SC is steering an ambitious e-courts plan – but does it have the Constitutional right to do so?

The Supreme Court e-committee last week issued a draft Digital Courts Vision and Roadmap, drawn up by a sub-committee of experts consisting of Agami, Daksh and the Vidhi Centre for Legal Policy. The three NGOs are funded by a mix of Indian philanthropists ranging from the Nilekani Philanthropies to Tata Trusts to Tree of Life Foundation, amongst others.

The vision document in question is meant to deal with Phase III of the e-courts project, which is administered by the Supreme Court’s e-committee and funded largely by Parliament. Since its conception in 2004, the Supreme Court’s e-committee has overseen the expenditure of approximately Rs 1,300 crores of public money on the e-courts project with little to no oversight. In the last 17 years, there has been only one external evaluation of the entire project commissioned by the government – and even that was a hurried job.

So far, the first two phases of the e-court project have concentrated on training staff, installing IT systems in all district courts and networking them with a software called CIS, which records all case-related data while also making publicly available all court orders.

While the entire digitisation process has been painfully long drawn, there is no denying that it has transformed some aspects of the judicial system by making available more information directly to litigants without leaving them at the mercy of their lawyers. Of course, as is the case with any state-sponsored technology project, a lot more could have been done to help litigants and this is where the draft vision document comes in.

Ambitious, jargon-filled agenda

The draft vision document lays out an ambitious, jargon-filled agenda that includes promises of privacy, openness, interoperability, accessibility, inclusivity, agility, trust, empathy etc. The document also contains generous doses of several other buzzwords from the tech world such as “scalability”, “platform based’, “privacy by design”, “microservices architecture” and more. Far too much attention has been paid to “start-up” jargon and far too little attention has been paid to legal rights and obligations.

For example, any discussion on “transparency” in the context of the state and its institutions should necessarily begin with the fundamental right to information under Article 19(1)(a) of the Constitution. Any discussion on “open data” should necessarily start with Section 4 of the Right to Information Act, 2005 and the National Data Sharing and Accessibility Policy of the Government of India. Any discussion on inclusivity should necessarily reference the statutory obligation of technology providers under the Rights of Persons with Disabilities Act, 2016.

A vision document that is not firmly anchored in these core legal values, will read more like a pitch from a Bangalore-based start-up rather than a policy document drafted to meet the needs of the Indian judiciary.

In terms of substantial recommendations, the vision document is very ambitious. It proposes a “platform approach to ecosystem design” in a bid to encourage “co-creation of diverse and sustainable solutions”. To provide a crude analogy for a platform-based approach, think about the United Payments Interface, which allows for innovation and integration of various products designed by various players into a publicly available digital infrastructure. This fosters both innovation and competition.

That is not a bad recommendation in itself, except for the fact that it is unlikely that public sector undertakings like the National Informatics Centre will be able to execute these ambitious goals of the draft vision document. If the e-committee does decide to go ahead with the vision document in its current form, it will most likely have to rope in the private sector and that can be a political minefield.

The previous involvement of the private sector, whether in designing Goods and Services Tax Network or Unique Identifiation Authority of India has attracted much controversy not only because of “conflict of interest” allegations but also because major public policy functions were essentially outsourced in a less than transparent manner and with little accountability.

One can only expect mercurial levels of opposition from sections of civil society if the private sector is roped into any process to rework the digital infrastructure for the judiciary because this project will involve not just rewriting code but also “reengineering processes”, which means modifying the law in a way that can have a substantive bearing on the dispensation of justice. The vision document makes this aspect very clear when it calls for amendments to existing laws.

Process reengineering

The document provides two illustrative examples of “process reengineering”. The first is as follows:

 “In the judicial system, such transformative technology can target processes that do not need application of judicial mind as has already been done with Virtual Courts for disposal of traffic challans in Phase 2. This can be extended to such cases under the Motor Vehicle Act, 1988 and Employee Compensation Act, 1923 in which the disputes primarily relate to the calculations for compensation based on norms conclusively settled by statute or case-law. In such cases, technology can help empower lawyers and litigants to determine fair compensation and help avoid or contain disputes.”  

