Access to Justice for ‘all’1 : Impact of Information Communication

Technologies (ICTs) on Judiciary in India

CHETAN. BASAVRAJ. SINGAI2

Abstract:

This paper attempts to analyze the use of Information and Communication Technologies (ICTs)
by Judiciary in India for the purposes of delivering justice in its true and practical perspective.
The effectiveness of a Judicial System is measured by its capacity to provide a timely and
appropriate justice to the parties of the dispute. Similarly, its effectiveness is debatable when
there are intolerable number of cases that are pending and undecided. In addition to
highlighting the number of pending cases the paper explores its implications on boosting
poverty. India is facing shortage of “Judicial Officers” to handle the mammoth cases filed and
accumulated over a period of time. The paper endeavors to discuss one possible solution that
can help India in this situation is the adoption of the benefits of Information and Communication
Technology (ICT) in the Judicial Functioning. To support this perspective the paper makes
special reference of the Information Technology Act, 2000 which has been made to provide an
insight into the possible uses of e-governance for a sound justice delivery system. Further, in
order to sustain this non-conventional idea of e-courts, the paper realizes the need for re-
structuring (re-modeling) the structures and processes of the respective Governmental
institutions under the characteristics of New Public Management (NPM). The two contradictory
schools of thought namely the Cyber Optimists and the Cyber Pessimists provide the policy
constraints and policy freedom processes towards adopting e-governance in Judiciary.

Keywords: Judiciary, ICTs, Globalization, IT Act, E-governance, New Public Management,

E-courts, poverty, criminal justice system, NGeP, decentralization.

1
I would like to like to emphasize the irony of lack of justice to the poor in India by referring to ‘all’ in single
quotes throughout the paper.
2
Research Scholar, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi –
110067. chetanbsingai@gmail.com or http://chetanbsingai.blogspot.com
1
1. INTRODUCTION: THE CONTEXT
The context in which any reform is implemented and the organizational conditions around it are
the key determinants for successful execution of a reform. The basic issue underlying any reform
that we seek (or more exactly, that we have reason to seek) is simple enough. Some existing
arrangements appear to us to be not right, and we want them to put them right. Given this
understanding it is important to discuss the possible arrangements which appear to be put right -
to be reformed.3 The following discussion would present the appropriate context for reforming
the Judiciary in India, a reform strategy which can promise access to justice for ‘all’.

It would be appropriate to quote J. Bryce who once remarked that “there is no better test of
excellence of government than the efficiency of its judicial system (Bryce, 1921:42). This is
because nothing more touches the welfare and security of the people than their confidence on
easy, prompt and impartial justice at minimum cost. The judicial institutions came into existence
basically to serve the dual purpose of protecting the rights of people and people’s rights against
the excesses of the ruling authority and to guarantee sufficient conditions by making adequate
provisions to enable the disadvantaged sections access justice on an equal basis. Some of the
important components of legal system for securing equal justice to all sections of the society
include – fairness, impartiality, timely delivery of justice, special assistance for the ‘legally
handicapped’ (poor section of the society) population and so on. Despite the attempts towards
the inclusion of all these features into the legal process, justice remained largely restricted to the
affluent sections of the society owing to the immense poverty and incompetence of the weak
people to approach legal machinery. he British colonial rule transformed the traditional Indian
Judicial System into a more complex pattern. The court system was characterized by lengthy
judicial procedures and excessive formalism in terms of language, etiquettes and outfits which
made it imperative to hire a lawyer. All the more the Legal Practitioners Act, 1846,1 gave scope
to the lawyers to further their self interests. Even the Advocates Act, 1961, (of independent
India) concentrated only on professional quality and discipline, totally ignoring this crucial
aspect of making available to all the opportunity of obtaining justice. Such was the nature of the
system inherited by independent India which was always averse to the claim of the weak and
deprived.

