law.blogspot.com/2006/02/electronic-legal-notices-negotiable.html

(c) http://indian-judiciary.blogspot.com/2006/01/electronic-governance-and-justice-in.html

(d) http://cyberlawindia.blogspot.com/2006/03/witness-protection-and-e-governance.html

These are some of the issues that are above mere computerisation.

With the present pace, it may take at least 10 more years to be adopted.

If we all take some pain and provide our own contributions that that task may be achieved within 1 year.

Then another concern is regarding the security of the IT infrastructure. We can provide the concerned officer with the necessary training but it is very difficult to make them technically aware about the security aspects. Thus, a technological base must also be established at the Court that may provide the security inputs to the Courts. A special attention must be paid to the Cyber Forensics aspect. It is useful for the Investigative, Prosecution and the Judicial authorities.

I still remember the hoax mail case http://perry4law.blogspot.com/2005/12/clueless-once-again-no-big-surprise.html .The accused was booked under section 121 of IPC (Waging war against the Govt). This shows the knowledge of the Govt regarding ICT matters/Cyber Law in India. We need a dedicate analysis of ICT matters in India. We do not need fill in gaps and face saving approaches. The Indian ICT strategy is highly deficient http://perry4law.blogspot.com/2005/11/deficiencies-of-indian-ict-strategy.html and we are trying our level best to make it as meaningful as possible. Let us hope that together we will make a big difference in this direction.

Source: Electronic Courts In India.

Online Dispute Resolution In India (2006)

The aim of this article is to analyse the prospective use of online dispute resolution mechanism (ODRM) in India. The necessity of the same has arisen due to the growing use of alternative dispute resolving mechanism (ADRM) in India to reduce the burdening of the already overburdened courts in India. The popularity and use of ADRM is increasing but it can achieve its best only if the same is integrated with the information technology.

I. Introduction 

The swift growth of e-commerce and web site contracts has increased the potential for conflicts over contracts which have been entered into online. This has necessitated a solution that is compatible with online matters and is netizens centric. This challenging task can be achieved by the use of ODRM in India. The use of ODRM to resolve such e-commerce and web site contracts disputes are crucial for building consumer confidence and permitting access to justice in an online business environment. These ODRM are not part and parcel of the traditional dispute resolution machinery popularly known as “judiciary” but is an alternative and efficacious institution known as ADRM. Thus, ADR techniques are extra-judicial in character. They can be used in almost all contentious matters, which are capable of being resolved, under law, by agreement between the parties. They have been employed with very encouraging results in several categories of disputes, especially civil, commercial, industrial and family disputes. These techniques have been shown to work across the full range of business disputes like banking, contract performance, construction contracts, intellectual property rights, insurance, joint ventures, partnership differences etc. ADR offers the best solution in respect of commercial disputes. However, ADR is not intended to supplant altogether the traditional means of resolving disputes by means of litigation. It only offers alternatives to litigation. There are a large number of areas like constitutional law and criminal law where ADR cannot substitute courts. In those situations one has to take recourse of the existing traditional modes of dispute resolution.

II. The Premier Mode Of ADR 

Arbitration is the supreme method for resolving and adjudicating commercial disputes[1]. It is a procedure in which the dispute is submitted to one or more arbitrators, for adjudication, who resolve the dispute. The decision is given in the form of an award. The main objects of arbitration are speed, economy, convenience and simplicity of procedures. It encourages healthy relationship between the parties. The Arbitration and Conciliation Act, 1996 governs the “arbitration procedures” in India. Section 5 of the Act provides that notwithstanding anything contained in any other law for the time being in force, in matters governed by Part I (Sections 2 to 43), no judicial authority shall intervene except where so provided in the said part. This clearly indicates the legislative intent to minimise supervisory role of courts to ensure that the intervention of the court is minimal. Section 4 is a deeming provision, which lays down that where a party proceeds with the arbitration without stating his objection to non-compliance of any provision of Part I from which the parties may derogate or any requirement under arbitration agreement, it shall be deemed that he has waived his right to so object. Section 7 provides that the arbitration agreement shall be in writing and such an agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Sub-section (4) of Section 7 provides the conditions under which a document or exchange of letter or exchange of statement of claim and defence may amount to an arbitration agreement. Section 11 of the Act provides for appointment of arbitrators and sub-section (6) thereof empowers the Chief Justice of the High Court or any person or institution designated by him to make such an appointment on the happening of certain conditions enumerated in clauses (a), (b) or (c). Section 16 of the Act is important and it provides that the arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or authority of the arbitration agreement[2]. Thus, the base provided by the Act is sufficient to accommodate the mandates of ODRM. It must be noted that a court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a “purposive, updating and an ongoing interpretation”. This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind[3]. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. Thus, the justice delivery system cannot afford to take the information technology revolution lightly[4]. The judiciary in India has not only recognised this need but has also utilised the information technology to do complete justice. The Supreme Court has on various occasions encouraged the use of information technology for meeting the ends of justice and to do complete justice. There is nothing that shows that the courts in India will not encourage the concept of ODRM in India. The Supreme Court has encouraged the use of ADR techniques in India and very soon the same will be extended to ODRM as well.

III. E-Justice System In India 

The judicial response vis-à-vis information technology is positive and technology friendly.

In M/S SIL Import, USA v M/S Exim Aides Silk Exporters[5] the words “notice in writing”, in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. The Supreme Court observed: “A notice envisaged u/s 138 can be sent by fax. Nowhere is it said that such notice must be sent by registered post or that it should be dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142 was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988.Technologiacl advancements like Fax, Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipments already in vogue and also in store for future. If the court were to interpret the words “giving notice in writing” in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process will fail to cope up with the change of time. So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by Fax, it would be compliance with the legal requirement”.

Thus the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology. It must be noted that a notice by e-mail can be send instantaneously and its delivery is assured and acknowledged by a report showing the due delivery of the same to the recipient. This method is more safe, accurate, economical and lesser time consuming as compared to its traditional counterpart, popularly known as “Registered A.D”.

In Basavaraj R. Patil v State of Karnataka[6] the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. Once again, the importance of information technology is apparent. If a person residing in a remote area of South India is required to appear in the court for giving evidence, then he should not be called from that place, instead the medium of “video conferencing” should be used. In that case the requirements of justice are practically harmonised with the ease and comfort of the witnesses, which can drastically improve the justice delivery system.

In State of Maharashtra v Dr.Praful.B.Desai[7] the Supreme Court observed: “The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the “presence” of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per “procedure established by law”. The advancement of science and technology is such that now it is possible to set up video conferencing equipments in the court itself. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable”.

This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to “territorial distances” or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice.

The above discussion shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice. Thus, it can be safely concluded that the “E-justice system” has found its existence in India. It is not at all absurd to suggest that ODRM will also fine its place in the Indian legal system very soon.

