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.