Countries in South Asia (especially India) face myriad human rights and democracy challenges.
The criminalization4 of poverty coupled with the complete inability of the poor to negotiate the
criminal justice system is a major human rights crisis in South Asia. It is well known that the

3
Sen, Amartya (2005). The Three R’s of Reforms. Economic and Political Weekly, Special Article. May 07, 2005. P. 1
4
Criminalization is "the process by which behaviors and individuals are transformed into crime and criminals"
(Michalowski, R. J. (1985). Order, Law and Crime: An Introduction to Criminology. New York: Random
House.p.6).
2
poor constitute a disproportionately large number of the criminal defendants going in and out of
the criminal justice system. Even though the judiciary has read the right to legal aid as forming
part of the fundamental right to life, the access to quality legal aid has by and large remained a
pipe dream for the poor and marginalized who enter the criminal justice system in large numbers.
Legal aid is a severely underdeveloped component of the legal system in South Asian Countries
and in dire need of reform. Despite the problems in access to justice by poor, positive initiatives
in some South Asian countries in this direction have been done. One example is the constitution
of National Legal Services Authority in India.

2.1 THEORETICAL FRAMEWORK:

In this twenty-first century democracies, states promise ‘equality’ and ‘justice’ based on a
universal standard for all citizens irrespective of their color, creed, race, ethnicity, and gender. If
any injustice occurs, citizens ideally seek the legal-institutional help offered by their equal-rights
welfare states. “Institutions are the rules of the game in a society, or more formally, are the
humanly devised constraints that shape human interaction. The institutions reduce uncertainty by
providing a structure to everyday life. Institutions define and limit the set of choices of
individuals”.5 These Institutions enhance the capabilities of the citizens to gain accesses to
justice. Institutions can be both formal and informal, as long as they can enhance the capabilities
of the citizens (directly or indirectly).

I would like to define Governance as “the exercise of economic, political and administrative
authority to manage a country’s affairs at all levels. It comprises the mechanisms, processes and
institutions, through which citizens and groups articulate their interests, exercise their legal
rights, meet their obligations and mediate their differences”6. (Here institutions mean the
organizations as explained in the foregoing paragraph). However, the failure of the government
authorities to meet to its respective functions has led to an opening towards a new paradigm of
governance across the globe. In India, administrative reforms towards this new paradigm of
governance have initiated from post 1990s onwards.

The new paradigm we are talking about is called as the - New Public Management (NPM)
emerges as an important development in administrative theory. NPM emphasizes the role of
public agencies in adopting private sector techniques in providing high quality services to
citizens and advocates managerial autonomy in public management.

1. NPM suggest that traditional output-oriented administration should be replaced by the

process-oriented administration with emphasis on performance evaluation indicators to

5
North, Douglas (1999). Institutions, Institutional Change and Economic Performance, Cambridge University
Press, 1990. Pg. 3
6
United Nations Development Programme (1999). Human Development Report : New York Pg. 25
3
 measure actual achievements and quality services. The citizens are re-conceptualized as
active consumers and not just passive recipients of public goods and services.
2. Organizational structures are being redesigned and hierarchies abandoned to create
environments for more effective and productive managerial leadership. Significant here is
that successful managerial performance needs to be backed up by motivated and
focused human technological resources (Caiden, 1971).
3. Personal responsibility and accountability is sought to be built into the production
process. Public agencies are told to switch from cash accrual accounting and become
more cost effective. There is a shift of general emphasis from policy to management with
full cost consciousness before making any decisions (Bhattacharya, 2002).
4. NPM is characterized by network society; the opportunity costs of alternative ways of
organizing teams depend on the evolution of society and technological change.
Hierarchies are not the most efficient forms of organization in a post-modern society
where information is easily accessible and storable (Kooiman, 2003).
5. Among the background conditions discussed above we can provide for the receptivity of
the NPM philosophy, for which following could be mentioned:
• Maturing of the public sector;
• Growth of civil society;
• Globalization: although the globalization wave derives its force first and foremost
from the global market economy and the information revolution, it has clear
implications for government operations.
• Information Revolution: large government operation such as education, health and
social security will be affected by technological change. The potential use of ICT is
enormous in government where information is crucial, both in terms of quality and
quantity. Public organizations can be managed with the full employment of the
potentialities of the information revolution – the coming of E-governance;
organizational structure will be affected by the computerization of work processes, as
tasks are redefined and new skills identified.
E-governance forms as one of the prominent administrative reforms tool in India. From above
theoretical discussion it is evident that e-governance model fits into NPM theory of
administration because, e-governance involves transformation of the organizational culture of the
government. Recent authors argue that governments are mandated by the citizen and business
demands to operate within new structures and parameters precipitated by Information
Technology. Current demands require cross cutting services, which in turn require government to
improve communication and interaction across traditional bureaucratic lines (Alexander &
Grubbs, 1998). These new requirements, which fundamentally alter the nature of government,
are made possible through the strategic use of information & communications technologies.
Garsons (1999) has divided the theoretical frameworks of e-governance (e-gov) into four main
areas: decentralization/democratization, normative/dystopian, socio-technical systems, and
4
global integration theories. As far as this paper is concerned the first two suffice to explain basic
variations in e-governance theory towards administrative efficiency. The
democratization/decentralization theory of e-governance revolves around the progressive
potential of Information & Communications technologies and focuses on the positive
governmental advances associated with e-governance. Normative/dystopian theory emphasizes
the high rate of conflict and failure associated with information technology application and
counters the positivist progressivism of decentralization/democratization theory with realist view
of inherent technological limits and contradictions (Figure 1.1)

