TL: You have been critical of the Supreme Court assuming more administrative powers over High Courts and the district judiciary. Why do you think our Constitution framers did not visualise the Supreme Court exercising administrative powers over High Courts and District Courts?
Ans. Well, provisions like Article 235 which give High Courts the power to administer the district judiciary were lifted in entirety from the Government of India Act, 1935. There was no real demand or discussion on giving these powers to the Supreme Court of India (the debates can be accessed here). This is unlike other countries, for example, the United States where each state has its own judiciary in addition to a federal judiciary. The Chief Justice of the U.S. Supreme Court is the judicial and administrative head of the entire federal judiciary. The Constituent Assembly preferred to continue with the system which existed pre-independence wherein the Federal Court was at the apex of the judicial system with its judgments binding on all High Courts but decentralising judicial administration to the level of High Courts.
TL: Why do you think that the Supreme Court’s judgment in the Second Judges case led to this phenomenon of the Supreme Court assuming more administrative powers? Was it an accidental by-product of that judgment? Considering that most of the Supreme Court judges had served in High Courts, and some of them in District Courts as well, why should they weaken them, once they are elevated to the Apex Court. Is it not illogical?
Ans. Actually, this trend started earlier, with the All India Judges Caseswhere the Supreme Court started passing expansive judicial orders regarding the working conditions of the district judiciary after the All India Judges Association filed a PIL. The court faced significant resistance from the Union Government and that led to the second AIJS case in 1993, coincidentally in the same year as the Second Judges cases created the collegium.
It is important to remember that these cases came around a decade after the Supreme Court first tasted executive power through the PIL route. What followed was the old adage of how ‘power begets power’. Through the nineties and the decades that followed, the court expanded its own powers with reckless abandon. Such expansion of power is not illogical. The history of politics shows us how powerful monarchs or institutions, be it Julius Caesar or the East India Company tend to appropriate more and more power for themselves until they are ruined by their own ambition or a counter-revolution. A key aim of modern constitutionalism is to keep political power in check through doctrines like the separation of powers and federalism. The drafters of our Constitution never dreamt of the Supreme Court using provisions like Article 142 to launch a de facto constitutional coup of sorts.
“The drafters of our Constitution never dreamt of the Supreme Court using provisions like Article 142 to launch a de facto constitutional coup of sorts.”
TL: The e-Committee of the Supreme Court oversees one of its ambitious projects. It was established in 2004 to assist the CJI in formulating a national policy on computerisation of the Indian judiciary and advise on technological, communication and management-related changes. One of its objectives was to suggest methods to make access to justice and availability of information more litigant-friendly. Its first Chairman was Dr. Justice G. C. Bharuka, former Judge of the Karnataka High Court. Has the e-Committee been able to achieve its objectives?
Ans. Certainly, the Committee has been able to establish digital infrastructure for the district judiciary and channel central funds towards the cause. But given it has been more than 17 years since the committee came into existence, the record of accomplishments is poor. From a litigant’s perspective, the only significant achievement of the e-courts project has been its ability to inform litigants of the next date of hearing provided they can read English! Why did the e-committee even design the interface in English for the district judiciary which operates in the local languages? Why didn’t they make it bi-lingual from the start? Only a small fraction of the Indian population can read English – so an English language website directly excludes most of the population from using the website.
“… the only significant achievement of the e-courts project has been its ability to inform litigants of the next date of hearing provided they can read English!”
The e-committee’s Phase II document laid down (page 85) had said that it would try to provide information in local languages – this objective laid down in 2014 has still not been met. In a manual that it released this year for its e-courts services mobile app, it has stated that the app will be provided in at least 6 regional languages after testing is complete. Why has this taken so long? Websites of most State Government departments are either bilingual or in the State’s official language.
The other much bigger problem, however, is that even with respect to the information available on the e-courts website, the e-committee has inserted a disclaimer stating the following “Visitors to the site are requested to cross check the correctness of the information on this site with the authorities concerned or consult the relevant record.”. In other words, the e-committee, after spending crores of rupees to build the e-courts system, refuses to certify the accuracy of the information on its website. What use is this information if it is not accurate?
