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Advancing IT application in Indian Courts and eADR:

Challenge to meet Justice in Palms.By Syed Kamran Razvi


Challenge to meet Justice in Palms.

By Syed Kamran Razvi

Legal consultant and Coordinator, earbitration.net

Word Count: 3993

Corres Add: Flat No.7, Cosmo Apartments,

137B/12, Zakir Nagar,

New Delhi-25. India

Email: P: [email protected]

O: [email protected]

Cell: 91-9810078799

Bio in brief:

Practicing law in Indian courts and licensed attorney for past 15 years

mainly at Delhi, conducting some public interest litigation or social

action litigation. ADR has been my main focus for its applicability and

wonder it can do to the clogged and over burdened Indian Court

system. Developed ODR portal called earbitration.net and developed

compliance software for labor and environment.

1/20 Knowledge Global Conference, Apr 11-13,2008, Boston, USA.
mailto:[email protected]:[email protected]


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Challenge to meet Justice in Palms

By Syed Kamran Razvi

ABSTRACT

Courtnic started in 1995 with small objective of networking apex courts across

India. Initially functioning as intranet, now web-enabled application. It has

evolved from single use application to multiple interface application. Most of

the initiative receives thrust from government agency as part of egovernance

project. This project is yet to fall into domain of PPP. Yet there is mature sign

of increased number of users from different backgrounds making the

program/initiative successful. However there is lack of vision and where the

opportunity/space for private or ppp initiative occurs in taking the level one

court technology to wider applications with supportive changes in legal

apparatus like ADR, recognition of virtual applications in areas of service by

summons etc. More recently earbitration.net attempts to breakthrough the

existing status quo. The next space for opportunity in dispute resolution could

be right in palms of consumers/users with 130 Million Mobile phone

subscribers; Justice in Palms.

KEY WORDS:

ADR, earbitration, CPC, Courtnic, mediation, conciliation, Level One

technology, IT, Public goods,

ICT of ODDS:

The success story of 1.25Bn Indians lie in strange combination of odds. The

oddity lies in struggle of resources, allocation and use of it. ICT initiative in

India is one such illustrative experience. It is struggle to justify the use to

those who still are to get the access to basics of primary existence. It all started

in 1984 when the youngest Indian Prime Minister Rajiv Gandhis government

decided to introduce knowledge economy as integral to Indias administered



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governance. ICT in justice system of India is providing reach to Public

goods.

Today the new challenge of Digital Divide in India can be qualified as

infrastructural woes ie spectrum allocation and bandwidth size, coupled with

selection of corresponding technology. Fibre optic is the preferred mode for

broadband outreach in remote areas. One of the private company now has laid

the largest fibre optic network through out India.

Making of ICT policy:

In the 1990s, the stress on IT for producing wealth and enabling development

continued. A high power National Task Force on Information Technology and

Software Developmentwas set up in 1998. This Task Force prepared the blue

print for making the adoption of IT a national movement, by establishing a wide

network of empowered taskforce at all governmental and non-governmental

levels. In 1999, the Ministry of Information Technology was established by

bringing together government agencies involved in different aspects of IT5 for

creating jobs to harness opportunities provided by convergence of communication

technologies and to facilitate the use of IT in use of Electronic Governance.

Taking into account the increasing convergence between telecommunication and

IT a Communication Bill was drafted by the Government of India, followed by

the Information Technology Act that was notified and brought into force on 17

October 2000. Moreover, the Information Technology for Masses Working Group

has been set up with an ambitious target of establishing at least 100 million

internet connections, opening up IT kiosks and cyber cafes for covering entire

India. A Task Force on Human Resource Development in IT was set up for

preparing a long-term strategy for increasing the number of well trained IT

professionals.

There has even been a Task Force on Information Technology as a Knowledge

Super Powerwhich considers how India can become a knowledge economy

and society, for which the role of education at the level of primary, secondary,



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and tertiary level is of paramount importance. Sociologically speaking it

seems that the concept knowledge society will incorporate how knowledge

will takeover the role of capital and labour in the economy 1.

Early computerization examples:

The computerization of Banks (all Public undertaking then) and Railways

heralded the first interface between common man and civil servant in modern

settings. The Bank employees way back in 1989 decided to oppose the entry

of computers which would take away their jobs. Up till 2008 it has created

five major banks (private sector) and the branches have quadrupled not only in

towns but rural areas as well.

