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Delay In Communication Of Bail Orders To Jail Authorities Affects Human Liberty, Must Be Addressed On War Footing: Justice DY Chandrachud
Mehal Jain
2 Nov 2021 2:45 PM IST
"A very serious deficiency in the criminal justice system is the delay in the communication of bail orders, which we need to address on war footing. Because this touches upon human liberty of every undertrial, or even a convict who has got suspension of sentence under section 389 of the Cr. P. C.", Justice D. Y. Chandrachud has said."One of the initiatives which Chief Justice S. Muralidhar...
"A very serious deficiency in the criminal justice system is the delay in the communication of bail orders, which we need to address on war footing. Because this touches upon human liberty of every undertrial, or even a convict who has got suspension of sentence under section 389 of the Cr. P. C.", Justice D. Y. Chandrachud has said.
"One of the initiatives which Chief Justice S. Muralidhar is launching at the Orissa High Court is the E-custody certificate, so that every undertrial and every convict who is undergoing the sentence of imprisonment would have an e-custody certificate tagged to them. That certificate will give us all the requisite data with regard to that particular undertrial or convict, right from initial remand to the subsequent progress of each case. This will also help us in ensuring that bail orders are communicated as soon as they are made, from the place they are communicated, to the jails for immediate implementation", told the judge.
Aryan Khan's case has again brought to the fore the issue of delay in the release of a prisoner from jail, despite obtaining bail order and completing surety formalities. In this case, the delay in Khan's release was caused due to certain timing regulations in the Mumbai Central Prison at Arthur Road.
He was speaking at the e-Inauguration of Virtual Courts and e-Sewa Kendra at Allahabad High Court and District Court.
E-Seva Kendras
E-Seva Kendras
"What is the need for an E-Seva Kendra? Traditionally, as we understand Information and Communications Technology, we don't need a physical centre or space for the ICT, because you can access ICT wherever you are. The reason we need E-Seva Kendra is because of the digital divide in India. A large part of the population does not have personal access to computers, though ofcourse now smartphones are proliferating even in our rural areas. But there is this great digital divide and the members of the bar are representative of society at large. And judges who were also drawn from the bar and judges from the service segment of the profession as well are representative in that sense of the wide strata of society. We do not stand apart from society or from our bar. We are conscious of the fact that a mission to enhance the engagement of the Indian judiciary with information and communications technology will not be successful unless the most important stakeholders, namely, the citizens have access to it and the lawyers, who are the fearless and independent dispensers of justice hand-in-hand with the judges, have access to ICT. That is why we felt that instead of the citizens having to pursue the court or reach out to the court, the court must come to the citizens and the lawyers. The importance of the E Seva Kendra movement is therefore to provide under one roof all services we provide under the e-courts project, accessible in every establishment of the district judiciary so that lawyers, litigants who seek to find information can easily avail of those services, whether it is providing certified copy or e-payment of court fees or e-filing or videoconferencing", explained Justice Chandrachud.
"Sometimes, I feel setting up a new thing is difficult in itself but institutionalising something that has been set up is even more difficult. You have to make the new institution a part of the way of life of those who take part in the day-to-day functioning of that institution, who here are the judges, the lawyers, the litigants. It is very important for us to ensure that a permanent staff is attached to the E Seva Kendra. Because my experience across the country has been that the E Seva Kendras set away from the court have not been successful, those which are hidden in some part of the establishment of the court itself are even not successful. Those which are at the forefront of the court, attached to the court, where the litigant has the first interface with the E Seva Kendra have been extremely successful. I do believe as a policy maker, as an administrator, that we learn from mistakes and that we should not be worried about the mistakes that we do and we should not be averse to listening to other stakeholders like the lawyers who tell us that we have to make some changes in what we are doing", he stated.
Virtual Courts
"The virtual court is equally a matter of utmost importance. To give you an example, virtual courts have now been set up across the country in 12 states for adjudicating traffic challans. Across the country 99.43 lakh cases have been completed. Fines have been collected for 18.35 lakh cases. Total fine collected is over 119 crores of rupees. About 98,000 violators chose to contest the case", told Justice Chandrachud.
"Now you can imagine that for a common citizen who has a traffic challan, to spend a day away from daily wages and to go to court to pay for the traffic challan is not productive. On the other hand, if virtual courts are dovetailed with a nationalised bank where challans can be paid electronically, it is a win-win situation for the citizen. It is extremely productive for the court. For example, in Delhi, almost 2 dozen judges dealing with courts of traffic challan cases have been liberated to do other cases. So the work of the bar has not gone down. Those judges will deal with other cases also where their involvement is really required and not these ministerial cases which are really a waste of time for the judge and which can be easily done with the use of technology", he continued.
