January 2006

Enforcing “rule of justice” through e-Governance

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Understanding the benefits of the use of ICTs in the larger interest of the public, the Indian Apex Court has also become conscious to make it judicially applicable for the deliverance of justice appropriately. The judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice.

The justice delivery system
The first duty of a court is to do justice. If the “rule of law” has been declared to be a “basic feature” of the Constitution, which cannot be taken away even by exercising the constitutional power of amendment, then “rule of justice” is definitely above it and deserves the status of the basic feature of the Constitution. This is so because the concept of justice is wider and is of greater importance than the rule of law. The very concept of the “rule of justice” may therefore be judged as stated hereunder.

It may be accordingly noted that the express incorporation of Article 142 in the Constitution of India assures this guarantee. The Supreme Court in exercise of its jurisdiction can pass such decree or make such order as is necessary “for doing complete justice” in any cause or matter pending before it. Also, there may not be any law governing any particular situation, but the justice may require taking of an immediate and inevitable action.Thus, the courts in India to do complete justice invoke the concept of “rule of justice”. This does not mean that one can ignore the concept of rule of law. It must be appreciated that both rule of law and rule of justice must go hand in hand to make the justice system just, fair and reasonable.

A decision based on an old law, which does not satisfy the requirements of the present situation and environment should be avoided. In such a situation the efforts of the courts should be to give the law a “purposive, updating and an ongoing interpretation”. This position makes the interface of justice delivery system with the information technology inevitable and unavoidable. Law cannot stand still; it must change with the changing social concepts and values. It must be clearly understood that if the law fails to respond to the needs of changing society, then it will both stifle the growth of the society and hinder its progress, or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly keep on adapting itself to the fast changing society and not lag behind[1]. Thus, the justice delivery system cannot therefore afford to take the information technology revolution lightly.

Legislative efforts to bring technology revolution
To meet the challenges posed by the information technology, the Parliament has enacted the Information Technology Act, 2000. The aim of the Act is to provide a sound base for e-Governance and

e-Commerce. It must be noted that the
e-Governance base can be effectively utilised 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. There are several provisions in the Act that reflect India’s determination to utilise the benefits of e-governance for judicial purposes. For instance, electronic records are legally recognised, digital signatures have been given the status of signature in writing, a notification in electronic gazette is considered to be a valid notification, etc.

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[2]. 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[3]. Thus as an alternative to paper based record, e-record has been recognised 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 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[4].

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.

There are several provisions in the IT Act 2000 that reflect India’s determination to utilise the benefits of e-governance for judicial purposes. For instance, electronic records are legally recognised, digital signatures have been given the status of signature in writing, a notification in electronic gazette is considered to be a valid notification, etc.

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.

Judicial reception of information technology
The judicial response vis-à-vis information technology is positive and technology friendly. In Basavaraj R. Patil vs State of Karnataka[5] the question was whether an accused need to be physically present in court to answer the questions put to him by the court whilst recording his statement under section 313. The majority held that the section had to be considered in the light of the revolutionary changes in technology of communication and transmission and the marked improvement in the facilities of legal aid in the country. It was held that it was not necessary that in all cases the accused must answer by personally remaining present in the court. It can also be done through “video conferencing”. Once again, the importance of information technology is apparent. Similarly in another case it was observed that the requirement of a written notice will be satisfied if the same is given in the form of a fax, e-mail etc, using the information technology.

Section 4 of IT Act 2000 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.

In State of Maharashtra vs Dr.Praful.B.Desai[6] the Supreme Court observed: “The evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video conferencing, which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. Thus, it is clear that so long as the accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is recorded in the “presence” of the accused and would thus fully meet the requirements of section 273, Criminal Procedure Code. Recording of such evidence would be as per “procedure established by law”. In that case evidence would be recorded by the magistrate or under his dictation in the open court. To this method there is however a drawback. As the witness is not in the court there may be difficulties if commits contempt of court or perjures himself. Therefore as a matter of prudence evidence by video conferencing in open court should be only if the witness is in a country which has an extradition treaty with India and under whose laws contempt of court and perjury are also punishable”.

This judgment of the Supreme Court is a landmark judgment as it has the potential to seek help of those witnesses who are crucial for rendering the complete justice but who cannot come due to “territorial distances” or even due to fear, expenses, old age, etc. The Courts in India have the power to maintain anonymity of the witnesses to protect them from threats and harm and the use of information technology is the safest bet for the same. The safety of victims and the witnesses through the use of information technology was recognised by the Supreme Court in Sakshi vs U.O.I[7]. Here, the Supreme Court also upheld that the recording of evidence by way of video conferencing vis-à-vis Section 273 Cr.P.C. was permissible.

With the help of information technology, the daily matters can be effectively taken care of irrespective of the field covered by it. For instance, the Delhi Police Headquarter has launched a website, which can be used for lodging a First Information Report (FIR). Similarly, the Patna High Court has taken a bold step of granting bail on the basis of an online bail application.

It must be noted that to give effect to these provisions appropriate amendments have been made in the I.P.C, 1860, the Indian Evidence Act, 1872, the Bankers’ Books Evidence Act, 1891, and the Reserve Bank of India Act, 1934.

These amendments have made these statutes compatible with the “e-justice system”.The above discussion shows that the judiciary in India is not only aware of the advantages of information technology but is actively and positively using it in the administration of justice, particularly the criminal justice. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. This is being properly appreciated and adequately applied by the Indian judiciary in the context of information technology.

Footnotes:

[1]  Justice Bhagwati in National Textile Worker’s Union v P.R.Ramakrishnan, (1983) 1 SCC 228, at p. 256.
[2]  Sec.2 (1) (t) of IT Act, 2000
[3]  Sec.2 (1) (r) of IT Act, 2000
[4]  Sec.10 of IT Act, 2000
[5]  (2000) 8 SCC 740.
[6]  2003 (3) SCALE 554.
[7]  (2004) 5 SCC 519.

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