By Satrajeet Sen
“Today, almost everything is available online except justice, which continues to be denied to millions of people across the world.” [1]
Introduction
This quotation was never so relevant than during the present pandemic, where most of the courts and tribunals are not functioning due to the outbreak of the COVID-19.[2] The present crisis has acted as a litmus test for evaluating our country’s ability to protect the most vulnerable and continue providing unimpeded justice even during difficult times. It would not be an exaggeration to say that our legal system has been caught off-guard due to the lack of technological developments as evident from the fact that Constitutional Courts could not convene its regular proceedings except for a few extremely urgent matters.[3] Moreover, recent virtual hearings before the Constitutional Courts were also marred with technical glitches.[4] The eclipse over the functioning of subordinate courts, which play a major role in the dispute resolution process, is the cause of significant concern as the majority of such courts are not even equipped to convene any sort of virtual proceedings.[5]
In this context, the paper attempts to discuss the obligation of the judiciary to play the role of the parens patriae to country’s citizens and develop a substantive policy framework to adopt Online Dispute Resolution (ODR) mechanisms and modern technology solutions, like Artificial Intelligence (AI), to increase the access to justice, and more importantly, prevent the system from succumbing to any such crisis like COVID-19 in future.[6]
Concept of ODR in the 21st Century
The United Nations Commission of International Trade Law (UNCITRAL) Working Group has defined ODR as a mechanism for resolution of disputes through the application of electronic communications as well as other aspects of information and communication technology.[7] Initially, the acronym ODR contained a hidden ‘A’ after ‘O’ for ‘Alternative’, and was applied solely in Alternative Dispute Resolution (ADR) mechanisms.[8] However, under the present scenario, we must realise that the ODR mechanism cannot be kept aloof from court procedures, since various jurisdictions across the globe are increasingly adapting to technological advancements to enhance access to justice.[9] Today, ODR is regarded as a significant ingredient in the evolution of the legal paradigm.[10] The application of ODR in courts as well as in the field of ADR can prove to be instrumental since technology can make the dispute resolution processes comparatively more accessible, faster and affordable.[11]
The study will be limited to the two essential types of ODR software: Instrumental ODR and Principal ODR. Instrumental ODR systems are virtual platforms, which perform the perfect role of the fourth party, facilitating the interaction between the disputant parties and the third-party human being in the resolution process.[12] On the other hand, Principal ODR systems are automated platforms, which not only engage in facilitating communication but also perform traditional third-party roles in the resolution of the dispute using AI.[13] The next section will attempt to analyse the existing framework of ODR in India.
The need for a well-planned ODR Mechanism in India
The E-Committee for Technology and Administrative Reforms, constituted by the Supreme Court in 2004,[14] has transformed the Indian litigation landscape by establishing the e-courts website as well as the National Judicial Data Grid (NJDG), its most significant achievement from a data-gathering perspective.[15] The ODR mechanism and the concept of virtual courts have, however not been incorporated in the subordinate courts, thereby leading to the complete suspension of work during the lockdown. Similarly, the functioning of a large number of tribunals, including the National Green Tribunal (NGT), has come to a sudden halt. As a result, the NGT has stayed work on some vital government-funded projects, which might lead to dire consequences for the general public.[16] The presence of limited benches in the higher judiciary due to the enforcement of the lockdown has resulted in the backlog of an enormous number of constitutional cases, including the petitions against the abrogation of Article 370, and those against the Citizenship Amendment Act, that has preyed on the civil liberties of lakhs of innocent civilians.[17]
The lack of uniformity and standardization of online platforms across the courts is another significant issue. The Supreme Court uses the VIDYO App, whereas the High Courts use different platforms such as Zoom, Webex, and Microsoft Teams.[18] Several Supreme Court judges believe that a specialized online platform, which would incorporate the vital requisites of the judicial system like a break-out room, is necessary to counter the technical complications, and indulge in the consistent use of virtual courts across the country.[19]
While discussing ODR mechanisms, one must also take into consideration the aspect of AI-powered Principal ODR technologies, which proactively engage in the dispute resolution processes.[20] AI has the potential to eliminate the dependencies on limited human resources, and thereby efficiently resolve the dispute faster by identifying the preferences and goals of the parties and diagnosing the applicable rules.[21] In a recent study conducted by Stanford University, it was found that the participants preferred Instrumental ODR for binding dispute resolution processes such as litigation and arbitration.[22] In contrast, Principal ODR was preferred for non-binding processes such as mediation. Principal ODR mechanism was preferred in mediation, because AI has the potential to apply Natural Language Processing (NLP) and predictive coding, and thus, identify the interests of each party and enable maximization of mutual gains, the fundamental principle of mediation.[23]
ODR and AI Technologies in India : Prospects
From the foregoing discussion, it is apparent that our initial objectives should be to have specially-designed ODR platforms, crafted taken into consideration the requirements of the Indian judicial system, specifically the subordinate courts. A smooth virtual platform delivering efficient dispute resolution with least physical contact is the only practical solution to deal with calamities such as a pandemic, war, or riots, which have the potential to disrupt access to justice.
