Let justice flow

It is time for courts to re-imagine judicial procedures and build digital solutions to fix the logjam.

Written by Ananth Padmanabhan , Milan Vaishnav | Published:February 17, 2017 12:02 am
judiciary, judicial procedure, human rights, judicial logjam, digital justice, digital judiciary, e justice, indian judiciary, supreme court, pending judgement, judges appointment, ICT, chief justice of india, indian express opinion, indian express news A revised approach could also leverage innovation models developed outside of government that might lead to a more rapid resolution of the pendency dilemma. (Illustration by C R Sasikumar)

Various international covenants and charters, not to mention the Supreme Court of India, have long recognised access to justice as a basic human right. Yet, in reality, most litigants in India are denied such access, in large measure due to the pendency problem ailing the country’s courts. Even without citing extensive data, it is clear that the judicial pipeline is badly clogged.

There have been three standard responses to fixing the judicial logjam. The first has been to create more specialised courts and tribunals. This method has been a documented failure. The court’s repeated interventions to fix the broken patchwork of tribunals have been unsuccessful; indeed, they have resulted in successive constitutional challenges to the tribunals’ very existence.

The second solution is to increase the number of judges. At the 2016 Joint Conference of Chief Ministers of States and Chief Justices of High Courts (the “CM/CJ” conference), the then Chief Justice of India T.S. Thakur fervently appealed to the Union government to increase the number of judges by 70,000, a figure calculated on the basis of an optimal benchmark of 50 judges per million residents. Legal scholar Alok Prasanna Kumar has convincingly contested these figures, arguing that achieving them is impossible without seriously compromising judicial quality.

Realising this, the 2006 edition of the CM/CJ conference highlighted a third remedy: Using information and communication technology (ICT) tools and modern case management systems to improve transparency and the flow of information. In 2007, the Union government launched the eCourts project, which aims, in its first phase, to provide hardware and software applications to courts for the delivery of e-services, such as filing/checking the status of cases and sending/receiving certified copies of orders and judgments. However, a 2015 National Council of Applied Economic research (NCAER) report concluded that the results of the eCourts project were “suboptimal,” recommending new investments in infrastructure, hardware, Internet connectivity, capacity building, training, and continuous data entry to ensure improved performance.

But more personnel, better hardware or enhanced transparency cannot alone rectify the root cause for pendency: Inefficient and time-consuming procedures. Thankfully, the second phase of the eCourts project moves beyond computerisation and focuses on automating workflow management and process re-engineering, including through mobile applications. However, this phase still fails to consider the possibility that a good part of the communication between various actors — judges, lawyers, parties, and court staff — can go digital. In reality, digital replacement implemented in a phased manner, rather than digital support, is likely the best path forward.

A revised approach could also leverage innovation models developed outside of government that might lead to a more rapid resolution of the pendency dilemma. One such innovation is IndiaStack — a set of open application programme interfaces (“APIs”) developed by iSPIRT (Indian Software Product Industry Roundtable) volunteers. Using Aadhaar data for authentication, it integrates presence-less, paper-less, cashless and consent layers, which then can be used by third party developers to offer diverse technological solutions.

Rather than insist on centralised technology solutions, the judiciary should allow third-party developers to assist in digitalising the judicial process. The first step the judiciary must take is to open up its data to iSPIRT volunteers, who can develop open APIs on this basis. Third-party developers can then use this API with the existing set of open APIs under IndiaStack, including eSign and DigiLocker, to build digital solutions that can actually replace various procedures contained in the civil procedure code. In other words, openness on the judiciary’s part can lead to a new kind of procedure — what we term “DigiProcedure.”

DigiProcedure can replace service of notices and summons through India Post. It can minimise the work of court staff by easing the filing and scrutiny of new cases. It can even replace hearings that do not require an application of judicial mind and enable a constant channel of communication between various actors. This could encourage more rapid resolution of disputes by freeing up judicial time and enabling the judge to explore out-of-court settlements at any given point. Instant messaging and video call facilities integrated within the third party solution could also improve the speed of court proceedings.

