Paper Details
Paper Code: AIJACLAV3RP122023
Category: Research Paper
Date of Submission for First Review: March 9, 2023
Date of Publication: December 29, 2023
Citation: Adya Pandey, “Technology as a Medium to Access Justice: Analysing the Advantages and Challenges in Practical Implementation and the Road Ahead", 3, AIJACLA, 104, 104-112 (2023), <https://www.aequivic.in/post/technology-as-a-medium-to-access-justice-analysing-the-advantages-and-challenges-in-practical-imple>
Author Details: Adya Pandey, Assistant Professor, Amity University
Abstract
With penetration of technology in almost every aspect of human life, it is hard to think of human survival without the use of technology. Transferring money, shopping online even buying groceries online, use of technology has become all pervasive. While technology is increasingly being used to make the life of people more convenient talks are around that can it be used to transform the way the judiciary works.? While the education and financial sectors have been transformed by technology, eyes are now at Judiciary which has been attuned to the traditional methods of functioning. The recent pandemic has given a peek into a how the judicial system would function with the use of technology. It is desire that the justice delivery system must also adapt technological inventions into its working style. Accessibility to justice is the backbone of any democratic country. Technological innovations can contribute greatly in ensuring accessibility to all. In the recent pandemic times the advantages of technological assistance have been witnessed by all. The need is to permanently adopt the them into the day to working of the judiciary. Something that was done temporarily to meet the urgencies of tough times, must be converted into a habit. This shall however require a complete change as to how judiciary works ,from building the requisite infrastructure, adoption of necessary software, training of staff etc. It is believed that use technology in the judicial system can help to smartly overcome the problems of huge backlog of cases and lack of requisite quorum of judges and impart justice to all.
Keywords: Use of technology in the Judiciary, Accessibility an important pillar of justice, Access to technology: Whether access to justice?, Merits of using information technology, Pandemic as a catalyst for digitalization of Courts.
Keywords
Access to Justice; Judicial System; Judiciary; Technology
Introduction
Technology[1] has been used extensively during the recent pandemic times in the day to day functioning of the courts. Judicial system that otherwise would have collapsed managed to sail through the times by smartly adapting to technological assistances available. [2] the successful implementation of online judicial services has raised a desire that the judicial services may continue to remain accessible online in the future as well and that it shall be possible to access justice with ease and convenience. One may become sceptic of the need of technological assistance in Court functioning. After all cases cannot be decided by robots. They require a human mind to analyses the case, interpret the law, and deliver a judgement. Yes, this is absolutely true that the basic function of judiciary that is to hear the case and deliver a judgement necessarily requires a human mind but what is to be understood over here is that technological assistance is intended only to support the courts in discharging their duties. For example, in a virtual hearing the judge still presides over the case and applies his judicial mind, it is just that the platform has changed from physical to virtual.
At times when trains can be driven without drivers using the assistance of technology, not to include technological assistance into the judicial system shall amount to not exploring the possibilities that technological assistance can open for justice delivery system. It is not that the justice delivery system is completely unknown to adaptation of technological assistances. With subsiding of pandemic horrors courts are going back to their usual style of functioning however it is suggested that technology’s role in judiciary must not be negated and technology should continue to be used in helping in the justice delivery system in whatever effective way possible. To make technological assistance a permanent feature of judicial services study shall have to be conducted as to the ways technology can be inducted into the judicial system? To what extend can technology be included into judiciary and to what extent? The feasibility and disadvantages if any? The types of judicial services that can be assisted with technology.
Accessibility as Important Pillar of Justice
Accessibility to justice is an important aspect of justice system. Access to justice is more than improving an individual’s access to courts or guaranteeing legal representation.[3] It is the ability of people to seek and obtain a remedy through formal or informal institutions of justice for grievances. Access to justice is severely hampered when people fear the system, the system remain inaccessible, financially or socially or owing to inaccessibility of lawyers, lack of knowledge, unawareness as to rights[4]. Access to justice involves normative legal protection, legal aid and counsel, adjudication, enforcement and civil society oversight.[5] Access to justice supports sustainable peace by affording the population a more attractive alternative to violence in resolving personal and political disputes.