At the present juncture, we must look at the Indian legal structure from a holistic perspective. The hierarchical structure of the judiciary has given rise to disparities in the technological integration in the Indian courts. The e-Committee of the Supreme Court consists of notable individuals from the legal industry, as well as the evolving field of advanced computing and technology.[24] On the other hand, we, as ordinary citizens, do not get much insight as to the formation and functioning of the e-Committees of different High Courts and subordinate courts. The stakeholders must make all possible endeavour to decentralize the process of transmitting technology into the legal arena so as to empower the subordinate courts to come up with innovative technical solutions with equitable human and financial resources serving their purpose. The need for collaboration of the Supreme Court with that of different e-committees of various High Courts is also essential at this nascent stage of technology transmission, so that pioneering work by any such e-committee can be shared and implemented at a larger scale.
We should also consider that the private sector has developed some vital aspects involved in virtual courts, such as case management, and smart scheduling systems.[25] The e-Committees should adopt an institutionalized approach in collaborating with the private players to develop a suitable instrumental ODR system, in order that the judiciary can exercise proper checks and balances in operating the system. The strategy of the judiciary for ensuring the viability of each of the aspects involved in the ODR system is extremely significant since it is being developed for the sole purpose of ensuring access to justice for the commoners. We must keep in mind that the e-committees of the various courts should consist of experts in the fields of technology, management, and psychology, for the successful accomplishment of this ambitious vision. In the process of developing the ODR system, it is the responsibility of the judiciary to choose the specific technologies, which adhere to the principles of equal access, due process, and data protection. The platform and its features must be designed in a manner that assists in the performance of the stakeholders, i.e., judges, lawyers, registry, and the litigants.[26]
We cannot lose sight of the fact that the combination of AI and ODR systems can enable us to bring in practice, Sander’s vision of the multi-door courthouse.[27] Sander had envisaged a diverse panoply of dispute resolution processes, to suit different varieties of cases perfectly. The dispute would be initially channeled through a screening process, which would direct the parties to the most appropriate form of dispute resolution.[28] Multi-tailored ODR processes can assist lawyers in finding the most appropriate form of Dispute Resolution if they desire an out-of-court settlement. Similarly, Sanders’ multi-door courthouse system could be employed in the subordinate courts to make the system more efficient. The concepts of ODR and AI technology is not new to our jurisdiction and has also found their proponents, who are vocal in gradually introducing technology into the legal system. Such a movement found its major proponent in Justice (Retd.) K. Kannan, who is vocal about the introduction of AI in the Indian judiciary, and believes that AI modules can be applied to specific categories of cases, which do not necessarily require any elaborate oral evidence.[29]
The eBay Resolution Centre is one example of an ODR mechanism, which has successfully applied AI in dispute resolution. The incorporated Principal ODR system uses the Big-data approach to analyse the dispute and diagnose the most appropriate dispute resolution option for the disputants.[30] Ninety percent of the cases are resolved and accepted by the parties, with the assistance of the Principal ODR software, without any external human intervention.[31] Thus, the use of an AI-based analytics system could be initially attempted in ADR Mechanisms such as Arbitration, a field that is open to the adoption of modern and innovative technologies. The concept of ODR has received a large number of successful responses in the immensely developing field of Arbitration. For instance, the International Chamber of Commerce (ICC) Commission on Arbitration and ADR has acknowledged and supported the use of video-conferencing in procedural hearings.[32] It has also adopted some vital measures to tackle the risks of Instrumental ODR.[33]
Conclusion
In view of the COVID-19 outbreak and the declaration of the consequent lockdown, though there has been a complete bar on physical movement, the exercise of civil rights and liberties of an individual cannot stand abrogated. The primary objective of the judicial system is to provide access to justice to the ordinary Indian citizen. Unfortunately, due to the suspension of the functioning of the subordinate courts, the majority of the Indian citizens have no legal recourse. Similarly, the constitutional courts have a large number of pending writ petitions, which deal with the alleged infringement of civil liberties of a large number of individuals. Therefore, the infringement has to be redressed, and suspension of the redressal process would itself be a violation of the fundamental rights of an individual. Thus, we must realize that there is an urgent need for conceiving and developing a virtual form of justice delivery system with the application of ODR and AI technologies to supplement the existing judicial framework. The failure to evolve such supplementary virtual form for dispensation of justice will defeat the fundamental purpose of the Indian legal system, and thereby, herald the fall of one of the most significant pillars of our democratic structure by trampling citizens’ rights without justice.