Another issue for litigants is the task of procuring certified copies of judgments or orders. Right now, they have to negotiate a maze of lawyers and officials in the Registry. With digitisation, the e-courts project should have been able to home-deliver certified copies of orders/judgments to litigants. Government entities like the Trade Marks Registry and the MCA 21 of the Ministry of Corporate Affairs have such functionalities on their websites. Why can’t the e-courts project provide such a functionality for litigants and save them the trouble of visiting courts?
TL: Justice D. Y. Chandrachud, the current Chairperson of the e-Committee, has said that delay in communicating bail orders has to be addressed on a war footing. In your article, you have asked why is it that electronic transmission of orders between the courts and the prisons escaped the attention of the e-committee. If it is such a simple reform, what are the obstacles which require the Supreme Court to address them on a war footing?
You have referred to the Phase-II document for the e-courts project, published in 2014, which had announced a plan to allow for the transmission of information between key institutions in the criminal justice system. Can you throw more light on this document? Why was it not fulfilled?
Ans: This is a question that must be posed to the e-committee. The Phase II document (p. 87) for the e-courts had described this ambitious goal in the following words:
“The systems and softwares in Phase II of the Project will be so designed and deployed that they ensure smooth interoperability with Police, Jails, FSL etc. so that the communication between these stakeholders and Courts is expedited in order to curb the delays involved……the interoperability compatibility of the CIS will ensure that the CIS is able to export/transmit the requisite information to the targeted stake holder that is police, jails, FSL, etc and vice versa.”
The Phase II document was published in 2014 and yet as the Aryan Khan case has shown, this objective has not been met and it is unlikely anybody will be held accountable for this abject failure. At least, if the government oversaw the e-courts project, it would have been possible for Members of Parliament to pose questions to the Minister in Parliament. But how can our elected representatives or journalists question the Supreme Court judge in charge of the e-committee? There is no mechanism to do so.
TL: In September, the SC sought to judicially address the issue by directing the creation of FASTER (Fast and Secured Transmission of Electronic Records) system. Do you think this would be better able to achieve results, than the administrative solution through the e-committee?
Ans. It is difficult to answer that question without knowing the reasons for the failure of the e-committee in achieving its objective. We don’t know why the e-committee has failed to meet this objective because the committee lacks a transparent system for evaluating its failures. In principle, we oppose such judicial diktats for administrative issues that are better solved through negotiations around a table and not a courtroom where the judges are sitting on a podium. Governance in India is complicated enough, and technical administrative issues require careful and thoughtful deliberations. A time-bound judicial diktat will only lead to half-baked solutions. We see High Courts mimicking this judicial approach of the Supreme Court when handling administrative matters affecting the judiciary. This causes unnecessary friction and sours relationships between the executive and the judiciary. Judges need to learn to negotiate with the executive on administrative issues pertaining to the judiciary while holding them to account on the judicial side.
“Judges need to learn to negotiate with the executive on administrative issues pertaining to the judiciary while holding them to account on the judicial side.”
TL: You state that a budget of Rs. 935 crore and Rs. 1670 crore was approved by the government for Phase I and II of the project respectively. You have said that there is relatively little to show for all this money. Can you elaborate on this?
Ans. We think the e-courts program has failed on basic parameters.If you remember, in 2004 you had interviewed Fali Nariman on a bill he introduced in Parliament – The Judicial Statistics Bill. He had correctly identified the paucity of judicial statistics as the key impediment to judicial reform and he was correct. Digitisation and the e-courts should have solved that problem quite easily. However, the National Judicial Data Grid (NJDG) which was to solve this problem has failed comprehensively. The website provides data that is questionable and not very helpful.
Researchers at NIPFP measured the quality of the data on the e-courts platform and found several inconsistencies in the way data is being recorded by different States. The researchers concluded that owing to the volume of incongruity in recording statutes and other variances in the data as it currently exists, it is impossible to accurately calculate the caseloads under different laws. Additionally, given the high error rates, inter-state comparison is not possible either.
