Law and Justice in the Digital Age

1

The massive scope of e-justice in today’s world.

 

Those who litigate in Courts say that litigation is a waste of time, money and paper. All three of these and the burden on Courts can be drastically reduced by making the entire procedure more technology friendly. The E-Courts Project, which was conceptualized on the basis of the National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary was submitted by the e-Committee of the Supreme Court of India, with a vision to transform the Indian Judiciary by ICT enablement of Courts. Once successfully implemented, this could drastically change the ease of access to Courts.

Positive Effect of Technology in the Judiciary

1. Paperless Courts: The Indian courts are seen to be littered with countless files and endless stacks of paper. E-litigation, as has been prevalent in Singapore, has been seen to drastically cut down on paper by introducing technology in the courtrooms. It includes an electronic filing service (allows court documents to be filed), an electronic extract service (allows lawyers to obtain extracts of court documents), a facility to electronically serve processes on parties and an electronic information service. This not only helps the Court reduce the paper trail but also helps lawyers keep proper track of all Court documents.

2. National Data Grid: A National Data Center could be established to hold all information concerning pending work, filings, stages and disposals, and subject matters of all cases. The system could automatically compare and help lower Courts speedily render justice in cases where there exist precedents and stop infarctus cases from being filed.

3. Transparency: One of the biggest problems in the lower judiciary currently is corruption and the underlying lack of transparency. Digitization of records and removal of the human element of filing would drastically reduce corruption and ease the burden on common people.

4. Ease of Access: Currently, certain District Courts all over India do allow the filing of Court fees online in the form of E-Challan, and they also do update the case status of ongoing cases on the ecourts website. However, the number of Courts properly utilizing this facility is far too less. Law was meant to help the common man and a complicated procedure of filing only discourses genuine litigants.

5. Under-trial Prisoners: If an online database would regulate and track how long an under-trial prisoner has spent in prison and fast-track cases where a person has been imprisoned for long periods without a trial, it would drastically reduce the burden on prisons and free under trials. Also important is that in cases where the Petitioners/Complainants have caused unnecessary delays by taking adjournment, an e-system could automatically schedule the case for dismissal and clear up pending cases.

6. E-Witness Examination: Courts have already started accepting Cross-Examination and testimonies over the use of electronic mediums such as Skype. But such usage, for now, is limited to only the Supreme Court. If such infrastructure could be provided to other Courts, it would reduce the time of both the litigants and the Court.

The dismal fact behind this mini revolutionising of law and justice in this digital age is that despite campaigns like Digital India, a majority of the Indian citizens are woefully ill-equipped to understand or take advantage of any technological benefit. The dream of E-Courts and E-Justice cannot be fulfilled until the average society is properly educated to take maximum advantage of its benefits.

 

Feature Image Credit: Department of Justice

 

Sourya Banerjee is a part of the Mentor Panel at One Future Collective.

We’re updating our website!

Queer Infocus | July 2020

The Beginning, Middle and End: A Tryst with Depression

Understanding The Transgender Persons Bill, 2016

1

The amusing aspect of legislative endeavors in India is that laws are often drafted without rigorous research or consultation with stakeholders, and as a result the entire process ends up being similar to throwing your garbage behind your house — you may not see the garbage, but the the stink still exists. The Transgender Persons (Protection of Rights) Bill, 2016 is a similar draft thrown about to make the Government feel good about itself.

The history behind the current Transgender Persons Bill

In December 2014, Mr. Tiruchi Siva, a Member of Rajya Sabha from the Dravida Munnetra Kazhagam (DMK), introduced the Rights of Transgender Persons Bill, 2014, as a Private Member’s Bill. On April 24, 2015, in what was an extremely rare instance, the Rajya Sabha unanimously passed the Bill. However, it never made it to the Lok Sabha. Instead, the Government, in its wisdom, decided to get its own Bill — The Rights of Transgender Persons Bill, 2015, which was put up for public comments in December 2015. The 2015 Bill, though seemingly based on the 2014 Bill, did away with provisions on Transgender Rights Courts and the National and State Commissions. The Government consulted civil society activists and in April of 2016, sent a new draft (The Transgender Persons (Protection of Rights) Bill, 2016) to the Law Ministry, which approved it in July, leading to it being introduced in the Lok Sabha in August. It is unclear why the Government decided to water down the 2014 Draft Bill, but not only was the 2016 Bill devoid of many critical features of the previous Bill, it also completely disregarded all existing discourse and resources — the NALSA judgment (WP №400/2012 filed by National Legal Services Authority (NALSA) vs Union of India), the Expert Committee Report, and public comments (which the Government had invited and claimed to have considered). The 2016 Bill was then referred to a Standing Committee.

