India is rapidly digitising. There are good things and bad, speed-bumps on the way and caveats to be mindful of. The weekly column Terminal focuses on all that is connected and is not – on digital issues, policy, ideas and themes dominating the conversation in India and the world.The chief justice of India laid out the judiciary’s vision for digitisation of courts at the National Conference on Digitisation in Bhubaneswar. The chief justice in his address sounded concerned with the issues that arise because of digitisation of courts, while being optimistic about its value in courts today. The Supreme court’s e-courts committee has been holding consultations on phase 3 for the digitisation of courts since 2021. Multiple civil society organisations opposed the draft vision document’s plan to convert justice as a sovereign function into service. The draft had also recommended the building of an ecosystem of businesses around e-courts data.Digitisation of courts, especially since the usage of AI by multiple judges across the world, has raised concerns of how it will affect the judiciary. The judiciary is cognisant of this reality and understands it is not a straightforward plug and play into existing democratic systems of society. The comments of the chief justice of India and other judges are a reflection of this. But at the same time, the judiciary as an institution may not be immune to neglecting the harmful effects of digitisation and is concerned with challenges of data integrity, privacy, cyber security and also centralisation of these systems.COVID-19 forced the judiciary to adopt virtual courts as an idea and since then there has been a serious discussion on how to implement this among various judges. The live streaming of courts for example is another case, where virtual courts as a concept helped increase access to courts. The ability of anyone across the country to view and participate in judicial proceedings of any court through virtual courts is revolutionary in terms of access. At the same time it brought its own challenges for the judiciary to regulate information and re-sharing of live streaming videos with in-court comments.Virtual courts, while being revolutionary as a concept, fundamentally change how our judicial systems will function from now. The Delhi Police is considering not to transfer prisoners anymore to court houses for hearings and instead wants to make them virtually appear through video conferencing. This fundamentally changes the very idea of “Habeas corpus” where detained people are being produced in front of the judge. The idea may be economical, for the Delhi Police to not use resources in transferring detainees to court houses all the time. But it also fundamentally changes the very foundations and we need to understand its implications.The usage of AI-based tools to allow transcription and translation of court proceedings and orders is being seen as a revolutionary idea within the legal system. At the same time, there have been proposals among some members of the bar to use AI to decrease the case load of the judiciary, but most of these plans push for arbitrations instead of going forward with judicial proceedings. Digitisation as a process is not necessarily an isolated phenomenon, but can have multiple effects of amplification, privatisation, commodification of information and standardisation. These effects can be net positive or negative and have multi-dimensional effects on individuals and society at large.While virtual courts and AI are only some of the initiatives that are being discussed within the judiciary, the changing nature of power structures is important to keep an eye out for. Part of the e-courts phase 3, the Supreme Court is expected to connect all the e-courts systems with Integrated Criminal Justice System (ICJS), Crime and Criminal Tracking Networks and System and e-Prisons. This inter-linking of databases to create 360 degree profile databases is being seen as a great idea. Except this also means judicial systems and executive systems are both working for the executive.Information exchange across the interoperable criminal justice system.Speaking at the conference, Chief Justice D.Y. Chandrachud explained how they have shared APIs of judicial systems to government agencies and they accidentally shared it publicly to everyone. The chief justice clearly understands the risk of all information being shared publicly and is considerate of the challenges posed by digitisation. But at the same time, there seems to be no concerns within the judiciary on the Integrated Criminal Justice System. ICJS is a 360 degree profile database which is inter-networked to Crime and Criminal Tracking Networks and System, e-Prisons.The flow of information determines how informational power can also be viewed. The ICJS system is maintained at the Ministry of Home Affairs along with the CCTNS and e-prisons. This effectively means the executive gets every piece of information from the judiciary, while the judiciary may not have access to all the information available via ICJS. This idea of the need for separation of power within the information layer is not entirely understood among the judiciary and it is likely this 360 degree system will get approvals for the inter-linking of databases.When it comes to the fundamental right to privacy judgement and the idea of purpose limitations, the judiciary seems not entirely capable of translating the judgement within its administrative functions at this stage. There is a need for the judiciary to critically engage with various actors outside the bar and executive institutions to ensure digitisation of courts doesn’t create its own challenges for the future. The very body that is responsible to ensure there is minimal amount of profiling of the citizenry is unable to understand the challenges that emerge from sharing judicial data with the state for 360 degree profiling.Srinivas Kodali is a researcher on digitisation and hacktivist.
