A Golden Opportunity for Judicial Reform
Covid forced courts to adapt to remote working. And they did remarkably well considering the extent to which court processes rely on physical interactions. We need to use this opportunity to radically re-imagine dispute resolution. We can move to written advocacy, use artificial intelligence to make better decisions about litigation strategy - such as the chance of success of an appeal.
This article was first published in The Mint. You can read the original at this link.
I have written about the urgent need to radically transform the Indian judicial system on more than one occasion. It is evident, even to the casual observer, that many of the ills that plague the delivery of justice in this country can be easily eliminated with the judicious use of technology. And yet, precious little has been done by way of reform.
Over the years, many committees have been set up, some of them under the supervision of eminent, erstwhile members of the highest court in the land. But despite their detailed recommendations on what should be done, and how technology could be used to improve the judicial system, every last one of them has had precious little to show by way of results for the efforts.
And then Covid-19 happened. There was little option but to shut down the courts for all, barring the most urgent matters, to reduce the risk of infection of litigants and judges alike. But even with a radically reduced cause list, our judicial system is simply not designed for contactless operations. Most court processes—the submission of pleadings, the payment of court fees, the conduct of arguments—require person-to-person interaction. Even if the courts were only going to take up just a small fraction of all cases, they had to devise new contactless protocols in place of the ones in use.
I have to say, even I was amazed by how quickly the courts adapted. Virtually overnight, video conferencing facilities were set up to allow judges and lawyers to hear urgent matters virtually without litigants ever coming into the physical proximity of judges. Courts allowed e-filing of documents so that written pleadings could be submitted without any need to be physically present. digital payment systems, including court-approved virtual wallets, were set up to let court fees be paid remotely.
These are the sorts of reforms that various reports and expert committees have been recommending for years. But it took a deadly global pandemic for them to be implemented. Regardless of how we got here, now that these measures are in place, now that the bar and the bench have used them and found them to be effective, the opposition to technology-based reform in the judicial system has started to fade away.
Last week, NITI Aayog convened a meeting to explore what could be done to realize the full potential of online dispute resolution. It was a stellar gathering of eminence, replete with Supreme Court judges, technocrats and key stakeholders from government and general counsels from some of the largest businesses in the country.
In the course of the three-hour long multi-stakeholder webinar, many ideas were presented as to how the judicial system in the country could be reformed. But what was most heartening was the affirmation repeated many times during the course of the meeting that this was an idea whose time had come.
I believe that we need to make the most of this opportunity and radically re-imagine the system of justice delivery in India. If all that this enthusiasm is going to achieve is a digital replica of our offline systems and processes, we would have missed a golden opportunity to reform the system.
Many of the suggestions I heard during the course of the meeting echoed this sentiment. For instance, Shuva Mandal, general counsel of the Tata, suggested that as we move our disputes online, we should shift focus towards written advocacy. I thought this was an excellent suggestion.
Taking dispute resolution online should not only mean pouring resources into skeuomorphic representations of physical courtrooms in virtual settings. Online interactions take place though chats, emails and the exchange of electronic messages. When we take our disputes online, should we then not consider adopting the online medium of communication as well?
This might mean that court-craft, oral rhetoric and many of the skills that lawyers have honed over the course of their career will become irrelevant—but that is what disruption looks like.
Another suggestion, originally from Justice D.Y. Chandrachud, but echoed in the comments of various other participants, was about incorporating cognitive technologies directly into the dispute resolution workflow. This does not have to mean using artificial intelligence to decide our disputes. It could be as simple as offering better ways of making informed decisions about litigation strategies.
The biggest litigant in India is the State. Today, there is no incentive for the government not to appeal a decision that goes against it. On the contrary, government officials who decide not to appeal an adverse order often run the risk of having to justify why they did not pursue the matter more vigorously. The many cognitive technologies we have at our disposal today offer us the ability to generate data-driven reports on the chances of success of each appeal that the government is thinking of pursuing, based on an analysis of previous judgments. If the government uses reports like these to decide whether or not to pursue an appeal, we might be able to reduce the number of unnecessary appeals in the system and thus reduce the judiciary’s workload.
We have a historic opportunity to transform the judicial system of the country. As the general counsel of NestAway, Rajneesh Jaswal, put it, we are limited only by our courage.