Accessibility to justice is one of the United Nations Development Goals. Goal 16 focuses on peace, justice and string institutions. This goal is meant to be achieved by ensuring access to justice for all and building effective, accountable and inclusive institutions at all levels. The journey for accessing justice starts from the police administration itself which then reaches to the judicial administration. The ability to report the commission of the offence followed by ability to file a complaint, appoint a lawyer etc. sets the whole justice system in motion. Denial to justice tantamount to injustice itself and for this very reason the thrust must be to ensure accessibility to the methods and modes of seeking justice by one and all.
The first step towards accessibility is removal of all barriers to justice be it financial, geographic, linguistic etc.[6] Merely giving an access to the methods and modes of seeking justice shall not suffice unless it is further fortified with speedy delivery of justice.
An important aspect to access to justice is “awareness”. Lack of awareness regarding one’s rights, or legal principles adds on to the inaccessibility to redressal systems. Technology can be effectively used to create Legal awareness among people.
Use of Technology in the Judiciary
Technology has been in use in the judicial systems around the world in varying ways. Singaporean courts for example allow legal practitioners to make applications by way of video link. In western Australia it is compulsory to electronically file court process in the civil jurisdiction. Supreme Court of the United Kingdom conducted its first ever remote hearing on 24th March 2020. Courts in Dubai have also switched to online hearing through Microsoft teams. Be it whatever way the basic aim sought to be achieved has been to make the judicial services accessible to all.
A significant help of technology has been taken to create software’s, apps and sites that disseminate legal knowledge and legal awareness as well as provide online legal services. Today anything and everything can be found online from legal advisors, online legal advice, e stamp paper, e-lok adalats and many more services which until the technological inventions made in the recent past were possible only in the physical mode. Innovations in technology have revolutionized the justice delivery system. Innovations range from establishments of e courts, robotic lawyers[7], online dispute resolution mechanisms[8]etc.
Technology is being used in varied ways to assist in judicial work however most common form of assistance: information. Various online platforms offer search libraries maintained by public interest organizations and law firms. Another significant way in which technological assistance is sought is connecting to lawyers and legal advisors and such technologies that automates and produces documents.
Herein Below are Some Examples of Use of Technology in Legal Aid
Websites
Courts have their own websites that provide information as to day to day functioning of the Court like case status, vernacular judgement, office report, daily orders, e filing & e copying services etc. These websites do not just have enumeration of day to activities of the Court but are hub of legal knowledge. The websites provide an access to libraries and various journals to help the judges and the lawyers attain legal knowledge. It also helps them in remaining up to date as to the latest developments.
The Legal Aid websites [9] that serve as a platform for providing various legal services. These websites assist in seeking advice as to the matter in issue. For example, a lady facing domestic abuse can contact these websites and get an advice as to the course of action that can be taken by her under the existing circumstances. Generally, these websites provide access to an expert however some also provide an option of virtual courts. Some websites act only as search engines to find lawyers.[10] Such websites are often supported with multimedia content including videos, podcasts and interactive quizzes.
There are also mobile apps that deliver information to smartphones and other mobile devices.[11]
Online Chat and Legal Advice Softwires and Applications
Instant messaging programs and remote access software are being used by some organizations to assist users in navigating their websites to find available self-help resources. These are in the nature of online chat platforms wherein a user on clicking the Live chat option is direct to an instant messaging system with a trained specialist. The specialist provides answers to the question and provides links to relevant resources in the site. If a specialist is unavailable, visitors can leave messages and receive information later via e-mail[12]
Document Assembly
Document Assembly[13] or Document Automation are soft wares that allow one to automate the creation of documents by generating them from intelligent templates. With the use of this technology, it is possible to draft complex documents in fraction of seconds. Documentation shall become a necessity in the coming years. Gone are the days when documents were created through cut copy and paste methods. Today with the help of legal documentation soft wares documents can be drafted within seconds. Use of such software shall provide a competitive leverage over others.