Incorporation of technology to remediate huge pendency of criminal cases
"2 crore 95 lakh criminal cases are pending in the district judiciary of the country of which 77.5% cases are more than one year old. Many criminal cases are pending as the accused remain absconding for years. For example, the oldest sessions court case in UP where the accused is absconding is sessions trial 64 of 1976 at Gorakhpur! We know as judges that the major reasons for delay in disposal of criminal cases is the fact that the accused remain absconding, particularly after bail is granted, and secondly, due to non-appearance of official witnesses during the course of the criminal trial for recording evidence. We can use information and communications technology here also. This is what we are working on presently in the E committee of the Supreme Court", Justice Chandrachud shared.
"We can ensure police station-wise that we have a list of cases where the accused is absconding. So the SHO knows the data of how many accused, pertaining to his police station, are absconding. We can escalate this to every district where the superintendent of police or the senior superintendent of police has the same data. We will also escalate it further by providing the data to the inspector general or to the director general of police. So we will have a graded hierarchy of responsibilities so that ultimately the police machinery is also alive to and accountable for the service of summons", he explained.
"Second, as regards the absence of official witnesses, I think we have to make a beginning where atleast the testimony of official witnesses is recorded in all criminal trials across the board, unless the judge thinks otherwise, through videoconferencing platform. Taking these baby steps would go a long way in assuaging some of the concerns which we have today", told Justice Chandrachud.
Digitisation of records and E-filing
"Some of the younger colleagues on the bench or some of the younger lawyers with us today may not have been born in the age of LP or EP records which we were listening to when we were young people. Some of you may not even know about tapes or cassettes. Some of the lawyers or judges must be from the CD age. Today records have all gone out of vogue, CDs have gone out of vogue. We had floppy disks when I was a young lawyer and we would share drafts on that. Today they have become obsolete. The reason why I mention this is that any methodology that we follow as judges for digitisation must be cognisant of the fact that technology should not make this obsolete in the future. Because we are investing a large amount of public funds. Also we are also destroying the records once we digitise. Otherwise, High Courts and the Supreme Court are courts of record. So we must ensure that the modalities of digitisation which we are now providing will be compatible with the evolution of technology in the future", expressed Justice Chandrachud.
"It was with this perspective that as chairperson of the E committee of the Supreme Court, I constituted a committee of five of our most senior High Court judges across India to engage with renowned experts in private sector and public institutions, for the purpose of preparing a standard operating procedure on digitisation. After we got the draft SOP, it has been circulated to all the High Courts. We got wonderful suggestions", he told.
"The other problem with digitisation was the accessibility initiative to the visually-challenged or the hearing-impaired. How do we ensure they are not deprived of the benefits of this? The SOP on digitisation has been prepared and I have circulated it to all the chief justices. So we must move forward being conscious that a lot of work of digitisation has already been done. Madhya Pradesh, Allahabad, Punjab and Haryana High Court have done a lot. But going forward, we must ensure that the digitised legacy data and what is digitised in the future must be compatible with whatever changes in technology will come into being at a future point of time. The E committee is appointing a pan India consultant for the purpose of guiding us in the implementation of the SOP of digitisation", Justice Chandrachud said.
He pointed out that another important aspect is that digitisation of records is not sufficient in itself and unless we arrest the need to digitise in future, five years down the lane, we would be doing exactly the same as we are doing today- "So e-filing must go hand-in-hand with the digitisation because it is only when we E-file from today onwards, that we will not have the same volume of data that we have to digitise for the future. Because if we file, we will obviate the need for digitisation in the future. The government is the largest litigant in the country. I have written to all the honourable Chief Justices of High Courts to request the government to start e-filing from one cut-off date in government litigation"
"Also, we must provide incentives for lawyers. Very often we find that we would ask lawyers to e-file their pleadings and we would also ask them to give us printouts of the pleadings. If I was a member of the bar, I would say if I have to file everything in electronic form and I also have to give you a physical printout, why should I take the trouble of filing pleadings by way of e-filing. We can't expect lawyers to give us e-filed data as well as physically printed data. I think it is important for us as judges to change our mindset", he continued.