National e-governance project from 2002 to 2007, has been operational with a

whole new department of egovernance set up.

The Railway computerization (early 1990) meant for lliterates2 to adopt to

new interface without hassle of standing in the queue for 4-5 hours or travel to

town fore reservations and render brokers out of petty corruption that so much

plagues Indian social fabric. This was almost second revolution to first change

(1977) in Railways sociology when second class passenger was given the

cushions to sleep on. This was quite a replacement from the wooden sleeper

benches.

Indian Railways , moves 16 million passengers and one million tonnes of

freight3

with 1.6 million employees and biggest nationalized enterprise since

its inception in 1853.

THIRD CHALLENGE:

The third challenge for ICT but the first as fundamental right was taking

Access to Justice4 to illiterate common man. Long before Right to

1Bajwa S B GBER Vol. 3 No.2. pp 49 612

A person who can read and write his name is literate according to National Literacy Mission , India.3 http://en.wikipedia.org/wiki/Indian_Railways4 Fundamental Right under Article 19 of constitution of India.



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Information Act was enacted and every department in the country and civil

servant made accountable.

Courtnic5:

It started from top6 as network and ICT initiative to connect the hierarchy of

constitutional courtsi. The initial objective was to provide access to the

Litigants and the Judges to the orders passed and received by the litigants

sitting at remote corner of the country.

Courtnic was inaugurated in 1995, which would then gradually approach its

second objective to become a web-based application. Thus making what was

complex affair to obtain in a simple affair without paying for travel and other

costs to obtain a copy of one page order or judgement and to know the listing

of cases.

Courts in India following British legacy in courts and laws, hear the matters

day in and day out five days in Supreme Court and High Courts, and six in

District Courts. It means long man hour days and costs of running courts.

This is unlike US courts of Appeal or circuit courts who hear for week and

work in chambers for rest of the month.

Computerization has opened new avenues for millions of litigants who would

like to know when the matter would come up for hearing and what time it was

likely to come during the day.7 In addition it also provides the new

empowered citizen some new options which would be otherwise

considerable waste of individuals time and money. In a little way it has

introduced accountability and cut a minor band in complex corruption muscle-

like structure.

So much so by 2005 that in 10 years time of its inception it has made its

impact felt right across the nation. It has been of value to all stake-holders

whether Judges, Lawyers, Litigants and even researchers.

5

www.courtnic.in6 Appendix A to this paper Heirarchy of Courts in India.7 www.causelists.nic.in



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To illustrate the case further: India may be one fourth of US in geographical

area but it has population which is almost five times. The number of

litigations, almost match up the US numbers. A comparison below is briefly

provided for:

CASES in US courts:

State courts handle the vast majority of the nations litigation. (This) nations

courtsstate and Federal, trial and appellateprocessed more than 90 millioncases annually from 1984 to 1993. State courts accounted for over 98 percent

of these filings. In 1993, state courts of general jurisdiction handled 85 times

as many criminal cases and 27 times as many civil cases as the U.S. District

Courts, with only 14 times as many judges.

After a long period of growth, state courts reported a dip from 1992 to 1993 in

total civil and criminal filings. This respite is timely given that over the past

ten years, civil and criminal caseloads increased by 30 percent, juvenile

caseloads rose 40 percent, and domestic relations filings rose 60 percent.

In comparison, the U.S. population increased 8 percent during the sameperiod.

Cases in India:

The total number of cases, which have increased in India are not from filing

despite rise of population in India by about 15% from 1993 to 2007, but from

pendency alone and the total number of cases pending today in Indian courts is

about 25.9 million cases.

To cut the case load clogging the Indian legal system, every step including

many studies and projects by ISDLS, US to cut litigation has been adopted.

This is an ongoing project from 1996-till date.

The changes in procedural lawii, ie Civil Procedural Code, in 2002 were

made8. This was complimented by new enactment called Information

Technology Act 21 of 2000. The new IT Act provides legal recognition for

8 section 89 and Order V rule 9 of CPC amending act of 2002 (pl. see endnote ii as well)



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transactions carried out by means of electronic data interchange and other

means of electronic communication.

