The Vision ........... The Concept .......... The Group ......... The Process

The Backdrop  

Man remained nomad for over 300,000 years, but settled down and became 'agriculturist' (First wave) around 5,000 yrs. BC After the death of 'industrialisation' (second wave) which started in about 1770 (after the war of Plassy in 1757), in or about 1955 developed countries entered the 'information technology' (third wave). Knowledge explosion is slowly reaching its crest and there is already a feeling of limitation of the third wave. Thinkers are preparing ground to move to the fourth i.e. the era of artificial intelligence (fourth wave). We are not only languishing far behind, but are still trying to feel the impact of information technology and wondering and/or deciding whether we should move ahead or not. If judiciary in India has to survive, Supreme Court of India will have to brace itself, use the developed and developing tools and technologies, mend them in its way, and take a quantum leap forward with the social and economic structure, which is already changing fast. The power of technology must be harnessed to meet the demands thrown up by statute and litigation explosion.

    With the change of socio - economic structure, the nature of litigants and litigation has changed, the design of courts and law offices, even the 'munshi' has changed (from an old bespectacled man in the corner, to an aggressive smart looking cellular phone user) and the approach of judges and advocates is also changing, creating a more professional, effective and meaningful impact. The process of change and development is choiceless and irreversible. Either you move with the wave or you will be wiped off. The only choice is whether the change is forced upon or it is planned and that is the distinction between slavery and freedom, that is the distinction between an unchannelised power and channeled power, one can destroy an edifice, and the other can develop it.

    Since human mind is capable of foreseeing its development and control its nature, and, Bharat produces better beings, when the need so arise, who rise above vox populi and take reins in command, we need not throw up our hands. We must not feel despair in any event, also because Bharat has a long history of surviving onslaughts, continue its struggle for existence and has a great capacity to suffer. We do not have a 'mission impossible'; it may be a 'mission difficult'. It is fair to assume that most people of the world, if they so choose, can respond positively to the challenge of change and make an effective contribution. The governing elite will have to develop an interest in technology, shrugging off its traditional and ideological prejudices and jointly work towards national development.

    The advent of third wave is reorienting the social structure with seemingly unrelated individual trends or events like cracking up of nucleus family, spread of cable TV and Internet mania, crashing of moral and value system, terrorism - both physical and cultural over population, energy crises, environment degradation, illegal migration, shrinking of natural sovereignty, political unheard coalitions without common ideologies but seemingly common objectives, taking place around us. In this seemingly existing chaos every individual as parent, child, professional, client, intellectual, artist, teacher, bureaucrat, politician and even anti social element is trying to re-organize and reorient and design a coherent and effective response to it. If legal thinkers are able to understand the process of socio- economic transformation, they will be able to meet it well prepared.

The conspectus

    A recent 'The Times of India-Aditya Birla Group' Opinion Poll conducted by DRS was interesting if not amazing. Without commenting on the quality of poll, for in a democracy what is counted is the 'number of heads' and not 'what is in the head's' and the charged public passion also rule the roost and, therefore, the poll may not reflect the exact fact situation, but it can be said with some certainty that the judicial profession constituted primarily of 'Judges' and 'Advocates' is under sever attack. Judiciary as an extremely conservative profession, is wholly reluctant to espouse any kind of change, but this resistance to change has now reached the point where one feel that it is seriously threatening the profession's future. A small effort made by individuals or a little spark of grandeur here or there fail to paint the true and complete picture, where the advocates strength in India is over half a million and is second largest in the world. According to the poll, the standing of the Judges and Advocates amongst the 16 professions were as follows:

There is a rapid diminishing respect for law and legal system, there is almost contempt and defiance for judges, advocates, and the law institutions. It is not that there is no work or there are no hard working individuals, but the social value and social utility of the profession has gone down and is going down. It is time for a united effort and action to expose and destroy inefficiency, unfairness, and injustice. It is now or never. There has been enough of introspection, it is time for some action, and if we do not do it now we will be failing a great nation, from gearing up for the next millennium.

Supreme Court

Judges, advocates, academicians, law teachers and litigants who have never used a keyboard are undertaking computerisation of courts, offices, law libraries and litigation and are feeling the inconvenience. There is, therefore, need to develop a systematic framework for understanding the clash of forces in today's world and synthesise them, so that we have a clear vision of our path and goal, which must not contradict each other at any cost. Gandhiji has not only taught us but has practically demonstrated to the mankind, that independence can be won by non-violence and in fifty years the largest democracy has exhibited that it can survive by non-violence for it gained its independence by non-violence. The goal of Supreme Court is clear and i.e. to play an effective role in development of a more sane, sensible, sustainable, reasonable, just, decent and democratic society, than we have ever had, where truth, honesty and fairness strives and to restrain its antithesis from damaging law and justice. The path has to take similar strides.