IV. Online Dispute Resolution

The ADR mechanism can be effectively used to settle online disputes by modifying it as per the need. It is time effective and cost efficient. It can also overcome the geographical hurdles. However, there are certain issues revolving around ADR mechanism like need for personnel with knowledge of IT, ADR and law; technical concerns; legal sanctity of proceedings; industry support etc. But these hurdles are just a passing phase. The use of ADR mechanisms for resolving online disputes is increasing day by day. A number of web-sites provide for some type of online dispute resolution method like arbitration, negotiation, mediation etc. and also certain conflict management services. These services fall into the general categories of complaint handling, negotiation, mediation and arbitration. These services will be in great demand in the future since the 1996 Act has given paramount importance to “party autonomy” by accepting the intention of parties as a platform for dispute resolution. Thus, what law will be applicable will depend on the intention of parties. If the parties have adopted the mechanism of ODRM then it will definitely apply with necessary minor modifications. The language used in various sections of the Arbitration Act give options to the parties to opt for the procedure as per their agreement during the arbitral proceedings before the arbitrator. So if there is an agreement between the parties with regard to the procedure to be followed by the arbitrator, the arbitrator is required to follow the said procedure. However, this would not mean that in appeal parties can contend that the appellate procedure should be as per their agreement. The appellate procedure would be governed as per the statutory provisions and parties have no right to change the same[8]. It must be noted that party autonomy presupposes the existence of an arbitration agreement. There may be a situation where the parties had not entered into an arbitration agreement. To meet such situations Section 89 of CPC can be invoked. The reason for inserting Sec.89 has been to try and see that all the cases which are filed in the court need not necessarily be decided by the court itself. Keeping in mind the law delays and the limited number of judges, which are available, it has now become imperative to resort to ADR Mechanism as contemplated by Sec.89. There is a requirement that the parties to the suit must indicate the form of ADR, which they would like to resort to during the pendency of the trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act 1996 will apply and that will go outside the stream of the court[9].

V. Conclusion

The need and necessity of ODRM is going to be felt very soon and we must be prepared for the same. A sound techno-legal base must be established in advance. There is a possibility that we may get BPO services in arbitration matters in the distant future. In any case it is also a mandate of Article 21 of the Constitution of India. Art.21 confers a Fundamental Right on every person not to be deprived of his life or liberty, except according to procedure established by law. Such procedure is not some semblance of a procedure but the procedure should be “reasonable, fair and just”, and therefrom flows the right to speedy trial[10]. It cannot be doubted that if the State is encouraging ODRM it is thereby assisting in the attainment of a speedier, economical and convenient justice system. Thus, the sooner ODRM is adopted the better it will be for the nation in general and the justice seeker in particular.

[1] The other methods like conciliation, mediation, etc are also available but arbitration is generally used to resolve the disputes.
[2] Shree Subhlaxmi Fabrics Pvt. Ltd. v Chand Mal Baradia, Civil appeal no: 7653 of 2004.
[3] Justice Bhagwati in National Textile Worker’s Union v P.R.Ramakrishnan, (1983) 1 SCC 228, at p. 256.
[4] Praveen Dalal, “Justice through electronic governance”,
http://legalsolutionsindia.blogspot.com/2005/11/justice-through-electronic-governance.html
[5] AIR 1999 SC 1609.
[6] (2000) 8 SCC 740.
[7] 2003 (3) SCALE 554.
[8] N S Nayak v State of Goa, 2003 (6) SCC 56.
[9] Salem Advocate Bar Association v U.O.I, Writ Petition No.496 of 2002 decided on 25.10.2002.
[10] Hussainara Khatoon (1) v Home Secretary, State of Bihar [(1980)1SCC 81]

Source: Electronic Courts In India

Electronic Governance And Justice In India (2006)

The aim of this article is to analyse the use of information technology by the Apex Court for the purposes of delivering justice in its true and practical perspective. A special reference of the Information Technology Act, 2000 has been made to provide an insight of the possible uses of e-governance for a sound justice delivery system.

I. IntroductionThe World Bank defines e-governance as the use of information and communication technologies by government agencies to transform relations with citizens, business world and other arms of the government. Ever since the creation of Ministry of Information Technology in the Union Government, State and union Territories expressed commitment for providing effective, responsive and transparent citizen governance through the use of Information Technology. E-governance is used as a synonym for an Information Technology driven system of governance that works better, costs less and is capable of servicing people’s needs. It is also broadly defined as the use of Information Technology for efficient delivery of Government services to the people, business world and industry. The term e-governance involves the computerization and networking of all government departments and linking each district and taluka, with the State headquarters. The objective of e-governance in India goes beyond mere computerization of government offices. It fundamentally means changing the way the government operates and implies a new set of responsibilities for civil servants, business world and the public. Plans such as online services will give an average citizen access to Government services, with faster responses at more convenient hours. These services include providing information, collecting taxes, granting licenses, administering regulations and paying grants and benefits. The aim of e-governance is to eliminate middlemen and corruption. Once people know that information could not be monopolized, they would demand access to it[1].II. E-Governance And The Justice Delivery System

The first duty of a court is to do justice. If the “rule of law” has been declared to be a “basic feature” of the Constitution, which cannot be taken away even by exercising the constitutional power of amendment, then “rule of justice” is definitely above it and deserves the status of the basic feature of the constitution. This is so because the concept of justice is wider and is of greater importance than the rule of law because:

(1) The express incorporation of Article 142 in the Constitution of India assures this guarantee. The Supreme Court in exercise of its jurisdiction can pass such decree or make such order as is necessary “for doing complete justice” in any cause or matter pending before it. For instance, the Supreme Court can extend the benefit of its judgment to a case not in appeal[2]. In D.D.A v Skipper Construction Co (P) Ltd[3] the Supreme Court observed that it is advisable to leave this power undefined and uncatalogued, so that it remains elastic enough, to be moulded to suit the given situation.

(2) There may not be any law governing any particular situation, but the justice may require taking of an immediate and inevitable action.

(3) There may be a law, which does not satisfy the present demands and requirements of the society at large.

(4) The mandates of morality require taking of an action, which is normally not taken.

(5) The concept of justice, equity and good conscience may be applicable in a given situation where the law has left a vacuum or is not addressing the problem in hand in an appropriate manner.

