in April said that the government is considering reviewing the Insolvency and Bankruptcy Code (IBC) to put in its place a mechanism for pre-packaged resolution, an individual bankruptcy scheme, and use of artificial intelligence (AI). What is interesting about this reportage is the last part, the use of AI in the field of jurisprudence.
The news does not specify how this will be done. The report of the artificial intelligence task force does not talk about it either but only alludes to AI application for enhancing the quality of public utility services which includes law and justice. It appears that the proposed maiden use of AI in law and justice in India could be in the civil laws domain as IBC is a civil law statute. What is not understood is, whether the application of AI will be for drafting better laws such as through AI models of legal reasoning or for quick disposal of cases through ‘smart courts’ system. Given the state of judicial pendency, the possibility of the latter appears stronger.
Reducing pendency in lower and higher judiciary is a key focus area for judicial reforms. The problem is not new. Several law commission reports have examined this issue. But the situation has become acute, particularly after the 1993 reforms.
Academic studies sponsored under the scheme for action research and studies on judicial reforms have produced useful insights into the nature of the problem. Some of the causes of high pendency include shortage of judges, lack of effective management, long time consumed due to the absence of advocates or in serving notices. A study of the life cycle of court cases in district courts in Maharashtra indicated that around 33% of the cases registered were decided by judgement; 46% dismissed and the remaining 21% either withdrawn or settled through compromise. Thus there is a high degree of unproductive pendency, adding to high workload on judges.
In practice, variation in time taken for disposal of cases in courts can also be due to country specific practices. Unlike in the American system where discoveries and interrogatories are mandatory, in the Indian system, although permitted under the CPC, are not mandatory. Furthermore, in the interest of justice, courts have been accommodative in granting adjournments, permitting longer time for arguing cases and keeping the judgement reserved in order to carefully weigh the arguments. Such unique practices exist in all systems and need not be over emphasised. Rather, they should be acknowledged in order to find pragmatic solutions.
Hence, as described above, over the life cycle of a typical court case, the most urgent need for technology intervention is needed at the trial stage. Such an AI technology intervention can free valuable time by reviewing evidence/arguments to find contradictions/anomalies, thus isolating genuine cases from frivolous ones, collate information on previous similar cases to decide on the quantum of damages or punishment.
However, for such a system to work, the processes leading to trial must be done in the digital mode. In this regard, the progress of eCourts Mission Mode Project has largely gone unnoticed. The first phase of the project involved computerisation and was completed in 2015. The second phase, which is under implementation since 2015, envisages enhanced information and communication technology (ICT) enablement of court, use of cloud computing, digitisation of case records, e-filing, e-payment gateways and mobile payments and automation of workflow management.
High degree of digitization of court procedure makes it possible to create a smart court system in India by exploiting the data in eCourts through AI. If and when completed, India can be in league with China which recently launched its AI-enabled system to assist courts in judging criminal cases in Shanghai Peoples Intermediate Court. China’s trial-centric system is expected to enhance judicial credibility because of its accuracy and time efficiency. A smart court system will no doubt improve India’s ease of doing business rankings and boost contract enforcement.
But as is the case with any discussion involving AI, question arise. Will AI replace ‘human judges’ with ‘cyber judges’? The current state of technology and Chinese example suggests that this possibility looks unlikely. Any trial is not just a process to ascertain whether some law is breached; it also involves gauging finer traits of human (mis)behaviour. AI has not reached a stage where it can capture those finer traits or make ethical judgements.
Then, legal services also have high social quotient in that a human interface will be required to preserve trust. Judges are referred to as nyayamurti. Will a computer be accepted as a nyayamurti? Lastly, the introduction of technology in existing social structure disturbs the prevailing equilibrium. Will the use of AI alter the delicate balance between judiciary, legislature and executive? It remains an open question.
(The author is an economist in the banking system. The views are personal)