Supreme Court, with all dignity and aura at its command, has successfully carved out a role for itself, which was here-to-before, neither conceptualised nor contemplated by the constitutional makers or the people of Bharat, but the need of which has been found to be imminent in a democratic set up. At times the contemporary institutions fail to carry out or inherently found themselves incapable of performing its constitutional, social and moral duties and obligations. The people heading contemporary institutions even try to over reach their constitutional obligations and Supreme Court has to keep them in check. The role of Supreme Court is almost akin to the rishies of the past i.e. to keep a vigil on the king, tell him when he went wrong or where he was going wrong and support the citizens to withstand his onslaught if he got arbitrary. They also interpreted the laws (shastras) and pen the history of the time, which are now imbedded in our law reports, covering social events every day.

To maintain its solemn promise and to see that the same effectiveness and efficiency is percolated down to the High Court, higher and sub-ordinate judiciary, the Supreme Court of India will have to forge ahead with the third wave. The only difficulty or impediment will be its own chains and shackles which binds it and restrain the development of the institution. These will have to be broken, without in any manner effecting its decorum and dignity. Synthesis is essential and crucial for each institution in its own way, at different moment of history, more particularly for a dynamic institution like Supreme Court where a dynamic role is assigned to it under a dynamic constitution to deal with a dynamic society bursting at is seams to forge ahead directionlessly. History continues to produce its list of winners and loosers and if Supreme Court is able to understand the laws and forces of nature, it will emerge as a winner.

Supreme Court and High Courts of India are court of records and have information with it, which are public information and not a privileged one. For the essential growth of the institution, all the information must be made available to the prosumer (producer + consumer) of such information accurately, efficiently and cost effectively at the maximum speed which the Information Technology tools can provide. Supreme Court and High Courts will also have to use some of the widely vested powers in them to change the face of this profession, without growth of which, it cannot survive as a growing institution.

Information must be made available to the judges, advocates, litigants, and public to increase efficiency, bring about awareness, and reduce the time spent by them in unproductive activities. But, there is vested interest at every step, which resists every change. The vested interest is of the person who is presently holding the information under the thumb. The vested interest also arises out of ignorance, for it upsets the status quo and shakes people from dumb acceptance, it proposes to takes them to an unknown environment and work culture and there is a fear of departing from the familiarity of the known. These two groups i.e. people with vested interest and the ignorant form an odd coalition, which most find difficult to understand, but they jointly pitch themselves against all advancements. The small minded LDC is joined in its effort of resisting the change with some intellectual giants of its time, like Duryodhan joined by Bhishma Pitamah to fight Krishna, whose sole purpose was destruction of evil heads who were then ruling Bharat.

Our cultural mix in law has led us to adopt the legacy of the British Raj and the free spirit of America. Our courts inspite of judicious self-restrain gave expressions and vent to the free human spirit but the legal fraternity has not yet been able to give up the shackles placed by the British, some of which has even been given up by the British. This split has led us to a guised development without any real sense of direction or dedication to the profession. A split personality will never make a great person and there has never been a great lawyer who is not a great person. Supreme Court has not been able to keep pace with the change and judiciary is finding it difficult to make an effective contribution in the changing socio economic structure brought about by the third wave.

The impact of IT on law

The Law Colleges

In a world changing by minute, lawyers cannot be trained and prepared to limit their role to find law and argue cases but they will have to be trained in managing people and businesses and also solve problems using tools from other disciplines. Law colleges will have to stop teaching extinct laws, which may have a historical significance They will have to explode the curriculum to include business, social sciences, technologies and beyond. Law colleges will have to fuse and combine law degrees with other professional courses. Classrooms will have to focus on reality and survival of the lawyers in the profession and to contribute their very best in the development of institution.

Even if one graduates with a multidisciplinary degree in law and the other core disciplines, one will still need, every day of his/her career, to focus on constant learning and relearning to keep up with the rest of the world. The lawyers will have to be aware of the new industries and trades developing around. Law colleges will have to orient students to use new technologies to improve practice and efficiency. Organizational psychology and development of large law firms will change the trial style and court functioning. Thinking like a lawyer and litigating every issue is just isnt going to be enough.