"Likewise, we have framed rules for e-filing of cases, there is an SOP for digitization. We are working on an infrastructure for data privacy and data security. Chief Justice Bindal (of the Allahabad High Court) is chairing a community for rendering all records which the district courts have to maintain physically in the electronic form. Because we all know as judges that the district judiciary maintains manual registers and it takes an enormous amount of time. It is a stressful exercise when the date for inspection arises and his lordship or her ladyship goes to the district court for the purpose of inspection. I think we must now modernize. Inspection must be done in electronic form. We seek to replace the manual registers with model electronic registers", he told.
Interoperable Criminal Justice System
"We are now working on strengthening the Interoperable Criminal Justice System. The ICJS has aimed at integrating the crime and criminal tracking network systems, the CCTNS, the E courts and the E prisons databases so that the CCTNS would share the FIR and charge sheet data in electronic form with the E courts application and likewise the E courts would share the CNR number to the CCTNS through the ICJS. Further updates of the case could be made available through the open APIs", shared Justice Chandrachud.
'Judges play a very important role in changing the mindset as regards the use of technology'
"I must share with you that though I have been pretty comfortable with technology, it is only after the pandemic started that we have really begun to use it, when even bringing paper files home was a source of possible danger. All the files I work on today are scanned and digitised in the registry of the Supreme Court and delivered in electronic form, all notes that I make are completely in the electronic form. And I have records of my notes from June 1, 2020. So if any case comes back to me all that I need to do is go back to the date when the case was last listed and I have my detailed notes. At the most the note has to be updated to take into account the new affidavit, counter-affidavit, rejoinder, status report. So there is a need for us as judges to change the mindset itself", Justice Chandrachud said.
"The bar tends to look at judges as mentors. We have a very important role in changing the mindset of the bar. If they see us using computers in our courtrooms, you will find young lawyers also using computers. We have to play a very proactive role in training the members of the bar in using computers. The idea of technology is to simplify the way in which we work, not to complicate it for district judges, the bar, the staff", he continued.
"One of the missions of our e-courts project is not to have a top-down approach where Delhi decides everything and that it is implemented by the High Courts. Because I have not forgotten my days as a judge of the High Court. I have always believed as a judge of the High Court that India does not exist only in Delhi, it exists in the villages, small towns, cities across the nation. Therefore, we have tried to implement that by giving ownership of the e-courts project to the High Court. Many of the initiatives at the E-committee, including the rules on live streaming which we framed, are the product of an exercise which was done by a five-judge committee of the High Court judges, which again we had circulated to all the High Courts and we received instructions and objections and suggestions. Now Gujarat High Court has taken up live streaming, Karnataka High Court has taken up live streaming, and I am sure Allahabad High Court will also", he said.
"We need to take the government on board also, the government being the largest litigant. One of the things we are now providing is an open API. It is a mechanism by virtue of which the government can track the progress of all their cases in whichever court. It applies not just to the state government but all authorities of the state government including Zila parishad, municipal council, municipal corporations, Nagar Panchayat. They have a real-time, virtual data of the cases which involves each of their entities. They can see whether those cases are being pursued by the persons who represent them", he told.
"The National Judicial Data Grid has an enormous amount of data with regard to each of the districts. This data can be used by the administrative judges for tracking the progress of cases within their own administrative zones. I would encourage all the administrative judges to do so, and perhaps the chief justice may wish to hold a brief session with them so that the administrative judges can understand how they can use the NJDG. We recently held a conference of all the chief justices across India where we indicated to them how they can use the NJDG data for a 360° evaluation of monitoring the caseload in each state", narrated the judge.
"This is a very exciting time we are living in, a time for change, gives us a real opportunity to change our system", asserted Justice Chandrachud.
Indicating the overwhelming number of hits per day on the service portal created by the E-committee as well as the mobile application and the fact that the E-Taal website recorded 391 crore e-transactions during the pandemic, the judge expressed, "It shows us that citizens today are really expecting that we use the facilities of ICT which are placed at our command for the purpose of their benefit"
"Sometimes, I feel setting up a new thing is difficult in itself but institutionalising something that has been set up is even more difficult. You have to make the new institution a part of the way of life of those who take part in the day-to-day functioning of that institution, who here are the judges, the lawyers, the litigants. It is very important for us to ensure that a permanent staff is attached to the E Seva Kendra. Because my experience across the country has been that the E Seva Kendras set away from the court have not been successful, those which are hidden in some part of the establishment of the court itself are even not successful. Those which are at the forefront of the court, attached to the court, where the litigant has the first interface with the E Seva Kendra have been extremely successful. I do believe as a policy maker, as an administrator, that we learn from mistakes and that we should not be worried about the mistakes that we do and we should not be averse to listening to other stakeholders like the lawyers who tell us that we have to make some changes in what we are doing", he stated.
