Situating Civil Procedure in the Age of Digital Technology and Artificial Intelligence

By:- Megha sharma

One of the biggest conversations in the legal paradigm, more so in recent years, has been the advancements in technology serving as a catalyst for judicial reform. With the advent of new modes of communication, massive improvements in the efficacy of technology, and even experimentation with artificial intelligence, the world is seemingly only a few decades away from a widespread shift of technology usage across several institutionalized systems. India has been slowly making its way towards incorporating technology in different aspects of its legal system. This paper attempts to situate civil procedure in India in the age of digital technology and artificial intelligence, where the following three arguments are advanced. Firstly, the nature of the proceeding involved is pertinent in assessing the position of civil procedure, where civil procedure, specifically pre-trial procedures and judgments are suited for digitization, secondly, that technology is been largely seen as the exception to law in India, and thirdly, that India has begun experimenting with artificial intelligence, and is yet distant from major applications of artificial intelligence in the legal system, though it can be of much aid in civil procedure. The paper concludes to suggest that civil procedure would benefit from a healthy combination of digitization and artificial intelligence.

The Nature of the Proceedings

The nature of proceedings has a massive role to play in how the role of technology and artificial intelligence would be understood in the legal system. The first debate in this matter would be the dichotomy of civil and criminal matters. The major difference between the two is the gravity of the offences that the court must deal with. There was evidence to suggest that there is greater propensity to introduce digital technology in civil procedural law, as compared to other branches, by virtue of subject matter. However, this has been largely negated in light of many decisions. As no cases on the use of artificial intelligence in judicial proceedings has emerged, the cases will pertain to the use of digital technology. In civil matters, Tata Sons Ltd. v. John Doe in 2017 held that valid summons can be sent via email, or even text messages and WhatsApp. A similar stance was taken in Kross Television India Pvt. Ltd. v. Vikhyat Chitra Production and on the matter of notices, in SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav. In contrast, Meters and Instruments v. Kanchan Mehta, being a criminal case, largely discussed the service of summons through speed post and other non-digital forms of communication as well as conducting proceedings online. This suggested that the gravity of the type of offence had value, since criminal matters have seen a bit of fluctuation on this matter, but eventually held in favour of incorporating technology as well. The monumental criminal case which allowed for the use of technology, in the matter of trial no less, was State of Maharashtra v. Dr. Praful B. Desai, where the use of videoconferencing was permitted for recording evidence and examination of a witness, who was not in the country at the time. This was due to the fact that the physical presence of the witness would have created a delay, expense and inconvenience. Another such case was Kalyan Chandra Sarkar v. Rajesh Ranjan, a criminal trial which was allowed to be conducted over videoconferencing in order to uphold the rights of the accused, due to circumstances that would have prevented the accused from being physically present at trial. Videoconferencing was eventually even allowed in matrimonial matters in Santhini v. Vijaya Venketesh, where videoconferencing was permitted with both parties consent. However, this case highlighted the impact of the nature of law being addressed in allowing technology. In the judgment, the judges refused to use the aforementioned cases as precedents on videoconferencing, due to nature of family law and matrimonial disputes. While their decision was similar to those of the aforementioned ones, it was despite these rulings, which shows as evidence to the relationship of the nature of proceeding and the use of technology.

Civil procedure is being undisputedly modified due to technology. A large amount of civil matters on technology pertain to summons, videoconferencing, and pre-trial matters. This suggests that the nature of the specific part of the matter being addressed in also pertinent. While there is much agreement on the fact that online courts can deal with relatively simple civil matters dealing with small amounts of money, it has been noted that in civil litigation, trials are of distinguishable nature from other hearings, as they are heavily based on oral evidence, which may come to question whether mediums such as video-conferencing are sustainable at the trial phase. Now, then Civil Procedure Code, 1908 was intended to provide for “simple, expeditious and inexpensive” procedural law, to additionally provide for fair trials for lower classes. In congruence, electronic evidence is a part of the legal framework under the Information Technology Act, 2000 and the Indian Evidence Act, 1872. Moreover, there have been several initiatives to digitize legal proceedings. In all these efforts, there is still the issue that most of the matters surrounding trial require the presence of parties, where the aforementioned cases are exceptions. This would inevitably make trial relatively inconvenient to conduct online.