What the drafters appear to have missed is the fact that the time-consuming aspect of litigation regarding damages is not the process of calculation (judges know how to use calculators) but rather sifting through evidence and determining the probative value of evidence led by parties. It is not clear how a piece of code is going to weigh the probative value of evidence offered by both parties.

The second illustrative example pertains to “intelligent scheduling”. This deals with the critical issue of giving dates for pending cases. This is generally a high-pressure task for judges faced with overflowing dockets and an impatient Bar. Judges often take calls depending on the stakes at hand. A resident facing a threat to his house or a person facing jail time should generally get a speedier hearing than a commercial case but the commercial case may just have a Senior Advocate who can lean on the judges for a quicker hearing.

The process involves a high degree of discretion and negotiation between the Bar and the Bench. It is not quite clear how a technologist is going to be able to write code that satisfies the Bar of its fairness and efficiency.

While the above are merely illustrative examples, it is clear that the decks are being prepared for a deep technological intervention into the workings of the justice system. If the Supreme Court e-committee is looking to adopt “transformative technology”, it must first put in place independent mechanisms to test the claims made by tech gurus and then take steps to convince the Bar that these new tech solutions are in fact trustworthy. If not handled with tact these are issues that can break down trust between the Bar and the Bench.

The federal question

One of the most important yet ignored aspect of the e-courts project has been the question of whether the Supreme Court even has the constitutional right to steer the e-courts project. A plain reading of the Constitution, especially Article 227 and Article 235, makes it clear that the High Courts are responsible for the administration of the district judiciary within their jurisdiction. Although the Supreme Court can overrule the High Courts on the judicial side, it has no administrative powers over either the High Courts or the District Courts.

Notwithstanding this very clear position of the law, since the early 1990s, the Supreme Court has been interfering in matters of judicial administration through the Public Interest Litigation route. Two important cases in this regard are the All India Judges Association cases, where a bench of the Supreme Court passed sweeping orders on judicial reform without bothering itself with the boundaries of constitutional propriety or intellectual rigour that is otherwise expected of major policy reform exercises.

It was therefore not much of a surprise when the e-committee for the e-courts project landed up under the watch of the Supreme Court in 2004 and Parliament wrote it a cheque for Rs. 2,000 crores with little to no oversight on how the money was being spent. As a result, High Courts that are constitutionally mandated to oversee judicial administration of the district judiciary have had almost no say in the development of digital infrastructure for these courts because the Supreme Court run E-committee effectively centralised the entire planning process in a remarkably opaque manner. At most, High Courts could develop their own websites.

This is one of the reasons for the poor rollout of the e-courts project over the last 17 years. It is very likely that the e-courts project would have evolved more efficiently if High Courts had been given the responsibility to develop their own IT systems because the administrators in the High Courts have every incentive to create the best systems that would have reduced their own workload while administering the district judiciary.

To its credit, the draft vision document does tackle this issue. Careful as always to avoid references to any specific constitutional provisions, the vision document states:

  “The Constitution of India empowers High Courts to exercise control over all subordinate courts within their jurisdiction. In this context, High Courts have the strategic autonomy for digitisation and configuration of digital services for their state judiciary.”  

The document proceeds to recommend a new administrative setup wherein High Courts have the option to co-ordinate with a (to-be-created) statutory institution called the National Judicial Technology Council to develop their own digital infrastructure as per the requirements of their own states. For this suggestion to be accepted, the e-committee must essentially commit hara-kiri in favour of a statutory advisory body that no longer dances to the tune of a few Supreme Court judges. History, however, has shown us that the Supreme Court rarely relinquishes power that it has accumulated for itself.

Perhaps the Sun will rise in the West this time around.

The writer is a lawyer.