Thus, the courts in India to do complete justice invoke the concept of “rule of justice”. This does not mean that one can ignore the concept of rule of law. It must be appreciated that both rule of law and rule of justice must go hand in hand to make the justice system just, fair and reasonable. In today’s world we cannot afford to say that “justice must not only be done but it must also be seemed to be done”. The concept of justice requires that:

(1) it must firstly be done in a just, fair and reasonable manner,
(2) it must be seemed to be done, and
(3) it must be “felt” to be done.Thus, unless this third element of “felt to be done” is satisfied, the concept of justice is not complete because this third element is the most important component of justice delivery system. The public at large in India has a great faith in Indian judiciary and this third element is absolutely essential to maintain and preserve that faith and confidence. A court of law cannot render justice unless the ultimate decision is based on the contemporary law as prevailing in the society. A decision based on an old law, which does not satisfy the requirements of the present situation, and environment should be avoided. In such a situation the efforts of the courts should be to give the law a “purposive, updating and an ongoing interpretation”. This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind[4]. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. Thus, the justice delivery system cannot afford to take the information technology revolution lightly.

III. Legislative Efforts To Bring Technology Revolution

To meet the challenges posed by the information technology, the Parliament has enacted the Information Technology Act, 2000. The aim of the Act is to provide a sound base for e-governance and e-commerce. It must be noted that the e-governance base can be effectively utilized for maintaining a sound justice delivery system. The various requirements, which are inevitable for the smooth functioning of the justice system, are adequately, economically and safely taken care of by the e-governance. For instance, electronic records are legally recognised, digital signatures have been given the status of signature in writing, a notification in electronic gazette is considered to be a valid notification, etc. The following provisions of the Act reflect India’s determination to utilize the benefits of e-governance for judicial purposes:

(1) Legal Recognition Of E-Records – Section 4 provides that where any law requires that information or any other matter shall be in writing or type written or in printed form. Such requirement shall be deemed to have been satisfied if such information or matter is rendered or made available in an e-form and accessible so as to be usable for a subsequent reference. The term e-record means data, record or data generated, image or sound stored, received or sent in an e-form or microfilm or computer generated microfiche[5]. The term e-form, with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, microfilm, computer generated microfiche or similar device[6]. Thus as an alternative to paper based record, e-record has been recognised as a medium of communication and storage of information. Further, if an e-record is authenticated by digital signature, it can be produced as evidence for the inspection of the courts. This arrangement is definitely hassle free and more transparent as compared to traditional methods of record keeping. Further, it is not prone to tampering unlike paper-based record, which is difficult to maintain and has its own limitations.

(2) Legal Recognition Of Digital Signatures- Section 5 of the Act mandates that if any information or any other matter is required by law to be authenticated by affixing the signature, then such requirement shall be deemed to have been satisfied if such information or matter is authenticated by means of digital signature affixed in the prescribed manner. The type of digital signature that shall be used to authenticate an e-record shall be as per the rules that may be framed by the Central Government. The rule may prescribe the manner or procedure to facilitate identification of the person affixing the digital signature. It may also prescribe the safeguards to ensure integrity, authenticity and confidentiality of e-records. Further the rule may provide any other matter, which is necessary to give legal effect to digital signatures[7].

(3) Use In Government And Its Agencies- Section 6 of the Act recognises use of e-records and digital signatures in government and its agencies for filing, issue, grant, receipt or payment of money as an acceptable mode. The Central Government as well as the State Governments is empowered to prescribe the manner and format in which the e-records shall be filed, created, retained or issued. They may prescribe the manner or method of payment of any fee or charges for filing, creation or issue of any e-record.

(4) Retention Of E-Records- Section 7 is an enabling section, which provides that if any law mandates that documents, records or information are required to be retained for any specific period, then, that requirement shall be deemed to have been satisfied if the same is retained in e-form.

(5) Electronic-Gazette- Publication of official gazette in e-form is permitted by Sec.8 of the act. Accordingly, where any law requires publication of rule, regulation, order, byelaw, notification or other matter in the gazette, publication thereof in e-form is permitted. If such publication is made in the e-form, the requirement of publication in the official gazette is deemed to have been fulfilled. When an official gazette is published in printed form as well as electronic gazette, the date of publication shall be the date on which the gazette was first published in any form.

(6) Non-Absolute Right- The provisions of Sec.9 mandates that e-governance, as envisaged in the Information Technology Act, does not confer a right upon any person to insist any Ministry or Department of the Central or State Government or any authority or body to accept, issue, create, retain or preserve any document in the form of e-records or to participate in any monetary transaction in the e-form. Thus, sufficient safeguards have been taken to establish a proper and timely e-governance base.

(7) Possible Uses Of E-Governance- The future of e-governance is very bright. With the help of information technology, the daily matters can be effectively taken care of irrespective of the field covered by it. For instance, the Delhi Police Headquarter has launched a website, which can be used for lodging a First Information Report. Similarly, the Patna High Court has taken a bold step of granting bail on the basis of an online bail application. The educational institutions, including universities, are issuing admission forms electronically, which can be downloaded from their respective websites. The results of examinations of various educational institutions, both school level and university level, are available online, which can be obtained without any trouble. These are but some of the instances of the use of technology for a better e-governance.

The beneficial concept of e-governance can be utilized for the following purposes:

(1) To have access to public documents.

(2) For making online payments of various bills and dues.

(3) To file statutory documents online[8].

(4) To file the complaints, grievances and suggestions of citizens online.

(5) The online facility can be used to enter into a partnership the appropriate government in cases of government contracts.

(6) The citizens can use the online facility to file their income tax returns[9].

(7) The citizens will enjoy the facility of online services.

(8) The various departments of the government can be computerized and centralized and the responsibility for its proper maintenance can be fixed on an agency like National Informatics Centre.

It must be noted that to give effect to these provisions appropriate amendments have been made in the I.P.C, 1860, the Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934.These amendments have made these statutes compatible with the “e-justice system”.

IV. Judicial Reception Of information Technology

The judicial response vis-à-vis information technology is positive and technology friendly.

In M/S SIL Import, USA v M/S Exim Aides Silk Exporters[10] the words “notice in writing”, in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. The Supreme Court observed: “A notice envisaged u/s 138 can be sent by fax. Nowhere is it said that such notice must be sent by registered post or that it should be dispatched through a messenger. Chapter XVII of the Act, containing sections 138 to 142 was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988.Technologiacl advancements like Fax, Internet, E-mail, etc were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipments already in vogue and also in store for future. If the court were to interpret the words “giving notice in writing” in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process will fail to cope up with the change of time. So if the notice envisaged in clause (b) of the proviso to section 138 was transmitted by Fax, it would be compliance with the legal requirement”.

Thus the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology. It must be noted that a notice by e-mail can be send instantaneously and its delivery is assured and acknowledged by a report showing the due delivery of the same to the recipient. This method is more safe, accurate, economical and lesser time consuming as compared to its traditional counterpart, popularly known as “Registered A.D”.

In Basavaraj R. Patil v State of Karnataka[11] the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. Once again, the importance of information technology is apparent. If a person residing in a remote area of South India is required to appear in the court for giving evidence, then he should not be called from that place, instead the medium of “video conferencing” should be used. In that case the requirements of justice are practically harmonised with the ease and comfort of the witnesses, which can drastically improve the justice delivery system.

