Advocate Aruneshwar Gupta, President, Law Consults, discusses the legal profession in the digital age, recent Supreme Court developments and legality of crypto currency in this interview with Invisible Lawyer.
The Invisible Lawyer: Do you think the legal profession in India has been able to adapt to the digital age?
Aruneshwar Gupta: Legal profession in India has yet to enter the 21stcentury digital age and it will require latent force to break the sluggish pace. The first step towards digitization was taken in 1985 when the electronic display devices were put up in Supreme Court to display Court No and Item No (Hon’ble Justice P.N. Bhagwati, then Chief Justice of India, on my insistence). Even then there was serious resistance from close quarters, both in its implementation and execution. At the turn of the century, while the world had awakened to internet, offices of NIC were set up in Supreme Court, High Courts and District Courts which took up digitalization of court records, registry, subject categorization (mixed up with statutes), putting up of cause list, reported judgments (circumscribed by Indian Law Reports Act, 1885) to be accessed via internet. This led to creation of E-Courts (for the judges) with great lead taken by High Courts of Delhi and Andhra Pradesh. Simultaneously E-Committee was formed by Supreme Court and they undertook providing of necessary infrastructure and hardware including laptops to all the judges of lower judiciary (about 15,000 then). This was like providing a body without a soul, for there was no legal software to be used by them except using them as electronic typewriter. Digitization of central statutes was completed under India Code, but they were merely scanned pdf files of Acts. There is no data base to get all the amendments for each section and an interlinking with the subject categories.
Digital age is not merely about converting data from paper to computer. It is not about digesting information in a different format, but it is about creating an authenticated open information sharing platform based on interlinking databases. The real rationale of any new technology is to bring in more accuracy, speed, efficiency and cost effectively. The whole idea is elimination of inputting same information by different stake holders, thereby removing multiple efforts and expenses and to spend less time in searching and more time in doing. Documents submitted by parties, pleadings and judgments must be available to all without putting any further effort and energy. All information, documents and entire data must be accessible seamlessly by judges, registry, law makers, advocates and litigants at trial, appellate stage and Supreme Court 24 x 7 in an integrated format to bring justice to all.
TIL: Why has the Supreme Court not gone digital, are judges and lawyers prepared for it?
AG: The Supreme Court has not gone digital because the entire digitization, both horizontal at State level and vertical at courts level has been taken up with different domain knowledge, approach and points of view. There is no interlinked and integrated single umbrella structure to take care of the whole legal industry, which was imperative to move to the digital age. There has been absolutely no dialogue or interaction between those who are taking steps for bringing in digitization and those who are using it and are affected by it i.e. all the stakeholders.
The stakeholders in the legal industry are:
Judges – Supreme Court, High Court, District Courts, Trial Courts, Tribunals, Commissions etc.
Registry in all the Courts, Tribunals, Commissions etc
Legislature – All authorities enacting Acts, Rules, Regulations or issuing Memorandums, Circulars, Government Orders etc
Law Officers, Government Advocates and Public Prosecutors
Advocates – Senior, Advocate on Records, Advocates
Advocates Clerks – para legal (there is no training program for them)
Government Departments and Public Corporations – the largest litigant
We all need to change our mind set to adopt the change and make it available in a adaptable uniform manner so that it is useful and purposeful for all and this is very difficult and tough, though not impossible
A simple illustration is that everybody is presumed to know law and that means all judgments and all statutes must be available to all in the digital format. There is a mushroom growth of websites including the official website competing vigorously with each other to provide judgments of Supreme Court, High Courts, Tribunals, Commissions etc and everyone giving its own citation. Since year 2000 Canada, United Kingdom, Australia, New Zealand, Hong Kong, Singapore etc has adopted ‘Neutral Citation’ for each judgment, where each judgment is given a serial number. Judgments are cited as precedents using neutral citation assigned by the court on the basis of court name, year, serial number and para number (name of publisher and page numbers are eliminated). We are already about 18 years behind, but nobody is willing to adopt the change. Acts, Rules, Regulations, Orders, Memos, Circular and directions of all States and all Article 12 Authorities with all their amendments must be available digitally on the day they are gazetted or are implemented and linked to a common subject index and the matters as they are filed in the court, but there is no efforts in that direction.