Report of the Standing Committee on Social Justice and Empowerment

The Standing Committee on Social Justice and Empowerment (2016–2017) presented its Forty-third report on The Transgender Persons (Protection of Rights) Bill, 2016 to the Lok Sabha on the 21st of September, 2017. The Committee held five sittings to examine the Bill, and relied upon oral and written submissions of a number of NGOs and experts in the field, including Vidhi Centre for Legal Policy, Amnesty International India, Dr. Kaveri Rajaraman, and Lawyer’s Collective among others, and informed the Lok Sabha of the numerous flaws of the 2016 Bill. The recommendations of the Standing Committee have also currently been sent to the Ministry of Social Justice and Empowerment (MoSJE). Whether the Government accepts the changes, or moves ahead to vote on the Bill in its current state, still has to be seen.

Key criticisms of the proposed Bill

Some of the major critical flaws (the list being non-exhaustive) of The Transgender Persons (Protection of Rights) Bill, 2016, pointed out by the Standing Committee, as it currently stands, are:

  1. Definition of Transgender: The Bill under Section 2 (i) defines a Transgender Person as;
    (A) neither wholly female nor wholly male; or
    (B) a combination of female or male; or
    (C) neither female nor male; and

whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.

The use of the words “neither wholly female nor wholly male” is regressive and does not align with internationally acceptable definitions or the judgement of the Supreme Court in the NALSA judgement. The Standing Committee noted that the proposed definition of transgender persons appeared to be two-fold; the first part focuses on ‘biological sex’, as mentioned in sub-clauses (A) to (C), while the second part focuses on ‘psychological sex’. The NALSA Judgement explicitly laid emphasis on the ‘psychological test’ and not ‘biological test’, wherein the psychological mindset of the person has to be given primacy over the binary notion of gender as masculine or feminine. In fact, the jurisprudence in the last thirty years from most parts of the world has rejected the emphasis on ‘biological sex’ and has given way to self-identified gender for the purpose of legal recognition.

Thus, any definition of ‘transgender person’ ethically should only relate to a person’s self-identified gender identity and not to birth-ascribed biological sex. Further, the phrases ‘neither wholly female nor wholly male’, ‘a combination of female or male’ and ‘neither female nor male’ are unscientific and primitive, and are based on the underlying assumption of ‘biological determinism.’ This argument wrongly suggests that all persons are born with innate and immutable biological attributes, i.e., chromosomes, hormone prevalence and internal and external sexual anatomy. It further fails to recognise that many persons are born with ambiguous or atypical sexual organs, whether external or internal, and identify themselves as male, female or transgender (generally known as persons with intersex variation).

This becomes even more alarming in the light of recent changes to the Wage Code Bill. The Labour Ministry, keeping in mind the NALSA judgement, had started working on the Wage Code Bill, which was drafted under an exercise to rationalise the country’s forty-four labour laws into four codes covering all the regulations pertaining to wages, industrial relations, social security and safety, and health and working conditions. However, the part of the Labour Ministry’s draft law that sought to codify wages and protect transgender workers from discrimination has been shelved on account of reservations expressed by the Law Ministry. Apparently, as reported by The Hindu, the Law Ministry objected to the presence of specific protections for transgenders under the Wage Code as, according to the Law Ministry, the term “persons” under the General Clauses Act would cover the term “transgenders”. This explanation does not stand given that it argues against the need for specific protection of minority groups in the light of general allowances. The fact that this law is required despite the presence of Article 15 under the Constitution of India, 1949, speaks volumes in itself — generic broader provisions cannot always protect minority rights, and specific, detailed legislation and clauses are always the best route to secure rights.