The author, Satrajeet Sen, is a law student at the National University of Juridical Sciences (NUJS), Kolkata.
[1]Mireze Philippe, Equal Access to Information & Justice: The Huge Potential of Online Dispute Resolution Greatly Underexplored (I), September 11, 2017, available at http://arbitrationblog.kluwerarbitration.com/2017/09/11/equal-access-information-justice-huge-potential-online-dispute-resolution-greatly-underexplored/ (Last visited on May 11, 2020).
[2]Vidhi Centre for Legal Policy, Virtual Courts in India: A Strategy Paper, 8, (May 1, 2020), available at https://vidhilegalpolicy.in/2020/05/01/virtual-courts-in-india-a-strategy-paper/ (Last visited on May 11, 2020).
[3]Outlook India, Do Virtual Courts Reserve Access To Justice Only For The Privileged Few, May 11, 2020, available at https://www.outlookindia.com/magazine/story/do-virtual-courts-reserve-access-to-justice-only-for-the-privileged-few/303146 (Last visited on May 11, 2020).
[4]Id.
[5]Vidhi Centre for Legal Policy, supra note 2, 20-21.
[6]Deepika Kinhal & Tarika Jain, The Impending Judicial Crisis Post Covid-19, April 27, 2020, available at https://vidhilegalpolicy.in/2020/04/27/the-impending-judicial-crisis-post-covid-19/ (Last visited on May 11, 2020).
[7]United Nations General Assembly, United Nations Commission of International Trade Law (UNCITRAL) Working Group, UNCITRAL Technical Notes on Online Dispute Resolution, ¶24, A/71/507 (December 13, 2016).
[8]Graham Ross, Correcting Misconceptions about ODR, January 11, 2018, available at https://www.themediationroom.com/single-post/2018/01/11/Correcting-Misconceptions-about-ODR (Last visited on May 11, 2020).
[9]Id.
[10]Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services 99 (2008).
[11]Ayelet Sela, Can Computers be fair: How automated and human-powered online dispute resolution affect procedural justice in mediation and arbitration, 33(1) Ohio State Journal on Dispute Resolution 91, 97 (2018).
[12]Id., 99.
[13]Sela, supra note 11, 99-100.
[14]Ministry of Law and Justice, Establishment of an E-Committee for Monitoring the Use of Technology and Administrative Reforms in the Indian Judiciary, No. L- I 10151212004-Jus (Notified on December 8, 2004).
[15]Vidhi Centre for Legal Policy, supra note 2, 18.
[16]Outlook India, supra note 3.
[17]Outlook India, supra note 3.
[18]Vidhi Centre for Legal Policy, Roadmap for establishing Virtual Courts in India, May 8, 2020, available at https://www.youtube.com/watch?v=ITSf0nSVMZk (Last visited on May 11, 2020).
[19]Id.
[20]Sela, supra note 11, 140.
[21]Sela, supra note 11, 100.
[22]David A. Larson, “Brother, Can You Spare a Dime?” Technology Can Reduce Dispute Resolution Costs When Times Are Tough and Improve Outcomes, 11(2) Nevada Law Journal 523, 549 (2001).
[23]Id.
[24]Supreme Court of India, Composition of e-Committee as on 28 April, 2020, April 28, 2020, available at https://main.sci.gov.in/pdf/ecommittee/30042020_025119.pdf (Last visited on May 11, 2020).
[25]Vidhi Centre for Legal Policy, supra note 2, 38-39.
[26]Vidhi Centre for Legal Policy, supra note 2, 38-40.
[27]Frank Sander, Varieties of Dispute Processing in The Pound Conference: Perspectives on Justice in the Future: Proceedings of the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice 65, 84 (A. Leo Levin & Russell R. Wheeler ed., 1979).
[28]Id.
[29]Vidhi Centre for Legal Policy, Adoption Framework for Virtual Courts, May 7, 2020, available at https://www.youtube.com/watch?v=2B6uhIL0rt8 (Last visited on May 11, 2020).
[30]Colin Rule, Making Peace on eBay: Resolving Disputes in the World’s Largest Marketplace, ACResolution Magazine, Fall 2008, 8-9.
[31]Id.
[32]International Chamber of Commerce (ICC) Commission on Arbitration and ADR, Controlling Time and Costs in Arbitration, 14, (November, 2014), available at https://www.iccwbo.be/wp-content/uploads/2012/03/20151101-Controlling-Time-and-Costs-Report.pdf (Last visited on May 11, 2020).
[33]Id.
The Journal of Indian Law and Society 