Theoretical framework of
E-governance

Democratization/ Normative/Dystopian
Decentralization

USE OF ICTs

Progressive Realist
approach approach

FIGURE 1.1: TECHNOLOGICAL LIMITS AND CONTRADICTIONS7

Decentralization/democratization theory is the most commonly held orientation associated with

e-governance. In the 1990s, the reinventing government movement sought to alter the core focus
of government, moving from departmentalization and centralization to citizen-centric
decentralization, much in contrast to the traditional Weberian model (Osborne, D & Gaebler, T,
(1992). According to HO, (2002), the new paradigm mirrors many of the tenets of the
reinventing government, including user control and customization, flexibility in service delivery,
horizontal and vertical integration culminating in “one stop” shopping, and innovative leadership
focused on the end user. We can say that this paradigm shift is precipitated by the advent of the

7
Figure adopted from Singai, Chetan (2007). Socio- Politico Dimensions of Information Communication
Technologies towards realizing Human Rights in India. In Sahu. G. P (eds.) (2007) Adopting E-Governance. Global
Institute of Flexible System Management Publishers, New Delhi. Pg. 123.

5
ICTs (especially Internet), which provides government the ability to use technology to impact
customers directly (especially poor citizens), instead of simply reengineering internal processes.
The decentralization theory predicts that e-governance diffusion will escalate its benefits (access
to information) to citizens and to the agencies themselves are demonstrated. ICT can act as a
catalyst for organizational transformation and change in government by influencing governance
in several ways as follows:

• Managing large volumes of data and work flow connectivity between government
operations, departments and agencies and significantly reducing errors;
• Reaping scale economies and improving efficiency by automation of complicated and
repetitive governance tasks and developing standard applications;
• Reducing personal interface of citizens and business with public service providers,
cutting delay, bureaucratic red tape, corruption and harassment and increasing speed of
response; and
• Enhancing transparency and accountability by making information available to citizens
through websites, reducing information monopoly, simplifying processes and
empowering citizens to put pressure on public officials to deliver performance.
The application of ICT to government processes can have a profound impact on the efficiency,
responsiveness and accountability of the government, thereby, on the quality of life and
productivity of citizens, especially the poor; and ultimately, on the economic output and growth
of the country as a whole. Electronic governance goes far beyond mere computerization of stand
alone back office operations. It is a means to fundamentally change how the government
operates and this implies a new set of responsibilities for the machinery of the government.
Considering the foregoing discussion let us explore the application of ICTs on Judiciary in India.

E-governance forms the essential tool for governance in India. In spite of good progress, the
power of e-Governance for good governance is yet to be harnessed in India to a significant
degree. States differ substantially in terms of their e-readiness and approach to e-Governance due
to several factors. E-Governance involves the management of program, processes, knowledge,
resources, technology, procurement and expectations. In e-Governance the ‘People’ dimension is
critically important. People, process, technology and resources are the four pillars of e-
Governance. The challenges to e-governance, therefore, relate to people (e.g. lack of political
will, official apathy, shortage of champions, lack of skills in government etc.); process (e.g. lack
of process models, status quo-ism, poor legal-institutional frameworks, complex procurement
etc.); technology (e.g. lack of architecture, lack of standards, poor communication infrastructure
and hardware-approach etc.) and resources (e.g. budget constraints, disinterest of the private
sector, lack of project management skills on the part of public mangers etc.). (See Table 1)