E filing[14]
Most Courts today have adopted to be filing system filing system enables electronic filing of legal papers. Using e filing, cases (both civil and criminal) can be filed before the High Courts and District Courts. E filing facilitates paperless filing as well saves time and cost. Online submissions of vakalatnama, e signing, video recording of oath, online payment are some services that can be availed through e filing. E filing provides benefits like- saving of time, money, travel of advocates and clients, obviate the need to physically visit the court, reduce the need of meetings between clients and advocates and automatic digitization of case records positive impact on environment by reducing paper work.
Web Services[15]
Web service is a piece of software that enables two systems to interact and readily share information. Other software or websites can take advantage of the service to deliver new online capabilities. For example, Google Translate is a web service that allows a website to dynamically translate text between different languages. Courts can make case information available via web services.
Social Media Tools
Today courts, legal aid programs and self-help centers maintain their presence on commercial social media such as Facebook, Twitter and YouTube. Social media can be effectively used to expand their outreach to the community. Videos of lectures of eminent judges and lawyers[16] and other informative videos by Bar Councils help disseminating legal awareness at the most cost-effective manner. Videos posted to websites like YouTube can help litigants learn how to complete forms, prepare for court, and understand their legal rights.
The Pandemic as a Catalyst to Digitalization of Courts
What boon can technology bring for the Judicial system was realized during the recent Pandemic times. Had it not for technological assistance Courts would have had no other option but to shut down. Quick and effective adaptation to technological assistance greatly helped in the smooth functioning of the judicial system. All over the world, Courts shifted to virtual hearing. This was a historic step as never in history hearing before court was done with parties not been physically present.
United States Supreme Court | Beginning May 2020, Court heard all oral arguments remotely using telephone conference. The Court also provided a live audio feed to news channels that further livestreamed it to other platforms |
State of New York Court of Appeal | On 11 May 2020 the Court through notice to the Bar amended its rules of Practice to require for motions and responses to jurisdictional inquires, submission in digital format via Companion Filing Portal. Submissions were also accepted by mail electronically. |
Supreme Court of India | Important matters were through video Conferencing |
High Court of Australia | Documents pertaining to cases were lodged online using Digital Lodgment System Portal. Registry services were provided online or via telephone. Documents were filed electronically and electronic signatures were also approved |
Merits of using Information Technology in Courtrooms[1]
Text Creation, Storage and Retrieval
Apart from the hearing function, judges have to produce written judgements. With the help of word processing skills writing judgements is no more a tedious task. A judge is able to produce a decision in a much faster way. The decisions and judgements given by Courts are collected in a database from which they can be accessed by other judges and people. Most of the documents are generated through computers. This ensures that copies of the same are available electronically and they can be produced digitally.
Improved Access to the Law
It is now possible to keep both legislation and law reports, not only in hard copy and book form, but also in digital format, on CDs and other storage media, online (Internet/Intranet), or on standalone machines making it much easier for a judge or member of the public to search and obtain the provisions of the law or previous court decision that one desires. Internet use has made, it is possible to seek for and obtain comparative and persuasive jurisprudence from other jurisdictions while seated at one’s work station.
Recording of Court Proceedings
It is now possible to have digital audio recordings of voice on the computer, allowing the judge capacity to annotate this record and listen to whatever portion he may want to listen to later. The record so recorded would have to be transcribed into a hard copy format (for as long as a hard copy file is maintained), of which e-versions would be available too. It is also possible to have instantaneous recording of proceedings by court reporter which can be viewed by the judge and counsel at their respective desks as the proceedings continue.
Access to Technology: Whether an Assurance to Justice?
