Hon’ble Justice A Muhamed Mustaque, Judge of the High Court of Kerala, on the effects of digitalisation and how it is going to shape the working of judiciary.
The E-Committee of the Supreme Court was established way back in 2005. I became a judge in January 2014. Five years ago, the responsibility of digitalisation unexpectedly came to me. I was wondering how I could contribute to this, as I didn’t have much domain expertise in computers. I’m not tech-savvy. I am just a judge. I had just shifted from bar to bench. That is the only shift I have seen in my life.
Need for Dialogue
Then came COVID. The first thing I realised was how important it is to have an E-Committee to shape things, hold schedules, and conduct hearings. But slowly I realised there was something inside me and that I am also a good administrator. I thought genetically, I have the DNA of my father, who was a lawyer, but I found I have the DNA of my grandfather, who was a businessman in Coimbatore. I felt there is something a judge has to do on the administrative side. What is needed is a convergence of different minds. We need to have a process of dialogue.
Digitalisation is for our country and society. This is not just for the legal profession or the judicial system. We need to realise this. Kerala’s journey has just started, and we have a long way to go. Digitisation needs a mindset. Initially, our efforts met with scepticism. We need to understand the issues and the current and future scenarios. Lawyers think that digitisation is just an environment-friendly measure and that courts will get more space as the files are digitised.
Evolution of Law
To understand the importance of this topic, we need to understand our society and the evolving dynamics within it. If you look back at history, civilisation faced a lot of challenges at different levels, from the Stone Age to the modern era. But society lived up to those challenges in different ways. The Greeks initiated dialogues to find out what kind of society, laws, and justice were needed. The period of reasoning and enlightenment in Europe rejected theocracy and sought to create a new society with naturalist ideas and reasoning after the fall of the Roman Empire. They wanted to have a good society based on human values. They tried to define justice—what is right and what is wrong.
Everybody tried to define justice in the context of the era and society in which they lived. In our tradition, in the past, we tried to define our justice based on the principle of dharma. The Abrahamic religions tried to define it in their own way, based on divine principles.
Tools that Shape Humanity
But today, we face enormous challenges, unlike in the past. We shape the technology. We shape the truth. But the same tools now attempt to shape us. The challenge is between humans on one side and machines on the other side. All the principles of the law evolved over the centuries are related to humans because humans have a subconscious mind and they can use their intelligence.
Europe is trying to address this issue by passing an artificial intelligence enactment in the European Parliament. Maybe they will attempt to a certain level, but how far and to what extent? Where is the jurisprudence? Where is the philosophy? These are all questions to be answered by the next generation, particularly the younger generation.
We face an existential crisis. In that process, the challenges faced by the judiciary are minuscule compared to the problems faced by the larger society. It is lawyers who have shaped every society. Philosophers like Aristotle or Plato might not have had expertise or a legal background, but their discourse on justice shaped society. Principles of moral reasoning were given by Bentham, Hume, and Kelsen. We need such philosophers but where are they?
Today, technology is shaping political, social, and economic orders, permeating every aspect of our lives. A new legal order is evolving, and that is the greatest challenge we all face. It is affecting the entire ecosystem governed by the Constitution. It can impact democracy, our society, our cultural practices, and traditions in all walks of life.
Need to Collaborate
Lawyers cannot solve the entire issue unless they have some understanding of technology. Similarly, technology experts cannot solve the world’s issues unless they have some understanding of the law. The entire world is networked; we are all connected to each other.
We are sure that GenAI will not replace lawyers and judges, but it will replace those who do not use it. We need to create a new digital ecosystem for the judiciary that can have a far-reaching impact on our society. There is no visibility in the existing system, which is based on the physical environment. However, technology is a great enabler; it is transformative and can provide access to justice. The judiciary is no longer a monopoly of the mainstream justice system. It has moved to a market space. To use technology properly, there is a greater opportunity for younger generations.
Creating a Digital Ecosystem
Why do we need digitisation? It is not merely converting paper files to digital files. Once papers are digitised, you will be in a position to create a new digital ecosystem. There is a difference between digitisation and digitalisation. Digitisation is the first step; digitalisation is creating a new ecosystem.
The adjudicatory philosophy is always related to dogmas and doctrines. But the future of adjudication will be different and emancipative. For example, motor accident claims are now settled based on principles of law. If all the data can be fetched from hospitals, police, and insurance, then the system itself will find out and calculate the compensation without human intervention. There are many smart contracts that work on their own without human intervention.
There will be clear classification in the legal system: justice delivered through emancipation and justice through the process of law. There will be lawyers known as blockchain and artificial intelligence lawyers. They will ensure credibility and have supervision over the data to help a party get justice. The other class of lawyers would be litigators or lawyers in conventional roles.