Technology as the Exception in Law

Technology and the digital space have become more relevant to our lives than ever before. Yet, a common trend in courts is to treat technology as an exceptional matter. This was clearly seen in Kalyan Chandra Sarkar v. Rajesh Ranjan and State of Maharashtra v. Dr. Praful B. Desai, and many of the aforementioned cases. Given the way technology has been progressing, it shall become a prominent asset to the judiciary. There have been various developments, namely the E-Courts Project by National Informatics Centre, Paperless Courts, Online Dispute Resolution, websites for filing cases and catching updates on cases, and more. The establishment of e-courts or electronic courts has been an ongoing project. Information and Communication Technology have also been working towards paperless Courts, and primarily creating electronic case filing and facilitating videoconferencing. Supreme Court E-committee, headed by D Y Chandrachud has made tremendous contributions in promoting the use of technology in court. Another major development in case law is Swapnil Tripathi and Ors. v. Supreme Court of India and Ors, where public interest litigations were filed to seek live broadcast or live-streaming of proceedings, and further guidelines on the matter. The Court held that this qualified under the right of Access to Justice and should be accepted, but is subject to guidelines and restrictions, especially on the matter of privacy. However, there is still a lack seen in the amount of technology used across the judiciary.

The most pertinent case study is the impact of Covid-19 on the use of technology by Indian courts. It became a matter of necessity on the imposition of lockdown, where in a suo moto writ petition in April 2020, the Supreme Court of India laid down guidelines to use videoconferencing as a method of administering justice. This included conducting the trial and appeal, with recording of evidence allowed only on the consent of both the parties. The Bombay High Court further directed the live streaming of proceedings. However, technology is still being used for urgent matters that need to be disposed. While this is logical, the current standstill is a prime opportunity for the use of technology. Amid the pandemic, D Y Chandrachud has commented on the importance of virtual courts across districts in India, in dealing with matters such as traffic violations and various summary violations. The requirement of basic infrastructure, such as courts in rural areas, has further been recognized in current times. However, it is pertinent that video-conferencing and other advancements in technology should be recognised beyond the ongoing COVID-19 restrictions.

Technology should optimally exist as a parallel system to the current one. The idea that the technology performs the, otherwise, tedious task of combing through materials and research, and a legal professional reviews the output and ultimately approved the material. A combination of human and technology would create an optimal outcome in terms of judicial efficiency. Virtual courtrooms are unlikely to replace traditional courtrooms, which may be a positive notion here. The widespread use of online courts and increasing technology would additionally requires legislation in order to combat the potential issues of such a format, e.g. party identification.