The Client

Lawyers who are used to shaping the needs of their clients will have to get used to having their work defined by the client. Increasingly sophisticated consumers have in-house lawyers who successfully define and manage their routine work. Client caprice will zap even good firms into oblivion. Public Corporations, Industrial houses and litigants exploring new growth will no longer limit their access to the lawyers in the vicinity, the availability of lawyers round the clock will be significant. The market guides solos and firms to position themselves based on the evolving needs of the marketplace. Lawyers will have to develop the keenest ear to the market, to win.

Lack of chambers and well-equipped libraries to carry out meaningful research will loose its significance. Client will appreciate the speed, efficiency and cost at which legal services are provided. Government, corporations, industrial houses and individuals are the clients for lawyers. Their growth will have a direct impact on the development of the legal institutions.

The Lawyers and their firms

Law, once a calling is becoming a highly specialized business. Lawyers who nurture the professions fine tradition of intellectual and human excellence while keeping a keen eye on the bottom line (a bottom line that contemplates the value of humanity, knowledge, caring and cooperation) will forge ahead. Graduating from a named law college, joining a Senior Advocate or law firm with influence or a career marriage will not shape the rest of any ones life as a lawyer. When the publics average legal needs begin to be met without the involvement of a lawyer, exploding legal population will have to be watched and the competition will become harder.

Large firms are opening offices throughout the world to follow the internationalization of capital, clients, cultures and signing of GATS. Though we are resisting their advent, indirectly many of them are already operating and sooner or later all those who matter will be here. The Internet allows advocates in USA, China and India to hold video conferencing with their clients in Japan for litigation in Singapore. Instantaneous communication powers a practice, with scant regard for time or place. As a global communicator, the web reaches every village and office and there is going to be an explosion of information. Businesses will rise and fall overnight, fueled with energy and imagination and, therefore, the old models of capital, tradition and planning will undergo radical change.

Law firms will have to look forward to professional non-lawyer managers, experienced para- legals or MBAs. Hourly billing and per appearance fees (even for non-effective hearings) will be challenged. It is not long before it will be declared as foolish to assume that the value which advocates can sell is the time they spend doing something, charging conference per hour and per appearance. Multidisciplinary practice will expand the value of advocate's work of clients. What does a multidisciplinary practice hold for lawyers and law firm that could improve quality of life and the service provided to clients will require deeper analysis.

The most valuable thing for a law firm will be the minds and the wisdom that came from all the hard-won experience. There will be no money in the ability to resell work product. Capturing and preserving new technologies and giving new meaning to the concept of leverage and managing information will make money. Lawyers will not be able to resell information that is free on the Internet. Lawyers no longer will be paid to do technical work or merely filing cases, that can be performed by artificial intelligence or no intelligence. Lawyers will be paid for their wisdom, experience, care, strategic and tactical skill. Lawyers must become owls, not falcons. Successful lawyers will become competent entrepreneurs, capable of running a business, managing multidisciplinary projects and developing new work, helping clients how not to litigate and litigate successfully.

A successful law firm has a proprietor or a few partners with many more associates. The firm thrives from the junior surplus. The inability to induct associates as partners even after 15 to 20 yrs. has been a basic reason of non-development of large law firms in India. Smart young lawyers who see partnership tracks non existent will refuse to join law firms for they have an attractive option and the freedom to run their own businesses without large investments in the infrastructure. The market will in due course reject large associate populations. Solos who have managed to trim overhead to the core and who know that keeping up with new software will be essentially thriving or law firm who are ready and willing to shrug off inheritory rights and are willing to share power and money will alone be able to expand. Lawyers will become more and more concerned about the values of life (time with the kids?) which is being sacrificed to make payments for the Esteem, Astra or Cielo.

Legal contract kiosks will develop and continue to exist along with mushroom growth of property dealers. Wills on disk, dial-an-information, legal self-help books and software, free web sites that offer legal advice and downloadable knowledge, judgment pleadings and other court records will be on the Internet. Paralegal will be helping clients who once sought lawyers to solve legal problems. India has a large growing population of the retired, resigned and the terminated, young advocates will have to swim with the sharks and what they will get from those who are interested in the institutional development and judicial reforms will have to be seen.

Paperless, borderless Courts.

