Threat to Covid Justice : Political controls and Infrastructural deficits

[There are two major challenges to video justice. First challenge - whether justice system sustains basic norm of openness was discussed in first part. Second challenge- will it make independent judiciary dependent upon technology, where the switch is remotely controlled by non-judicial bureaucracy is examined in this part.]

The virtual courts in Covid-19 days, serious threat to justice through virtual hearings is the real political control over the internet technology. The burning example of the en mass denial of rights through banning the internet in Jammu and Kashmir.

If the virtual hearings should happen in every court during and post Covid-19 days, all stakeholders should have enough bandwidth on internet, besides having proper connectivity.

The SC communication on May 3, says that since smooth functioning of the video conference is squarely dependent upon and subject to the connectivity (signal-strength/bandwidth) available at the end of the remote user(s), and hence it is expected that any party joining a video-conference hearing shall ensure robust connectivity and bandwidth are available at their end – in this regard, parties may also ensure that no other device or application is connected to or using the bandwidth when the hearing by video conferencing is progressing on the video-enabled computer”.

Executive controls

While TRAI is a regulator of internet communication, the complete control over technology is in the hands of political executive, which factor is proved in the present-day status of Jammu and Kashmir. The 4G connectivity of internet is taken away by the Union Government citing the need to control terrorism. With the lack of 4G enabled connectivity, the victims of abuse of power in J & K are not able to seek justice by enforcing Article 32, which is not specifically suspended today. It is not possible to have hearing on their habeas corpus petitions in the Supreme Court from J&K, which is under lockdown since August 5, 2019.

This ban on high-speed 4G internet has resulted in additional difficulties in hearing of cases through video conferencing. On April 28, a bench had to adjourn a case “on account of poor connectivity” and “non-availability of proper video conferencing facility[1]”. Ban imposed by the Union government is the real control that could deny the access to justice.

Is Article 32 suspended?

It is unconstitutional to deny any person from using Article 32. If a Bench of HC or for same reason, if the SC cannot connect to petitioner in Kashmir or his advocate, its serious interference with the judicial functioning apart from denial of constitutional rights of the people without any formal suspension. Its atrocious. Several habeas corpus petitions and PILs from Kashmir could not be taken up because of this technology denial.

Chief Justice of J&K Gita Mittal said in a webinar recently: “Now I had to hear lawyers and parties-in-person sitting in Srinagar as well as in Jammu. So, on any particular day of hearing, I have at least 15 parties in the matter — so I have about 8 people on the screen before me and all the others who have difficulties in hearing are joined either by video call or WhatsApp call or on a landline. I have had to innovate but we have done very well in Jammu & Kashmir”. She also had hearing matters over phone calls. Justice Mittal also said that people also need to talk about trials courts in context of virtualisation of courts. The CJ further explained: “That is where justice has to be delivered and that is where the common man and woman go first for justice. That is where there is a huge infrastructure deficit.[2]” Thus, political denial and infrastructure deficit stops justice from reaching the needy whether during or after Covid-19.

The Supreme Court accepted that the government has violated its order in Anuradha Bhasin case[3], but unfortunately did not apply the relevant principles laid down in that case. It has spelt out its decision upon the constitutional validity of the internet suspension but asked a “Special Committee” – composed of members of the executive to take appropriate decision[4].

Besides the democracy, life, civil liberties, the judicial functioning will also become totally dependent upon the decision of that Government’s Special Committee on internet restrictions in J & K.

Two norms of Anuradha Bhasin case not followed are: a) the minimal requirement for any suspension order to be lawful is that it must list the reasons for imposing restrictions, b)any restrictions on the freedom of speech must satisfy the “proportionality” test – which means the restrictions must be a proportionate response to the aim sought to be achieved through the restrictions.

Thus, this is a judiciary vs executive challenge that could prevent ‘independent’ judiciary from discharging constitutional obligation without clearance from the Government. One important state is suffering because of the ban on internet.

The Private Schools Association, Jammu & Kashmir (PSAJK) filed a PIL contending that the lack of 4G connectivity for internet in Jammu and Kashmir is infringing the fundamental right to education. The PSAJK is an association of over 2,200 schools and the plea has been preferred challenging Government Orders dated 18.01.2020, 24.01.2020, 26.03.2020 and 03.04.2020 which led to the imposition of restriction(s) on Internet Speed[5].

