Use of Technology in Judicial Process and Alternative Dispute Resolution

By Anonymous

INTRODUCTION

Technological Developments in the field of information and introduction of computers have made a turning point in the history of human civilization. It has brought about a sea change in all fields of human activity. It has resulted in enhanced efficiency, productivity, and quality of output in every walk of life.

Extensive use of Information Technology by diverse organizations the world over has resulted in enhanced efficiency, effectiveness and optimal use of resources. Computers as well as electronic communication devices such as facsimile machines, electronic mail, video conferencing, provide the ability to process large volumes of data with speed and accuracy, exchange of useful information between different locations and support a higher quality of decision making. These capabilities have contributed to more efficient and responsive systems not only in business organizations but also in legal, governmental and other public systems.

While the Information Revolution arrived in India some years ago, automation has not transformed all facets of life in equal measure. It has not permeated to the Subordinate judiciary, in particular, resulting in old work methods based on manual systems being continued even now. The enormous problems being faced by the judiciary due to arrears, backlogs, and delays can be partly resolved by the introduction of automation in subordinate courts.

The problems faced by courts, judiciary, and public seeking justice in terms of backlogs, delays and expense are well known. While there are many dimensions to these problems, improvements in operational efficiency, coordination, accessibility and speed which IT could bring about can contribute significantly towards improvement and alleviation of difficulties.

However, the present pace of development, particularly at the subordinate court level is too slow and is unlikely to have the desired impact in the near future. Massive problems need appropriately large commitments and major initiatives if a significant dent is to be made.

Most of the bottlenecks identified by Judicial Commissions and Committees referring to delays, arrears and backlog be partly overcome if a sound judicial management information system is introduced in India. Case Management, File Management, and Docket Management will be vastly improved by resorting to the use of computers. In particular, the following are areas where the use of computers will result in enhanced productivity and reduction of delays.

a) Legal Information Data Bases.

b) On line query system for precedents, citations, codes, statutes etc.

c) Generation of Cause List and online statistical reports.

d) Online Caveat matching.

e) Online updating of data, monitoring and “flagging” of events.

f) Pooling of orders and judgments.

g) Daily List generation with historical data of each case.

h) Word processing with standard templates including generation of notices/processes.

i) Access to international databases.

j) Feedback reports for use of various levels.

The above are some of the areas where information technology can be introduced after due preparation. In particular, tracking of cases would result in better monitoring and control of cases by the Presiding Officers, rather than by the lawyers.

Computerization should be supplemented by the use of Fax, E-Mail, Video conferencing and other facilities for higher productivity and quicker decision making at all levels.

International Practices

Courts in the USA have been extensively using Information Technology for several years now. In the UK, software development for computers at the subordinate court level has been developed extensively. For example, the Local County Court Management System (LOCCS) in use in England has a data base system which is part of a package called CASEMAN and supports the following judicial applications:

a) Creates initial court records for registering a case

b) Issues summons and monitors the service of the summons

c) Stores electronic copies of evidence

d) Generates Cause List

e) Updates records

f) Maintains Court Dairy

g) Automatically generates other relevant documents and records

In Australia “Cyber Courts” use of technology in the legal arena extensively at all stages and have demonstrated a considerable reduction in delays as a result.

In Singapore, the courts manage their time and resources optimally to achieve an active, efficient and effective case management process. The use of technology in Singapore courts goes beyond the use of computers. Occasions for transporting of accused and witnesses in criminal cases within the country and from outside are greatly reduced by the use of video cameras in jails and court premises.

The Lawnet Service Bureau is networking with law firms, judiciary and data bases. Video conferencing is a common feature both within the judiciary and outside. A keyboard is provided in each court to the lawyers to make their written submissions on a real-time basis. Their Differentiated Case Management (DCM) System assigns different management tracks to different cases in subordinate courts in accordance with the nature and complexity of each case. The public who visit the courts have also access to a touch screen by which they know the status of various cases. This practice promotes transparency and improves accountability.

The experience of IT usage in these countries, particularly the U.K. could provide very useful pointers and even specific tools and software in developing systems suitable for India.

Position in India

E-Justice

Recently, there has been a tremendous interest in major initiatives in IT at the national level. A task force set up by the Prime Minister has drawn up 108 recommendations with the objective of developing India into an “IT Superpower”. Further, computer usage has made sufficient inroads into private as well as public organizations in India. There are several visibly successful applications, be it in railway reservations or department stores or educational institutions.

Also, India software developers have been recognized internationally for their talent in developing software for diverse applications. It is time that these talents and experience be put to use in developing effective systems for the important and public-sensitive domain of legal systems.

E-justice is considered and rendered as an organ of e-governance. The Indian judiciary of composed of 15,000 courts in 2500 court complexes. Efforts for computerization have been going on since 1990. Under the National e-Governance Plan, the computerization of courts have been made a Mission Mode Project (MMP) and it has been proposed to implement information and communication technology in three phases over a period of five years. The scope of this project is to develop, deliver, install and implement automated decision making and decision support systems in the courts.