As the advocates will start functioning in virtual teams through the seamless community of the Internet, intranets and extranets, effortlessly spanning the globe, the issue of jurisdiction will have to cease to exist. The reasoning of any court, lower or higher, will carry more weight then binding precedent of a higher court. The principle of comity of courts will apply more generously. The laws will have to become global and uniform. Courts will become totally electronic and may not be physically located anywhere in time and space. Justice will be rendered by exchange of electrons, moving globally. Judges and lawyers will move to virtual world, coming together electronically for a case and dissolving when the judgment is delivered. Work will have flexible hours and there is going to be telecommunication from home and elsewhere, resolving the problem of city crowding, parking, pollution and road jams.

The application of IT to law:

The process of litigation is creative for judges and advocates, decisive for litigant, educative and informative for people who wish to be aware of various dimensions of inter and intra-human expressions and interactions, their rights and duties, entertaining for public in general, and a source of plugging holes for legislators. This activity also acts as a process of balancing powers and the real purpose continues to reach justice by the process of dialectics. Since the objective of every litigant is to win the case and to get the best professional help to achieve the said objective and it is for him that 'the bells toll', all necessary information must be instantaneously available. Information must be available relating to:

1. The advocate who is an expert in the field of that litigation or consultancy. But this eliminates touts and middle-person as they have a vested interest in the non-existence of this information. These people find support from conservative groups finding their roots in the British Raj who resist specialisation and advertisements. UK has already changed its Rules.

2. The listing of the case - the cause list - terminal, weekly, tentative and daily, so that track may be kept independent and irrespective of the advocate / advocate on record's efficiency. The clerk of the Advocate and AOR has a vested interest and will resist this change, though more time and money may be spent on FAX, phones, and telecommunication. (Supreme Court, Delhi and Karnataka High Court lists are already available).

3.The issues pending before the court must be made available. Advocates who specialise in similar order briefs along with court reader who holds expertise in keeping information on orders made by Court in diverse litigation, have a vested interest

4. Judgments - All proceedings, orders and judgments in the Supreme Court and the High Courts must be available free of cost on the web. Not only this data must be available, but also it must relate and be interactive with the existing data and judgments in other countries. This will eliminate errors and delays and hasten the decision making process. It will also be a major human energy saver. But, the clerks in the library and in office of the advocates, advocates on records, every private law report publisher, and the printer have a vested interest and will resist any such development. They will be joined with those intellectuals who are not yet used to surfing the net.

5. Statutes: Every body is presumed to know law, more so the Courts, it will be no answer that a case was decided because a certain statute and its amendment was not placed before the Court by the advocate. Non availability of relevant Acts, Rules, Orders, Circulars etc. is a source of great irritation and tension when it is not available and impedes the decision making process. Statutes are amended again without going back into its history and contemporary analysis because it is difficult to keep track of all the state and central acts, rules regulations and also those framed by the statutory authority every day.

6. Contemporary thoughts and their analysis and researched material - The basis idea of carrying out legal research in colleges, legal institutes and bar associations is to encourage academics. In all-important matters, the pleadings/ submissions/ arguments, research papers must be invited from academicians and research scholars and the same must be available for other users. Para legal services must be created to support the infrastructure and specialisation and super-specialisation in the legal profession must be encouraged. Law research industry is already grossing US $ 600 million globally.

7. Majority of public reflects the true human nature and avoid litigation, they consist of prudent, law abiding, good nature beings from whom litigation, the process and the decision is a source of information, a news item and an entertainment - part of daily gossip at coffee clubs. They want law and order to prevail and that guilty be punished, which enables them to develop a sense of security and good will. News and media and politicians who thrive on a vote bank have a vested interest in the lack of information on real issues, thread bare details and well reasoned analytical approach. Media will need some news to tell people, let it be the correct one. If artists stop painting, some will still paint only that it will not be as beautiful as it should be. Court must contribute their best to make all information available to all.

All these changes will happen quickly. Judges, and advocates trained to anchor decisions to precedent will have to respond to a future that is not a straight line from the past. Legal profession has produced national leaders and some finest practitioners, but not many leaders for the bar who think for the bar and the legal institution. If legal industry has to survive with dignity, some leaders will have to emerge. These leaders will not have to work in the direction of what the bar desires, but what the bar needs.

If we are able to widen our vision and sow the seeds for the coming legal generation without prejudices and restrains, there is nothing that can stop Indian legal system and Supreme Court of India to enter in the new millennium well equipped to meet its challenges, which it is choicelessly going to face.

Aruneshwar Gupta

November 1999

*Printed in SCBA Journal in edited form

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