A web portal news magazine commented: 2G internet was first restored in parts of the region on January 14, but only “whitelisted” sites were permitted to be accessed over the network. The number of whitelisted websites was gradually increased through the seven subsequent orders, until all websites were finally made accessible over 2G on March 4. Is it not similarly possible to selectively allow 4G access to some websites while permitting 2G access to others?[6]

While this situation is specific to Kashmir, generally the ‘control’ over the technology really decides the judicial process, which is not constitutionally acceptable. The ‘ban’’ has its repercussions in Supreme Court. Even if the apex court lists a PIL or habeas corpus petition, it cannot hear because of this denial of internet and the person in illegal incarceration will have no remedy. This atrocious power in the hands of technology is cause of wholesale or bulk denial of human/Constitutional rights of the people in Kashmir.

Should we allow internet controller to control the justice delivery? Besides this, non-availability of required broadband speed or band width or 2G or 4G enabled net connectivity will also control the access to justice.

Capacity to use technology to access the Supreme Court in Delhi is either deficient or connectivity is distributed across the nation unequally. In February 2018, the average broadband speed of fixed-line connection in India was 20.72 Mbit/s, which is less than the global average download speed of 42.71 Mbit/s[7]. In terms of mobile internet speed, India performed quite poorly, with average speed of 9.01 Mbit/s when compared with global average mobile broadband speed was 22.16 Mbit/s.

As of December 2017, according to Internet and Mobile Association of India, the Internet penetration rate in India is one of the lowest in the world and only accounts for 35% of the population compared to the global average internet penetration is over 54.4%[8].Another issue is the digital divide where growth is biased in favour of urban areas; according to December 2017 statistics, internet penetration in urban India was 64.84%, whereas internet penetration in rural India is only 20.26%[9].

Supplement, should not supplant

Even after normalcy in post-Covid19 times, this technology should be allowed to remove disadvantages of geographical distance-based inaccessibility as supplemental tool. At least in substantive number of cases the unending orality should diminish, and new norm of precious written submissions should prevail. By minimizing crowding, wastage and dirt, the courts can reduce the transmission of any infection.

Another ground that makes it impossible to replace real with virtual courts is that with the control, the judiciary may have to lose complete independence over its constitutional functions under Article 32.

The political bans and restrictions on the internet utility service provision in general, on one hand, and specific power of Court Master or some such officer to control the microphone while hearing the case through video, on the other, will make it impossible to render satisfactory justice to both the parties of litigation.

Like a speaker of Lok Sabha or anchor of private TV channel, no authority should cut the microphone of a lawyer while arguing his case. In physical hearing of the case, a lawyer can see his rival advocate’s movements, observe modulations, can interfere and highlight a point with strong emphasis, which can be easily put off by switching off the entire link.

An advocate from Chennai said while he was representing a case in Supreme Court, through video from his office, to defend a favourable order of Madras High Court, the link was snapped at Delhi end. After counsel for one respondent presented his case, others were waiting for their turn, but the judge ‘stayed’ the order, without hearing others, by disconnecting the link. This is the problem, if you switch over to virtual hearing, switch off by someone is the real threat to justice. Such a snap or slap cannot happen in real hearing’.

If anchor like Arnab kind puts off the mike of a discussant of a TV channel, who doesn’t agree with his view, damage may not be serious. If an opposition leader’s mike is snapped while he was criticising the Government, there could be some damage. But if a court’s non-judicious officer snaps the mike, advocacy suffers, and justice denied. Courts should follow the principle of natural justice – audi alterum partem = hear the other side. Virtual courts are expected to be different from and above the level of a private TV channel.

Though hearing through video conferencing is an emergency-substitute to real hearing, if it completely replaces it will rattle with this dependency. Even if it is adopted as a supplement, these threats should be removed. Viral tragedy should not be allowed to make justice a casualty in virtual court. Without freeing internet-bandwidth from clutches of state or private hands, judiciary cannot depend on it. To conclude:

1. a)Virtual hearing cannot replace the court room hearings, without establishing infrastructural equality in terms of internet connectivity and bandwidth, removing the disparity of technology haves and have-nots.
2. b)Hearing through video conferencing could be an additional or supplementary as that cannot supplant existing real process of public hearing.
3. c)Even for hearing through video conferencing, the judiciary must have complete control and it should not be dependent upon the political executive for permission or allowance to use technology for access to justice either during normal days or Covid-19 days.
4. d)Political ban on internet will seriously undermine judicial independence and deny the people the fundamental right to use Article 32, which is the heart of Indian Constitution and imaginative creation of Dr B.R. Ambedkar. The ban on Jammu & Kashmir is a blot on democracy as that snaps several fundamental rights including Article 32.
5. e)Non-judicial officer’s control over video conferencing could result in denial of principles of natural justice and end up without hearing the two sides. This must be completely prevented. If not, it will become ridiculous TV debate where anchor will not allow other point of view, or debate in legislature where speaker prevents opposition from speaking