Introducing e-courts: A giant leap for the judiciary
Access to justice is one the dominant human rights guaranteed under our constitution. Whatever the situation is, justice is never to be denied to anyone in any circumstances. With the gradual pace of time our judiciary is shaped into a visible concrete structure having different courts, tribunal etc. for providing the justice. But in the era of technology, our judiciary seemed very reluctant to adopt technological instruments to the judiciary as form of modernizing the judicial administration.
There were several initiatives taken by ministry of law and supreme court, but advocates and bars showed vehement protest on the ground of transparency of the proceedings and dignity of the profession. The government has taken the initiative to take the judiciary under technological blanket, but it was often put to halt in different phases. Few months back High Court Division issued a rule in response to a writ petition asking the government why it would not pass order to bring all courts under e-judiciary project and to establish e-courts for the smooth administration of justice.
A project, which has been forestalled for many years, is now brought to life but amidst a very peculiar time when our mother earth is going through an unprecedented time and facing an invisible enemy, Covid-19. Mass gathering is prohibited as this virus is contagious and easily transmittable for which scientists are yet to find a cure. Court proceedings are postponed to a future date as its regular activities involve commutation of large number of people from different places including judges, advocates which make our court premises a vulnerable target for the transmission.
The Ordinance for Usage of Information and Communication Technology by Court, 2020, was issued by the government on May 09 allowing to proceed court's proceedings digitally using technology. It is in short introduces the e-hearing in our judiciary. Indeed, it should have been introduced earlier but it is better late than never. E-judiciary is one the prevailing methods in many legal systems around the globe and many nations have already adopted the system including member countries of European Union, UK, USA. Even our neighbor countries are the recent beneficiaries of this system.
Preliminary it is evident that the system is going on trial and error method and it would be foolish to expect top-notch outcome from this newly introduced system as our judiciary is still not well-equippedto provide technological support to the judges. Before going to the pros and cons, let us consider few changes brought by this new method that differ from pre-covid-19 court proceedings. The court proceedings shall be conducted through video conference from the participants (judges, advocates) location. Initially the ordinance permits the court to use communication technology for the purpose of continuation of trial, judicial inquiry, hearing on application or appeal, taking evidence and arguments, giving order or judgment only.
It also softens the procedural rigidity of physical appearance before the court which is a fundamental requirement under the parental code of civil and criminal procedures which connotes virtual attendance will be sufficient to meet the requirement of physical appearance for the time being. However, The Supreme Court published directives following the ordinance which give us an insight into the execution plan. Lower courts, including tribunals of the same kind, are instructed to hear cases relating bail under this ordinance. So, this ordinance is limited to hearing application on bail only. Already few bail applications have been granted under the ordinance.
Though the ordinance permits using technology to conduct a whole case (from trial to judgment), hearing on bail application under this ordinance is the only offspring till now. No civil or criminal cases will continue except bail. So, if anyone is apprehended by any law enforcement agency, the person must be brought to magistrate within 24 hours through proper medium. But it raises the eyebrows when it comes to inspect the person for whom the bail is sought. This needs to be seriously taken care of by the courts because any miscommunication from either end will likely to engender serious repercussions.
This entire process is new hence precipitates new dimension to think of. First-off, we are resorting into random apps to continue the virtual hearing which is penetrable by the hackers. This sort of complexities is usual, but the recent rate of these incidents roared up dramatically. Thousands of complaints are reported claiming intervention to the process by the hackers. We are yet to know on how our judicial authority is planning to handle this kind of threats as mostly these kinds of attacks are made anonymously. Transparency is another leading concern for this process. Many of our advocates are not acquainted with virtual hearing and may not agree to continue with the changes.
Advocates from different districts have already made statements in this regard showing diffidence towards virtual hearing. A smooth video conference devours a huge megabyte thus puts a new question on the table regarding internet costs. Apparently, the cost is on the advocates but there should be an emergency allocation to this effect. otherwise it would create an extra burden on the advocates in this situation. And it is certainly not a tough job for the government to get into an emergency contracts with the mobile network operators of the country.
A proper medium for the e-judiciary would be more effective in this regard, this could be a secured website, mobile application or even a simple SMS. keeping in mind that the ongoing situation is likely to be prolonged for an indefinite period, there should be a training webinar for the judges and advocates if needed. Incessant internet connection is another challenge for this system because conduction of the entire process will solely depend on how strong the network is. A composite action from all sides is required to make a successful virtual hearing.
Having so many visible difficulties, this is indeed a great step for our judiciary that marks a new beginning towards a modern administration of justice. We will certainly face problems, but these problems will lead us to a new system. A system that will ensure justice to the humans more closely than now. A system that will be accessible from any corner of the country or globe. Pursuing the dream, this is one small step for JUSTICE but one giant leap for our JUDICIARY.
The writer is a student of Law, Bangladesh University of