6
 TABLE 1: E-GOVERNANCE AN ESSENTIAL TOOL FOR GOVERNANCE

Process Citizen- Cost-

Simplicity Efficiency Sustainability

centricity effectiveness

People
Vision Leadership Commitment Competency Change

Technology Open
Architecture Reliability Scalability Security

Standards

Resources Service-
Holistic Efficient Sustained Adequate

oriented

3. NATIONAL E-GOVERNANCE ACTION PLAN (NeGAP):

The recently formulated National e-Governance Action Plan (NeGAP) of India attempts to
address many of the key issues of e-Governance in India with a view to harnessing the power of
ICTs to improve governance for the common citizen. The structure of NeGAP (2003-07)
encompasses a set of core policies to provide integration and support, a set of integrated projects
or cross-cutting initiatives, a set of Mission Mode Projects at national and state levels. It is
thorough this policy initiative which led to some interest in e-judiciary in India. The NeGAP
provides the mission and action plan regarding e-governance policies and more importantly their
implementation. The following table highlights the relevance provided towards utilizing ICTs in
delivering and access to justice in India. However, the NeGAP to make a breakthrough in
governance it has to be supported by genuine restructuring of the government organization and
its functioning. The characteristics of New Public Management (discussed above) as a tool for
restructuring would be appropriate to meet the procedural demands of implementing NeGAP in
practice.

7
 TABLE 2: DESIGN OF NeGP8

Central Government State Government Projects

Integrated Projects
Projects (Sub Programme)

• National ID • Land Records • EDI

• Central Excise • Property Registration • e-BIZ
• Income Tax • Transport • Common Service
• DCA 21 • Agriculture Centres
• Passport/ Visa & • Municipalities • India Portal
Immigration • Gram Panchayats • EG Gateway
• Pensions • Commercial Taxes • e-Procurement
• Treasuries • e-Courts
• Police
• Employment Exchange
Program Components

• Core Policies • Integrated Services • Awareness &

• Core Infrastructure • Technical Assistance Assessment
• Support Infrastructure • HRD & Training • Organization
Structures
• R&D

The Supreme Court has undertaken the "e-courts" efforts in three phases as a mission mode
project under the National e-Governance Plan (NeGAP) to link about 15,000 courts in India. It is
now planned to provide required infrastructure and concentrate on capacity-building, judicial
process from filing to execution, and finally making the information available online between the
courts, prosecuting and investigating agencies, prisons, land-records and registration offices,
hence accelerating disposal of civil and criminal cases. It is important to emphasize the set of
integrated projects put forth by the NGeAP policy. E-courts forms as one of the key issues of e-
Governance in India with a view to harnessing the power of ICT to improve governance for the
common citizen. The NeGAP - a national policy which is decentralized at various levels of
governance has emphasized for implementing ICTs in Judicial process in India. It is my strong
conviction that the impact of ICTs on the Judiciary would be tremendous. ICTs have the required
potentials to provide accesses to justice for ‘all’, and hence it is vital to address the popular myth
regarding this issue.

8
Under the heading integrated projects in the foregoing NeGAP design, e-courts have been highlighted under the
NeGP.
8
4. MYTH OF ACCESS TO JUSTICE FOR ‘ALL’: AUGMENTING
POVERTY
Everyone needs to have access to justice. But for those living in poverty, that very existential
situation is an injustice. As a consequence of that poverty, the poor bear a disproportionate
burden of injustices prevalent in society.9 For instance, prominent countries on the Southern part
of Asia i.e. India, Pakistan Bangladesh, Srilanka, Malaysia, Bhutan, Afghanistan share a
common problem in guarding the rights of the poor in practice. There is a consensus that access
to justice is particularly a problem for poor people, women, minority groups, and those who
suffer other types of discrimination based on caste, language, ethnicity, or social status (e.g.
widows).10