So Close, Yet So Far: Artificial Intelligence in the Indian Legal System
The use of artificial intelligence in various facets of the legal system has begun in recent years. Most data uploaded to digital platforms can now be accessed, analysed and managed by artificial intelligence. Artificial intelligence is largely used in Legal Assistants, management systems, analysis of text, calculations of sentencing and cost, and more. Employment of artificial intelligence has been seen across law firms. These may include, but are not limited to: “compiling, filing, drafting, scrutinizing, predicting crimes, giving verdicts with ninety percent accuracy, framing arguments, giving advice to clients, negotiating deals and appearing in the courts.” One of the most popular legal artificial intelligences is ROSS, a robot used across the United States, which keeps track of legal updates, answers legal questions while citing relevant judgments, and even understand the specificities of the question put forth, such as jurisdiction and time. It can understand the human spoken language due to natural language processing further improves on every use on account of machine learning. Indian law firms are not far behind. Major firm Cyril Amarchand Mangaldas has employed KIRA systems, an contracts-related artificial intelligence that provides data and clause retrieval, comparison to similar documents to reveal hidden issues and tracking of real-changes made to contracts. Similar artificial intelligences include Lawgeex and Ebrevia. Artificial intelligence entrepreneurship in India has further made strides in developing research and documents-related matters, such as CaseMine, SpotDraft, and NearLaw. Another innovation on the matter of contracts, which is able to eliminate the need for lawyers in contract negotiation, is the Legal Intelligence Support Assistant (LISA). It is a neutral application-based AI which asks both parties certain questions, and drafts the necessary contract which can then be signed. In light of Chandrachud J.’s advocation for all traffic challan matters to be conducted online, an interesting use of artificial intelligence in adjacent matters is UK-based parking ticket dispute system ‘DoNotPay’. While such systems are appealing, India would require improved systems and technological literacy in order to even consider such a system. India is also far on account of the following. Chief Justice Bobde has talked about the potential of artificial intelligence in law, however clarifying that artificial intelligence shall not be employed for any type of decision-making in court. Transitioning into artificial intelligence shall, no doubt, take a long time, but is on the table for India.
In any rise of Artificial Intelligence and robots for lawyers in India, it has been pointed out that there will eventually be a legislation akin to the Advocates Act, 1961 in order to regulate artificial intelligence, which may restrict various features of such systems. Moreover, Artificial intelligence has not been able to perform tasks involving an understanding of human interaction, such as negotiating between parties or advising clients. It is, however, highly efficient in review of documents and contracts, research and even use algorithms in predictions of costs, verdicts in litigation. It may be incredibly useful for professionals in pre-trial procedure and discovery, where artificial intelligence can improve on research and due diligence by combing through material. Artificial intelligence in the courtroom can be a matter of assisting judges.
Civil Procedure in India contains three over-arching phases: institution of the suit, the trial and the judgment. Within the institution of the suit, there comes the issue and service of summons and the appearance and written statement of the defense. The trial is categorized by the framing of the issues, the presentation of evidence by both parties, and the final arguments. The passing judgment and decree may additionally include or lead to a decree review, appeal and the execution of the decree. Since artificial intelligence has seemingly conquered the realm of document analysis and research, its use in court has many a merit. Judges may use artificial intelligence to help obtain summaries of documents, retrieve important case law on the matter, and the biggest contribution could be in assisting the judge in administration work. It can additionally help in calculation of costs, fines, damages, sentencing through various algorithms. This may not be in the near future, however, unless there is a reform in the use of technology in civil procedure. Thus, it is close, yet far. It has touched law firms, but not the judiciary as yet. The use of artificial intelligence in courts would beg the question as to what additional safeguards might be required. Data privacy, encryption and cybersecurity are fields which shall have to evolve along with technology. NITI Aayog drafted the National Strategy for Artificial Intelligence (NAIM) as a means to develop the industry in India. It has been considered pertinent and Artificial intelligence is often seen as a solution to the immense backlog in cases in India. NITI Aayog’s effort may eventually lead to India getting closer to implementing Artificial Intelligence in courtrooms.
Digital technology and artificial intelligence have been and shall continue to be an important part of the judicial system. India currently attempts to incorporate as much as can be incorporated, given many limitations, such as a deficit in internet connectivity across India, lack of education on and access to technology and more. In the matter of improvement, India shall hopefully be able to use technology as a norm, rather than as an exception. A healthy combination of digital technology and artificial intelligence shall create the efficacy and expeditiousness that the Civil Procedure Code, 1908, had envisaged.

References

Tata Sons Ltd. v. John Doe (2017) SCC OnLine Del 8335.
Kross Television India Pvt. Ltd. v. Vikhyat Chitra Production (2017) SCC OnLine Bom 1433.
SBI Cards & Payments Services Pvt. Ltd. v Rohidas Jadhav (2018) SCC OnLine Bom 1262.
Meters and Instruments v. Kanchan Mehta (2018) 1 SCC 560.
State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601.
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. (2005) 3 SCC 284.
Santhini v. Vijaya Venketesh, AIR 2017 SC 5745.
The Code Of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India).
C.K. Takwani, Civil Procedure with Limitation Act, and Chapter on Commercial Courts 184-189 (8th Ed. 2017).
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. (2005) 3 SCC 284.
State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601.
Swapnil Tripathi and Ors. v. Supreme Court of India and Ors., AIR 2018 SC 4806.
Ibid.
In RE: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic, Suo Motu Writ (Civil) No. 5 of 2020.
Ibid.
C.K. Takwani, Civil Procedure with Limitation Act, and Chapter on Commercial Courts 184-189 (8th Ed. 2017).

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