"Technology is here to stay", the Chief Justice of India is reported to have said this during a hearing in the Supreme Court of India on 6th April 2020. The Supreme Court of India's responsive step to make itself more accessible than ever during these hard times is laudable and deployment of technology for the same is a significant step forward. Given that the action was responsive rather than pro-active, the Supreme Court certainly did pretty well.
On 6th April 2020, the Supreme Court of India passed many directions and guidelines for functioning through video conferencing during Covid is to ensure that not only the apex court but the courts pan-India makes justice accessible during the lockdown. For now, the directions issued by the Supreme Court are confined to the present situation.
In this brief article, I make three points concerning how technology ought to evolve going forward. First, given that technology is here to stay, we need to find a guiding rationale or objective for it – around which we can develop and deploy the system. Second concerns the adaptation of technology that is inclusive; and third is its adherence to the rule of law.
The rationale for Using Technology
Technology sustains in any area only if it helps us to perform the existing tasks in a "better" manner which were not possible with traditional ways. Continuing a regulated use of electronic means for filing, listing and hearing of cases before the Supreme Court (and other courts) has the potential of addressing present issues.
However, before it is decided to implement technology rather widely, we must find a guiding rationale or rational objective for doing so. The guiding rationale would restrict haphazard deployment of technology and would ensure that limited means are applied proportionately. Introduction of technology by itself cannot be a rational objective – it is a means and not an end.
For now, it appears from the directions passed by the Supreme Court that High Court has to operationalise video hearings during the lockdown. For now, the guiding rationale is only "social distancing" – which is a rational and fair objective to pursue in these times.
Going forward, what could be this rational objective? Could it be to ensure paper-less adjudication? Could it be to speed up the process of adjudication? Could it to add "quality" to adjudication ? Could it be to "discipline" the lawyers into not making verbose and lengthy submissions? Could it be to make filing before the Supreme Court of India accessible in the farthest corners of India? Could it be to allow even a lawyer at a remote place to argue a matter before the Supreme Court of India?
Finding of this rational objective or an "overriding objective" (a phrase I borrow from the English Civil Procedure Rules) is essential because this will ensure that all subsequent development and deployment of technology – in years following 2020 by subsequent Chief Justices of India remains in conformity with this objective. For example, E-filing was introduced by then Chief Justice Khehar but is being actually put to use by the present Chief Justice of India. Surely, Justice Khehar had not thought of this back in May, 2017.
For instance, if saving paper is one of the "overriding objective" – then technology that would be made available in future would have to ensure that no print outs are needed at any stage. In the beginning, it may slow down those who are used to reading on paper or arguing from a "paper-book" – but we would have to put up with that to achieve the overriding objective. If that is the objective, at some stage we would have to also give up on physical filing of affirmed affidavits, vakalatnama and certified copies of impugned orders.
In any system of adjudication, speed, cost and accuracy are three competing virtues. You can achieve two, but never all three – that is an aspirational stage. At the intersection of these three virtues lies that ideal system of adjudication that everyone seeks to achieve within their specific limitations. No system is perfect and that is why it is accepted that even "the Supreme Court is right only because it is final". However, having said that all effort must be to achieve an objective. "Justice" is too abstract a notion to design a technological system around it – but yes, you could design and develop a system that is fairly accurate, fairly fast and does not cost disproportionately. When I say "fairly accurate", I understand that, like in all system of adjudication – there is always an element of subjectivity. However, it is not the subjectivity that is the problem – it is the lack of objectivity when it is required that is the problem – it is biases that are the problem. Therefore, when we say that technology is here to stay – we should be looking at designing a system that can eliminate (almost) biases in all form, is accessible - in all sense of the word, and allows for accurate decision making as far as possible. (see Zuckerman, A.A., 1995. A reform of civil procedure: rationing procedure rather than access to justice. Journal of Law and Society, 22(2), pp.155-188.)
Given our systemic concerns, our immediate concern should be to handle docket explosion using technology but without outsourcing decision making to an algorithm or without allowing a technical person to decide who will access the court and on what terms. In my experience as an advocate on record, person sitting at the defects counter or in the listing section is sometimes more powerful than the Chief Justice of India – who can (normally) pass orders when the matter gets listed. So, there are many hurdles to cross before matter is listed and as I will show even after the matter is listed.
For example of "before listing", the present system of "mentioning for listing" or requests for "not to be deleted" is a response on account of an algorithm that prioritises matters depending on the nature of listing orders passed by the court. Hence, lawyers before the Court need to make that extra effort to ensure that some date or a week or a month is fixed while passing an order just so that their matter does not disappear in the labyrinth of computer shown dates. (See Rule 39, Chapter XIII (Listing of Cases), Supreme Court Handbook 2017, extracted below)
The listing algorithm that is presently used in Supreme Court seems to have no regard to the subject matter of the case – and rightly so. Perhaps, if we are talking of making technology a permanent feature in the judicial process (not just handling administrative work), there is a need to revisit existing tools that are procedural or administrative but affect the substantive aspects. Listing being one such aspect.
