The Algorithm Run Justice Delivery: AI, ADR, & the Indian Legal System



One of the fundamental beliefs of law is in the truth that "justice delayed is justice denied." The 1215 Magna Carta states, "To no one will we sell, to no one will we refuse or delay, right or justice." One of the essential prerequisites of every community is a speedy justice system. Keeping the same in mind, as the courts became inundated with cases and the average time necessary to decide problems increased significantly (apart from numerous other reasons, including cost-effectiveness), steps were taken to reduce the Courts' burden [1]. ADR [Alternative Dispute Resolution] was proposed as the future of the traditional conflict resolution system. Arbitration is the most crucial aspect of ADR. It was regarded as the future of dispute resolution before the COVID-19 pandemic. Now, in the post-COVID-19 era, there is a need to determine the future of dispute resolution.[2]


The future of litigation and ADR can be viewed from two perspectives:

  1. The methods used to make the adjudication process considerably more user-friendly and contactless [as far as practical], and

  2. The methods used to give speedier relief to the parties.


Historical Perspective of ADR

An English legislation-based Act was enacted in 1899 to give substance to the ADR system in India. This Act was known as the Indian Arbitration Act. When the Civil Procedure Code, 1882, was revised in 1908, it allowed the courts the authority to submit disputes to the ADR mechanism under Section 89. In 1937, India also signed and adopted the Geneva Convention, which paved the way for enacting the Arbitration (Protocol and Convention) Act [3]. The Arbitration Act, 1940 was enacted after Section 89, the second schedule of the Civil Procedure Code, and the Indian Arbitration Act, 1899 were repealed. The Arbitration and Conciliation Act, 1996 was passed in 1996, and it is a single piece of law that deals with ADR. It arose from the merger of three Acts: The Arbitration Act of 1940, the Arbitration (Protocol and Convention]) Act of 1937, and the Foreign Award [Recognition and Convention] Act of 1961. It has made the job easier because the Arbitration and Conciliation Act, 1996, is consolidated and more effective than various statutes.


Online Dispute Resolution [ODR]: A Branch of ADR

Online Dispute Resolution is a subset of ADR that uses technology as a conversational medium to resolve disagreements between parties. ODR is a synthesis of negotiation, arbitration, and mediation. In today's world, ODR is regarded as the most effective method of providing justice since it allows for "Legal Certainty and Access to Justice for All."

The ODR methods do not only resolve just e-disagreements but also traditional, societal, and family disputes. Moreover, digitalisation and technology have significantly impacted our lives in today's day and age, bringing about numerous changes. In India, a well-known quote for the Indian judiciary states, "Justice delayed is justice denied," which clearly states that if justice is not delivered on time, the entire purpose of a judicial system is failed. Red Tapism is why India is unable to provide justice to its citizens, and as a result, people have begun to lose faith in the judiciary.


ODR Status in India

Article 21 of the Indian Constitution declares unequivocally [4], "No one shall be deprived of his life or personal liberty except by the procedure prescribed by law." Even in the well-known case of Hussainara Khatoon v. Home Secretary State of Bihar [5], it was established that the right to a speedy trial is an integral aspect of the right to life and liberty. There are plenty of instances like this. Cases from many sectors are crammed into Indian courts; despite our judiciary working diligently to conclude them as soon as possible, it increases the pendency.


With time, the courts have embraced the ODR system. Many judges, including our former Chief Justice Bobde, have endorsed this strategy. During the pandemic, it played a critical role in giving justice to the people. Many crucial cases were heard and adjudged virtually. The Indian judiciary, to an extent, is well-prepared to adopt virtual hearings fully, which may become a reality soon. The pandemic forced the judiciary to push its limits, take up this challenge, and win its battle within. However, technology has played a significant role in managing this COVID-19 crisis. Sooner or later, we might see courts working entirely virtually, and the emergence of Artificial Intelligence would be a boon to the process of ODR and ADR. A robot may sit as a fourth party to understand and analyse the case by keeping all the material aspects aside.

Moreover, a robot cannot be influenced by emotions, but a human can, no matter his position. Many times, these all-emotional aspects can overturn the cases, and justice may be denied. Introducing robots like Sophia can help the judiciary[6] keep all the emotions aside and have a balanced judgment. An 80/20 rule may be applied while deciding cases of such sort to maintain that balance.


The Preparedness of Indian Judiciary

The Hon'ble Supreme Court played a crucial role in laying the groundwork for ODR in the Indian judicial system. In State of Maharashtra v. Prafulla Desai[7], the validity of video conferencing in obtaining evidence and recording witness testimony was upheld, stating that "virtual reality is becoming the actual reality." ODR is now regarded as the future of Dispute Resolution, alongside ADR. Arbitral Tribunals are also experimenting with video conferencing. ODR is already widely used in international commercial arbitrations in which the parties are from different nations. In addition, for any foreign court/arbitration situation, we have seen the recording of evidence of a witness/expert via video conference. As a result, while ODR was not a new development, COVID-19 has accelerated its deployment.

The Supreme Court issued its decision in Re: Guidelines for Court Functioning via video conferencing during the COVID-19 pandemic and took suo motu cognisance of the problem. It directed that courts take the necessary steps to guarantee the smooth operation of the legal system, including the adoption of video conferencing technologies. Several High Courts have established guidelines for online filing as well as video conference hearings of urgent situations. The majority of the courts in the country are currently taking cases by video conference, and it appears that this will continue for some time. Furthermore, the risk of the virus is resurfacing.


