Supreme Court’s draft vision for Phase III of e-courts will end up commodifying justice, say activists

The Supreme Court’s draft vision for the Phase III of the e-Courts project wishes to transform the administration of justice from being a sovereign function to a service, which is an alarming and disquieting change, members of the Article 21 Trust and digital rights activists have said in a letter to the chairperson Justice DY Chandrachud and the members of the Supreme Court e-committee.

The draft underlines the concept of “whole-of-system approach” in the hope of an integrated criminal justice system with integration and interoperability between prisons, courts and Ministry of Home Affairs. “This will have immense implications for the rule of law and the independence of judiciary, both of which are values essential to the protection of fundamental rights guaranteed and protected under the Constitution,” said the signatories of the letter.

In the letter, the activists reiterated that though peripheral activities of fees and filing designed to access a court may be a service, but the core processes involved in the delivery of justice – including pleadings or the hearings or the decision making – are not merely “service”. The draft document conflates the two, they said.

The current e-committee is chaired by Justice DY Chandrachud. Former judge of the Bombay High Court Justice RC Chavan is the vice-chairperson and the members include Atul Madhukar Kurhekar, A Ramesh Babu, R Arulmozhiselvi, Member and Kuldeep Singh Kushwah.

The draft document was prepared by think tanks Agami, Daksh and Vidhi Centre for Legal Policy. May 31, 2021, was the last date for submission of responses for the draft document.

The draft document uses the analogy of the instant digital payment processing entity to describe the court of law as a service, but a court doesn’t exist to only process fee and churn out predictable responses, says the letter.

“The current vision in the draft commodifies justice. Everyone approaching a court isn’t looking for quick service delivery as they would from a service provider like a bank charging a fee for processing a transaction. There are complex legal questions involved, matters of rights, life, liberty; and every judge is expected to apply their mind to the facts, interpret the law and render a decision which can have far reaching implications – not only for the parties involved, but also the general public,” stated the letter.

Its signatories include lawyers S Prasanna, Talha Abdul Rahman, Rupali Samuel, Rahul Narayan, digital rights activists Anivar Aravind, Srinivas Kodali, Srikanth L, Kiran Chanda of Free Software Movement of India, Criminal Justice & Police Accountability Project, Siddharth deSouza of Justice Adda and Maansi Verma of Maadhyam.

The draft effectively wants to discourage litigants from approaching the court, suggesting “dispute mitigation” as one of the strategies. “This is implied acquiescence to the status quo and the acceptance of improbability of the State investing in improving and expanding court infrastructure and hence the only way to deal with growing pendency is to discourage people from approaching courts,” states the response to the draft.

The draft highlights “dispute containment” to push people towards alternate dispute resolution and for that choice to be “guided” by a digital platform.

However, the draft maintains that its inspiration is Gandhi’s talisman, but it not clear how this objective will be achieved. Gandhi’s talisman is, “Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him [her]”.

But the draft document does nothing for the poor and vulnerable, many of whom have no access to justice or digital platforms to raise their voice in a legal fight. “If access to justice for the poor and vulnerable was the guiding light for the draft, then it should have sought a report appraising the committee on the functioning and outcomes of Nyaya Panchayats. Similarly, an assessment must be made of alternate dispute resolution mechanisms such as arbitration, mediation and conciliation ought before proceeding ahead to implement the vision as advanced by the draft,” stated the letter.

The draft refers to the judiciary evolving as a service for the community, but the formulations in the draft suggest that justice is being treated as a commodity where people can seek different service providers on the basis of how cost effective each is. The core values of trust, empathy, sustainability and transparency are indeed ideals which must be held close, but it isn’t immediately clear how the vision of e-courts expounded in the draft advance these core values.

The signatories question why the draft does not talk of a court which is accountable. “While live-streaming of court proceedings will enable building trust and transparency, how does one inspire confidence in a virtual system, which has to be responsible first to the needs of the users? Paperless functioning of courts, open publication of case details and open standards are needed, but why is there a push for ‘market operators to develop solutions’?” asked Anivar Aravind, a public interest technologist.

The draft constantly maintains “intelligent scheduling” of cases is important, but it does not address how a digital platform will take into account urgent hearings having bearing on life and liberty. It begs the question if human agency and discretion are removed, will it necessarily advance justice? Technology can make some of the processes easier, but the draft document doesn’t differentiate between what are those categories of processes which can gain from technological intervention and those which perhaps won’t. “This differentiation is imperative,” said S Prasanna.

