Judicial Innovation and Digital Divide: Promoting Access to Justice amidst Rising Inequality

Introduction

The Indian judiciary has long been confronted with the challenge of a significant backlog and pendency of cases. In an attempt to reduce pendency and expedite the delivery of justice, the judiciary is seeking to incorporate technologies in the courts, as exemplified by the policies such as Digital India and eCourts. The courts in India are gradually moving towards the concept of eJustice. However, it is crucial to exercise caution during the implementation of technology in the courts and the justice-delivery system. A sudden deployment of technology in the courts may exacerbate social inequalities through the digital divide.

What is digital divide

The digital divide is a complex issue that encompasses various factors. In the age of information technology, digital divide can be understood in terms of inequalities linked to access to information technology. Those that have access to information and benefit through digital economy become the “haves” and those who are excluded become the “have-nots”. This gap between the information haves and have-nots is commonly referred to as the digital divide. Some scholars propound that the notion of digital divide is so wide and broad that it can be used to support policy-making – furthering investments in broadband networks, or/and also promote liberalisation of the telecommunications market.¹

Widening of gap in electronic justice-delivery system (eJustice)

The disparity in the availability and accessibility of technology within the legal profession has a profound impact on the justice-delivery system. The digital divide within the legal profession amplifies existing disparities in access to justice. Marginalised communities, already disproportionately affected by socio-economic disadvantages, face further obstacles when their legal representatives lack the necessary technological skills. This exacerbates the unequal distribution of legal services and undermines the principle of equal justice for all.

The digital divide not only affects individuals and communities but also extends its adverse consequences to lawyers, thus compromising their ability to effectively participate in the judicial process. A significant number of lawyers lack the requisite knowhow and access to technology, impeding their capacity to navigate and leverage digital tools and resources in their practice. In an increasingly digitised legal landscape, where courts and legal processes are embracing technology, the gap between technologically-equipped lawyers and those without adequate resources widens. This division creates a situation where a set of lawyers is pushed to the periphery of the judicial system, struggling to keep up with the evolving demands of modern legal practice.

The implications of this digital divide in the legal profession are far-reaching. Lawyers who lack technological proficiency may find themselves at a disadvantage when it comes to conducting legal research, managing, and organising case files, preparing, and submitting documents electronically, and effectively presenting arguments in court. These tasks, which have become streamlined through digital platforms and tools, can significantly impact the efficiency and effectiveness of legal representation. It is, therefore, essential to ensure that any technology implemented in the courts take into consideration the issues related to digital literacy and skills to promote equal access.

Factors affecting the access to technology in India

Access to technology has become a pressing concern in India, with socio-economic factors playing a significant role in determining who has access to the internet and related services. Rural areas, characterised by low wages, limited employment opportunities, and high poverty rates, have particularly limited access to high-speed internet connections. Additionally, low levels of education, linguistic diversity, and disabilities further exacerbate the digital divide and limit access to electronic courts. Following are the factors which create the digital divide in India’s legal system.

Socio-economic factors

Socio-economic factors, such as income, can have a significant impact on access to technology. In India there are around 692.0 million people who are internet users, which comprises of only 48.7% of the total Indian population.² The remaining people, who do not have access to basic internet services, are characterised by low wages and limited employment opportunities and are also high on poverty rates and lower education levels. Most of the population belonging to this section resides in the rural or semi-urban areas of the country. According to Access to Justice Survey, 45.8% of the litigants belonged to the rural areas and 90% of the total litigants had an annual income of less than 3 lakh Indian rupees.³ Bringing them to the court and connecting them with the online justice-delivery system is the biggest challenge. Several government programmes like the free legal-aid services and pro bono litigations have been partially successful in addressing the problem. Travel time and costs further act as a demotivation for the people in this section to reach the nearest courtrooms or legal-aid clinics for enforcement of their rights. The rural areas are characterised as having a low-level of access to high-speed internet connections. Most of the people residing in rural areas do not have proper cell phones or nearby internet kiosks/centres to access internet services. It is for these reasons that the courts and legal-aid clinics must maintain traditional services even when they expand to newer frontiers in electronic courts.

Educational inequality

Individuals with lower levels of education may have limited access to digital technologies and may also lack the necessary skills to use these technologies effectively. In addition, the level of literacy in rural areas is significantly lower than the national rate⁴, which further limits their ability to access electronic courts. Due to the linguistic diversity in India, there is not one language that the people of India follow.⁵ However, the official language for functioning and other administrative processes of the higher courts is English, whereas, in the lower court, the day-to-day proceedings are conducted in the vernacular language. In India, of the total population living in the urban areas 87.6% people know how to read and write in English whereas in rural areas only 3% of the population knows how to read or write in English.⁶ This leads to another challenge for web developers to provide the court content in at least the official vernacular languages of India. Over and above this, the dense language used in the court document gets reflected in websites, which makes it further difficult to convey legal concepts clearly and accurately to the public.⁷ This must be addressed with the help of legal experts who could explain the content in simple and clear language. Recently, the courts have started the service of e of providing automatic machine translations for court judgments in 9 vernacular languages of India. This is a laudable move towards access to justice.

Disability-related inequality

Individuals with disabilities may require specific accommodations to access and use technology effectively. In India, about 60 million people are disabled where 75% of people with disabilities come from rural areas.⁸ The Centre for Internet and Society along with Forrester Research in one of their study found that, approximately one in four (25%) computer users have a visual difficulty or impairment; nearly one in four (24%) computer users have a dexterity difficulty or impairment; one in five (20%) computer users have a hearing difficulty or impairment; and about 16% of computer users have a cognitive difficulty or impairment.⁹ This can, however, be addressed through thoughtful web design and development. Technology can help the disabled persons in assuaging their disability and provide meaningful to access information and courtrooms easily. For instance, with the use of screen readers, the visually impaired person can access the court’s websites, as the tool would help them know all the contents on the web page by reading the text aloud.¹⁰ No longer will the visually impaired person need the help of another to access the court’s information and filing system. Videoconferencing is yet another powerful tool for hearing impaired (HI) person which gives the virtual court opportunities to conduct hearing with the help of sign language interpreter in courts, for helping the hearing-impaired person in understanding its proceedings. There have been successful pilot programmes initiated in some jurisdictions of USA, to help the disabled in understanding the daily court hearings.¹¹ It is suggested that the Indian developers and policymakers must take the needs of the disabled into account before choosing the correct set of technologies for courts system to bridge the digital divide.

Conclusion

In conclusion, the digital divide continues to be a challenge for individuals and communities in accessing the benefits of technology, particularly in the context of eJustice. While technology has the potential to revolutionise the justice system, it is important to adopt an integrative approach that addresses the socio-economic factors, educational inequality, and disability-related inequalities faced by individuals and communities. To bridge this inequitable gap, five key prerequisites should be addressed: awareness, access, affordability, availability, and adaptability. By raising awareness about the digital divide and its consequences, we can garner support for initiatives aimed at closing this gap. Ensuring access to technology, including internet connectivity and devices, is fundamental to bridging the divide. Affordability measures must be implemented to make technology and digital services financially accessible to all individuals. Additionally, improving the availability of technological infrastructure in underserved areas is crucial. Lastly, adaptability of digital technologies is vital to accommodate diverse needs and circumstances. By considering these prerequisites, we can work towards eliminating the digital divide and ensuring that everyone has equal opportunities to benefit from technology, particularly within the realm of eJustice. There is a need to adopt an integrative approach amongst different sections of the State to optimise the benefit of access to technology. In doing so, we promote a more inclusive and just society where the benefits of technology are accessible to all.