Virtual Courts
"The virtual court is equally a matter of utmost importance. To give you an example, virtual courts have now been set up across the country in 12 states for adjudicating traffic challans. Across the country 99.43 lakh cases have been completed. Fines have been collected for 18.35 lakh cases. Total fine collected is over 119 crores of rupees. About 98,000 violators chose to contest the case", told Justice Chandrachud.
"Now you can imagine that for a common citizen who has a traffic challan, to spend a day away from daily wages and to go to court to pay for the traffic challan is not productive. On the other hand, if virtual courts are dovetailed with a nationalised bank where challans can be paid electronically, it is a win-win situation for the citizen. It is extremely productive for the court. For example, in Delhi, almost 2 dozen judges dealing with courts of traffic challan cases have been liberated to do other cases. So the work of the bar has not gone down. Those judges will deal with other cases also where their involvement is really required and not these ministerial cases which are really a waste of time for the judge and which can be easily done with the use of technology", he continued.
Incorporation of technology to remediate huge pendency of criminal cases
"2 crore 95 lakh criminal cases are pending in the district judiciary of the country of which 77.5% cases are more than one year old. Many criminal cases are pending as the accused remain absconding for years. For example, the oldest sessions court case in UP where the accused is absconding is sessions trial 64 of 1976 at Gorakhpur! We know as judges that the major reasons for delay in disposal of criminal cases is the fact that the accused remain absconding, particularly after bail is granted, and secondly, due to non-appearance of official witnesses during the course of the criminal trial for recording evidence. We can use information and communications technology here also. This is what we are working on presently in the E committee of the Supreme Court", Justice Chandrachud shared.
"We can ensure police station-wise that we have a list of cases where the accused is absconding. So the SHO knows the data of how many accused, pertaining to his police station, are absconding. We can escalate this to every district where the superintendent of police or the senior superintendent of police has the same data. We will also escalate it further by providing the data to the inspector general or to the director general of police. So we will have a graded hierarchy of responsibilities so that ultimately the police machinery is also alive to and accountable for the service of summons", he explained.
"Second, as regards the absence of official witnesses, I think we have to make a beginning where atleast the testimony of official witnesses is recorded in all criminal trials across the board, unless the judge thinks otherwise, through videoconferencing platform. Taking these baby steps would go a long way in assuaging some of the concerns which we have today", told Justice Chandrachud.
Digitisation of records and E-filing
"Some of the younger colleagues on the bench or some of the younger lawyers with us today may not have been born in the age of LP or EP records which we were listening to when we were young people. Some of you may not even know about tapes or cassettes. Some of the lawyers or judges must be from the CD age. Today records have all gone out of vogue, CDs have gone out of vogue. We had floppy disks when I was a young lawyer and we would share drafts on that. Today they have become obsolete. The reason why I mention this is that any methodology that we follow as judges for digitisation must be cognisant of the fact that technology should not make this obsolete in the future. Because we are investing a large amount of public funds. Also we are also destroying the records once we digitise. Otherwise, High Courts and the Supreme Court are courts of record. So we must ensure that the modalities of digitisation which we are now providing will be compatible with the evolution of technology in the future", expressed Justice Chandrachud.
"It was with this perspective that as chairperson of the E committee of the Supreme Court, I constituted a committee of five of our most senior High Court judges across India to engage with renowned experts in private sector and public institutions, for the purpose of preparing a standard operating procedure on digitisation. After we got the draft SOP, it has been circulated to all the High Courts. We got wonderful suggestions", he told.
"The other problem with digitisation was the accessibility initiative to the visually-challenged or the hearing-impaired. How do we ensure they are not deprived of the benefits of this? The SOP on digitisation has been prepared and I have circulated it to all the chief justices. So we must move forward being conscious that a lot of work of digitisation has already been done. Madhya Pradesh, Allahabad, Punjab and Haryana High Court have done a lot. But going forward, we must ensure that the digitised legacy data and what is digitised in the future must be compatible with whatever changes in technology will come into being at a future point of time. The E committee is appointing a pan India consultant for the purpose of guiding us in the implementation of the SOP of digitisation", Justice Chandrachud said.