The bigger problem, in our personal experience, is that the data is not granular. For example, anybody in the country should be able to click on any district of the country and get a breakup of all litigation (per legislation) in the state along with judge-wise disposal figures. So, if we want to know the number of cheque bouncing cases in Delhi, we should be able to get it in two or three clicks because we know for a matter of fact that the system collects this type of data. However, the NJDG does not disclose this data – rather it gives vague civil/criminal classification which is not useful. The granularity of data at the level of High Courts websites is even worse.
Unless granular data is available, the judiciary cannot plan better, and we cannot hold it accountable. More importantly, it also compromises the abilities of researchers to look for legislative solutions. Whether this is because of poor planning or wilful obstruction is not clear. When Ranjan Gogoi was Chief Justice of India, there was talk of a portal to monitor disposal rates of district judges. It was called the District Court Monitoring System. It appears that such a system has been created under e-courts, but it is not public-facing. Clearly, the technical capacity exists. What is lacking is the political will for judicial transparency.
TL: Is there any legal bar on the CAG or the PAC of the Lok Sabha to review e-courts project?
Ans. There is no legal bar to the CAG or PAC reviewing expenditure by the Department of Justice, Ministry of Law and Justice. There have been occasions where CAG has audited the operation of e-courts for the state of Nagaland and found several deficiencies. The problem is that although the DoJ is the one being audited, the structure of the e-committee vests the real decision-making power in the hands of the judges on the committee. The Chairperson of the committee is a sitting judge of the Supreme Court, the Vice-Chairperson is a retired High Court judge and the remaining 4 members are from the state judicial services. Even the Secretary of the Department of Justice is nothing but an invitee member. The issue is whether CAG or PAC will have the political courage to ask the Chairperson or Vice-Chairperson of the e-committee questions about the utter failure of the e-courts project to meet its objectives.
TL: You have said that the DoJ has commissioned two timid evaluations of the project to a Delhi-based think tank. Can you name it, and why in your view, the think tank is not upto the task?
Ans. NCAER was tasked by the DoJ with evaluating Phase I and Phase II of the project. The reports are publicly available and follow a simple respondent survey methodology to examine a technological project such as the e-courts. They have primarily interviewed the different stakeholders and published their views in the report from a sample of five States. These reports do not fix accountability on the functionaries of the e-committee or the DoJ for the abject failure of the e-courts project to meet its own stated goals. We must however add that our comments are not a reflection of the talent at NCAER. Any think-tank getting such a project from the DoJ would have probably turned in a similar report if they were looking to get paid on time and interested in future work from the DoJ. These are the unfortunate realities of working with government ministries. This is the reason that external reviews by the CAG or PAC or by citizen’s groups are an absolute must to fix accountability.
TL: Are you suggesting that the e-committee project should be delegated to bureaucrats and not managed by the Judges to ensure accountability? Why are the Judges keen on keeping this role to themselves, although they cannot do justice to it?
Ans. To put it politely, our judges suffer from a God complex. They think they have the solutions to all our problems, be it pollution, deforestation, spectrum allocation, police reforms or regulation of GM food. Why else would the e-committee not have a single full-time member with the qualifications and experience in executing such a large IT project? The reason that judges cling to this power is because there has been no pushback from either the Government or the bar or civil society, to their continued control over the e-courts project. Perhaps it is time to start now.
“….Our judges suffer from a God complex”
We are confident that bureaucrats appointed specifically for the task for the e-courts project will do a better job in implementing the project. For starters, unlike judges who are balancing their judicial tasks with the e-committee work, a bureaucrat will work full-time on the project and more importantly be directly answerable to a Law Minister who will now have to face questions in Parliament without the option of passing the buck to the e-committee and its Chairperson. The Indian bureaucracy has a long history of successfully executing large, complex e-governance programs that are far more complicated than the e-courts project.
In our opinion, as per the Constitution, the e-courts project should be decentralised to the High Courts for even design decisions, rather than just procurement as is the current case. An efficient implementation of the e-courts project will require successful process re-engineering which can be accomplished only with the cooperation of High Courts and State Governments.
TOMORROW: PART II:Is there a case for National Judicial Infrastructure Corporation?