In State of Maharashtra v Dr.Praful.B.Desai[12] the Supreme Court observed: “The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the “presence” of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per “procedure established by law”. The advancement of science and technology is such that now it is possible to set up video conferencing equipments in the court itself. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable”.

This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to “territorial distances” or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The testimony of a witness can be recorded electronically the access to which can be legitimately and lawfully denied by the Courts to meet the ends of justice.

Once again the safety of victims and the witnesses through the use of information technology was recognised by the Supreme Court in Sakshi v U.O.I[13]. The Supreme Court in this case observed: ” The whole inquiry before a court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. Section 273 Cr.P.C merely requires the evidence to be taken in the presence of the accused. The section, however, does not say that the evidence should be recorded in such a manner that the accused should have full view of the victim or the witnesses. Recording of evidence by video conferencing has already been upheld. Moreover, there is a major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice with the parties. Thus, in holding trial of child sex abuse or rape a screen or some arrangements may be made where the victim or witness (who may be equally vulnerable like the victim) do not see the body or face of the accused. Recording of evidence by way of video conferencing vis-à-vis Section 273 Cr.P.C is permissible”.

The above discussion shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice.

V. Conclusion

The advent of information technology has changed the mode of working of almost all the spheres of the life. The justice delivery system has also been benefited by this technological revolution. It must be noted that one of the cardinal rule of interpretation is that the Parliament intends the Courts to apply an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. An enactment of the former days is thus to be read today, in the light of the dynamic processing received over the years. The Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that fundamental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court[14]. This valuable and golden rule of interpretation has been properly appreciated and adequately applied by the Indian judiciary in the context of information technology. Thus, it can be safely concluded that the “E-justice system” has found its existence in India.

End Notes

[1] Anupama Katakam; ‘Information Technology: Towards E-Governance’, The Frontline 78, 10th December 1999.
[2] Manganese Ore v Chande, AIR 1991 SC 520.
[3] AIR 1996 SC 2005.
[4] Justice Bhagwati in National Textile Worker’s Union v P.R.Ramakrishnan, (1983) 1 SCC 228, at p. 256.
[5] Sec.2 (1) (t) of IT Act, 2000
[6] Sec.2 (1) (r) of IT Act, 2000
[7] Sec.10 of IT Act, 2000
[8] Recently the SEBI has allowed filing of specified documents online by the listed companies vide, SMD/Policy/Cir-17/02 dated 3rd July 2002.
[9] Assessment year 2002-03, the bulk filing of returns of the employees by the employer on computer readable medium has been recognised by Sec.139 (1A) of the Income Tax Act.1961.
[10] AIR 1999 SC 1609.
[11] (2000) 8 SCC 740.
[12] 2003 (3) SCALE 554.
[13] (2004) 5 SCC 519.
[14] P.U.C.L v U.O.I, (2003) (3) SCALE 263.

ICT Strategy in India: The Need Of Rejuvenation By Praveen Dalal (2006)

The aim of this article is to discuss the benefits of use of Information and Communication Technology (ICT) for the overall development of India. The article is also trying to analyse the weaknesses of Indian ICT strategy and policies and the possible arenas and segments that may be included into it to make it a globally competitive and efficient utility.

I. Introduction

In the present globalised and decentralised world, India cannot afford to keep its economy closed and secluded. Thus, an interaction between Indian economy and world’s economy is inevitable. That is not a big problem. The real problem is to make Indian economy an efficient and competitive economy. Though there are many indicators for measuring the strengths and weaknesses of an economy, but the ICT strategy of a nation is very crucial to put it on a global map. It is very important that the ICT strategy and policies of a nation must not only be suitable but should also believe in a “holistic application and implementation”. The ICT strategy and policy of a nation cannot afford to keep the different components of ICT separate. Their amalgamation and supplementation must be done at a priority basis otherwise the ICT strategy and policy will not bring the desired results. The present ICT strategy and policies of India are deficient and defective.This is so because most of the components required to make it a transparent, accountable and suitable strategy or policy are missing. The major among them are:

(a) Non-use of Public Private Partnerships (PPPs),
(b) Absence of use of “collective expertise”,
(c) Lack of gender sensitive policy,
(d) Lack of security and technological safeguards,
(e) Lack of a techno-legal base in India,
(f) Absence of ICT use for justice administration,
(g) Inappropriate focus on cyber forensics and aggressive defense, etc.

II. The Analysis

The use of Information and Communication Technology (ICT) has a social aspect as well. India being a Welfare State, the social structure cannot be given a complete go bye. This makes the analysis of ground reality of India inevitable keeping in mind the socio-economic, political and social conditions prevailing in India. The biggest problem with Indian ICT strategies and policies is that “localisation” and “Indianisation” are missing. We cannot blindly adopt and superimpose foreign models and ideas. They are bound to be a big flop show if we ignore the grass-root problems existing in India. Emphasis must be laid down upon solving the local problems by using local solutions.

Let us now analyse various components and perquisites of a sound ICT strategy and policy of India and see how far India is fulfilling the same. These are:

(a) Gender Sensitisation

One of the ignored ICT issues is the “gender sensitisation” that must be adopted while formulating and implementing the ICT policies in India. It is commonly understood that men and women understand and use Computers and Internet differently. Thus, the policy decisions must make sufficient provision for adopting itself with this aspect. Within India also we must understand that the training, use and adoption of ICT must be “gender neutral”. For a gender neutral technology we have to first place the women on an equal platform. They cannot be put on an equal platform till they have equal capacity and opportunity to use ICT. They cannot also effectively use ICT till their “feedbacks and concerns” are incorporated in the National Policies including the E-governance plans.

The position is worst when it comes to women that also rural women. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. It must be appreciated that a nation that does not respect its women cannot be described as a civilised nation at all. Such a nation cannot grow and develop and will ultimately perish due to its own rudimentary and tyrannical dogma. Thus, the national consensus should concentrate on betterment of women by suitably empowering them. The plight of the women, however, cannot be improved till they are duly represented in the “power structure” of the nation. In a democratic country the voice of women can be heard only to the extent they are sharing the power structure in the supreme governance of the country.Thus, ICT can play a major role in women empowerment if they are provided employment opportunities at the village level after providing them suitable training. We have to open more village kiosks so that greater women participation can be there. This cannot happen till we first make the e-governance and ICT strategies and policies transparent and accountable. Mere computerisation is not e-governance. Further, the ICT grant goes into crores of rupees, pocketed out of public money, which is sufficient to bring India on the map of an ICT leader. The citizens must liberally use the provisions of Right to Information Act, 2005 (RTIA-05) to ask for an account of every single rupee granted for the development of ICT and e-governance in India. No ICT and e-governance plan is bound to succeed till the Government is both accountable and transparent for the public funds used for that purpose. Till the Government is sensitive to these mandates of accountability and transparency nothing will change in India. Alternatively, we need a “CIVIL REVOLUTION” where the public must demand accountability and transparency from their representatives. After all they are representing us and are working for our betterment. A list of all ICT initiatives of the Government must be prepared along with the amount of funds allotted. Then a regular appraisal must be made to determine how much amount has actually been spent for the allotted purpose.