To implement DigiProcedure, no complicated hardware training is required. India’s smartphone penetration has created a significant user base comfortable with mobile apps. But because that penetration is not universal and implementation hiccups will inevitably crop up, DigiProcedure could be initially rolled out for voluntary adoption in city courts. Cyber-security and interoperability concerns do merit serious attention, however. Only third-party developers who sufficiently address them should be permitted access to the open API built around judicial data.

DigiProcedure can be deployed to enable law-tech startups to create solutions that courts and other actors can use and on which they can provide instant feedback. This will result in more agile procedures and generate reams of digital data, facilitating big data analytics and learning.

It is time for courts to reimagine judicial procedures. DigiProcedure can pave the path through efficient and cheap solutions that build on an existing highway.

Ananth Padmanabhan is a fellow with Carnegie India, New Delhi. Milan Vaishnav is a senior fellow with the Carnegie Endowment for International Peace, Washington D.C.

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    Abhinav Anand
    Feb 17, 2017 at 2:57 pm
    Good article, naysayers and pessimists will always be there.Judiciary should give a serious thought on this.
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    1. G
      Gopal
      Feb 17, 2017 at 3:32 am
      An insution that lacks accountability can never reform itself. Politicians, that much derided group of people, have to face the elections. That’s one of the reasons why there is no much churn and change that takes place every time a govt is replaced. Our judiciary is completely unaccountable. All they do is blame other branches while ignoring the endemic corruption and incompetence at lower levels. Even the Supreme Court itself regularly produces a slew of contradictory judgments because they have gone so far beyond the law and the consution, that their judgements themselves are capricious and lack in any legal basis.
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      1. K
        Kg
        Feb 17, 2017 at 11:24 am
        There is no requirement for reinventing the wheel.Just look around, how developed democracies are dealing with the issue.Take a detailed look at around 10 developed democratic successful countries, examine, evaluate ( also the failures, disadvantages) and then keeping in mind the context of India, make policies.Do it for next 15 years.That will bring India at least on par with developed countries.Then start doing it even better.Then India will lead.
        Reply
        1. K
          Kiranprakash Gupta
          Feb 17, 2017 at 10:09 am
          Blaming government will not solve the rusting problem. Honble judiciary is required to introspect otherwise the system will crumble under its own weight.
          Reply
          1. K
            Kiranprakash Gupta
            Feb 17, 2017 at 9:01 am
            There are instances where subordinat courts do not obey the rules settled by the Apex court in very crystal clear manner and this causes filing of cases though they are decided on the basis of several judgements already delivered.The Apex court should find some ways to control this atude of subordinate courts otherwise no mechanism will sucessful.
            Reply
            1. L
              LAXMINARAYAN Taparia
              Feb 17, 2017 at 5:23 am
              Our judiciary should study ways of U S A, how they handle cases Civil, and Criminal. People are very much conscious for their rights and file a law suit for small matters. One in six citizens, has been involved in litigation, some time or the other during his lifetime. .Mostly a civil law suit is over within six months, whereas in India cases linger for 10 to 25 years, Prior to commencement of hearing and trial, litigants in civil case have, to compulsorily attempt out of court solution through Arbitration.
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                Manish Khanna
                Feb 17, 2017 at 10:19 pm
                incomplete article. The judicial delay is sign of judicial corruption. Please tell me how salman khan, sanjay dutt, Jayalalithaa's cases get long and speedy hearing when they are in jail. Ever heard of delay. Please go to court and see how judges are entertaining Cretain lawyers with time and urgency while denying even basic hearing to general lawyers and public. Indian public doesn't realise it because media is scared to say indian judiciary is biased.
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                  Mahender Goriganti
                  Feb 17, 2017 at 12:49 am
                  Simple solution is restrict SC to deal with any case other than consutional issues and interpretation of laws made by the government and leave behind the matrimonial and Bollywood dramas out the SC and HCs.
                  Reply
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