In addition to this, unlike leading constitutions of the world most South Asian countries lack the
provisions for free and easy access to justice for the poor in practice. Reasons for this are many
such as poor economic situation, lack of legal knowledge, fear to approach the police and more
importantly lack of appropriate means to gain access. The provisions regarding this are in most
cases limited to constitution books and few get the benefit of free legal help. Both the accused
and the victim are at the same room when the question comes as to whom to approach and how
to approach to save their legal rights. The costly legal service remains a dream for the majority of
victims as well as the accused of the financially poorer class. In most of the cases it could be
seen that the state government respects the human rights conventions but the judiciary in practice
being overpowered by the ruling political party impartial justice is denied to the victims. More
importantly the judiciary is overburdened with cases and hence speedy trial to victim/offender
remains a dream. In cases of transnational offences the kingpins escape but the poor people fall
in the trap of long legal battle for extradition and then finally when the jurisdiction for their trial
is decided, it becomes a mountainous job for the family of the accused or the victim to search for
legal help and funds to meet the expenses. Police stations and courts may be non-existent in
remote areas, and the cost of legal processes (such as legal fees and fines) is often unaffordable
to the very poor. Quasi-judicial mechanisms may also be non accessible.11 Considering the above
problems faced towards to access to justice by ‘all’, it is important to look towards Information
Communication Technologies for a possible solution.

9
R. Sudarshan, Interdependence in Overcoming Injustice(s) of Poverty: Some Preliminary Observations. Paper
prepared for the First South Asian Regional Judicial Colloquium on Access to Justice, New Delhi, India, 1-3
November 2002, organized by Interights, London, and Commonwealth Human Rights Initiative, New Delhi.
10
Access to justice is also a problem for the main users of the courts—property-owners, businesses, and government
departments – but the problems are different and will not be addressed here. It is worth noting, however, that real
advances in ‘commercial justice’ have been made in a number of programs in recent years, mainly through case
management and court-supervised alternative dispute resolution.
11
Ramaswamy Sudarshan (2003). Rule of Law and Access to Justice: Perspectives from UNDP Experience. Paper
presented to the European Commission Expert Seminal on Rule of Law and the Administration of Justice as part of
Good Governance, Brussels, 3-4 July 2003.
9
4.1 PENDING CASES12: A PREDICAMENT
At the same time, there are almost a quarter million under-trials languishing in jails across the
country. Of these, some 2,069 have been in jail for more than five years, even as their guilt or
innocence is yet to be ascertained. This has been revealed by official figures emerging from the
home ministry's department of justice, under a Right to Information Act application placed by a
citizen. The Allahabad High Court had some 1.09 million pending cases, with over eight out of
every 10 cases being civil cases at the end of 2006. Meanwhile, the Supreme Court of India had a
total of 39,780 civil and criminal pending cases at the end of last year. The Madras High Court
(406,958 pending cases) and Bombay High Court (362,949) were the others with a large number
of pending cases. Sikkim is the lowest with just 51 pending cases. Of the pending cases in high
courts, 704,214 were criminal and 3.2 million were civil cases. In subordinate courts, Uttar
Pradesh again topped the number of pending cases (4.6 million), followed by Maharashtra (4.1
million), Gujarat (3.9 million), West Bengal (1.9 million), Bihar (1.2 million), Karnataka (1.06
million), Rajasthan (1.05 million), Orissa (1 million), Andhra Pradesh (900,000). The National
Crime Records Bureau that functions under the home ministry told Hari Kumar P. of Kasargod
in a Right to Information Act13 reply that the number of under-trials in India was highest in
Maharashtra (15,784) and Madhya Pradesh (15,777). Bihar (with 628 prisoners) topped the
number of states with the maximum number of under-trials kept for over five years. Punjab also
had 334 under-trials for over five years and Uttar Pradesh had 212. Delhi itself had 344 under-
trials languishing in jails for over five years. On the positive side, some states had no under-trials
in jail for this long a period without their trials being completed. These states included Andhra
Pradesh, Goa, Himachal Pradesh, Kerala, Manipur, Mizoram, Sikkim, Tamil Nadu, and Tripura,
apart from some smaller states and union territories. Following which the Chief Justice of India
(CJI) and the chief justices (CJs) of high courts gave top priority to tackling the huge number of
pending cases, that's slowly leading to litigants losing faith in the courts. "The main problem is
the magisterial courts and not the session’s courts. Of a total of 1.84 crore cases pending in lower
courts, the magisterial courts account for 1.64 crore.”14 Over three million cases are pending in
India's 21 high courts, and an astounding 26.3 million cases are pending in subordinate courts
across the country.

