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Review of the E-Courts Project

By Urvashi Aneja

February 2022

Efforts to reform India’s judicial systems have been of broadly two types – to improve judicial efficiency and to reduce the entry of disputes within the judicial system. The most recent proposal for reform, put forth by the Supreme Court’s E-Committee seeks to achieve these objectives through a radical re-imagination of the judicial system. Called an ecosystem approach, the proposal is to create an open and interoperable digital infrastructure that would allow various public and private actors to develop technology-based solutions to improve access and quality of judicial services.

This blog examines the three phases of the E-Courts project. The first part examines the first two phases and the challenges with digitalisation documented in existing studies. The second part raises 5 critical questions that need to be considered about the third phase of the project. It cautions against the proposed ecosystem approach and suggests that it is an example of a technological solution in search of a problem.

Phase I & II: Incomplete Digitalisation

The E-Courts Mission Model Project (Phase 1 – 2105-15; Phase 2 – 2015-19) was aimed at ICT enablement of courts to improve the efficiency of courts and support the development of citizen-centric services. [1] With an overall budget of 639 crores and 1679 crores across the first and second phase, some of the early achievements of the project included the establishment of digital infrastructure across courts, the introduction of case management system, including a unique case number record, the launch of the National Judicial Data Grid (NJDG) and the launch of the Interoperable Criminal Justice System (ICJS). [2] The uptake and use of these systems however hindered by several challenges.

An NCEAR evaluation of the first phase found that the e-courts project had created awareness about computerization in courts and the Case Information system, but usage varied greater across court complexes depending on connectivity, the availability of skilled manpower in the courts, and computer training and knowledge among users. [3] A 2014 study by NCEAR offers valuable insights on the problem of limited uptake of technology by judicial officers. Stumbling blocks include the inability to customize user reports, the unavailability of software in different languages, user frustration with working simultaneously with parallel manual and computerized systems, software design flaws, low data security and limited and ineffective software upgrades. A 2016 study by Daksh points to further challenges pertaining to the creation of the NJDG – courts have different systems for numbering and categorizing cases and data entered is often incorrect or incomplete.[4]

Technology integration also placed additional burden on end-users, especially registry officials who, for example, were required to continue to maintain physical registers. A 2020 study by NIPFP on e-courts data similarly notes problems of data availability, missing statue names and data fields, incongruity between statue names and case-type, missing final orders. Because of these challenges, inter-state comparison of despite resolution or studies about the substantive aspects of law and the court’s interpretation of statues are not possible. The authors of the study thus argue that e-courts data ‘should be used cautiously – an overreliance may lead to false pictures and misguided politics.’[5]

A 2021 evaluation of the second phase by NCEAR points to an increase in the penetration of digital infrastructure within courts, but low awareness and uptake by litigants. The study found that ‘while most judges have intermediate level of knowledge of computers, a few court officials and lawyers and most litigants have low computer literacy.’ An important factor influencing awareness of litigants regarding the e-courts project include location, computer literacy and social category. Nonetheless, judges, court officials, and lawyers stated that the e-courts project had reduced pendency of cases by making it easier to access case law and court records; availability of templates also saves time. The report argues that the project’s biggest strength is the creation of a common case management and information system, which has increased levels of transparency and eased many court processes such as monitoring of pending cases, and that overall, the ‘results of the impact of the project on pendency look promising.’ [6]

Phase III: A Solution in Search of a Problem

In 2021, the Supreme E-Court’s E-Committee put forth a proposal for the third phase of the e-courts project. Unlike earlier reform attempts, the third phase imagines a radical re-imagination of how the judicial system should be designed and function. Central to the vision is that the administration of justice ‘must not remain a sovereign function but evolve as a service which is provided to the community by different actors.’ To enable this, it proposes the ‘creation of a foundational digital infrastructure that enables exchange of data and co-creation of services by different actors in the ecosystem, through open API’s, standards, and specifications.’ Central to what the proposal calls an ‘ecosystem approach’ is the creation of interoperable data registries to support data sharing across the prison system, courts, and legal aid; this judicial data can be accessed and used by various private actors to build justice solutions. The ecosystem approach is characterized as an open and interoperable digital infrastructure, ‘with standards and specifications governing integration of services and capabilities’, and one that is ‘analytics led, leveraging judicial data.’

The rationale for this ecosystem is three-fold, as per the proposal. Earlier interventions to develop end to end digital systems like CIS, NJDG, or e-payments helped address the needs of litigants, but the ‘monolithic nature’ of this system made the process of adapting to changing user needs difficult. Earlier interventions were also primarily designed by the judiciary, which placed a tremendous burden on a few institutions to meet the scale of needs. Citizens also had to have ‘multiple touch-points’ a cross justice delivery institutions like police and legal aid authorities because of a lack of data sharing. Finally, the report notes that the Covid-19 experience has ‘revealed the need to evolve services quickly and at scale for all users.’

Unlike earlier phases of reform which focused on ‘building systems’, the focus of this phase is to create an ‘enabling ecosystem’ i.e ‘rather than focus on developing all the solutions itself, the judiciary can curate the right environment and infrastructure for solutions to emerge rapidly from the ecosystem of public and private actors.’ Drawing inspiration from the united payments interface, such reform is believed to ‘significantly improve efficiency by breaking the silos between the different entities, eliminating duplication of efforts, and realizing economies of scale.’

