Centre for Internet & Society

A seminar held this month by the Communications and Manufacturing Association of India (CMAI) explored the role that information and communication technology can assume in the process of India's judicial reform efforts. The broad consensus among panelists was that “law is not keeping pace with technology”. However, whether technology will be harnessed to actually facilitate much needed transparency and access to the justice system, or be simply used to improve efficiency within the judicial branch still remains unclear.

The Indian judiciary is facing mounting pressures to reform its apparatus. Even the judiciary itself has come to recognize, on the books, that change is long overdue. Some estimates have it that it would require almost three years to clear the current backlog of cases in High Courts. While technocrats herald that the enormous backlog of cases may eventually be the death knell for India's judicial branch, reform efforts must go beyond achieving the speedier delivery of justice and work towards tackling other inadequacies of the system if “access to justice for all”(1) is to become a reality.

The rural penetration of courts in India is extremely low, which significantly limits access to justice for the many citizens living far beyond the district courts of city centers. An extremely low judge to population ratio in India only contributes further to the already high incidence of pending cases, making delays in justice a regular occurrence. Mr. P.K. Malhotra from the Department of Legal Affairs has noted that increased litigation within the government has also caused a stark increase in the number of pending cases. While the need for reform can be demonstrated quite clearly on a practical level, the right to information (RTI) movement has also provided further impetus for reform on a more fundamental level. Well organized citizens are now demanding the right to a more transparent and accountable judiciary.

As e-government initiatives continue to transform the nature of India's bureaucracy and enhance the quality of government services, there is a mood of great optimism that ICT will also come to play a central role in judicial reform efforts. Speakers at the seminar enthusiastically cited innovative practices such as Singapore's “paperless court” which makes a compelling case for automation.  Notable success in implementing ICT in the judiciary have also been achieved in Canada, Australia, and in several countries across Latin America. This is not to say, however, that the appropriation of ICT is uniform in every case. Variables such as political will and context, institutional capacity and reform goals all play a role in shaping the outcome.  Plans could, for example, take more of an operational approach by prioritizing the improved efficiency and the rationalization of resources by implementing electronic case management systems. Other strategies may be designed and implemented from an access perspective, seeking to restore faith in the justice system by increasing transparency and accountability. This could be done, for example, by installing video technology in court rooms, or publishing legal information online.

At the seminar, India's consortium of well-organized and highly ambitious technocrats were not shy in suggesting the many ways ICT may be used to transform the judicial system, and, additionally, the many ways such an endeavor provides the IT sector with “new opportunities”.  Dr M. Veerappa Moily, Union Minister for Law and Justice, has proposed for India a centrally funded and administered National Judicial Technology Program.  Such a program aims to use ICT in the courtrooms to free the legal system of “historical inefficiencies".  It is of no doubt that ICT can reduce the duplicity of the paper world and make courts more green through electronic case filing and video conferencing. Online case filing systems can increase speed in which citizens can have their cases heard, and real time access to online repositories of legal information drastically expedites the case cycle.

Mr. C P Gurnani, CEO of Tech Mahindra made the bold assertion that with ICT, India's 300 year case backlog can be reduced to three years, in a span of only three years (2). Features of this newly envisioned e-justice system include the use of video hearings to reduce transportation costs, case filing operation systems, RFID based file tracking, and the creation of a publicly accessible and easily searchable e-library. While others were much less optimistic than Mr. Gurani and recognize that the use of ICT in the reform process is “no instant coffee”, the question of whether or not ICT can be a strategically appropriated in the Indian context still remains.

Optimistic accounts of how ICT will increase access to justice, incorporate the marginalized into the law-making process, and increase judicial transparency and accountability all sounds uncomfortably techno-utopian. While ICT should facilitate the reform process, past experiences have shown that the over zealous use of technology has too-often resulted in less than impressive results (3). To ensure that the reform process in India is not driven mainly by the IT sector, it is important that the use of technology remains complimentary to a sound national judicial reform strategy.  An abundant supply of technical support with little demand for the reform process from within the judicial branch may spell disappointing results for all stakeholders. Seeing that India's first seminar discussing the role of IT in the judiciary has been organized by the IT industry, it is safe to assume that reform strategies are being crystallized through the gaze of technocrats rather than the judiciary itself. Technology has an important role to play, but India's technocrats may be jumping the gun.

Many deep-seated challenges must be overcome before the use of ICT can be truly transformative. Often cited is the level of resistance judicial cultures express towards externally imposed change. Quite logically, those required to make change are also those who may have the most to lose in the short-term by doing so. Similarly, it is also difficult garnering the levels of political support judicial reforms require to be effective.  Because the judiciary is such a highly politicized apparatus, efforts to fundamentally transform the system will require the support of a vast number of stakeholders . The low level of technological literacy which exists among India's judges is also problematic. Not only will members of the judiciary be open to new ways of doing business, they will also have to be diligent in adopting a new skill-set in which they may be more than a decade behind in acquiring.

