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The covid-19 pandemic continues to challenge the way traditional services are delivered, including justice delivery. Access to justice in the post-pandemic phase will be critical, and given the high pendency and time taken for resolution of disputes, measures to ensure that are required. The pandemic has led to introspection and an immediate need to adjust to this new situation by fast-tracking innovation led by technology. The way the Supreme Court has adjusted shows a progressive vision that is also flexible. Efficient justice delivery will require the intervention of technology, and a three-tiered approach that stratifies dispute avoidance, dispute containment, and dispute resolution. The courts, through an online approach for now, which would eventually move to a hybrid model involving virtual and in-court hearings, are framing a road map for courtroom resolution. For dispute avoidance and containment entailing low- and medium-value civil matters, online dispute resolution (ODR) could work. It has the potential to pre-empt disputes at an early stage.

In adapting to an online format, the Supreme Court’s efforts have been exemplary, far exceeding the volume of online hearings conducted in other jurisdictions across the world. The Court has also introduced e-filing, and facilitated the creation of infrastructure around the New Delhi district courts for lawyers and litigants to access hearings. It is safe to say that impressive efforts are being made to integrate technology in the court system. The Lok Adalat mechanism too has seen pilot projects for the adoption of e-Lok Adalats. The integration of technology could make the delivery of justice more affordable and convenient, and this is what ODR can help accomplish across the country. Many courts are already said to be contemplating its adoption for appropriate matters.

ODR has the potential to be both transformative and disruptive in helping reduce matters before the courts, through avoidance, containment and, when required, resolution. Technology can now aid the resolution of disputes by offering analytical insights for that purpose. The Vidhi Centre for Legal Policy recently released a white paper titled ODR: The Future of Dispute Resolution in India. In it, Vidhi sets out the distinctive benefits from an efficiency standpoint of ODR and the use of technology. These include asynchronous communication, as also doing away with the need for parties to be present in person. Essentially, litigants and a neutral party do not have to depose simultaneously and can record their response at a time and place convenient to them. Thus does technology adopt the role of a “fourth party".

Another aspect in the paper is how ODR provides a cost-effective and easily accessible forum for dispute resolution. Relying on video conferencing and technology to transmit information could sharply reduce the expenses involved in resolving a dispute. As the physical presence of parties is not needed, ODR makes access to justice mechanisms more equitable.

Even before the covid outbreak, there was a growing recognition that in a country as large and fast-growing as ours, it was essential to resolve a bulk of disputes outside the courts. Collaborative resolution mechanisms could help achieve this.

ODR could potentially help solve small- and medium-value disputes at scale before they reach formal court processes. In the words of Justice D.Y. Chandrachud at a meeting organized by the Niti Aayog in June, “Above all, there needs to be a fundamental change in the mindset: Look upon dispute resolution not as relatable to a place, namely a court where justice is ‘administered’, but as a service that is availed of." This, in essence, sums up what India’s approach to dispute resolution in the post-pandemic era must entail.

Across the world, the pandemic has necessitated adjustments that are adaptive and innovative. Several institutional arbitration centres across the world, including the Singapore International Arbitration Centre, have released guidance documents for video-conferencing-led remote participation in hearings. For e-commerce disputes, globally, ODR has been able to resolve hundreds of millions of matters at the conflict level. In the European Union, an ODR platform provided by the European Commission helps make online shopping transactions fairer and safer. The EU, in fact, mandates all merchants in member countries to inform consumers of the availability of ODR systems.

The United States launched MI-Resolve in response to covid-19. This is an online tool to resolve small disputes. Vidhi’s paper also cites international examples of ODR being used as a tool for settling small-value claims; it places a spotlight on the online dispute resolution centre of New Mexico’s courts for debt and money-due cases at the district level in the US, the online mechanism for the settlement of money claim disputes in the UK, and also a civil administrative tribunal for small-value disputes in Canada.

For Indians at large, ODR at the district level could be an ease-of-living initiative that assures affordable access to justice. Similarly, the ease of doing business could be stimulated by ODR mechanisms that ensure timely resolution in large numbers. Given current expectations of a major increase in claims and conflicts, an affordable technology-led solution is the only way to reduce the burden on courts. So ODR deserves high priority, even as efforts are underway to collaboratively build capacity, capability and efficiency.

In these extraordinary times, our approach must be to make life simpler for every person seeking access to justice. This is a good time to introduce innovative justice delivery solutions and build capacity to prepare for a potential rise in disputes. ODR could well be what binds instant adaptability with India’s larger goal of finding technology-driven solutions that help the common man secure timely, affordable and efficient justice delivery.

Amitabh Kant & Desh Gaurav Sekhri are, respectively, chief executive officer and officer on special duty, NITI Aayog. These are the authors’ personal views.

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