(b) Collective Expertise

The problem with Indian version of ICT development is that the adopted strategies and planning in this regard are not only unscientific but equally unproductive. It seems the concept “disguised unemployment” aptly applies while selecting various experts for meeting this job. Instead of a homogeneous group of experts who can substantiate and supplement a sound ICT planning and strategy, the preference is given to selective experts of a single type. The selection of experts must be made from all the respective fields so that a holistic picture can be produced. It is absurd to select a panel consisting of members falling under a single category. This not only results in a higher rate of investment and learning cost but equally the success rate is almost missing. Thus, instead of sanctioning of a huge budget in the form of “e-governance initiatives” the same must be first bifurcation on a scientific basis. Different units and stages of a project must be financed independent of each other. Another area of concern is the lack of transparency and co-ordination in the governmental functioning. The government experts do not wish to allow any external expertise and “public participation” is a rare sight there. Though, the face saving exercise of inviting “public comment and suggestions” is often followed in India but by and large that remains an empty formality.Another area of concern is that the government, for reasons best known to it, does not wish to wither away its traditional mode of functioning and any new innovation, technology and effective measure is protested and guarded against as an “alien enemy”.For instance, the IT Act, 2000 was enacted in the year 2000. After the lapse of almost 6 years we have no effective infrastructure for either e-governance or e-commerce. The will seems to be missing here. The government is also fond of cautious approach and it prefers to adopt foreign models instead of finding and applying the grass root level solutions. It is difficult to digest that developed countries standards can suit Indian socio-economic conditions. India must actively come forward to encash the benefits of ICT with a scientific and systematic approach. It should neither blindly follow foreign models nor wait for things to happen by miraculous chance. The fill in gap actions need to be avoided and something original must be tired. The endeavour of the government should be maximum happiness for maximum people. However, what I strongly endorse is that we cannot have a fruitful result till all of us join our expertise in respective fields so that a holistic picture can be provided. In my opinion, whenever we have to discuss a problem regarding e-governance, we must start the ball rolling and take views of respective experts in different fields. For instance, whenever an ICT issue arises, the people involved in the technical, administrative, legal, social fields etc must share their respective views regarding that. A collective work must be finally produced before the government so that more pressure can be put upon the government. This way we will have a holistic picture of the same. If we take just legal perspective, then it is useless. The same rule applies to other fields as well. It is high time that we must express ourselves as a “collective expertise” rather that “individual expert”. The existence of the former will be very difficult for the Government to deny.

(c) An Ideal Public-Private Partnership

The Public-Private Partnership (PPP) is the key to Indian ICT initiatives provided that the process is not limited to selective experts only. We should choose a homogeneous group of experts who can substantiate and supplement a sound ICT planning and strategy rather than giving preference to big companies. In India the Government plays the card of PPP with big companies only and individual expertise is never seeked. The blind trust upon big companies to the exclusion of the “real individual experts” is the worst nightmare for India ICT strategies and policies. This nightmare comes true repeatedly and frequently in the form of “censorships” of Internet and other ICT mediums in the absence of “techno-legal experts” to manage the same in a legal and constitutional manner.11 This shows that the Government’s present PPPs is nothing more than a “marriage of convenience”. It do not wish to go further and invite experts who can manage situation like these. The present Internet Service Providers (ISPs) in India do not even know the blocking procedure of a “single site” and in the absence of a techno-legal knowledge they end up in blocking the entire domain. The recent blocking of “Blogspot” is a classical example of the same that has not yet been fully restored. This blocking episode happened for the second time and keeping in mind the present “expertise” of Government and ISPs we can expect another one very soon. The Government do not wish to learn lessons from its mistakes and this forces it to exhibit a “knee-jerk” reaction to difficult situations. The Government must acquire expertise in “crisis management” and for that it needs “techno-legal experts” rather than surrendering the ICT policies to few big corporations. The government experts must also consider external expertise and “public participation” should be a common feature. Though, the face saving exercise of inviting “public comment and suggestions” is often followed in India but by and large that remains a mere formality. It must be appreciated that India is the leading producer of talent in the ICT field. If we have such a large talent pool, it is ironical that we still are struggling to produce a world class ICT and e-governance infrastructure. Even a layman may sometimes provide valuable inputs. The need of the hour is to consolidate and consider the “public inputs” and not to ignore them. The public comments and suggestions must be cateloged and indexed properly as they are the voice of the nation. Till now I have not seen even a single Government Department or initiative that has shown a positive and justice oriented attitude towards various public inputs. I am not aware when was the last time the Government came out with a draft or document containing public inputs. It seems the will is missing in India. I hope the concept of Public-Private Partnership will get its deserving share in India and its applicability and scope will not be limited to the privileged segments only.

(d) Security Mandates

India is on the verge of a technology revolution and the driving force behind the same is the acceptance and adoption of ICT and its benefits. This technology revolution may, however, fail to bring the desired and much needed result if we do not adopt a sound and country oriented ICT strategy. A sound ICT policy presupposes the existence of a sound and secure ICT base as well. IT is a double edge sword, which can be used for destructive as well as constructive work. Thus, the fate of many ventures depends upon the benign or vice intentions, as the case may be, of the person dealing with and using the technology. For instance, a malicious intention forwarded in the form of hacking, data theft, virus attack, etc can bring only destructive results. These methods, however, may also be used for checking the authenticity, safety and security of one’s technological device, which has been primarily relied upon and trusted for providing the security to a particular organisation. In fact, a society without protection in the form of “self help” cannot be visualised in the present electronic era. It is good to see that Government is advocating the e-governance plan in India but the big question is what it has done to make it secure and adaptable to international standards. For instance, every bank is claiming to be providing “Internet banking facilities” but how many banks have complied with the techno-legal requirement as prescribed by the IT Act, 2000 and the Reserve Bank Guidelines. It is very important to bring in place the security mechanisms so that the Banks and other players may establish due diligence in this regard. The due diligence requirement is very stringent and the criminal sanction behind this is too harsh to be ignored. Further, the Government has also not considered the legal risks associated with e-commerce. They are too numerous that their continued ignorance may cost India the valuable foreign revenue. Another area of concern is the use of alternative means to carry cash. Nowadays it is common practice to use Credit cards, Debit cards, ATM Machines, etc. It is very important to use preventive measure for securing these alternative means of carrying cash. The need of security mechanisms is very pertinent and if ignored may make India a safe heaven for cyber crime and misuse of ICT. The e-governance initiatives of India, if proved successful, would again cause lot of troubles in the absence of security mechanism at place. The moment computers will be linked to Internet, an unsecured and unsafe ICT base will collapse. I hope the recent budget of Rs 23,000 crores also carries some portion for the security purposes as well. Otherwise, that will be a pure wastage of not only that amount but also the amount that has to be spend to neutralise the damages to the ICT base due to unsecured and unprotected computer systems.