ADR Mechanism:

Alternative Dispute Redressal Mechanism based on Case Law management9,

originating in USiii, having introduced, in 2002, wherein Indian courts were

making it as permanent step before adversarial proceedings could begin to cut

any increase in new cases adding to pendency.

Brief History of ADR:

Although mediation goes back hundreds of years, alternative dispute

resolution has grown rapidly in the United States since the political and civil

conflicts of the 1960s. The introduction of new laws protecting individual

rights, as well as less tolerance for discrimination and injustice, led more

people to file lawsuits in order to settle conflicts.[1] For example, the Civil

Rights Act of 1964 outlawed "discrimination in employment or public

accommodations on the basis of race, sex, or national origin."[2] Laws such as

this gave people new grounds for seeking compensation for ill treatment. At

the same time, the women's movement and the environmental movements

were growing as well, leading to another host of court cases. The result of all

these changes was a significant increase in the number of lawsuits being filed

in U.S. courts. Eventually the system became overloaded with cases, resulting

in long delays and sometimes procedural errors.[3] Processes like mediation

and arbitration soon became popular ways to deal with a variety of conflicts,

because they helped relieve pressure on the overburdened court system.iv

Delhi Mediation Centre:

A pilot project with the help of ISDLS10 on mediation was initiated in Delhi in

the month of August, 2005. The first batch of senior Additional District Judges

were imparted mediation training of 40 hours duration. The trained mediators

9 http://www.beyondintractability.org/essay/adr/10 http://www.isdls.com



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started judicial mediation from their chambers in the end of August, 2005.

Thereafter, 24 more Additional District Judges have been trained as mediators

during the month of September and November, 2005. A permanent mediation

centre with all modern facilities was established at Tis Hazari court complex

(Central Hall, 3rd Floor, Room No. 325) in October, 2005. Judicial mediation

was started at Karkardooma Court Complex in the month of December, 2005

and a litigant friendly and modern mediation centre was established in May,

2006. Eleven more Additional District Judges have been trained as mediators

during the month of June, 2006. A large number of cases have been referred to

the Tis Hazari Mediation Centre and theKarkardooma Mediation Centre (two

names of court annexed centre in Delhi)11. The settlement rate at the two

centres being over 60% is very encouraging considering that judicial

mediation is entirely a new concept in our country. 5

IN addition to Mediation and Conciliation centres in courts the concept of

Lok Adalat has been used introduced since Legal Services Authority Act

1987.ICT in Courts:

In the beginning of the project the courts in India at top end of hierarchy i.e.

Constitutional and Appellate Courts were integrated in WAN. In less than 12

years of inception of ICT program in courts, the culture has seeped in District

courts located in Metropolitan areas like Delhi, Kolkata, Mumbai and Chennai

and some other distant places inside rural India.

All new court buildings in these metropolitan areas are being equipped to

integrate Level One court technology12. Acceptability is major part of

challenge, and putting it in regular use is yet another challenge. Some of the

important links to courts are listed in endnotes.v

However the major shortcoming of all these initiatives is the focus and utility,

which has very low interface value and limited scope for dynamism. The main

11

Italics mine12 Court21 technology is the new version worked by NCSC and Prof.Lederer of William and Mary

College, USA.



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agency responsible National Informatics Centre uses simple and dependable

old language tools to develop these technologies mostly Unix or oracle which

are easy to use, for its targeted audience.

Some other stake holders involved in advising the Legal contents are National

Judicial Academy and Delhi Judicial Academy, TIFACS of Department of

Science and Technology. Bar Associations and Bar Councils13 are still not

active participants.

Thus, limiting the use of technology to only information or digitalizing (then

described Computerization of records) the existing process only. The scope

for enhanced capability of such web-based application is not being explored

as the professionals from legal field are not yet integral part of such

initiatives.

Objectives of computerization14 can be summed as below:

(a) to reduce costs and improve the handling of uncontested debt cases;

(b) to enable the court to identify contested cases which are not up to

timetable

(c) to institute computer-generated reminders and summonses to dilatory

parties

(d) to improve forward planning of judge-time and listing of cases

(e) to improve planning of resource allocation generally.