However, there is no such standardised procedure, and lawyers face several problems across the country. A straightforward example is that in different courts, the video conference connection is shared with only the parties' Advocate-on-Record and that link cannot be shared further. Now, generally, the Advocate-on-Record is not the arguing Counsel. Then the Arguing Counsel and the Advocate-on-Record must agree to join the video conferencing with the same link that may constitute a threat to social distancing. There are additional complications if the Advocate-on-Record is from one state and the arguing Counsel is from another. In terms of ADR, there is a need to design a policy framework followed in both institutional and ad hoc arbitration. In the case of institutional arbitration, the institution shall design equivalent rules in accordance with the policy guidelines. The International Cricket Council has previously provided an update on the status of the virtual hearing.


Similarly, Singapore International Arbitration Centre schedules sessions through video conferences. In India, too, a tribunal has begun hearings via video conferencing. In arbitration, if the parties agree on a specific method, that process takes precedence.


Intellectual Aspect

If ODR is to be adopted in the long run, it will require time to transition from the usual style of court proceedings. Despite all of the Courts' efforts, the hearing of outstanding cases has yet to take place. The time necessary for adjudication has increased as a result of COVID-19. For example, before COVID-19, even if the parties' final hearing in a matter was virtually complete and just a re-joinder or sur-rejoinder argument remained, there was a potential of re-hearing the entire subject, which would postpone the adjudication process. If the dispute is settled and the mediation/conciliation proceeding was conducted in accordance with Sections 61-73 of the Arbitration & Conciliation Act, 1996, Section 74 will treat the settlement as an arbitral award. As a result, pre-arbitration or during the pendency of an arbitration, mediation and conciliation should be encouraged. However, where the government and its numerous agencies are involved, it will not be easy to encourage this process without a clear guideline.


AI is undoubtedly expanding its wings in numerous industries, making lives easier and smoother. The big question is whether AI will ever be able to replace humans? It is still a highly contentious issue. For the time being, all we know about AI is that it can benefit the human species. ADR is concerned with "how" this process is carried out.


Fair Play

The most critical feature of ADR is that the mediator must be "objective" toward the parties involved[8]. As humans have emotional capabilities, there is a possibility that they may be biassed towards one party or the other.


BATNA: Best Alternative to a Negotiated Agreement

AI is known for performing critical analysis in a short period. In this case, AI could effectively analyse various arguments and proposals provided by the negotiation parties to achieve a specific result. The technical analysis might advise the negotiator which offer would benefit the clients the most. It would also be fair to the clients because it would be a technological and fair process and hence, unbiased. It would allow the parties to examine their options before reaching a decision. A technology called Zeno, for example, allows online conversation for towns and provides computer-mediated legal arguments.


Conclusion

Since the law's primary goal is justice, now is the perfect time to transform how justice is delivered. We all know that disagreements will continue to crop up. Nevertheless, what we can do is adjust how we deal with them. Using Online Dispute Resolution is the most cost-effective way to resolve conflicts. We can argue that it has a broad reach, but we need more of it in India which can be achieved through awareness. AI is rapidly becoming a part of our daily lives to the point where we trust ourselves to allow it in self-driven cars.


There will come a time when we will feel entirely at ease, allowing the algorithms to handle our problems. Technology is rapidly advancing, and we cannot ignore its engagement in legal services. As a result, the ideal strategy would be to accept this transition and purposefully use it to advance the legal profession. At this point in its development, the efficacy of AI is heavily reliant on the quality of the data analysed and the algorithms used. Looking at the present scenario, we should treat this pandemic as a boon, not as an obstacle, to help our justice system adopt technology and help the system function smoothly.

After all, the simplest in these challenging times and the most straightforward secret of growing is survival of the fittest.

"It is the spirit and not the form of law that keeps justice alive" - Earl Warren.

Endnotes

  1. Bandyopadhyay, N., 2021. Future Of Litigation And ADR In India – Post COVID-19 - Litigation, Mediation & Arbitration - India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/arbitration-dispute-resolution/1046078/future-of-litigation-and-adr-in-india-post-covid-19> [Accessed 2 September 2021].

  2. Dutta, S., n.d. Alternate Dispute Resolution- A Way to Undelayed Justice. [online] Legalserviceindia.com. Available at: <https://www.legalserviceindia.com/legal/article-5888-alternate-dispute-resolution-a-way-to-undelayed-justice.html> [Accessed 3 September 2021].

  3. Jain, N., n.d. "A cure for justice delayed and justice denied the problem of India". [online] ALL INDIA LEGAL FORUM. Available at: <https://allindialegalforum.in/2020/10/28/a-cure-for-jusitce-delayed-and-justice-denied-the-problem-of-india/> [Accessed 4 September 2021].

  4. Part 3 Article 21 Constitution of India 1949

  5. AIR 1369, 1979 SCR [3] 532

  6. Cartland Law. n.d. Sophia, Robot Citizenship, and AI Legal | Cartland Law. Available at: <https://cartlandlaw.com/sophia-robot-citizenship-and-ai-legal/> [Accessed 3 September 2021].

  7. [2003]4 SCC 601

  8. Pathak, D., 2020. "The Great Expectations"- Future of ADR and AI. [online] The Digital Future. Available at: <https://thedigitalfuture.in/2020/11/09/the-great-expectations-future-of-adr-and-ai/> [Accessed 2 September 2021].

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