Other deep-rooted limitations of India's judicial system are becoming increasingly apparent today. Questions surrounding access to justice remain deeply embedded in the asymmetries of class power, which are often reinforced by the political nature of the judiciary. Constitutional law in India also remains unstable, as the principles informing judicial action have become increasingly less clear (5). Furthermore, the courts have come to maintain a disproportionate share of power and influence in the Indian political sphere (6). It is questionable if ICT can work to ameliorate some of these malignancies, or if its use will only come to reinforce them.  If technology is appropriated in a way which serves to make the judicial process more transparent and accountable, protect the rights of citizens, and provide greater and more equitable access to justice, it may be safe to assume that a more tech-savvy judiciary is a positive development for citizens.  Publishing legal information online, for example, currently allows for greater transparency in the law making process and allows dialogue on important issues of governance and citizenship. 

However, it is almost unnecessary to reiterate that such outcomes are not guaranteed.  Technology is often seen as neutral– the evaluative outcome of its application remains dependent on numerous variable factors. Most important is whether or not the government provides a legal framework conducive to the appropriation of ICT in ways which are considered to further the public interest. It may be useful to view the successful appropriation of ICT to judicial reform as a cumulative process, each step being a precondition to the other. It is clear to see how basic infrastructure such as civil courts in rural areas must be in place before the use of ICT can facilitate access to justice for individuals who remain peripheral to the legal system. Similarly, one would assume that laws would have to first be to be nondiscriminatory to all members of society before it could it can be widely accepted that more technology will better safeguard our rights and freedoms.

Without a legal framework which is considered to be socially just, greater speed of the judicial process, aided by technology, may become a tool which enables the judiciary to act more arbitrarily, more efficiency.   This could be troubling for individuals who are already marginalized by certain policies or legal practices.  Technology can also make it possible for judges to insulate themselves from the necessary checks and balances required in the law-making process.  While Mr Gurani stated that ICT can help preserve judicial independence, it is questionable if the use of technology is an appropriate strategy to mitigate politicization of the judicial branch.  Any frivolous efforts to spearhead the reform process through the introduction of ICT without the required commitment of judges and policy makers may be naïve at best. At worst, it could serve to reinforce what judicial bodies believe they do well without critically re-examining the fundamental roles, norms and principles of the Indian judicial system itself.

Online case-filing services may unintentionally, due to cost or lack of awareness, erect further barriers to justice for individuals who traditionally remained outside of the sphere of access.  In the same vein, if ICT is favored for use in criminal rather than civil courts, technology may simply become a tool used to sentence people, more quickly.  This scenario sits quite polemic to visions of technology  serving as a tool to empower individuals to better assert their rights and seek justice. Foreshadowing the role ICT may play in the future of India's judicial reform process, SPANCO Technologies is currently piloting the use of video technology in criminal courts.  Furthermore, India's judiciary has made several attempts to insulate itself from the provisions of the RTI act, indicating that new laws, and even new technologies, may not be able to change practice.  There are also strong doubts looming that the Gramin Nyayalayas Act will be successful in leveraging the required financial support needed to construct civil courts in rural areas.  Without the basic building blocks, it is difficult to envision how a National Judicial Technology Program will be successful in bringing "justice" to all who are awaiting it.   Such instances serve as a light warning that technology, even within a favorable legal framework, may not necessarily spell a more accessible, transparent and accountable justice system.

A well-functioning judicial system is required to keep up with the demands of modern democratic society.  It is unquestionable that technology can play an influential role in ensuring that the relationship between citizens and the government is strong and communicative. However, it is important to ask under what conditions may it be beneficial to implement technology’s use. Inferring from last week’s seminar, proposals and rationale behind potential reforms were made from an economic perspective; how ICT can be used to see that cases are filed and judgments are delivered more quickly to improve efficiency and rationalize resources.  Whether technology will be appropriated to facilitate a more equitable justice system is unknown, but it is certain that such will require a coherent national reform strategy with long-term political backing.  Short-shorted technological fixes may improve India's judicial efficiency in the short term, but may, however, overshadow opportunities to bring about a more transparent and accountable system in the long-term.

 

Notes

1. This was a notion emphasized often throughout the seminar.

2. Where these estimates were drawn is unknown.

3. For a concise account of how the use of ICT may be misappropriated in the judicial reform process, see E-Justice: Towards a Strategic Use of ICT in Judicial Reform by Waleed H. Malik

4. For an interesting account of India's judicial system, see "The Rise of Judicial Sovereignty" by Pratap Bhanu Mehta in "The State of India's Democracy", Oxford University Press, 2009.

5. Pratap Bhanu Mehta.

6. Ibid.

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