Legal requisites:

Computerization of Court records and administering Justice was

complimented by new set of legislation to facilitate transition and

incorporation of new provisions.

In US, UETA15 does not override the existing requirements of laws mandating

of service of summons by way of post, sending or formatting of records. For

example, eviction notices generally must be posted where the tenant is most

likely to see it, right on the front door of the dwelling. Even if the landlord

13 Bar Associations are societies while Bar Council are the statutory professional bodies regulating the

legal profession14 Book references ;Michael Zander p.120, quoting Consulation Paper issued in July,1987.15http://www.ncsl.org/programs/lis/CIP/ueta.htm

http://www.ncsl.org/programs/lis/CIP/ueta.htmhttp://www.ncsl.org/programs/lis/CIP/ueta.htmhttp://www.ncsl.org/programs/lis/CIP/ueta.htm


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and tenant agree to electronic transactions, UETA cannot override property

law and requirements for physical posting of paper eviction notices.

UETA also permits the retention or presentation of electronic records to

satisfy these retention requirements, if the information accurately reflects the

original and remains accessible for future reference.

Indeed CPC16 of India Order V rule 9 relating to Service of summons provides

for method of service as mandated in addition to new mandated method by fax

and email.

ICT Usage:

Today each High Court in India has a separate budgetary allocation for IT

provisioning. Delhi High Court would have provision for about 20 Million

USD for 2006-2007.

TABLE A

Status of IT usage in different courts is as below:

Supreme Court Facilities for Judges and

Court staff (Level One

Technology- wiring of

building)

Facilities for Public

1. Terminals for staff

in Court rooms,

PCs for judges in

Chambers and

Home.

2. WAN

3. Online Library and

Judgements are

available.

4. secure mail ids and

discussion forums

5. Item boards

1. Option of website

which contains

the information

like causelists,

orders and case

status

2. First of its kind in

courts efiling of

petition.

High Courts 6. Laptops for 3. Itemwise panel

16 Civil Procedure Code of 1908(as amended)-India



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Judges;

7. Research

Assistants or Court

Clerks for Judges;

8. Wireless

connectivity

for courts on web.

4. Touch panel kiosk

for causelist.

District Courts

only in few areas

15 as existing

There is no wireless

connectivity.

However they have

Video Conferencing

facility.

The item panel boards

are still not functional.

Also their websites are

not updated regularly.

Revenue Courts

and Tax Tribunals

Judges have

Terminals.

However no facilities

with the Field staff

except in few areas.

Land records have

been computerized and

placed on websites

updated upto two

months before and are

readily available for

print out and email

options.

At present only ten

states out of 25 have

this facility.

EFILING is the option

for Tax courts and their

websites are updated

on daily basis

Some of the projects undertaken by the Department of Science and

Technology in India starting April 2006, include isolated models and

experiments for introducing methods which meet evidence methods those



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falling under cyber-forensics, brain mapping, Court2117 technology mainly for

criminal matters. Some of the projects are now being conducted on regular

basis like in Delhi Video conferencing is used for recording the presence of

under trials every 15days by a Judge as mandated by criminal procedure code

of 1973 (India) till the commencement of the trial.

ADR as procedural Law focus:

ADR is a mass outreach program and is like adopting pre-trial conference

prevalent in US and UK legal system in all civil matters. The amendment to

CPC in 2002, make ADR mandatory and Courts are obliged to ascertain

common facts on examination of pleadings and documents for admission and

denials therein, before the commencement of trial.

In Order X rule 1A, B and C have been added therein to first attempt the

compromise/conciliation as provided by section 89 of CPC and fix a date of

appearance and a failure to arrive at conciliation return back to court to

proceed with trial process.

Technology and ADR in Courts of knowledge society:

While the procedural law has been amended in India, there has been virtually

no reconciliation of the advantageous use of technology, including those

existing options of both Level One technology and Web-based application

for ADR on as is basis.

It is now the Millenium experience, that technology can drastically reduce

time and save money but it has to be dynamically used. Until the costs of

hardware and software came within the reach of common man, PC penetration

was not a reality so was not the web so was not email so was not Yahoo, so

was not Google , so on and so forth.

