This Keynote Address was a part of the ‘1st Justice HR Khanna Memorial National Symposium’ organized by CAN Foundation in collaboration with National Law University, Jodhpur & Gujarat National Law University, Gandhinagar on 14th August, 2021. The transcript of the address delivered by Mr. Shyam Divan is as follows:
Mr. Shyam Divan (hence Mr. Divan) began his address on “Strengthening Doorstep Justice- Augmenting Access to Virtual Courts” by offering a note of thanks to the panellists, guests and participants and expressed gratitude for being granted the opportunity to be a part of this symposium.
Mr. Divan commended the CAN Foundation, Gujarat National Law University and National Law University, Jodhpur for organizing and dedicating the symposium in honour of “one of the finest judges” Justice HR Khanna. He noted that organizing this symposium was a projection of an extremely important value system, that of ‘constitutional courage’, for which Justice HR Khanna always stood for.
Relying on Mr. Anil Divan’s “On the Front Foot”, a chapter dedicated to Justice HR Khanna, Mr. Shyam Divan highlighted the contribution of Justice HR Khanna in ADM Jabalpur v. Shivkant Shukla, 1976 AIR 1207 (hereinafter “Habeas Corpus case”) . He quoted:
“A bench of five judges of the Supreme Court, Chief Justice Ray, Khanna, Beg, YV Chandrachud, DN Bhagwati, heard what was known to be the Habeas Corpus case. The only question before the Court was whether the petition for habeas corpus and other similar petitions under article 226 were maintainable notwithstanding the suspension of fundamental rights on the ground that the orders were beyond the statute or were issued mala fide and were not in accordance with the law.
Shanti Bhushan led the argument. Ram Jethmalani, Soli Sorabjee and I came from Bombay to argue various detenues. NM Ghatate was actively in the fray. We thought our case unanswerable with nine high courts in our favour. We were grievously wrong. On April 28th 1976, four judges decided in the favour of the government, holding that the petitions were not maintainable. Justice Khanna was the lone dissenter. The argument which was accepted by the majority was that even if a person is tortured or is deprived of his property, his wife is spirited away or members of his family are detained and harassed without legal authority or mala fide, there was no remedy and the courts’ doors were closed. This was a complete negation of rule of law which means that no government officer can act against the citizen and his property, unless authorized by some law or rule.
Justice Khanna in his autobiography writes about the Habeas Corpus case graphically. According to Justice Khanna, Attorney General Dey’s submission was on question whether there be any remedy if a police officer because of personal enmity killed another man? In response to this, Attorney General unequivocally stated that there would be no judicial remedy in such a case as long as the emergency lasts. His dissent, rejecting the Attorney General’s argument, held the petitions maintainable. It was the only light in an atmosphere of total gloom. But, the reaction in other democratic countries was heartening.
The New York Times, on April 30th 1976, came out with an editorial which has become classic and is cherished by many of us who lived through those dark days. “If India ever finds its way back to freedom and democracy that were the proud hallmark of its first 18 years as an independent nation, someone will surely erect a monument to Justice HR Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week and dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s govt. to imprison political opponents at will and without court hearings. The submission of an independent judiciary to absolutist govt. is virtually the last step in the destruction of democratic society and the Indian Supreme Court’s decision appears close to utter surrender.”
Mr. Divan, remarked that the Bar was an excellent judge of Justices of the Supreme Court. Terming the portrait of Justice Khanna, which adorns Courtroom No. 2 of the Supreme Court, as a ‘living monument’, Mr. Divan noted that Justice Khanna’s encouraging gaze provided an extraordinary reassurance to the arguing counsel. He remarked that the portrait reminds one of the capabilities of the Supreme Court, which had been adorned by great judges from all over the country. He further opined that the Supreme Court was an institution worth preserving and fighting for.
While setting out the structure of his address on the theme, Mr. Divan laid down three broad themes/points to remark on and supplemented the previous addresses of Justice Ramasubramian, Justice Muralidhar and Mr. Neeraj Kaul.
In his first point , Mr. Divan opined that the virtual courts must be looked at in the context of larger transforming technology instead of focusing only on the pandemic. He noted that the pressure would remain and changes in technology would be taking place even after the pandemic abates. He opined that in such transforming circumstances, everyone’s role must be re-examined, as had been previously discussed by Justice Ramasubramian while relying on “robo-courts” in China. Mr. Divan termed technological transformation as a value system and opined that such technological measures can help immensely in attaining access to justice. Building on the example further, he compared robo-courts with Automated Teller Machines and noted that the societies in China including rural ones had justice delivery kiosks operating on artificial intelligence (AI).