Around the world while technological assistance provided in judicial work has been applauded, the use of technology in the judicial work has raised important questions around impact on right of access to justice, right to fair trial and administration of justice. The principle of right to access to justice is integral to the rule of law and the principle of equality before Law. Inclusion of technology into judicial systems raises concerns as to access to justice as access to technology is itself not assured. Digital Literacy is not the same for countries around the world. Digital Penetration[2] is a pre requisite to ensure justice when using technology. How can a country ensure access to justice to its people if there exists a great digital divide[3] in the country? Digital divide is greater in respect to women, children and other ethnic sections of population. This digital divide reflects in various forms. For example:
Not owning a smartphone.
Not having broadband services.
Not owing a traditional computer
Having a smartphone but no broadband service at home.
As per the data provided by International Tele Communication Union, women are 8 percent less likely to own a mobile phone translating to 165 million fewer women having phone than men.[4] While low literacy level is the major cause for digital divide other factors contributing are: lack of motivation to learn, How to use technology, Low income level, lack of physical access to technology, geographical restraints and like. Factors exclusively affecting women are: a) affordability b) low literacy and digital skills c) safety and security concerns and d) lack of family approval.
Legal industry has remained no more a closely knit profession but has become a global enterprise. Technological advancements have played a significant role in bringing this transformation. However, use of technology itself is no guarantee to justice. Lack of Digital literacy and Digital Penetration being some major hurdles in achieving the objective to secure justice. But be whatever the hurdle, use of technology in dispensing justice is a reality as well as a necessity. As held by former Chief Justice of India, S.A. Bobde, “Access to justice now depends on access to technology”, the judiciary must prepare itself to embrace itself for future technological adjustments. Various technologically driven reforms have taken place in the recent past like e filing, virtual hearing and live court proceedings. The Courts in India itself dealt with numerous cases through video conferencing[5] . However there still exists a legal divide in the Bar& Bench. Judiciary too is grappling with the issues of insufficient technological infrastructure, connectivity and bandwidth issues, lack of requisite knows how etc. These problems are more prominent in District Courts of rural areas. Survey conducted on the functioning of the trial Court conducted by the Chief Justice of India revealed that only 27 percent of the court rooms in the subordinate courts have computers on the judge’s dais and 10 percent have no access to the internet. Implying that most courts especially in the district judiciary are not equipped to function virtually. Ever since the imposition of Lockdown in 2020 Bar Council has expressed concerns on deep rooted inequality in the access to technology depriving advocates from their livelihood while on the other hand depriving people access to justice. Technology has created a divide between lawyers on the basis of haves (lawyers in the urban areas) and haves not (lawyers in the rural area). While the lawyers practicing in the urban areas could continue their work from the comfort of their homes, those in the rural areas struggled for their living. This also depicts a picture that how the litigation got dominated by few having recourse to technology.
Challenges Pertaining to Technology and Its Use within the Judiciary:
Challenges that are faced largely relate to either lack of requisite enthusiasm to adapt the latest technological inventions into the day to day functioning of the judiciary or lack of requisite skills to perform and mange tasks using the particular technology. Other factors that can be identified are:
· Reluctance in supervision and usage of information systems.
· Resistance to change to the use of Information Communication Technology in the judiciary.
· Inadequate awareness as to the benefits regarding the use of Information Communication Techniques.
· Insufficient funding and maintenance of computer systems and equipment.
· Inadequate and unskilled staff.