TIL: What are the other ways that technology will affect the legal industry and practice?
AG: The technology is being applied to various sectors and that will affect the legal industry and legal practice exponentially. Lawyers will have to gear themselves up to the changes and meet the challenges of the new technology:
There can be a common database, of all the litigation updated and shared between Courts, Government Departments, Government Advocates and Legislature for all are being paid by the common man, the tax payers.
The technology when used in Financial Sector is called FinTech. FinTech is being applied to Banking, Securities and Derivatives and will bring huge work for the lawyers
Real Estate – Authenticated and verified titles can be made available and will need no further proof, bringing ease in transfer of property
Wills – Authenticity need not be established if it a part of block chain vault
Intellectual Property – Registrations can be fool proof and violations can be quickly determined
Insurance – Transfers and premium payments can be timely executed
Healthcare – Individual records can be made available instantaneously
Education –Individual records can be available including date of births effecting juvenile justice system
Energy – Tariff and Consumption can be recorded without errors
Smart Contracts will soon firmed up limiting the area of disputes
And many more
TIL: Do you think computers will start writing judgments by use of Artificial Intelligence?
AG: Judgments proceeds decision made by a judge in view of the facts, using precedents and as the judge perceives it in consonance with his sense of truth, justice and consciousness. Computers and AI used by Computers are only tools to assist judges to make more objective decisions and follow precedents more rigorously till they stand over-ruled. AI can provide best possible decision on basis of existing judgments, but since the society is dynamic and so it law, the final decision always will have to be made by judges. Judges will have to use their experience, perceptions and their understanding of the society in every case to make decisions and write judgments. AI can be effectively applied in cases where there are multiple/ bunch cases with almost similar facts like land acquisition compensation, motor accident claims, criminology i.e. sentencing policy etc.
TIL: What is your view on the recent crisis in the Supreme Court with two judges appearing to be at odds with each other? Has this happened before to your knowledge?
AG: Crises between Chief Justice and senior-most pusine judge has always been existing in Supreme Court and all High Courts in the country and it also exists in all services including politics. It arises out of a basic urge of number two to be number one or that he could have been number one. This feeling sub-consciously brings about very uncomfortable emotions which continue to subsists in perpetuity, more particularly when the understanding is that the situation has not been caused by the hands of God as it happened for Cain and Abel, but by the hands of men and there is a possibility of turning it around again.
In Supreme Court the crises became more apparent and open after the great supersession of judges after the judgment of H.H.Kesavanand Bharti (1973 Supp.SCR 1) between Chief Justice A.N.Ray and Justice H.R.Khanna (sole dissenter in ADM Jabalpur case; then Chief Justice Y.V.Chandrachud and Justice P.N.Bhawati; Chief Justice Sabyasachi Mukherjee and Justice R.N.Mishra; Chief Justice A.M.Ahmadi and Justice Kuldeep Singh; Chief Justice J.S.Verma and Justice M.M.Puncchi; Chief Justice P.Sathashivam and Justice H.L.Dattu.
Judiciary is a single family and great man make great judges. These differences and crises at personal level seriously effects the entire judiciary as it leads to creation of lobbies and groups bringing in a vertical split in the judiciary and other institutions get reasons to raise fingers. Unhealthy environment, bickering, pressures and personal prejudices may also effect decision making process and the real cause for which this great institution exists i.e. providing truth and justice to all. Time that we learn from Spiritual Laws (Ralph Waldo Emerson)
“What a person does, and has, what he has to do with hope or fear? In himself is his might. Let him regard no good as solid but that which is in his nature and which grow out of him as long as he exists. The goods of fortune may come and go like summer leaves; let him scatter them on every wind as the momentary signs of his infinite”
TIL: You mentioned that you support Block Chain Technology (‘BCT’), Bitcoin and Crypto Currency economy, will it not encourage money laundering and sale of drugs and arms? What is the legality of it? It is ‘dark’ money?
