Ensuring Equity, Accessibility and Transparency in Court: Our Comments on the Supreme Court's Draft Vision Document

Tl;dr

We have submitted our comments pursuant to the Draft Vision & Roadmap for Phase III of the eCourts Project released by the The eCommittee of the Supreme Court for consultation. In our comments, we have highlighted the following concerns: firstly, that algorithmic governance must be accompanied by robust measures for accountability; secondly, that increased digitisation should be complemented with increased transparency; thirdly, the digital technology must not be deployed in a way that causes exclusion and depends the digital divide; fourthly, that technology feasibility studies and impact assessment be carried out before implementation; and lastly, that the value of judicial federalism should be promoted.

Background

The E-Committee of the Supreme Court was established way back in 2004 and has the objective of ‘Information and Communication Technology (ICT) enablement of the Indian Judicial System’. To this end, since 2004 the E-Committee introduced Phases I and II of e-Courts Project with an overall budget of approximately 2400 crores. Phase I focused on the nuts and bolts of digitization - setting up hardware, ensuring internet connectivity, digitizing case records and operationalising the e-Courts platform.  Phase II provided systems which operated independent of each other and catered to the needs of the litigant, such as National Judicial Data Grid (NJDG) which permits citizens to check pendency of cases across the country, virtual courts, E-Seva Kendras and the eCourts Services App. While this process has taken years (17 years since it started), the digitisation has helped the judiciary become more efficient albeit at some cost to those on the other side of the digital divide.

Last month, a sub-committee of the E-Committee of the Supreme Court released the Draft Vision Document of e-Courts Project Phase III (the document). Once finalised by the E-Committee, this document will determine how Indian Judiciary shifts towards digitisation in the upcoming years. Last month itself we had provided an outline of the document which is available here, and we had encouraged all of you to study the document and submit your comments on [email protected] or submit them on the CIVIS platform.

Now, after an extensive study of the draft document, discussions with stakeholders, inputs from the IFF community, and an evaluation of international best practices, we have submitted our comments to the e-Committee. Please note that our participation in this consultation process is independent of the representation we had sent to the Hon’ble Justice D.Y. Chandrachud that contained suggestions to improve the eCourts platform.

The Draft Vision Document

The draft vision document suggests a plan of action for Phase III of the eCourt Project. As per the document, Phase III, as opposed to Phase II, seeks to adopt an ‘ecosystem’ approach where systems interact with each other.  It contains several proposals that increase digitisation within the Indian judicial system:

• Installation of Relevant Hardware: To ensure that the basic hardware needed across all courts is present so as to ensure the provision of digital services. This would include installing a reliable internet network in each court, along with a steady power supply. Courts which lack other basic hardware such as computers, printers, and scanners, shall also be provided with the same.
• Creation of Digital Infrastructure: To build capabilities that can ensure the generation of many services. This would include a digital case registry, a freely accessible, comprehensive, and updated repository of case law, the use of intelligent scheduling algorithms, integration of Supreme Court Vidhik Anuvaad Software for translating documents, and the implementation of the Interoperable Criminal Justice System for information sharing between the police, prisons, legal aid, and the courts. Steps such as the adoption of OCR standards for documents and the use of digital signatures and blockchains for authentication will be undertaken to make documents machine readable and secure.
• Enabling Access to Critical Services: To simplify processes and evolve services built upon new digital infrastructure. This would include creating a Digital Case Management Mechanism, setting up more virtual courts, exploring Open Digital hearings, providing remote digital assistance for litigations with limited digital access, and the administration of legal aid by a more equitable and efficient allotment of cases. Additionally, the eFiling system will be extended, lawyers and litigants will be provided technologically enabled transcriptions of court proceedings, and systems will be built for the sending and receipt of notices through SMS and email.

The e-Committee of the Hon’ble Supreme Court has successfully led the process of digitisation of the Indian judiciary through phases I and II, and we welcome the vision laid down in the draft document for phase III. Some of the proposals in the document, such as a free repository of case law, a digital case management system, an improved E-Filing system, and mechanisms for open online hearings,  are much needed and will improve a litigant’s ability to access justice.

While we welcome the increased use of digital technology to address existing lacunas, we feel there is a need to ensure that such a move does not lead to over-reliance on digital technologies, which would give rise to new problems. Additionally, though these developments are welcome, they will be brought in without any independent evaluation of Phase I and II of the project and more concerningly, as of now, without data protection legislation.