The main objectives of the MMP are as follows:

1. To help the judicial administration of courts in streamlining their day to day activities.

2. To assist judicial administration in reducing pendency of cases.

3. To provide transparency of information to litigants.

4. To provide access to legal and judicial databases to the judges.

Once fully implemented, the project would render the online availability of judgments, cause lists etc., e-filing of cases as well as delivering notices provided the email IDs of clients are available.

The implementation of the project was initiated in December 2004 and an e-Committee was constituted to oversee its implementation. A national policy and action plan were formulated by the e-Committee. To this day, 700 courts in metro cities as well as 900 courts in capital cities except for North East, Ahmedabad and Patna have been covered.

The approval from the Cabinet for execution of the project in 2100 court complexes has been obtained and an amount of Rs. 442 crores have been granted for the implementation of the project in 2 years. The work is being carried out by the National Informatics Centre (NIC) under the overall guidance of the e-Committee.

The e-Courts project will ensure that the status of pending cases from every court will be available online—in terms of both the cause list and the case details. It will also help courts issue digitally certified copies instantaneously. Facilitation counters will be set up in every court building for the filing of cases and the issuance of certified copies and case information. This will help citizens report cases and obtain information without hassle.

In Phase -II of this project, victims and witnesses will be produced through video conferencing. Notices will be served and summons of a higher court will be sent electronically. Digitally signed court orders and judgments will be available on the internet.

This project will also help in creating a database of pending cases and the electronic calculation of fees to eradicate corruption. It will electronically assign cases to judges. Similar cases will be grouped together, which will help in closing similar cases at a go. The system will also store digital transcripts of evidence, to make them tamperproof. Moreover, this system will help in the monitoring of process service levels.

Impact of Information Technology in Courts

The National Informatics Centre has been closely associated with the Indian Judiciary for the past eleven years. NIC’s role in serving the legal community through Information Technology (IT) began as early as 1990 when the COURTIS (Court Information System) Project was conceptualized and commissioned for streamlining registries of various courts. COURTIS was implemented by NIC to serve all stakeholders like judges, advocates, litigants, law firms, legal institutions, government, researchers, and the general public in the legal system.

All High Courts have been computerized and interconnected through NIC’s satellite-based computer-communication network NICNET. NICNET based COURTIS project interconnects the Supreme Court and all High Courts and is in the process of computerization and integration of all District Courts in India. The main components of COURTIS are case status, Judgment Information System (JUDIS), cause lists and daily orders on the internet. Apart from JUDIS, there are various other online databases which facilitate the easy reference of cases. They include Manupatra, Westlaw, Indian Kanoon etc.

NIC took up computerization of all 18 High Courts and 10 Benches on the lines of Apex Court’s Computerisation. NIC has also implemented the List of Business Information (LOBIS) in all High Court Courts. It is about the scheduling of cases to be heard by the courts on the following day. It enabled the Registries of Supreme Court and High Courts in eliminating manual process of cause list generation and thereby eliminating manipulation by vested interests.

These databases contain details of fresh cases, disposed and pending cases. Most of the High Courts have opened query counters along with Filing Counters for providing Case-status information to the litigants and advocates. In the Supreme Court of India and all High Courts, fresh cases are filed only before the computerized Filing Counters. As the advocates stand in queue for Filing cases before the counters, the data entry Operator enters preliminary details required for Registration such as Party names, advocate details, etc.

The computer terminal at the query counter is used to attend to the quarries of the litigants on the spot. The defects, if any, are listed out and handed over to the litigants/advocates for rectification. The time limitation is also checked by the system automatically.

Further in 1997 NIC took up the computerization of all 430 District Courts in the country on the lines of High Courts Computerisation Project to provide judicial and legal databases to the District Judges
The project can be further extended to have Technology Courts formed in the country.

Tele-Justice

Tele-justice, simply put, involves the use of IT services in the field of judicial administration. It includes a simple telephone call, using satellite technology to communicate between people in two countries, using video-conferencing equipment or intranet technology. Today, video conferencing is used by many judicial officers daily and is connected to prisons. Similarly, intranet technology is being used in many courts.

With telejustice, the accused can now be present in a court through a video link, established on ISDN lines, between the prison and the court. Today, Indian states including Maharashtra, Andhra Pradesh, Tamil Nadu, Gujarat, and Bihar have already introduced tele-justice. In Maharashtra, for instance, over 40 jails in and around Mumbai are connected to district level courts through video conferencing.

There are risks attached to transporting convicts from prison to the courts. In addition, there are also costs in the form of deployment of policemen, security charges and transportation.

Tele-justice yields considerable savings on these fronts.

Tele-justice involves two different kinds of technology:

1. Store and forward: Used for transferring digital images from one location to another. A digital image is taken using a digital camera shared, and then sent, that is forwarded by the computer to another location. Usually used for non-emergency situations. Valuable but disputed documents which could not be sent by any other means of communications without risk could be digitally imaged and thus stored and forwarded for analysis and report.

2. Two-way interactive television (IATV): Used when face-to-face consultation is necessary. Video conferencing equipment at both locations allows a ‘real-time’ consultation to take place.