(e) The Governmental Apathy

The best instance of a sound ICT and e-governance base is a hassle free communication between the Government and its citizens. The same can be effectively done if the e-mail allotted to various Ministers and Government officials are accessed at least once a weak. Any person who has communicated with the Government or its officials through e-mails can testify that the Government and its officers are adamantly negligent in responding back. For instance, the majority of Government officers at Ministry/Department of Information Technology are very negligent in responding back. The Government as well as their officers are “Public Servants” and they must coordinate and cooperated with their citizens. However, the response at DIT/MIT is not only pathetic but also against the very ideal they are promoting, i.e. e-governance. Thus, it seems the inverse relationship of e-governance is applicable in its extreme rigours at DIT/MIT. A nation can develop at the fastest speed if we have capable and public interest respecting personnel manning various Government departments. If the premier department responsible for providing a sound ICT base in India is so indifferent and lethargic to public communications then we have no right to claim ourselves as an ICT oriented nation.

(f) Judiciary and ICT base

The increasing backlog of cases is posing a big threat to our judicial system. The same was even more in the early 90 but due to the computerisation process in the Supreme Court and other courts that was reduced to a great extent. However, the backlog is still alarming. This is because mere computerisation of Courts or other Constitutional offices will not make much difference. What we need is a will and desire to use the same for speedy disposal of various assignments. There is a lack of training among Judges regarding use of Information Technology (IT). We need a sound training of Judges first before we wish to capatilise the benefits of IT. A good initiative has already been taken by the Supreme Court. However, the same appears to be dormant for the time being. Thus, we need a public initiative as well. The resource titled “Electronic Courts in India”∗ is making a database of different situations that the Courts may face while discharging the judicial functions. As far as the computerisation is concerned, the Judges of all courts in Delhi have their own computers that are as per the latest configurations. However, the need of the hour is greater than mere computers providing. For instance, there was a proposal in the Delhi High Court where every computer of the concerned Judges was to be connected to the Central computer. Thus, whenever something is typed it would automatically go to the central computer and from there we can have the “Certified copies” of the concerned documents. That proposal has been applied to a greater extent and now it is much easier to get the certified copies. Further, cause lists, name of the Judges, Court numbers, name of the lawyers, etc are all available on the Internet. That has also facilitated the speedier disposal of cases. However, we need more. We need a complete utilisation of ICT for the effective disposal of cases and witness protection. For instance we can use the facility of “Video Conferencing” on alarge scale. Presently, it is used in some cases. We can use the concept of electronic governance for Witness protection. We can use the medium of Internet for filing of cases, bail applications, serving of notices, etc. These are some of the issues that are above mere computerisation. With the present pace, it may take at least 10 more years to be adopted. If we all take some pain and provide our own contributions that that task may be achieved within 1 year. Then another concern is regarding the security of the ICT infrastructure. We can provide the concerned officer with the necessary training but it is very difficult to make them technically aware about the security aspects. Thus, a technological base must also be established at the Court that may provide the security inputs to the Courts. A special attention must be paid to the Cyber Forensics aspect. It is useful for the Investigative, Prosecution and the judicial authorities. The real problem is not the functioning/management part but the procedural part. The procedural laws like Code of Criminal Procedure, 1973, Code of Civil Procedure, 1908, Indian Evidence Act, 1872 are too cumbersome that lot of precious years of parties are wasted. At this point we can use the ICT to speed up and streamline the judicial system. The first step is to lay down a foundation for e-governance and then we must effectively use the ICT for the betterment of Indian Judicial system. We have to cover a long distance yet because mere computerisation will not serve any purpose. If we have to succeed we have to learn to digitise papers and provide free and easy access to the litigants and other players involved with the system. We must learn how to establish a base for electronic filing, how to use e-mails and chatting systems for serving notices, summons and warrants and how to get the presence of the crucial witnesses through video-conferencing, etc. The safest bet is for the witness who can be sufficiently protected from the retaliatory tactics of the offenders by an active use of ICT base. Let us hope that these initiatives will be adopted very soon.

(g) A Holistic Approach Is Needed

A sound and efficient ICT base cannot be established in India till that nation at large wish it to be so. It is neither the sole prerogative nor the sole responsibility of the Government alone. The citizens, companies, NGOs, etc must come forward to contribute their part if the Government allows them to do so. The media plays an important role in the overall development of a nation. The same equally applies to India as well. It brings the irregularities, corruption and illegalities in various governmental and public dealings. It is a benign function that must be continued with a precaution that none should be personally attacked or there should not be a “news making”. I still remember the “sting operation debate”. We cannot take an “extreme view” in any circumstances. Every situation has positive and negative aspect. If we mention about the positive aspects only ignoring the negative one, then we would be failing our duty. Similarly, if we mention the negative aspects only bypassing the positive one, then we would be demolishing the very institution against which we are leveling the allegations. Thus, a holistic approach in every perspective is the need of the hour.

(h) E-Governance And Informational Rights

Transparency, accountability and authenticity (TAA) are the pre-requisites for good governance. These are, generally, not found in a “traditional paper based” governmental functioning. That is why use of ICT, in the form of e-governance, in governmental functioning assumes significance. Thus, e-governance can not only ensure “TAA” but equally makes Right to Information U/A 19(1)(a) and Right to Know U/A 21 of the Constitution of India a meaningful reality. The right to impart and receive information is a species of the right to freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution of India. A citizen has a Fundamental Right to use the best means of imparting and receiving information. The State is not only under an obligation to respect the Fundamental Rights of the citizens, but also equally under an obligation to ensure conditions under which the Right can be meaningfully and effectively be enjoyed by one and all. Freedom of speech and expression is basic to and indivisible from a democratic polity. The right U/A 19(1) (a) is, however, available only to the citizens of India and non-citizens can claim only right to know U/A 21 of the Constitution of India. Recognising the right to information (RTI) of “citizens” of India, the IT Act, 2000 and RTI Act, 2005 (RTIA-05) have been enacted. The RTIA-05, if implemented properly, could prove a boon for the e-governance initiative because the required information can be asked for and provided by using the e-governance base. The following provisions of the IT Act, 2000 reflect India’s concern to bring transparency in the functioning of governmental affairs through e-governance:

(a) Legal recognition of electronic records (section 4),

(b) Legal recognition of digital signature (section 5),

(c) Use of electronic records and digital signature in governmental dealings (section 6),

(d) Retention of electronic record for certain period (section 7),

(e) Establishment of electronic gazette (section 8), etc. However, these provisions provide only a non-absolute right to claim a sound e-governance base (section 9). The beneficial concept of e-governance can be utilised for the following purposes:

(1) To have access to public documents.
(2) For making online payments of various bills and dues.
(3) To file statutory documents online.
(4) To file the complaints, grievances and suggestions of citizens online.
(5) The online facility can be used to enter into a partnership the appropriate government in cases of government contracts.
(6) The citizens can use the online facility to file their income tax returns.
(7) The citizens will enjoy the facility of online services.
(8) The various departments of the government can be computerized and centralized and the responsibility for its proper maintenance can be fixed on an agency like National Informatics Centre.