2. Discrimination and Remedy: Despite having an entire section dedicated to the protection of transgenders against discrimination, the Bill does not define what constitutes discrimination. It is an open secret that transgender persons have historically faced a range of discriminatory practices by the State and citizens which go beyond the categories enumerated in Articles 15(1) and 15(2) of the Constitution. For example, transgender persons routinely face discrimination in the access to education, employment, healthcare, and housing. The Standing Committee was of the view that, without a definition of ‘discrimination’ for the purpose of this Act/law, it would be almost impossible to prohibit such practices by future administrations. In this regard, the Standing Committee had suggested that the Government would do well to incorporate the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity into the Bill.

Secondly, even if discrimination is determined, the Bill does not specify a remedy available to the citizen. Do they approach the High Court directly under Writ Jurisdiction or by virtue of having a right via a special act? Would they have a quasi-judicial body to regulate matters? Can they file a simple Declaration Suit under Section 9 of Code of Civil Procedure or can they choose remedies under Protection of Women from Domestic Violence, 2005? These are some unanswered questions.

The transgender community is one of the most marginalised communities in the country as they do not fit into the stereotypical categories of gender. Consequently, they face problems ranging from social exclusion to discrimination, lack of education facilities, unemployment, and lack of medical facilities. The discrimination based on their social standing and gender makes the transgender community one of the most dis-empowered and deprived groups in Indian society. This discrimination is rooted so deeply in this country that even our dictionaries recognise the word ‘hijra’ (transgender in Hindi) as an abusive slur. Even if all the changes suggested by the Standing Committee are accepted, and the Bill is passed, it would still not spell the end to the problems faced by the community. Section 377 of the Indian Penal Code, 1860, still acts as a major hurdle in providing equality of access to the transgender community, and given its current wording and lack of sensitivity amongst the police and judiciary, there is little scope to prevent discrimination and misuse of the law resulting in the mistreatment of transgenders.

It is also important to note that the Bill focuses solely on transgender rights and does not account for gender identities that go beyond the binary or transgender categories, including but not limited to agenders. The legislators’ lack of understanding of the transgender community’s plight is perhaps best summed up in the following quote by Justice K.S. Radhakrishnan (NALSA Judgement).

Seldom, our society realises or cares to realise the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.”

The Government has the duty to ascertain that people are not discriminated against because of their nonconformity to established social norms and gender constructs.

One Future Collective is the outreach partner for the Trans Diamond Festival. This article series, across platforms, is a result of the ongoing effort of Make Room India and One Future Collective to discuss issues of the transgender community and build an ecosystem towards strengthening the trans rights movement in India. This article was first published at NewsnViews.

Sourya Banerjee is a part of the Mentor Panel at One Future Collective.

Featured image: rawpixel

We’re updating our website!

Queer Infocus | July 2020

The Beginning, Middle and End: A Tryst with Depression

The Problem of Access to Justice in India

1

“This is a Court of Law, young man, not a Court of Justice.” — Justice Oliver Wendell Holmes, Jr (1841–1935)

The Patron saint of Lawyers, Saint Themis, is depicted as a blindfolded Lady with a scale in one hand and a sword in the other. She is described as “the Lady of good counsel”, and is the personification of divine order and natural law. Unfortunately, what is supposed to be a symbolic representation of being blind to all forms of bias has instead ended up becoming the representative of being blind to discrimination and justice.

While even the Universal Declaration of Rights, drafted in the year 1948, gave recognition to two rights pertaining to ‘access to justice’ in the following words, implementation of the same has been far from ideal:

“Art.8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution or by law.

Art.10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him.”

According to the Supreme Court Bench in the case of Anita Kushwaha vs Pushap Sudan [Transfer Petition © 1343 of 2008], the following are the four main facets that constitute the essence of access to justice:

i) The State must provide an effective adjudicatory mechanism;
ii) The mechanism so provided must be reasonably accessible in terms of distance;
iii) The process of adjudication must be speedy;
iv) The litigant’s access to the adjudicatory process must be affordable.

But these criteria have not been fulfilled as thus:

i) The State must provide an effective adjudicatory mechanism;

To answer whether the State provided effective adjudicatory mechanism we need to look at some questions;

  • Are the buildings there? Yes.
  • Can everyone access those buildings? No.
  • Are there Judges inside all the Court Halls? No.

While India can still claim to have adequate Courtrooms (access to the same by people in remote areas is highly contested), as per the 87th Report before the Rajya Sabha, approximately 43% of Court Halls in the High Courts in India do not have Judges. There has been a continuous inordinate delay in appointment of the Higher and Lower Judiciary which in turn piles up cases and delays the process. As per the Press Information Bureau report dated March 3rd, 2016, there were 48,418 civil cases and 11,050 criminal cases pending before the Supreme Court as of February 19th, 2016.

