New digital enablers can clear our judicial cholesterol

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 5 min read . Updated: 13 Apr 2021, 09:51 PM ISTRahul Matthan

Reform efforts to digitize our judicial system should focus on appropriate flows of data for justice delivery

Last week, the eCourts Committee released its Digital Courts Vision and Roadmap, charting the path for digital reform of India’s judicial sector. I read the 86-page report with interest, given the extent to which it would likely impact my profession. But as much as I appreciate the vision, I believe it could have gone further.

It is important to recognize that the work of this committee is actually the third phase of judicial system reform in India—and as such, it was constrained by what had already been done before. The focus in Phase I was on taking the judiciary digital—as a result, no effort was made to provide digital services to citizens. Phase II focused on litigants, creating case information systems through which court filings could be accessed and systems for electronic filing of cases and payment of fees to improve the ease of service delivery. Now, in Phase III, the committee has to build upon that previous work and carry forward the reform agenda in a manner consistent with modern times.

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For the most part, the report has a clear and forward-thinking vision. It places emphasis on building digital infrastructure, and is to that extent aligned with digital reforms across a range of sectors where the use of platform architecture has resulted in deep sectoral transformations. Too often, projects like this end up creating a suite of applications that neither deliver what they promise, nor serve the user’s needs. I am glad that the committee decided against going down that path. I also appreciate the way the report underscores the importance of not just digitizing paper processes, but instead looking to fundamentally transform existing workflows to make them relevant to the digital environment.

That said, there are elements that will be challenging to implement. For instance, privacy and security by design has been listed as one of the design principles for Phase III. While it’s a laudable principle, no doubt, I can see it conflicting with the design principle that calls for openness and interoperability. Perhaps more significantly, imposing an obligation of privacy could wreak havoc with the system of precedent on which our legal system depends. Judgements report full details of litigants and the circumstances that led to their dispute. Litigants are afforded privacy only in a very limited set of circumstances—if they are victims of rape or other stigmatic events. If the committee’s recommendation on privacy is to be fully implemented, judgements may need to be carefully redacted before being reported. This would fundamentally alter our approach to precedent in the digital age.

While the committee has painstakingly laid out its vision for the broad contours of judicial sector reform, I was disappointed that it did not do more to describe what exactly needed to be done. I would have expected the report to at least carry an outline of the elements that would go into the platform architecture that the committee was proposing.

I have long believed that the necessary first step to any digital reform is the radical unbundling of analogue processes. It is far more efficient to rethink digital workflows from the perspective of the outcomes sought to be achieved than merely digitize existing paper-based solutions. In the context of judicial reform, this will require us to abstract out the core functions of the judicial system and build platform solutions to achieve the required outcomes.

If you keep that at the back of your mind as you read the eCourts Committee’s report, it will soon become apparent that much of what it is calling for can be achieved by improving the efficiency of data transfer processes—whether it be in relation to the service of summons, asynchronous hearings, or even judicial research.

If we think of the judicial system as a series of data silos that at present have no way of communicating with one another, then presenting the proposed digital reform as a means to connect these silos so that data can be made to move freely among them as required, will, I believe, give us a sense of what the third stage of judicial reform needs to look like.

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The good news is that this is something we have implemented before—with considerable success. Therefore, it will not take much for the country to replicate that success.

The data empowerment and protection architecture (DEPA) is a data transfer protocol that has been applied with some success in the financial sector, and is in the process of being applied to the healthcare and telecom sectors as well. While different in many ways, there are principles within its architecture that could easily be adapted for the judicial sector, allowing for auditable digital data flows between various actors in the judicial system.

What this will require as a first step is for various actors in the judicial ecosystem—not just judges, lawyer and litigants, but also court registries, notaries, enforcement agencies and the like—to be identified and categorized. Each category needs to be thought of as a silo, and the manner in which the data they possess should be allowed to flow to persons who are entitled to receive it should be well thought through.

If we think about the design of all the elements that go into making these data flows, it should be possible to enable the creation of workflows for every occasion. This will allow judicial data to finally flow freely through the ecosystem removing much of the cholesterol that has long clogged the arteries of justice.

Rahul Matthan is a partner at Trilegal and also has a podcast by the name Ex Machina. His Twitter handle is @matthan

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