This sort of arrangement will definitely help in establishing a better state-citizen relationship. It will further, result in bringing transparency in governmental functioning as the RTIA-05 is providing right to citizens to ask for matters pertaining to governmental functioning.

III. The Expected ICT Strategy In India

The use of ICT, including e-governance, has the potential to turn a Developing Nation into a Developed Nation. The same is not only possible regarding India but will also be her ultimate destiny. However, mere empty words and deficient policies will not serve any purpose. We have to be dedicated and committed towards that objective. Till we make the Government and bureaucracy accountable and transparent nothing can happen in India. The key to achieve that purpose is “e-governance” that has the potential to eliminate corruption and bring order of the day within the Governmental functioning. Strangely enough, the concept of e-governance operates in a peculiar and inverse manner. It has not only the potential to bring transparency but also the capacity to breed corruption. It has the potential to bring transparency and eliminate corruption if we adhere to it in its true letter and spirit. It can be an undefeatable tool of corrupt practices if there is no accountability and transparency and the benign concept of e-governance is used as a façade to misappropriate public money by acting in papers only. There is a big gap between what must be done and what is actually done. Thus, there is a dire necessity of making the Government and the persons manning various Departments accountable and make their functioning transparent and fair. One of the tools that can be used to bring that result is the use of Right to Information Act-05 (RTIA-05) along with e- governance. The success of India’s ICT agenda depends upon few inevitable factors. These are:

(1) Transparency in dealings,

(2) Citizen centric interactions,

(3) Enforcement of RTIA-05 in its true letter and spirit,

(4) A sound e-governance and e-commerce base,

(5) Decentralised activities, etc.

Till now, we have none. The ICT is meant for the citizens at large and not government. If its benefits cannot be availed of by the common man, there is no use of merely following the tag of “technologically advanced country”. The net effect of any project must be evaluated. E-governance is not computerisation alone but an effective utilisation of Information Technology for the common benefit of public at large. The marginalised and deprived people cannot be benefited from this ICT drive till they are first provided with the basic needs that can keep their body and soul together. Let me share my personal experience with you. Once I was explaining the benefits of e-governance to a poor person. He kept on listening and then he asked me a question that I could not answer. You might be guessing what was that question? He asked me whether this Internet and computer can “download” a “roti”? I was clueless and immediately realised that we have to work in a systematic and scientific manner so that the computer can download a “roti” for all. We can afford to allow unemployment to exist if we can feed our entire population. But we cannot afford to allow even a single person to die of hunger, much less by committing suicide due to starvation, by giving priority to e- governance initiatives. This is the bitter truth that we must accept. For a successful ICT project technology plays only 15% role, while rest 85% role is being taken care of by project management. Human resource development of the existing workforce in order to inculcate appropriate skills and attitudes is a critical factor. Equally important is the establishment and set up of the basic infrastructure, which is conducive to the efficient functioning of the e-governance. A sound communication infrastructure is essential for easy access. It should be innovatively used to ensure that no section of society is deprived of the benefits arising therefrom. Governments have to learn to digitise documents quickly and effectively so that the ICT revolution becomes a reality in India.

Source: UNPAN And UN.

Background Information: This article was picked up by UNPAN in 2006 from http://cyberlawindia.blogspot.com/2006/07/ict-strategy-in-india-need-of.html. Other Blogs Of Perry4Law Organisation (P4LO) have also been cited in this articles that were operational in 2004 but are now restricted and are not available for public view. These include:

(1) http://perry4law.blogspot.com/2006/07/freedom-of-speech-and-expression-in.html,

(2) http://legalsolutionsindia.blogspot.com/2006/04/collective-expertise-need-of-hour.html,

(3) http://cyberforensicsinindia.blogspot.com/2006/03/preventing-cyberspace-violations-by.html,

(4) http://cyberlawindia.blogspot.com/2005/12/nternet-banking-and-its-challenges-in.html,

(5) http://indian-judiciary.blogspot.com/, etc.

In 2006, E-Courts Project was shifted to Perry4Law.Com website and these Blogs were restricted for public view. In 2008, PTLB.In and Perry4Law.Org websites were launched to strengthen ODR and E-Courts Projects. In 2012, ElectronicCourts.In was launched for specific requirements of E-Courts of India and E-Courts 4 Justice (EC4J) Project was launched in 2014 as part of these E-Courts Projects of P4LO that were in operation since 2004.

E-Courts In India: An Essential Judicial Reform Ignored By NeGP And Digital India (2009)

Editorial: This article has been originally written in the year 2009 by Praveen Dalal. It has been updated from time to time with latest time stamp. However, it has not been updated since 2016 at original source and we would update it there soon. However, we have updated the date at this blog. 

E-Courts is a crucial project under both National E-Governance Plan (NeGP) and Digital India. E-Courts project has also faced similar treatment and outcomes under both Congress and BJP Governments. Nevertheless, E-Courts project was better managed by Congress Government than BJP Government for two reasons. Firstly, all developments regarding E-Courts have taken place so far because of Congress Government and BJP has not contributed anything in this regard. Secondly, unlike BJP Government, Congress never imposed Controversial projects like Aadhaar that has become the exploitation tool of BJP Government.

E-Courts project is still at the same stage where Congress left it in the year 2014. The second stage of E-Courts is supposed to take another 3 years coinciding with the term of BJP Government i.e. till 2019. Naturally Digital India has little to offer in this regard as we are still waiting for the establishment of “First E-Court of India” till January 2019. The same would not be established till the end of 2019 as BJP Government has not shown any “Political Will” and “Implementation Capabilities” in this regard in the past five years. 

Implementation of Information and Communication Technology (ICT) in Indian Judiciary and in Indian Courts needs rejuvenation. The successful use of e-governance for Indian e-judiciary model requires a techno-legal e-court framework. We need ICT Training and e-courts training for Indian Judicial System as soon as possible. Further, electronic courts in India must also be supported by active use of online dispute resolution (ODR) in India to reduce backlog of cases. Legal enablement of ICT systems in India is need of the hour.