Furthermore, while India’s internet penetration is improving, evidence from government reports suggests that the country has a long way to go before attaining universal internet penetration. For example, TRAI’s ‘The Indian Telecom Services Performance Indicators October – December, 2020’ report states that India has 795.18 million internet subscribers, which indicates an internet penetration rate of only 58.51%. Rural-urban disparities prevail, as indicated the rural penetration rate of 34.69%, with 308.17 million rural internet subscribers, is not even one third of the urban penetration rate of 103.98%, with 487.01 million urban internet subscribers. Additionally, 96.71% of all internet subscribers use mobile devices for accessing the internet, which may not be well suited for court proceedings. Given that around 37,439 villages in India are still not covered by telecom service providers, it is clear India’s digital infrastructure requires further expansion. Thus, the further implementation of digital technology must happen in a way that does not exacerbate the digital divide that persists throughout the country.

Often the values of efficiency have a tendency to result in an output bias to measure outcomes on dashboards and metrics. We caution against such system design that may impair the delivery of justice and be counterively undermining the goals of the draft document. Digital technology has been a powerful tool of change in various sectors from governance to finance. India and its citizens will best benefit from such a revolutionary technology if it is implemented in a way that safeguards their fundamental rights. Thus, we have tried to provide a citizen oriented perspective in our submissions, keeping them at the center as the principal participants in any system design.

Our Recommendations

Our submissions are based on the following themes:

1. Algorithmic Accountability: As India goes digital, it is only natural that the judiciary upgrades its digital infrastructure. The COVID-19 pandemic has only made this need more dire. However, given the scale at which this modernisation is projected to occur, such an endeavour must occur in a way that is transparent and promotes accountability. This would help ensure that the dispensing of justice is advanced and the judicial function is not adversely impacted by technological change. We also recommend that the relevant legislative changes are made to ensure a statutory backing for technologies. This must be buttressed with a mechanism for ‘human review’ of any algorithmic decisions, as well as a point of contact for helping to smoothen out any technology related issues during court proceedings in real time.
2. Transparency: One of the core values of the draft vision document is ‘transparency’. In furtherance of that value, we have made three recommendations. First, we recommend that phase III of the eCourts project enables live streaming of court proceedings across the country taking lead from the decision of the Hon’ble Supreme Court in Swapnil Tripathi vs Supreme Court of India (2018) 10 SCC 639. Second, infrastructure should be established to publish pleadings filed in courts unless the parties or the court prefer otherwise or for categories of cases as per a developed docketing system (e.g. family law cases of paternity and guardianship). These steps will bolster confidence of the public in the judiciary, promote fact based verification, enable greater research into the functioning of courts and ensure justice is imparted fairly. And lastly, a right to information portal should be established which enables citizens to file  RTI requests online with any court of the country. Currently, individuals have to send letters by post to public information officers which causes delay, loss of applications and has resulted in a denial of the right to know during the pandemic.
3. Digital Inclusivity: As recognised by the draft document itself, India faces several challenges with regards to both digital infrastructure and digital literacy. This would place several constraints on the adoption of digitalised judicial services and may result in adverse consequences for digital inclusion in the context of the eCourts project. Thus, we recommend that further initiatives to increase digital literacy be undertaken before the implementation of further digitalisation. This would include training citizens in the use of digital technologies and new judicial services. Such initiatives must also be complimented by a grievance cell solely dedicated to solving technology related issues with court proceedings and judicial services. Furthermore, new technological solutions that arise from the eCourts ecosystem must be focussed towards the delivery of justice.
4. Tech review: The draft document proposes the establishment of an entirely new digital infrastructure. Many of these proposals are innovative and have the potential to transform the judicial landscape. But before resources are invested on these proposals, we recommend that a Technical Feasibility Study - to understand the viability of these initiatives - and a Technological Impact Assessment - to understand the long term socio-economic impact of these initiatives - are conducted. These may be required at regular intervals as waves of technology adoption lead to iteration of digital systems at a rapid pace.
5. Empower High Courts: The Constitution vests on High Courts the superintendence over district courts. The proposals in the draft document substantially impact those district courts. Thus, we seek greater detail on the role High Courts will play in the implementation of the draft document and we recommend that High Courts must be at the forefront of any efforts to digitise lower judiciary. This will also promote values of judicial federalism and ensure administrative control by respective State High Courts.

The E-Committee of the Supreme Court of India has asked for inputs from the public, which can be offered here.

Important Documents

1. The E-Committee of the Supreme Court of India’s Draft Digital Courts Vision & Roadmap: Phase III of the eCourts Project (link)
2. IFF’s submissions on the Draft Vision Document (link)
3. IFF’s comments on Niti Aayog’s draft report Designing the Future of Dispute Resolution: The ODR Policy Plan for India (link)