Indian ADR effort to cut time has not used any advantage of technology. The

disposal can be quadrapuled. The number of references since last year has

17 includes digital recording,video conferencing, instant transcribing of speech to word document.

Singapore and many courts in US already use this enhanced and futuristic technology.



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increased many folds and it is the tool which is being used by every judge to

increase their dockets.

Adding to the objectives of IT in courts and Courtnic; the standardization of

procedures and guidelines of process to be adopted, are the next steps which

need to be deliberated to avoid confusion in absence of the same..

The ADR techniques utilization for the objective, today remain as

cumbersome as Court procedures without efiling, elisting, without date

management system with the courts, etc.

While the Mediators, conciliators and arbitrators face challenge of human

interaction and their application of inter-personal skill in virtual settings, they

can certainly learn to put to use their skills in virtual settings, to eliminate the

process barriers, wherein save time and public money.

It is here that the Public private participation can be of immense value since

the innovative inputs are most needed to cut the huge case loads and variety of

them. The over burdened court system or pure public goods are increasingly

hampering the growth of real knowledge based society.

Justice in Palms:

Amidst the growth in ICT, mobile phones18 in India have outgrown PC and

laptop growth, the obsolence in terms of model and technology innovations

can well be seen here. SMS19 in India is a major source of revenue to such

Service providers/companies.

Many of the FMCG companies use this medium for grievance redressal and

promotion simultaneously.

ADR through courts can use this FRONT DEVICE with 3G technology on the

anvil.

Having an interactive site and model where parties can try these ADR options

without physically present or waiting for the appointed hour can meet their

agenda to work through ADR methods.

18

India has 130 Million subscribers and density is now higher than landline. Rural areas have seen thereal surge in growth.19 short message service, average as on Oct 2007 was 34 per average user for a month.



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A detailed study of litigant profile, who can be divided into one shotters or

repeat players can help a lot in tailoring the available technology its ultimate

objective of delivering Justice in time. As of now litigant profiling to

strengthen the alternative dispute mechanism is not available.

There exist no study (independent or otherwise), of litigant profiling in India

with the courts.

However the new litigation in civil side are mostly one shotters, that being

so, for such profile of litigants, use of technology to cut time and meet Docket

objectives through web based application can be extremely useful in creating

aflow cycle in the disposal of matters.

Illustrations:

Providing web-based conferences for the litigants at flexible hours with entire

records available to users can be very effective. It can be facilitated for those

who do not own PC or do not have the access to the web. A guidance support

mechanism will make it work effectively.

A strong argument in favour is how a person who is an illiterate or low tech

can still use cell phone not just for voice but for SMS or MMS. An increasing

number of people use the fancy phone models as multimedia equipment and

to make home movies etc. Integrating these mobile phones access with web-

based applications can give tremendous value addition.

Other ISSUES:

The other major challenge can be identified as IT interface to facilitate eADR

being quality training of the stake holders mainly the lawyers and judges who

act as mediators. Indeed as seen in the past technology integration has been

possible but the stake holders had been found wanting and bereft of such

initiatives.

Justice system is one of the pure public goods which have been underproduced by private enterprise at some time in history, however ICT changes



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CONCLUSION:

eADR presents timely disposal of disputes without going through the

long drawn adversarial process which often results in appeals and second

appeals to different courts.

eADR techniques can lead a new dimension to pure public goods in

many years to come. It can enable huge cuts in case loads on Justice system

whereby making it easy for Judges, staff, lawyers and citizens to have well

managed Justice System. Its ingenuity and simplicity imbibes the age old

tradition ofPanchayat,21 and like all ICT initiatives is likely to usher a new

term and societal benefits called eJustice.

------------------------------

21Panchayattranslates as gathering of five wise men to resolve disputes such was the traditional

dispute resolution in over half a million in Indian villages since ancient times. An age old system inIndia is now mandated by constitutional provisions Art.243A to ZG, with inbuilt elements of Justice as

envisaged in modern times.



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Appendix A: Heirarchy of courts in India

SUPREME COURT OF INDIA

Sit in Division Benches( at least two Judges)

HIGH COURTS OF STATES

(Appellate, Extraordinary, Ordinaryoriginal, Company Jurisdictionexercisable in the territorial limits ofthe State.)