He pointed out that another important aspect is that digitisation of records is not sufficient in itself and unless we arrest the need to digitise in future, five years down the lane, we would be doing exactly the same as we are doing today- "So e-filing must go hand-in-hand with the digitisation because it is only when we E-file from today onwards, that we will not have the same volume of data that we have to digitise for the future. Because if we file, we will obviate the need for digitisation in the future. The government is the largest litigant in the country. I have written to all the honourable Chief Justices of High Courts to request the government to start e-filing from one cut-off date in government litigation"
"Also, we must provide incentives for lawyers. Very often we find that we would ask lawyers to e-file their pleadings and we would also ask them to give us printouts of the pleadings. If I was a member of the bar, I would say if I have to file everything in electronic form and I also have to give you a physical printout, why should I take the trouble of filing pleadings by way of e-filing. We can't expect lawyers to give us e-filed data as well as physically printed data. I think it is important for us as judges to change our mindset", he continued.
"Likewise, we have framed rules for e-filing of cases, there is an SOP for digitization. We are working on an infrastructure for data privacy and data security. Chief Justice Bindal (of the Allahabad High Court) is chairing a community for rendering all records which the district courts have to maintain physically in the electronic form. Because we all know as judges that the district judiciary maintains manual registers and it takes an enormous amount of time. It is a stressful exercise when the date for inspection arises and his lordship or her ladyship goes to the district court for the purpose of inspection. I think we must now modernize. Inspection must be done in electronic form. We seek to replace the manual registers with model electronic registers", he told.
Interoperable Criminal Justice System
"We are now working on strengthening the Interoperable Criminal Justice System. The ICJS has aimed at integrating the crime and criminal tracking network systems, the CCTNS, the E courts and the E prisons databases so that the CCTNS would share the FIR and charge sheet data in electronic form with the E courts application and likewise the E courts would share the CNR number to the CCTNS through the ICJS. Further updates of the case could be made available through the open APIs", shared Justice Chandrachud.
'Judges play a very important role in changing the mindset as regards the use of technology'
"I must share with you that though I have been pretty comfortable with technology, it is only after the pandemic started that we have really begun to use it, when even bringing paper files home was a source of possible danger. All the files I work on today are scanned and digitised in the registry of the Supreme Court and delivered in electronic form, all notes that I make are completely in the electronic form. And I have records of my notes from June 1, 2020. So if any case comes back to me all that I need to do is go back to the date when the case was last listed and I have my detailed notes. At the most the note has to be updated to take into account the new affidavit, counter-affidavit, rejoinder, status report. So there is a need for us as judges to change the mindset itself", Justice Chandrachud said.
"The bar tends to look at judges as mentors. We have a very important role in changing the mindset of the bar. If they see us using computers in our courtrooms, you will find young lawyers also using computers. We have to play a very proactive role in training the members of the bar in using computers. The idea of technology is to simplify the way in which we work, not to complicate it for district judges, the bar, the staff", he continued.
"One of the missions of our e-courts project is not to have a top-down approach where Delhi decides everything and that it is implemented by the High Courts. Because I have not forgotten my days as a judge of the High Court. I have always believed as a judge of the High Court that India does not exist only in Delhi, it exists in the villages, small towns, cities across the nation. Therefore, we have tried to implement that by giving ownership of the e-courts project to the High Court. Many of the initiatives at the E-committee, including the rules on live streaming which we framed, are the product of an exercise which was done by a five-judge committee of the High Court judges, which again we had circulated to all the High Courts and we received instructions and objections and suggestions. Now Gujarat High Court has taken up live streaming, Karnataka High Court has taken up live streaming, and I am sure Allahabad High Court will also", he said.
"We need to take the government on board also, the government being the largest litigant. One of the things we are now providing is an open API. It is a mechanism by virtue of which the government can track the progress of all their cases in whichever court. It applies not just to the state government but all authorities of the state government including Zila parishad, municipal council, municipal corporations, Nagar Panchayat. They have a real-time, virtual data of the cases which involves each of their entities. They can see whether those cases are being pursued by the persons who represent them", he told.
"The National Judicial Data Grid has an enormous amount of data with regard to each of the districts. This data can be used by the administrative judges for tracking the progress of cases within their own administrative zones. I would encourage all the administrative judges to do so, and perhaps the chief justice may wish to hold a brief session with them so that the administrative judges can understand how they can use the NJDG. We recently held a conference of all the chief justices across India where we indicated to them how they can use the NJDG data for a 360° evaluation of monitoring the caseload in each state", narrated the judge.
"This is a very exciting time we are living in, a time for change, gives us a real opportunity to change our system", asserted Justice Chandrachud.
Indicating the overwhelming number of hits per day on the service portal created by the E-committee as well as the mobile application and the fact that the E-Taal website recorded 391 crore e-transactions during the pandemic, the judge expressed, "It shows us that citizens today are really expecting that we use the facilities of ICT which are placed at our command for the purpose of their benefit"
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