Worldwide, tele-justice has emerged as a secure way of carrying out legal procedures. By installing a video conferencing system at the courthouse as well as the prison facility, defendants can participate in all legal procedures without law enforcement having to shoulder the dangers associated with jail-to-courthouse prisoner transport.

Video-conferencing also helps connect more than one courtroom during a trial, and enables the use of more than one application. The system provides a simple user interface, which allows non-technical users such as judges and court staff, to easily operate and maintain the judicial video conferencing system.

The video conferencing equipment is mobile so it can be moved from room to room and connects to the court’s existing data infrastructure. Through video conferencing, timely actions and decisions can be taken during a trial.

Other advantages include making specialty more accessible to rural as well as urban areas, alleviate prohibitive travel and associated costs for litigants, opening up new possibilities for continuing education for isolated or rural legal practitioners and cutting costs of legal care for those in rural areas. However, there are certain barriers that can hinder the tele-justice system from achieving its full potential. Many countries will not allow out-of-country lawyers to practice unless licensed in their country. Many private insurers will not reimburse. Another factor is the lack of appropriate telecommunications technology, especially in rural areas. The tele-justice system requires very high bandwidth which cannot be supplied by regular telephone lines. Computerization of courts has paved way for efficient handling of all matters including security concerns.

Procedural Aspects

The most significant impact of technology with regard to the judicial process has been in the domain of procedure. Investigative agencies have increasingly come to rely on forensic techniques such as analysis of fingerprints, voice, handwriting, blood samples, DNA and other bodily substances for evidence gathering. Software is also used for reconstructing the images of suspects and aiding the investigation.

A new branch of investigation known as cyber forensics has gained a lot of attention in the recent years. As newer technologies are introduced to assist investigation agencies, it is important to not be blindly enthusiastic about their reliability. The use of scientific techniques holds immense promise in the criminal justice system, but before accepting each technique we must examine it critically in light of the constitutional rights granted to citizens and the requisite evidentiary standards.

Technology and Alternative Dispute Resolution

The objective of Alternative Dispute Resolution (ADR) mechanism as the phrase itself suggest is to resolve disputes of all sorts outside the traditional legal mechanism i.e. courts/judicial system. There is a broad spectrum ranging from the purely consensual mode of resolution of disputes to an executive procedure like arbitration, conciliation or negotiation, through a combination of some of the technique like negotiation, conciliation, mediation and arbitration may also be used to resolve certain disputes. ADR thus offers an alternative route for resolution of disputes.

Electronic commerce is important, and perhaps, inevitable. Thus, to consider the legal implications of the growth and development of electronic commerce is essential. However, the lack of suitable dispute resolution mechanisms in cyberspace will constitute a serious obstacle to the further development of electronic commerce. When Alternative Dispute Resolution moves to cyberspace, particularly arbitration and mediation as the main types of ADR, it can be argued that the form of Online Alternative Dispute Resolution (OADR) can maximize the growth of e-commerce.

Online dispute resolution is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect, it is often seen as being the online equivalent of ADR. However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.

ODR involves the creation of a virtual replica of physical setting and conduct proceedings by using various means for information exchange – e-mail, SMS, digitized documents, grid computing as well as video and teleconferencing. Some of the benefits of ODR is that it is efficient, economical, non-confrontational, requires less physical meeting as well as less physical data storage.

The implementation of ODR in India has not been fruitful owing to the lack of knowledge and absence of adequate will power to use Information and Communication Technology for Dispute Resolution. Perhaps, it is a very bizarre idea for Indian Industry and Commercial Entities to use ODR for Dispute Resolution. ODR can become a very effective Alternative Dispute Resolution Mechanism (ADRM) in India. The present ADRM in India is governed by the outdated and problematic Arbitration and Conciliation Act, 1996. Unless sufficient provisions are made to support the incorporation of technology into the field of ADR in India, online dispute resolution cannot be fully implemented.

One major factor for the lack of development in the field of ODR in India as well as worldwide is the absence of uniform laws in this regard. The United Nations Commission on International Trade Law (UNCITRAL) has taken efforts in the direction of providing a uniform legal framework for the ODR. Once this is brought into force and is suitably incorporated into the laws of the country, ODR can become an effective means for dispute resolution in India.

Conclusion

The use of technology in the judicial process, as well as ADR, has increased tremendously. Our country has come a long way since the first initiative for the computerization of courts was taken in 1990. Its advantages have been clearly felt as it has become easier for judges, lawyers as well as litigants to participate in the process of law. It has considerably reduced the delay in the various aspects of the judicial process and brought down the amount of backlog of cases. Access to justice is well served by technology as it allows more dialogue between the citizens and public institutions.

However, there remain plenty of hurdles that have to be overcome so that the judiciary can function to its true potential using the implementation of information and communication technology. Once our judicial system becomes completely successful in implementing the use of modern technology, justice can be properly served to all in a quick and efficient manner.

Formatted on February 16th, 2019.

References

1. E- Justice, Practical guide to the Bench & the Bar, K.Pandurangan, Universal Law Publishing Co, New Delhi.

2. Internet Characteristics and Online Alternative Dispute Resolution, Haitham A. Haloush & Bashar H. Malkawi

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