A few points stand out and deserve far closer scrutiny.

First, it is notable that aims of reform are defined in terms of features of a technical architecture, not any principles of justice or citizen needs; where citizen needs are discussed, these are framed in terms of improved efficiency of specific processes, such as duplication and having to navigate multiple touch points, not issues around access and quality of justice. For example, the question of which judicial services should be integrated is solved through ‘standards and specification’ rather than what citizens need or the challenges faced by the judiciary. Similarly, the discussion on the institutional and governance framework only mentions principles concerned with how the performance of specific projects can be enhanced and the new external expertise that will be required to develop such a system, not broader governance architectures needed to address harms and enable responsible use. There is only a mention in one line about the need for public disclosure of why certain vendors are contracted.

Second, there is a clear focus on improving speed, scale, and efficiency. These are in themselves worthy goals, but the question remains of when and how the deeper and more complex questions around access and quality of justice will be addressed. What conversations are closed off as a result of the reform attempt being focused only on the creation of ‘digital infrastructure’? At the very least, a much clearer link needs to be established between why and how the imagined digital infrastructure will lead to better outcomes from a rights and equity perspective – from a justice perspective.

Third, the analogy to UPI is worth interrogating further. There is little evidence to support that UPI has enabled greater financial inclusion, even if there has been a growth in digital payments. Recent reports also highlight growing incidences of fraud through the UPI platform. This should remind us to consider issues such as the digital divide and cyber vulnerability in when replacing existing systems with population-wide digital infrastructures. The UPI mention, along with the broader turn to Open Digital Ecosystems, is like a hammer looking for a nail, of a technological solution looking for a problem to be solved. This may be an appropriate solution for some sectors, but not all. The thinking behind these proposals is being led by roughly the same set of players, that are imagining a fundamental re-haul of social services across the country. These deliberations need to be public and democratic.

Fourth, the proposal suggests a changed function of the judiciary all together. It is not clear who is being referred to with the judiciary, but its role changes from designing and delivering judicial services, to becoming an enabler for other actors to provide these services. It also proposes brining in personnel with digital competencies – ‘at various levels, the design and development of digital infrastructure, platforms, and individual solutions, as well as its implementation should be primarily driven by a dedicated team of experts.’ Who are these experts and what will their role be? What is their understanding and experience of the judicial system? What are their motivations and ideas of success?

Fifth, the proposal amounts to a privatization of a public function, a rather monumental change, but with little public deliberation or democratic debate. It suggests creating a market for judicial services – this raises several questions. First, can market based solutions serve the needs of the most marginalized? Vaccine inequity in the context of Covid-19 shows otherwise. Second, what is the impact on judicial institutions and capacities? Third, what is the legitimacy and accountability of various ecosystem players? Fourth, who is the ‘community’ and how do differences in their capacities shape how such a system involves? The digital infrastructure is defined as a ‘a public good’ but this is a very loose definition of a public good – there is ample research to show that data infrastructures do not in fact function like public goods – they are exhaustive and certain actors are able to leverage them better and for their specific purposes. Research from other sectors also shows that such marketisation of public service can end up mis-aligning incentives – in the health sector for example, hospitals are incentivized to guard medical data till they get the most lucrative offer.

The type of public private partnerships that are being forged in support of the vision of the third phase of the e-courts project deserve far greater scrutiny. These partnerships are different from earlier forms of PPP, in which governments contracted out specific projects or services to specific firms, based on their expertise. In these new PPPs, many of the actors don’t seem to bring any specific knowledge, expertise, or experience about the justice system – rather they seem to be entrepreneurs and innovators looking for a problem to solve. Further, as Lina Denick argues, a different type of claim is being made by both parties to these PPP’s – ‘that there is no difference between public services provided by government and by business, despite the profit interests involved and the different regulatory architectures occupied by firms and government.’

Digitization within the judicial system has shown to bring benefits, even if the process is yet to be concluded. It is not clear how the challenges raised in the first two phases are a justification or a rationale for the kind of changes proposed in Phase III. Rather than engage in a radical re-haul of the system all together, we would do better to invest in the infrastructure, skills and capacities needed to complete the digitalization of judicial services as imagined in the first two phases. This does not mean that innovation within judicial services should not be experimented or, or the inputs and ideas of external actors should not be sought and used to improve judicial services. But these radical re-imaginings must not be at the expense of the more basic and critical investments that need to be made im improving the existing systems. The motto of ‘move fast and break things’ is far too risky and costly for application in judicial services. The proposed paradigm shift within the judicial system must be a subject of far deeper, slower, and evidence-based public dialogue and oversight.

[1] https://pib.gov.in/newsite/printrelease.aspx?relid=174192

[2] E-Courts Proposal 3 doc

[3] Report-of-Evaluation-eCourts

[4] E-Courts Proposal 3 doc

[5] https://www.nipfp.org.in/media/medialibrary/2020/07/WP_314__2020.pdf

[6] https://cdnbbsr.s3waas.gov.in/s388ef51f0bf911e452e8dbb1d807a81ab/uploads/2021/03/2021031717.pdf

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