The draft proceeds on the premise that administration of justice already isn’t a public service, as even a judge of a High Court and Supreme Court have been held to be public servants. “What the draft proposes is a problematic new purist transformation fundamentally altering the conception of justice,” says the letter to the e-committee. It is important to distinguish technology as a facilitator rather than an end in itself.

The draft envisages the entire judicial system as a single body and the State (which includes judiciary and executive) as a monolith for the litigant. The judiciary includes the high courts, district courts, criminal courts, civil courts and family courts and tribunals. This vision for a unified judiciary is of a centralised, top-down and one-size-fits-all approach that threatens to derail the entire process of digitisation of judiciary.

“It is also important to look into the issue of trust in technology for people when these systems are being promoted within the judiciary. The technology development itself can build trust if it is collaborative in nature. If it is a top-down architecture, then everything is decided by the e-committee of the Supreme Court without taking other high courts and district courts into factor; there may not be much trust. Technology is not magic. Trust in technology must be earned - and that comes with transparency, inspectability and auditability of the systems and the algorithms,” said Srinivas Kodali, an independent researcher with interests in cyber security and surveillance.

The draft wants the linking of various centralised information technology projects, such as e-courts, e-prisons and e-police. This means that the draft document is not only centralising information, but also power and administration. “The law as it stands requires the court to supervise the investigation machinery and keep a check on its abuse and ensure fairness. The vision document contemplates ‘sharing’ of information overlooking the imposed and explicit power structures that keep the police under control of the judiciary and not make them partners in providing ‘service’. The sovereign function is reduced to merely a service,” said Talha Abdul Rahman, a Supreme Court lawyer with interest in technology.

“The vision document is not sensitive to the needs of the local bar and is likely to disproportionally affect non-urban lawyers,” added Rahman.

The vision of a unified platform in the draft document appears to come from the executive’s desire to inter-link information systems of the judiciary with e-prisons and CCTNS (Crime and Criminal Tracking Networking and Systems).

These two centralised information systems will have multiple surveillance infrastructures such as National Facial Recognition System, National Automated Fingerprint Recognition System, National Sexual Offenders Registry, National Economic Offenders Registry, National Missing Children Registry and National Vehicle Registry.

“All of these surveillance systems when combined with the e-courts project make the Integrated Criminal Justice System (ICJS). To link the judiciary's information system with all these surveillance systems that seek to maintain extensive profiles of citizens is not only unwise, it would cause unforeseen harm to both the citizens and the judiciary,” states the letter.

“The Supreme Court should not inter-link its information systems with that of the police and prisons department to build ICJS, which is nothing but a 360 degree profiling database of citizens,” added Kodali.

The draft wants an ecosystem of private sector players building apps with data being shared by the judiciary through Open APIs. “The idea of Open APIs is being justified for creation of these new digital public goods. The word “open” here is significant and should not be confused with the philosophy behind Free and Open Source Software (FOSS). The FOSS philosophy is about freedoms in the digital world to change software to the requirements of various users, to give control back to users. If the courts want to adopt this philosophy, then it should talk about open courts and access to justice and not Open APIs,” stressed the signatories of the letter.

This draft does not take into account the dangers of surveillance based information economy and instead further promotes it. In an information economy, in which building profiles with credit scores is an existing norm, the private sector will also make criminal scores of the underprivileged based on their judicial convictions and use those to make decisions for them. There are already plans by the Ministry of Home Affairs and NCRB to monetise CCTNS data for background checks.

The draft is unclear about the structure of power and accountability of the National Judicial Technological Council. NJTC as proposed in the Draft recommends hiring a CEO potentially from the private sector or an IAS official to run it like a registered company. The constitution of NJTC with independent members of the technology community as volunteers or full time members also adds to the concern.

“The external members in NJTC can be expected to have conflicts of interest. Our concerns centre around whether decisions of NJTC on technology can affect judicial administration. Individuals or organisations that fund or benefit from startups and businesses around legal technology and judiciary cannot be in a position to suggest technology architectures for the judiciary,” the letter pointed out.

The letter requests the e-committee to redraft the document and re-orient it towards advancement of justice on the strength of time-tested ideals such as the independence of judiciary and separation of powers and propose solutions which was least intrusive.