Establishment of E-Courts in India is an important aspect of judicial and legal reforms in India. However, despite this pressing need India has been doing nothing in this regard except giving press statements since 2003. Till January 2019, we are still waiting for the establishment of first e-court in India. E-Courts in India cannot be established till we have experts who can manage this ambitious e-governance pilot project. Similarly, we also need to train judges and lawyers regarding not only e-courts but also for laws like cyber law and telecommunication laws. India has to do much more than mere press statements and opening of e-courts on “papers only” if it really wishes to encash the benefits of Information and Communication Technology (ICT) for effective, speedier and constitutional justice delivery system. The ICT Trends of India of Perry4Law Organisation (P4LO) have proved that Indian e-governance initiatives like E-Courts, E-Bharat, etc have failed due to lack of proper training, management and insight.

The current litigation system of India is not only antique in nature but has become cumbersome and time consuming as well. The backlog of cases is increasing day by day affecting the outcome of various cases. There is an emergent need of judicial and legal reforms in India so that courts in India can meet the expectations of the 21st Century. This has to be done by maintaining a stance that preserves the courts reputation and supports the courts critical role in maintaining public confidence in the protection afforded to them by the law.

The public confidence in the Criminal Justice System of India is declining and the same has forced the Government of India (GOI) to bring this issue right back to the top of the political agenda. Its aim is to cut crimes by increasing the number of criminals brought to trial and reducing the time taken to complete the legal process.

However, if the courts have to keep in step and play their part in restoring public confidence in the legal system then they must find new ways to improve the efficiency and effectiveness of their operations. Information and Communication technology (ICT) can be a panacea for the dying judicial system of India. We can effectively use ICT for establishment of E-Courts in India so that E-Judiciary in India can be a reality.

However, the task is really difficult to achieve because of lack of expertise, techno-legal training and absence of time bound performance. Every year in the month of February, the tenure of E-Courts Committee is extended for another year. This shows there is a lack of Political Will to achieve the task as merely extending time for another year without performance report and accountability is just a pretext to avoid the ultimate accomplishment, i.e. establishment of E-Courts in India.

The fact remains that despite all glamorous conferences, catchy phrases and public announcements, we do not have even a single E-Court in India and there is not even a single case that has been filed, contested and finally adjudicated through an E-Court System in India till January 2019. Where those claimed E-Courts are and what cases they had adjudicated is still a big mystery.

It seems India is just making press statements years after years and courts after courts about establishment of E-Courts in India without actually establishing and operationalising them. The task of their establishment and operationalising cannot be accomplished till we honestly and dedicatedly try to achieve the same. Till now India is just adopting the half hearted efforts and evasive approach.

The establishment of E-Courts in India requires certain prerequisites. These are:

(1) E-Courts Policy: Setting Policy for various aspects of E-Courts is the first and foremost requirement. In the absence of a well defined and pre decided framework, no direction can be given to the E-Courts scheme of India.

(2) Connectivity: Creating an interconnected system across all court levels is an important aspect of E-courts. The District Courts in India must be connected with High Courts and Supreme Court for better, timely and effective disposal of cases.

(3) Simplicity And User Friendly: E-Court mechanism must be not only simple but also be user friendly. The litigants must find the e-Courts facilities in India very easy to adopt.

(4) Scope: In India we consider mere computerisation as establishment of E-Courts. In reality, E-Courts is much broader than mere computerisation and filing facilities.

(5) Authentication: Authentication plays an important role in fixing attribution and legal responsibility. There must be a “Technology Neutral Mechanism” to authenticate various stages of E-Courts usages.

(6) Integrity: E-Courts must ensure integration among court and justice systems.

(7) Security: Security of E-Courts Infrastructure and System is of paramount importance. A system must be put in place that provides secure access to case information for appropriate parties

(8) Data Keeping: All the information regarding use of E-Courts facilities must be duly recorded and stored. These include maintaining proper records of e-file minute entries, notification/service, summons, warrants, bail orders, etc for ready and subsequent references.

(9) Payment Gateway: A secure, efficient and fully operational payment gateway must be established so that various payments and fees regarding court cases can be made online.

(10) Absence Of Monopoly: The E-Courts Project must not be given to a single vendor. Instead the E-Court Committee of India must adopt a multiple vendor approach.

In the opinion of Perry4Law Organisation (P4LO), this list is just “Illustrative” and not exhaustive. Establishment of and maintaining the E-Courts Project in India requires a Techno-Legal approach including getting expertise of matters pertaining to Cyber Security, Cyber Forensics, Digital Evidencing, Prison Reforms, and many more aspects.

INDIAN E-COURTS PROJECT UPDATES OF 2019

India has limited E-Court Infrastructure and we are still waiting for the establishment of First E-Court of India till January 2019.

Source: Legal Enablement Of ICT Systems In India.

Reconstruction Of Records, E-Courts And Right To Fair Trial In India (2013)

There are circumstances where the records of police and judicial authorities may go missing or are destroyed beyond redemption. In such a case, proceeding with the concerned court case is next to impossible.

If the records of the proceedings are destroyed due to natural calamities and their reconstruction is not possible, then the court has no other option but to acquit the accused.

The traditional record keeping has this serious drawback that is absent when we adopt information and communication technology (ICT). For instance, if electronic records are maintained, the reconstruction of lost or destroyed records is just a click away.

Establishment of e-courts in India is of prime importance in the present ICT driven era. However, till the month of March 2013 we are still waiting for the establishment of first e-court of India. Digital preservation in India is also not in good shape.

If a guilty person is acquitted due to inability to reconstruct the records or an innocent is convicted due to defective reconstruction of records, this would amount to miscarriage of justice and violation of right to fair trial. Therefore, proper reconstruction of records is of utmost importance.

In a latest case in this regard, a Division Bench of Delhi High Court, comprising of Chief Justice D Murugesan and Justice VK Jain, has directed a District and Sessions Judge to “reconstruct” within two weeks the records pertaining to a 20-year-old rape case, in which judicial and police files went missing. The bench also directed for appropriate action against the officers responsible for missing of the files.

The bench further ordered for setting up a committee to examine the practices and systems prevailing in the matters of custody and maintenance of court records. At Perry4Law and Perry4Law’s Techno Legal Base (PTLB) we welcome this move of the Delhi High Court as it is progressive in nature and justice oriented.

We also feel that an electronic record is not only durable but can be easily stored as well. It must be noted that in majority of cases the witnesses do not come forward to give evidence and many important pieces of evidences are lost forever. This results in acquittal of the accused and a miscarriage of justice.

Source: Legal Enablement Of ICT Systems In India.