At a time when technology is transforming India’s governance institutions, the judiciary is no exception. There is a tide of innovation underway in the judiciary, which is being steered by the Chief Justice of India, D Y Chandrachud. The eCourts Mission, the nodal project to drive the digitalisation of the judiciary, was conceptualised in 2005 to enhance court infrastructure through information and communication technologies. It has since evolved to explore advanced applications like artificial intelligence, blockchain and the internet of things.
At the heart of the digitalisation vision lies a network of audiovisual link technologies that seamlessly connect diverse justice spaces. Physical courtrooms and physical filing of documents have been supplemented with paperless courts, virtual court proceedings and e-filing services, enabling litigants to file cases and participate in the legal processes from remote towns and cities without having to travel long distances. This has brought down costs, making justice accessible, affordable and qualitatively better. In addition, digital case management systems have tremendous potential to reduce backlogs and delays.
This benefits everyone, particularly individuals who might otherwise face lengthy waits for justice, and aligns well with Sustainable Development Goal number 16 of the United Nations that envisages enhanced access to justice for all. However, this well-intentioned intervention also has several challenges which need to be addressed successfully to obtain optimum benefits from the new system. Digital divide in the legal arena manifests itself in three ways: the connectivity divide, the access divide and the skill divide.
Connectivity divide: Despite efforts to improve digital connectivity, broadband access still remains woefully poor. A 2021 survey by former Chief Justice N V Ramana’s office revealed that 10 percent of trial courts still lacked internet facilities. Further, telecom infrastructure development varies among states; for example, Odisha’s tele-density at 75 percent is below the national average of 85 percent. Compounding this problem are the rural-urban digital divide, frequent internet shutdowns, and a lack of uninterrupted power supply.
Access divide: Inadequate equipment and infrastructure are persistent issues affecting all judicial stakeholders including judges, lawyers and litigants. Lawyers in rural areas and emerging legal talents face a distinct disadvantage due to lower incomes, worsening the access divide. For instance, according to the data released by the Telecom Regulatory Authority of India in January this year, the rural wireless tele-density in India stood at a mere 57.54 percent. Within that, the prevalence of smartphones would be even lower. However, law firms endowed with advanced equipment and seamless internet access gain a palpable edge.
When it comes to the judiciary, the 2021 survey showed that just 27 percent of subordinate judiciary courtrooms had computers on judges’ desks. Additional data from the Supreme Court’s e-courts committee revealed that out of 17,920 courtrooms, only 3,477 had video-conferencing facilities.
Skill divide: Another concern is India’s widespread digital illiteracy, with only 38 percent of households being digitally literate according to Oxfam’s India Inequality Report 2022: Digital Divide. Some advocates are apprehensive about potential disparities among courts at various levels and the prospect of losing financial and business opportunities if technology assumes a more prominent role in judicial processes than the case itself.
It has been 18 years since the Supreme Court’s e-committee introduced its initial action plan for digitalisation. However, digital processes are yet to become standard practice. Although e-filing cases are prevalent, some judges, especially in lower courts, still favour physical copies, rendering redundant the e-filing system. Digitising case files is also progressing slowly at some high courts and most district courts. Moreover, the progress achieved during the Covid-19 pandemic appears to have been reversed as most high courts have dismantled the digital systems created during that time, as observed by Justice Chandrachud in his speeches.
Privacy concerns are magnified in the digital era. While the new privacy law has allowed for some exceptions in data management for judicial purposes, significant questions remain unanswered regarding the data related to judicial actors and litigants. Furthermore, using third-party software to store such information and carry out judicial proceedings such as virtual hearings present a significant security risk.
Another unique set of challenges to technology in the judiciary comes from the use of artificial intelligence. Any algorithms used in the judicial process must meet high standards of explainability. The Supreme Court has launched an AI-powered portal called SUPACE, or Supreme Court Portal for Assistance in Court’s Efficiency, to assist judges in case management. SUVAS or the Supreme Court Vidhik Anuvaad Software is a machine-assisted translation tool trained by AI. However, the use of algorithms for listing cases will raise questions of fairness of the underlying priorities if the algorithms are opaque. With the rise of generative AI, we must ask to what extent these platforms can be used to provide legal assistance and when such content might amount to unlicensed practice of law.
The digitalisation process of the Indian judiciary should be viewed as an extension of the similar adoption happening in the executive and legislative branches of the government. Within the context of judicial proceedings, it is imperative to consider robust internal regulations for three primary stakeholders: judges, lawyers and litigants. It should address unequal access to devices and technological infrastructure, issues related to bandwidth and connectivity, and varying levels of proficiency and familiarity with technology so that the delivery of justice is equitable in the true sense of the term.
The first interface for people in the judicial system is the district judiciary, so it is of paramount importance to focus on strengthening the infrastructure at this level. It is also imperative to implement state-of-the-art standards in information and cybersecurity. Even while providing an open-access architecture using India’s very successful digital public infrastructure, full compliance with privacy and data protection legislation has to be ensured.
Amar Patnaik
Advocate, former bureaucrat and an MP from the Biju Janata Dal
(Views are personal.)