AG: Technological developments must continue to happen with full freedom, innovations and immunity. BCT and its application in crypto currencies are going through a teething periods, they are not drugs or weapons themselves hence not out rightly in-humane. Due to the age of influencers who have vested interest in status quo and excessive information people and people’s mindsets are made up even before a new invention or technology has reached a certain maturity level or before they understand it completely for possible future implications and applications. A fear of possible disaster is there in any new technology that comes up, letters were considered bad news, airplanes were never considered safe, nor were cars, computers were meant to replace humans and credit cards theft was a huge problem. Technology is never good or bad, technology is neutral. The issue of good or bad depends on how it is being used. It may be used to bring about peace, harmony and happiness or people can use it for conflict, disharmony and exploitation. Atomic energy is neutral, however when used for generating electricity it is good, if it is used as a bomb it is bad.
Blockchain is the new internet and is being applied to almost all sectors by people who wish to live in a more authenticated, harmonized, dignified world and to protect themselves from exploitation, forgery and falsified world because some people who are abrasions of society continue to do so. 9/11 and 2008 economic meltdown were basic reasons for socio phylosopho intellectual entrepreneurs to get it going. Iodex and Vicks are popular cold and flu balms. They are relatively cheap and easily available over the counter. Some student’s use it between two loafs of bread and consume it as ecstasy to be ‘high’ as illegal drugs. Now tell me is Vicks or Iodex a scam or students misusing it.
Blockchain may prove useful in attempting eliminating forgery of documents and middleman in all sectors. This will result in a substantial saving of time, in establishing authenticity of a valid document and determining forgery of document. Bitcoin, is a new global asset, is a current technological trend and is sure to rise high, because of demand arising out of low supply and human sentiment. The first Bitcoin ‘block’ was ‘mined’ on Jan 3, 2009, and is called as the ‘Genesis block’. Soon events like the first Bitcoin real-world transaction took place when one pizza was bought for 10,000 Bitcoins, today one Bitcoin is valued at 14,500 US$. However, it is possible that the Crypto currency boom might prove to be a great boon for the common man.
Even when we have fiat money, there is money laundering, sale of drugs and supply of arms to terrorists. All these are abrasions of the society and will have to be restricted by police and judiciary. Those who are genuine and are looking for advancement of human society in free environment will not themselves allow the technology to be used for the purposes for which it was not created and will not be privy to terrorism, drugs and arms sale.
There is nothing illegal about the Bitcoin or other crypto currencies which is merely a protocol such as sms or the internet. Brazil, Canada, Japan, Netherland, New Zealand and Scandinavian countries etc. are fully supporting; Australia, Russia, South Korea, Turkey, US etc. are supporting with caution; China, India and Morocco etc. have issued directions to the effect that trading in Crypto Currency is at own risk and without legal support; Euro Countries and Germany etc. consider it to be a bubble like the ‘Tulip Mania’ in 1636-37 in Holland. With the transparency and openness of the BCT it will be not only be difficult but almost impossible to use technology for illegal purposes and exploitation as every transaction may be traceable. The prize of Bitcoin has since continued to rise and more and more funds are being deployed in BCT by Financial Institutions. It is not dark money like dark internet for it is open and transparent, while protecting privacy.
TIL: Can technology end corruption?
AG: Technology cannot end corruption. Technology and inventions happen because people want to try to solve social problems. The problem of corruption is human related and technology can only attempt to create systems where dependencies on third parties and organizations such as banks can be reduced. Those who cannot earn money with dignity will always find ways and means to get what is not due to them through dishonest means. Block Chain Technology should help the common man to get access to authenticated information and several services without interference of middle man and that will eliminate corruption to substantial extent. BCT is to make life of common man on the street more happier, healthier and meaningful.
Aruneshwar Gupta is the President, Law Consults and practises in the Supreme Court of India.