One of the possible solutions that can help India in this situation is the adoption of the benefits of
Information and Communication Technology (ICT) in the Judicial Functioning. Unfortunately,
the same has not found favor with the Executive, Legislature and Judiciary. Although, the
12
For the Data collection I would like to thank National Legal Services Authority (NALSA), Ministry of Law &
Justice. Government of India for giving me permission to access to the library.
13
The Hindu (2006). August 22. Pg. 7 Accessed on February 27, 2008
14
The Chief Justice of India (2006). Times of India, March 10. Accessed on February 27, 2008

10
Supreme Court e-committee has been formulated yet it has not taken serious, concrete and
productive steps except providing “Laptops” and “Computers” to the Judicial officers. We must
appreciate that “E-governance in India” cannot be equated with mere “Computerization”. It must
relate to the active use of ICT for effective Justice Administration. Thus, the impact of ICTs on
Judiciary is discussed below emphasizing the policy processes and structural requirements in
addition to financial allocations for realizing the much need reform movement in India.

5. ICTs AND JUDICIARY: E –COURTS ACCESS TO JUSTICE FOR ‘ALL’

The Indian judiciary comprises of nearly 15,000 courts situated in approximately 2,500 court
complexes throughout the country. In the Indian Judiciary, effort for computerization of some of
its processes has been going on since 1990. From 2001-03, 700 city courts in four metros were
computerised and during 2003-04, computerisation of another 900 courts were undertaken.
President A.P.J. Abdul Kalam has suggested for creation of e-judiciary by establishing "Judicial
e-Governance Grid" from the district courts to the Apex Court in order to cover the whole
judicial system in the country.15 In addition to this President Kalam said that ‘computerisation of
the High Courts and the District Courts is essential for the development of e-judiciary system.
From the time the case is filed till it is disposed of with judgment, the entire processing must take
place electronically.’ As a consequence to this proposal an action for connecting all the 15,000
courts from the District Court to the Supreme Court through a Wide Area Network will further
enhance the efficiency of the judicial system. The e-Judiciary initiative within the overall justice
delivery system should help to transform the Court service into a better focused system in
meeting the needs of the citizens in a transparent manner and enable quicker disposal of cases. It
is beyond doubt that computerisation will enable easy search, retrieval, grouping, information
processing, judicial record processing and disposal of the cases.

E-Justice is an important initiative as it is a citizen centric approach for providing access to

justice through Information and Communication Technology (ICT). It will help to provide a
crucial link between rule of law, poverty eradication, human rights and sustainable human
development and to provide better access to justice. The project aims at promoting legal
awareness through an electronic interface by presenting the key legislations in a simple manner
and by simplifying relevant judgments, certain procedural regulations and enlightening on the
existence of alternative remedies and making the same available to the general public through
information Kiosks and so on.

Need was felt to make the programme of ICT enablement of the Indian Judiciary mission-
critical. Under NeGP, it is proposed to implement ICT in Indian judiciary in three phases over a

15
President A. P. J. Kalam (2007). The Hindu, July 11. Pg. 4 accessed on February 27, 2008

11
period of five years. The project scope is to develop, deliver, install and implement automated
decision making and decision support system in 700 courts of Delhi, Bombay, Kolkata &
Chennai; 900 courts in the 29 capital city courts of states and UTs and 13000 district and
subordinate courts. The objectives of setting up e-courts were to:
• Online availability of judgments, case lists and other related aspects of justice,
• E-filing of cases,
• Notices through e-mails, provided clients’ e-mail ID is available.

5.1 ONLINE LEGAL CASES MANAGEMENT SYSTEM:

Legal Cases involving the Government departments are thousands in number at various levels of
courts in the state. Many a times the Government loses cases in the courts due to avoidable
reasons such as Government Pleaders not attending court on the date of hearing/arguments due to
non-availability of timely information. The present stage of the cases is also not known due to
improper maintenance of records. The higher level functionaries are not in a position to know the
number of cases, their status, and the courts in which they are pending, case details and the
action taken by the department officials in response to the judgments. The online legal cases
management system is a web enabled software which enables the Government to track the status
of cases from the time of filing to disposal/judgment/appeal. The system enables the departments
to provide timely information to the Government Pleaders and closely monitor the status of the
cases. The system is under use in selected departments.