He further elaborated on the advantages of technological developments in increasing access to justice, through instances such as huge numbers of disputes could be resolved through AI, the statistics-based prediction of success rate in a case could be utilized and technology could be of aid to judges in research. He was of the opinion that such technological means would allow and improve access to justice while also being cost-effective and termed it as being ‘revolutionary’. He drew an analogy with the Consumer Protection Act, 1986, which enabled the society to express their grievances that otherwise would have not been redressed. He noted that creation of different consumer fora relieved a sense of injustice which was earlier harboured by a segment in a society with respect to consumer rights.
He remarked that the ambit of sweeping technological changes should not be limited to virtual hearing but should transcend to other spheres of human interaction as well. He cited the example of the introduction of advanced robotics, in the curriculum of students opting for surgery, in medical school. He opined that such technological means would limit the human agency in surgery and would likely emerge as the norm within a decade.
His second point was with respect to access to justice from the standpoint of a litigant. He noted that from a financial perspective, the virtual courts and technological deployments, ideally, ought to make access to justice more cost-effective and therefore must be encouraged. He referred to the addresses of Justice Muralidhar and Mr. Neeraj Kaul, wherein they had highlighted confidentiality to be one of the major concerns in virtual hearings. He noted that there were immensely high stakes of confidentiality in several circumstances of litigious and non-litigious nature. He further opined that the virtual set-up of courts posed additional challenges to activities of interpersonal nature such as briefing, engaging with one’s lawyer.
With respect to the digital divide, Mr. Divan, firstly, partially agreed with the remarks of Justice Muralidhar and stated that not only are certain segments of the Bar hesitant to adopt the technological change, but also that this hesitation is prominent before several courts including the constitutional courts. Secondly, Mr. Divan noted that the Bar associations had great potential and urged them to come forward to assist in bridging the digital divide. He further recounted that several courses on technology were being made available to judges, judicial officers, registrars for their training, as cited by Justice Muralidhar. With regards to the outreach of three dimensions, namely devices and infrastructure, connectivity issues and skill element, Mr. Divan was of the view that the Bar associations and organizations like the CAN Foundation had a duty to ensure that access to justice is supplemented and enhanced.
Mr. Divan’s third point was with respect to access to justice from the perspective of a lawyer. He noted that the legal profession supplied an enormous amount of dignity, status to lawyers, law students and even their family members. He described the advantages of physical hearing in training the next generation of lawyers. He further discussed the technical limitation on the number of people who might join the virtual hearing in the Supreme Court and urged for adoption of other platforms which alleviate this problem. He was in agreement with the solution proposed by Justice Muralidhar, that of implementation of technology was to be done in a phased manner. He opined that the adoption of technology in phased-manner through a set of rules would help the lawyers of different levels/stature to reach the resultant destination more conveniently. Based on this, he noted that Standard Operating Procedures (SOPs) were not the apt way, due to their temporal nature. Therefore, he alternatively suggested that a permanent set of rules with an embedded mechanism of amendment ought to be devised. He proposed that such amendments be issued by courts’ registry through circulars etc. to deal with changing needs of society. He remarked that the permanent nature of such rules would bring clarity in minds of lawyers about what the future entails.
Mr. Divan informed the panellists and audience of the draft Supreme Court (Covid-19 Pandemic) Emergency Procedure Rules, 2020 prepared by him along with his chamber colleagues, which was published on Livelaw with a view to engendering a debate. According to him, there existed a vast opportunity in terms of using virtual courts, however, instances of witness intimidation were prime examples of suitability offered by physical hearings.
To conclude, Mr. Divan observed the need to remain grounded or respectful of our core values, before a shift to new technologies was made. He noted that while robotic courts might be helpful, robotic justice might be problematic for society. He drew from Justice Muralidhar’s speech wherein he had stated that perhaps we should not be looking at a replacement of the physical courts. Furthering Justice Muralidhar’s point, Mr. Divan stated that the need of the hour was maintaining a balance between improvement in the present system while staying true to core values like fairness and adequate hearing and a hierarchy of courts and preservation of the integrity of courts.
Terming the justice delivery system as an enormous ‘team effort’, Mr. Divan urged the members of CAN Foundation to be of aid and stated that the pandemic had provided us with an enormous opportunity of addressing our arrears problems. He remarked that this was possibly the only time to address the problem of backlog and judicial burden, by utilizing a combination of virtual courts, technologies and visions of young lawyers.