1. Some times two or more Stateshas common High Court or Benchesin various parts of a State.

2.They sit in Single and DivisionBenches

3.They are the inspecting judges onDistrict Judges

SOME TRIBUNALS

Designated courts, Regulatoryauthorities/Commissions, etc.

Criminal Courts

Session Judge Court (Offencespunishable by more than threeyears barring exception),Designated Courts.

Metropolitan magistrates/Judicial

Magistrates/ExecutiveMagistrates/Revenue MagistrateCourts(exercising preventive lawon reference from local police)

Civil Courts

District Judges Court(Appellate and original Trial ofSuits pecuniary jurisdiction, FamilyCourts, etc)

Civil Judge Court/Small CausesCourt



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END NOTES:



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i See Appendix A to paperiiSection 89 of CPC: settlement of disputes outside the courts-(1) Where it appears to the court that there

exist element of a settlement which may be acceptable to the parties, the court shall formulate the terms of

settlement and give them to the parties for their observations and after receiving the observations of the

parties, the court may reformulate the terms of a possible settlement and refer the same for-(a) arbitration; (b)

conciliations; (c) judicial settlement including settlement through Lok Adalat; or (d) mediation.

(2)(d) for mediation, the court shall effect a compromise between the parties and shall follow such

procedures as may be prescribed.

Order V Rule 9 of CPC states: Delivery of summons to the plaintiff or his agent (1) The court shall issue

summons and deliver the same to the plaintiff of his agent, for service, and direct the summons to be served

by registered post acknowledgement due or by speed post or by such courier service as may be approved by

the High Court or by fax message or by Electronic mail service or by such other means as the High Court

iii inexpensive determination of every action. (Rule 1, Federal Rules of Civil Procedure.) the United States

Congress enacted the Civil Justice Reform Act of 1990, requiring each United States District court, working

with planning groups of attorneys, to develop and implement a civil justice expense and delay reductionplan. The legislation instructed each court to formulate a case management program providing for early

and ongoing control of the pretrial process through involvement of a judicial officer whose responsibilities

include assessing and planning the progress of a case and setting early, firm trial dates. The Alternative

Dispute Resolution Act of 1998 was the final related piece of legislation. That Act mandated every U.S.

District Court to offer some type of court-annexed ADR process.

The practice of judicial case management has spread to most state courts. Today, trial judges throughout the

United States are actively managing civil cases from filing through disposition with a purpose of achieving

the just, speedy.: http://www.isdls.com/authoritative_papers_smith.html

iv Spangler, Brad. "Alternative Dispute Resolution (ADR)." Beyond Intractability. Eds. Guy Burgess andHeidi Burgess. Conflict Research Consortium, University of Colorado, Boulder. Posted: June 2003vwww.causlists.nic.in;www.delhidistrictcourts.nic.in;www.delhihighcourt.nic.in

LIST OF REFERENCES:

1. Cases and Materials on the English Legal System; Michael Zander; Butterworths;1993

2. ECOMMERCE LAW; John W.Bagby; Thomson ;

3. Corporate Governance; Robert A.G.Monks and Nell Minow; Blackwell;2004

4. Civil Procedure Code of 1908 (as amended) Universal (India); 2008

5. Law relating to Computers, internet and E-commerce, Nandan Kamath, Universal, 2000

LIST OF STATUTES:
http://www.isdls.com/authoritative_papers_smith.htmlhttp://www.causlists.nic.in/http://www.causlists.nic.in/http://www.delhidistrictcourts.nic.in/http://www.delhidistrictcourts.nic.in/http://www.delhihighcourt.nic.in/http://www.delhihighcourt.nic.in/http://www.isdls.com/authoritative_papers_smith.htmlhttp://www.causlists.nic.in/http://www.delhidistrictcourts.nic.in/http://www.delhihighcourt.nic.in/


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1. Uniform Electronic Transaction Act, 1999;

2. Electronic Signatures in Global and National Commerce Act, (federal E-sign),2000;

3. Information Technology Act, (India)2000;

4. Section 89, CPC of 1908 (India), 2002 amendment and Order V rule 9;

5. Legal Services Authority Act,1987 (India );

6. Constitution of India, 1950.7. Arbitration and Conciliation Act, 1996 (India)

8. Indian Evidence Act, 1882

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