5.2 THE STATUS OF E-COURTS IN INDIA:

An e-committee was constituted by the Government of India in December 2004 to oversee the
implementation of e-courts across the country. Further a national policy and action plan for
implementation of Information Communication Technologies (ICTs) in Indian Judiciary was
formulated by the e-committee. Around 700 courts in metro cities were covered by 2006. In
addition to this around 900 courts in capital cities barring North Eastern States were covered. To
facilitate the establishment of E-courts the Cabinet approved the scheme for covering 2100 court
complexes. A sum total of 442 crores were sanctioned, to be completed in 2 years (by 2007).
However, this target has not been achieved, which is a matter of serious policy concern.
National Informatics Centre (NIC) is given the task of technological support to implement e-
courts under the policy guidance of the e-committee.

12
6. INFORMATION TECHNOLOGY ACT 2001: A MOMENTOUS
CONTRIBUTION
Just when India was ready to adopt and adept to the ICTs revolution the Information Technology
Act, 2000 was implemented. 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. 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.

The aim of the Act is to provide a sound base for e-Governance which 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 recognized, digital
signatures have been given the status of signature in writing, a notification in electronic gazette is
considered to be a valid notification, etc. Among various provisions in the IT Act, few are of
importance for the paper to emphasize the arguments like for instance:
• 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.16 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.17 Thus as an alternative to
paper based record, e-record has been recognized 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.
• 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

16
Sec.2 (1) (t) of IT Act, 2000
17
Sec.2 (1) (r) of IT Act, 2000

13
 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.
• 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.
• 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.
• Electronic-Gazette: Section 8 of the Act permits publication of official gazette in e-
form. 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.
• Non-Absolute Right: The provisions of Section 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.

Thus, the IT Act of 2000 provides a robust legal foundation for e-governance processes in India.
It is on this legal basis we can argue strongly for enhancing the use of ICTs in Judiciary. The
pessimistic tendency towards use of ICTs reasoned on the aspect of misuse of technology has
now become a myth. The IT Act of 2000 provides with many precautionary measures towards
the same. The IT Act of 2000 is a delight for the cyber optimists who appreciate the exact
potentials of ICTs towards governance agenda, as long as it is legally safeguarded.

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7. CONCLUSION:
The mode of applying ICTs to the judiciary is very important. Efficiency of the government, I
mean to say the capacity of the government as an organization to adapt to the ICTs revolution is
definitely a matter of concern. Enhancing the capabilities of the citizens (Below Poverty Line) to
access to these services tests the larger goal of access to justice for ‘all’.

Cyber-optimists are hopeful that the development of interactive services, new channels of
communication, and efficiency gains from digital technologies will contribute towards the
revitalization of the role of government executives in representative democracies, facilitating
communications between citizen and the state. In contrast, cyber-pessimists express doubts
about the capacity of governments to adapt to the new environment effectively and with positive
result insofar as the questions of access and digital divide have repercussions for political
participation. Thus, the overall impact of ICTs on judiciary in providing access to justice for
‘all’, is perceived by contextualizing the process of e-courts in India hitherto.

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PERIODICALS:

 The Hindu (2006). August 22. Pg. 7 Accessed on February 27, 2008
 Times of India (2006). March 10. Pg. 4 Accessed on February 27, 2008

ABOUT THE AUTHOR:

Chetan. Basavaraj. Singai is a Research Scholar at the Centre for the Study of Law and
Governance, Jawaharlal Nehru University, New Delhi. He holds a MA (Political Science) degree
from Centre for Political Studies, Jawaharlal Nehru University, New Delhi. His areas of research
interests are Local Governance, Human Rights, E-governance, Environmental Governance and
Electoral politics in India. The current paper is a result of his internship with National Human
Rights Commission of India in December 2006.

Email: chetanbsingai@gmail.com or http://chetanbsingai.blogspot.com

Mobile: +91- 9871455114

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