Even if we assume that the victim makes it to the courts and manages to hire a decent lawyer, they may never even hear their proceedings. The Supreme Court has, till date, spent Rs. 91 Lakhs to install the latest microphone system for both the bar and the bench but alas, neither the Bar nor the Bench puts the mics to use. Imagine spending a lot of money to pursue your matter to the Supreme Court only to be unable to hear anything going on in there. It is said that justice should not only be done, but must also be seen to be done. In this case, at least in this context, Justice is visibly not done.

ii) The mechanism so provided must be reasonably accessible;

  1. In terms of distance: While the Supreme Court is supposed to be approached only in rare cases, for the poor and the downtrodden, the thought of even approaching it is rare. It makes no logical sense for a poor person whose rights have been trampled to travel all the way to New Delhi from remote places such as North East India, or the tip of Kerala. While the idea of having 5 separate Court of Appeals (East, West, North, South and Central) was once mooted, unfortunately, it has remained just a moot point.
  2. Accessibility for individuals: India has approximately 2 crore and 68 lakh people who suffer from different kinds of disabilities. Ironically, back in 2016, the Supreme Court had pulled up the Central Government for not having kept its target of making 50% of the Government buildings disabled friendly, and yet, Courts in India do not have disabled friendly washrooms or access ways.

iii) The process of adjudication must be speedy;

Keeping in mind point (i), that is Courts are understaffed and overburdened, it is patently wrong to assume that the Court would dispense matters quickly. Our Civil Procedure Code is over 100 years old and the basic Court practices are tedious and extremely complicated. Taking adjournments without reason had become such a common practice that certain High Courts specifically bar adjournments now. And yet, there are cases pending before numerous Courts for over 15 years. Recently, the High Court of AP and Telangana had decided that all old cases must be concluded soon. The Advocate Associations reacted to the news by going on a strike. The advocates contended that they could not be forced to rush the litigation process. So, instead of the matters getting wrapped up quicker, they got further delayed.

And all this is just phase one. What if the matter goes to appeal?

But that too is not the worst scenario. Imagine filing a case and having the other party file an objection on a minor point. The Judge rules in your favour on that minor point and the other party appeals on that minor point. And possibly appeals again, till finally, the Supreme Court hears the case. Even if the Supreme Court rules in your favour on that minor point, years if not a decade would have passed only for the matter to be sent back to the lower court to now decide the complete issue. The top five Central Tribunals in the country have a combined backlog of over 3.50 lakh cases with the Income Tax Appellate Tribunal alone having over 91,000 pending matters. This goes to show that even alternative specialised forums are overburdened and do not necessarily lead to quicker adjudication.

iv) The litigant’s access to the adjudicatory process must be affordable.

Is litigation affordable? No.

As they say, if it’s free, it’s probably not good. If it’s good, it’s probably not free. While the case of Khatri II v. State of Bihar [(1981) 1 SCC 627] did state that the right to free legal aid is a right covered under Article 21 of the Constitution, the legal aid Lawyer you will get is again overburdened and under-equipped in most cases. Let’s assume, as an example, that some big pharmaceutical company has wronged you. Because you can’t afford a lawyer, you accept free legal aid, whereas the Company hires the biggest Law firm in India with an entire panel of Lawyers. I know some brilliant lawyers who work with Free Legal Aid Centers, but it is humanly impossible for even them to go against entire truckloads of lawyers on the other side. And that is where the dream of access to justice falls flat.

Anywhere you go in the world, remedy under law must be paid for in the form of the legal expenses of lawyers’ fees (unless someone agrees to take up the matter pro bono), Court fees and filing expenses (translation, making copies to serve on other side, process fees, RPAD, Court Stamps etc) and the under table expenses. Even if you get declared as an indigent, you would not have to pay Court fees and process fees but you would still have to spend money to see the matter reach its conclusion — in a couple of years, if you are lucky.

In India, we theoretically do have a right to access the courts, but justice is not guaranteed.

Sourya Banerjee is a Mentor at One Future Collective.

Featured image: Glaser & Ebbs

We’re updating our website!

Queer Infocus | July 2020

The Beginning, Middle and End: A Tryst with Depression