Lack of Communication: The Core Problem
Why are so many disputes happening now in our system? It’s because there is no communication between different stakeholders. The land records might be with the revenue department while some other department handles other matters. If all systems come together, why should people go to court and litigate? Everyone will know where they stand within the ecosystem. Those kinds of litigation would disappear in the future because when the entire system is interlinked and becomes interoperable, parties will get justice through the process itself.
In the past, people who had knowledge were powerful. We acquired knowledge through browsing millions of papers. Today, I don’t think any youngsters would approach a senior lawyer to know about citations because all knowledge comes to you in the form of information. There is a big difference between information and knowledge. Knowledge is available in the form of information at your fingertips, but the future of young generations depends not on the knowledge itself, but on how they are able to generate ideas.
Unless we adapt ourselves with the times, we will also vanish. It is said there will be a class called the “useless class,” not because of a lack of skills, but because the skills will become outdated. When roads are flooded with driverless cars, all cab drivers will become useless. Uber and Airbnb are great ideas; they provide one platform.
From Physical to Digital Ambience
When I started working on this initiative with computers and programs, I realised there is a mental block for everyone to accept it. I believe the mental block starts from the courtroom. Our ambience and environment are created for the physical space. You look at the arguments in the Supreme Court and see how crowded people are. Every litigant is emotionally connected to the space. If you go to a temple, you will have an emotional attachment to that space. If you go to the airport, you will have different emotions. Space is very important for humans. We need to create our physical ambience aligned with the digital ambience. Lawyers should think about how courtrooms should be designed in such a way. That’s a long-drawn process. This is what we’re trying to do in Kerala. I designed a courtroom with this idea, but we are still working on it.
Initially, we thought everything could be done by the committee and the people working with us. We relied on the National Informatics Centre (NIC), but they were not in a position to deliver. In a cash-strapped state like Kerala, it’s very difficult, but the government is quite supportive. Despite the lack of funds, they provided five contract employees. We started working on our software. We interacted with the lawyers, clerks, police, and all stakeholders to make it user-friendly.
Involving Stakeholders
We have now reached a level where our files are scrutinised by machines. We initially started with bail applications and have now moved to writ petitions. The machine itself will scrutinise and allot a number. There is no human intervention. Even if you file at midnight, it will scrutinize and number your case. We have gone far ahead of other courts, but still, we are not able to create a paperless court, for the obvious reason that we find it humanly impossible for a judge to handle it all by looking at the desktop. We thought it necessary to have voice-to-text functionality, so that a judge can sit in an armchair and look at exhibits or paragraphs. It should reach that level.
We also want to reduce the number of cases. A judge can handle a maximum of 20 to 30 cases in a day, but now 100 to 200 cases are listed in a day. So, we are thinking of intelligent listing. We have made amendments to the rules. We are bringing in a new judicial district judge and a person who will take care of all routine matters like serving notices, etc.
Making Judges More Productive
I conducted a survey in my own court. I found that out of five hours, the maximum productive hours of a judge are two to three hours. We want to list only those cases which can be heard or require passing an entry so that a judge will be able to spend at least four and a half hours of productive time. That’s our thinking. Amendments have been sent to the government. We want even a judge, who may not have expertise, to be able to sit in the armchair, speak to the system, and have the system generate files and flip through them.
We are also not able to digitise existing files, which number nearly two lakh. That process is ongoing. Once that is completed, maybe we’ll have a more paperless court. We are engaging specialists who are willing to work for us. This is the first time in India we have gone outside and engaged people. A lot of policy shifts must happen in the system. We are very conservative in our policies. We don’t want to engage civil society organisations and others. We cannot create magic in the system. We have limited expertise, so we need to engage outside experts. Just like lawyers bring their papers and files to court, anybody can develop software. What we need to have are API standards and security. That is all.
A Single Document Will Do
If we use technology, especially distributed ledger technology, the world can have a single document—a marriage document, for example—which every entity in the network can verify. With the support of private international law, it’s possible. Why should a person who is shipping a consignment carry these documents to different places, if there is a single system in the world backed by private international law, and each country agrees to recognise it? It is possible, and that is how cryptocurrency works. Why do we need to legalise power of attorney if we can verify credibility using distributed ledger technology? That’s what we call blockchain. If any tampering happens, it will reflect in the network of others.
There are simple benefits for us through technology, and technology with the support of law can make a lot of difference, as stated below:
- The concept of justice will slowly become a source of emancipation for people
- Tere will be more certainty and less human interventions.
- There will be prudent use of human resources
- We can move from centralised structure to decentralised structure.
- Access to justice for the millions who have no access to mainstream justice becomes possible.
Use of Algorithms
Our system still insists on English as a formal language, and the Constitution also recognises English as a language. Why should one be compelled to speak in a language that is quite foreign to them?
Our report highlights the importance of using algorithms to determine whether a court is necessary or not. We need to prioritise cases based on national security, social importance, commercial importance, and individual importance. If a case crosses an alarming threshold, the system should alert policymakers and courts about the need to establish new codes for that litigation. Instead of the Bar Association presenting a representation, we need to analyse the situation.