Access to get justice is a right of every citizen, no excuse is good enough to deprive one of justice. A major essential today in ensuring justice is access to technology for both the lawyers as well the people. Benefits of technology have been many for the judiciary. While convenience was one of them , transparency was another. Technology has helped in realizing the objectivity of transparency. The mandate of Article 39 A of the Constitution can be better served with the use of technology. The induction of technology into the legal system while is applauded more is yet to be done. A significant approach has to be to modulate the Adjudicatory process. Virtual hearing shall become an integral part of the judiciary if technology is used in dispensing of justice. Mental and physical preparedness shall be required to adapt to this change. In physical form there are advantages of physical approach through face-to-face dealings, a sense of discipline and sincerity necessary for a courtroom, these constituents may lack in a virtual presentation of case. Both the judges and the lawyer as well as the client shall have to adhere to a new code of conduct while being present in a virtual hearing.[6] They must acquaint themselves with the technology to be used so as to effectively discharge their duties. Further owing to virtual presentation of cases a new skill: E lawyering has become a quintessential skill for lawyers. It shall be imperative for lawyers to acquaint themselves with the latest soft wares as well learn the art of mooting virtually. There is need to push for future technologies like H computing. There is also the need to bring data centres and date security centres for effective functioning.
Conclusion
All said about technology and its benefits in dispensing of justice, it is equally important to understand that not all of judicial work can be assigned to technology alone. Judicial mind and understanding do not qualify any substitution. It can only be used to supplement the judges.
For example, simple traffic violations can be ascertained by use of technology but when determining guilt in complex matters like crime technology cannot be of much use and determining of such facts shall require the judge to apply his wisdom and knowledge. Further nothing is immune from biasness, neither man nor technology. With increase dependence on technology concerns as to cyber security have risen. Though governments have accordingly issued guidelines on cyber security yet their practical implementation remains a challenge. With functioning of e courts maintain of e records remains a challenge it shall require trained and well-equipped staff to ensure the maintenance and availability of such record for the litigants as well as the Court. Lack of requisite infrastructure shall continue to cause lack of confidence amongst the lawyers of rural and semi urban areas.
Every cloud has a silver lining so does the challenges associated with the use of technology. To explore the great potentials of information technology there has to be a change in the attitude of the policy makers, court, court administrators, judges, court staff and court user. Two major steps that can be taken are:
· To provide training and organize retraining programs for all stakeholders in the justice system so as to acquaint them with up-to-date development relating to utilization of information technology tools.
· Adequate budgetary provisions to support infrastructural developments supporting induction of technological tools.
Recent changes in the judicial sector suggest that it can be said that judiciary is serious in taking more and more help of the Information Technology Systems in ensuring easy and accessible justice for one and all. The creation of National Judicial Data Grid is one such example. In consonance with the National Data Sharing and Accessibility Policy (NDSAP)[7] announced by the Government of India, Open Application Programming Interface (API) has been introduced that allows the Government departments to use the NJDG data for research and analysis and also the institutional litigants to access the NJDG data for evaluation and monitoring purpose. The National Judicial Data Grid has been praised by the World Bank in the Ease of Doing Business Report.[8]
It is hoped that in the near future judiciary is able to explore the possibilities that use of technology may hold for it and that it shall become a possibility for all to secure justice in easy, convenient and much accessible ways.
[1] Technology here refers to Information Technology.
[2] Due to adaptation of technological assistances the judiciary was able to overcome the hurdles of social distancing and lockdown.
[3] United States Institute of Peace , Necessary Condition: Access to justice, paras 7.8-7.8.23 <available at https://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/rule-law/access-justice> (last accessed on 04/07/2022).
[4] Ibid.
[5] Ibid.
[6] Financial barrier can be over come by providing legal aid and advice at low cost. Geographic Barrier: ensuring setting up of more Courts and Tribunals. Linguistic: ensuring translation of Courts orders and judgements.
[7] One such example is Do Not Pay which claims to be the world’s first robot lawyer. In five years, the programme has developed over one hundred bots that assist users in addressing an array of legal problems including compensation for delayed flights, drafting and filing claims in small claims courts - including scripts for hearings, and disputing parking tickets.
[8] There are also online dispute resolution (ODR) mechanisms in place that leverage and combine concepts of alternative dispute resolution (ADR) such as mediation and arbitration with technology.