The other aspect of hurdles "after the listing", for example is today's (i.e. 07th April 2020) fiasco of exclusion of certain advocates (like yours truly) from hearing of their Intervention Applications that were listed in the cause-list and they were also on the WhastApp Group created for coordinating today's hearing. There were many lawyers in the WhatsApp Group whose names were shown in the cause list for Respondents or like me who had filed Intervention Application which were listed who were not sent the video link to join the "e-court room". However, some other similarly placed lawyers were sent the link to join "e-court room". This simply means that a technical person, perhaps constrained by the available technology was compelled to push out a few lawyers (on his discretion) to prevent "over crowding" of the "e-court room". These are all cases of "extreme urgency", and that is why they are listed.
Could we say that choosing to send link to one and not to another lawyer is akin to a technical calls like the Italian doctors choosing to save a certain COVID patient and letting certain go - except here the doctor does not know the vitals of the patient? Fortunately, for some other reason, the Supreme Court of India did not pass any effective orders today. But in cases of "extreme urgency," even no order could have its implications. If technology is here to stay, we need to fix these problems. I must clarify that I have no grievance against the technical person – and I am confident that he is doing his best in good faith under a very stressed system that has been stitched together to provide to this country a functioning Supreme Court. My compliments to him. What I want to highlight is that we do need to equip him with better technology and must do so without any further delay. This is more so because the Supreme Court expects High Courts to follow its precedent, and the Supreme Court has always been a beacon of hope.
On boarding everyone
An ideal system of adjudication has to be inclusive. Our system of adjudication attempts to inclusive. In fact, by referring to the phrase "Access to Justice", the Supreme Court in its order dated 06h April 2020 has suggested to the High Courts to ensure that the system is inclusive.
What is the meaning of the word "inclusive"? To our mind, it means that the future technological system has to ensure that no person, who would have otherwise accessed the courts, is left out. When I use the word "person" – I don't mean only litigant – I mean everyone and everything that comes with a litigant's case. Therefore, if a litigant wishes to engage an octogenarian lawyers whom he trusts – he must not be compelled to choose another younger lawyer only because that octogenarian lawyer finds himself struggling to use technology. One can argue that this is what happened when courts made computer typed copies mandatory over ordinary type-written copies, and this is inevitable. However, I don't think that our system needs to be insensitive to the needs of the members of the bar – who thus far never required to learn computer? One would also need the clerks to catch up with technology and provide hand-holding there. One does not need technology alone – one needs it with empathy –virtue men adorning black & white robes are often alleged to be lacking.
Of course, in these hard times – the first casualty of any law and order situation is internet connection itself. I wonder how the courts would deal with that situation?
Adherence to the rule of law
It is commendable that despite these challenging times when human beings are compelled to avoid each other, the Supreme Court of India and other High Court have set up mechanism to ensure that their official work continues and that egregious violations of rights continue to be addressed in what could be regarded as cases of "extreme urgency".
However, the present system of e-adjudication where only some of lawyers concerned (not all) and the judges get to see each other – is not the rule of law compliant. No system is better than some system – and therefore this for the present is an acceptable* system to have given that our Supreme Court of India did not have any reaction time to come up with a better system. Since, the Hon'ble Chief Justice of India has clarified that technology in courts is here to stay, going forward – the technology that should be developed must be such that it promotes "open court justice". The principle of open court justice means that court proceedings, including the evidence and documents disclosed in proceedings, should be open to public scrutiny; and judges should give their decisions in public. In fact, Foreigners Tribunals in Assam do not follow "open court justice" system – and it is one of their most fundamental criticism. Perhaps, it is the only tribunal in India to do so.
The proceedings should be such that all lawyers whose cases are listed should be able to appear in their cases and any member of the public (and the bar) should be able to see what is happening in the court and how the cases are being decided. In my view, the present system of "gate-pass" to enter courtrooms is also an anathema to "open justice" which is being followed for "crowd control" and maintaining the security of the precincts. However, in an online system, there is no reason to implement crowd control or to regulate who is entering merely to watch the court proceedings. In fact, technology should be such that first-year law students should be able to observe court proceedings while sitting in the comfort of their classroom.
As a relatively young practitioner, I cannot set out in words how much we youngsters benefit just by being present in the courtroom. Just by observing the most learned judges put difficult questions to top counsels – we learn a great deal. It will be a significant loss for the junior bar if that benefit is taken away from us, by restricting who gets to watch the arguments and the decision-making process. After all, we did benefit immensely from the live telecast of the Kulbhushan Jadhav hearings at the ICJ?
One incidental point that perhaps we may ponder over at a later stage (when we have deployed newer technology for filing, processing and video conferring) – whether the "judicial process" has evolved for better? We would also need an independent audit of the system at some stage. Ideally, we should have an answer to these questions before we deploy the technology, but I think we may have crossed the bridge.
Therefore, going forward we would need to develop and deploy technology that firstly balances accuracy, costs and speed whilst having a guiding rationale. Secondly, it has to be inclusive and empathetic to the most ordinary of the litigants and members of the bar and their staff. Thirdly, such a technology must be compliant with all facets of the rule of law as guaranteed under the Constitution of India. It must be administered by persons who have understand the importance of the legal profession and the principles of natural justice.
From where I see it, it is a long walk. We design software for the world, and we could surely do an excellent job for ourselves. Given that all the global tech giants today are lead by Indians, I am sure that in the future we would come up with something that answers all our above-mentioned concerns – including privacy and data protection where necessary.
(Author is an Advocate on Record, Supreme Court of India. He graduated from NALSAR University of Law, Hyderabad in 2008 and from University of Oxford in 2009. He is practising before the Supreme Court of India from 2013)