[9] Vidhikariya available at <https://www.vidhikarya.com /about-us>, ProBonoIndia available at <https://www. probono-india.in/> (last accessed on 8/06/2022).
[10] LawRato,< https://lawrato.com/free-legal-advice>(ac cessed on 8/06/2022).
[11] E.g., Illinois Legal Aid App, GOOGLE PLAY, https:// play.google.com/store/apps/ details?id=org.ilao. LegalAidApp# (last accessed Dec. 22, 2012).
[12] LiveHelp is an online, real-time chat service available on the LawHelp platform. Liz Keith, LiveHelp: Increasing Access to Legal Information Online, THE YOUNG LAW., Jan. 2010, at 3, available at http://www.americanbar.o rg/publications/young_ lawyer_home/young_lawyer_archive/yld_tyl_jan10_digital.html.
LegalKart an online real time chat service providing legal advice. A user can Select service that fits your requirement, Purchase service by using any payment method Like Paytm, UPI, Gpay, PhonePe, Debit Card, Credit Card, Net Banking You will receive an SMS with dial-in phone Number. Call and connect with lawyers instantly.
Vidhikarya an LLP offering legal services ranging to various legal issues through its website. Client can post his comment on the box ask his question virtual court.
[13] Capstone Practice Systems, < http://www.capstonepractice.com/why-capstone> build custom software applications for document drafting and other legal tasks. accessed on 5/06/2022.
[14] E filing <https://filing.ecourts.gov.in/pdedev/> accessed on 8/06/2022.
[15] James E. Cabral, Abhijeet Chavan, Thomas M. Clarke, John Greacen, Bonnie Rose Hough, Linda Rexer, Jane Ribadeneyra & Richard Zorza, “Using Technology to Enhance Access to Justice”, Harvard Journal of Law & Technology Volume 26, Number 1 Fall (2012) <https:// jolt.law.harvard.edu/articles/pdf/v26/26HarvJLTech24 1.pdf> (accessed on 10/07/2022).
[16] LECTURE DELIVERED BY HON'BLE MR. JUSTICE SURYA KANT AND MS MEENAKSHI ARORA SR. ADVOCATE, Dec 5 2019 < https://youtu.be/1rh3aPtW5uE> , A Lecture by Mr. Dushyant Dave(Sr. Advocate) Feb 9 2019<https://www.youtube.com/watch?v=GQnfC8UhX18> accessed on 11/07/2022.
[1] Dahiru Muhammed Abubakar, USE OF INFORMATION TECHNOLOGY IN COURTROOM: MERITS AND CHALLENGES 8 th to 10th September, 2020 <https://nji.gov. ng/wp-content/uploads/2020/11/Use-of-Information-T echnology-in-Courtroom-Merits-and-Challenges.pdf> accessed on 11/07/2022.
[2] The U.S. Federal Communication Commission's (FCC) 2019 Broadband Deployment Report indicated that 21.3 million Americans do not have access to wired or wireless broadband internet.
[3] The digital divide refers to the gap between demographics and regions that have access gap to modern information and communication technology and those that do not.
[4] Maryville University, ‘Examples of the Digital Divide in the Modern Day’, <https://online.maryville.edu/blog/examples-of-the-digital-divide/ > accessed on 12/07/2022.
[5] Data from the e-committee of the Supreme Court reveals that as of 30 June 2021 (for an average of three months), 40,43,300 and 74,15,989 lakh cases were dealt with through video conferencing by the high courts and the district courts, respectively.
[6] It shall be the duty of the lawyer to maintain the decorum of the virtual hearing. During the pandemic times there has been numerous cases wherein lawyers have been found of misconduct on account of improper behavior. This must not happen. A casual approach towards virtual hearing must not be taken.
[7] Department Of Justice, National Judicial Grid <https:/ /doj.gov.in/national-judicial-data-grid/> last accessed on 12/07/2022.
[8] Ibid.