Why nudging access to justice will make Indians trust upholding of the rule of law
John Rawls famously described justice as “the first virtue of social institutions.” Today technology-enabled interventions can play the role in advancing this virtue.
Technology-led access to justice solutions are incorporating values in their products to gain the trust of litigants. Transparency in methodology and operations, presence of legally sound adjudicators overlooking disputes for impartiality, and building responsive technology platforms which are taking cognisance of any concerns of litigants, will help create a solid platform. To enable broad-base acceptance among citizens and optimise the returns from these interventions, using behavioural economics could play a key role.
The work of behaviour scientists such as Kahneman, Tversky, Thaler among others could go a long way in designing for ease of living for the common man.
Behaviour change nudges come in the narrow corridor between the intent towards an optimum goal and the actions undertaken to achieve those goals. The intent is to enable access to justice to every Indian, making them trust the expeditious and efficient upholding of the rule of law. The default action currently to achieve justice is to go into litigation.
This is a well-documented, long-drawn process from the district court up to the highest court. The Ease of Doing Business ranking indicators show India’s contract enforcement position at 163. A 2018 study of manufacturing plants in India by Johannes Boehm and Ezra Oberfield showed that ‘production and sourcing decisions were distorted in states with weaker enforcement mechanisms’ and that ‘reducing the average age of pending cases by a year would, on average, increase a state’s aggregate productivity by about three per cent.’
We need to design a more optimum choice architecture in this narrow corridor where litigants take an optimum path.
First, we need to provide a “default” option for alternative dispute resolution mechanisms which is fair and efficient. The Vidhi Centre for Legal Policy in its white paper titled ODR: The Future of Dispute Resolution in India, writes about the Italian opt-out model for mediation where disputing parties are asked to attempt mediation in preliminary session for a certain category of cases is a good example of switching the default model. It further explains how in Italy, for these categories of disputes, the mediations outnumbered the cases in courts — a first for Europe. The opt-out model has the potential to significantly reduce the burden on the judiciary.
The second is to simplify alternative options for litigants and reduce their hesitancy. New contracts should ideally opt for technology-facilitated alternative dispute resolutions (ADR) as the first method of resolution. Some substantive paths of process simplification and enhanced efficiency exhibited by effective nudges are WhatsApp calls-led mediations for e-Lok-Adalats, where four states have already initiated pilots.
The third is to have salience and prompts towards more efficient methods of case resolutions. Innovators in the access to justice space need to continuously advocate to convince litigants that methods they propose to advance access to justice hold merit. This could be based around advantages of platform-based case flow management at the district court level, or even AI-based non-invasive interventions for case research. Even before e-filing, an option could be prompted for litigants for taking an out-of-court resolution option via various available options.
The fourth is to frame for loss aversion. Behaviour scientists have highlighted that the pain of loss hurts more than the joy of winning. Conventional court case lifecycles often have the benefit of litigants’ familiarity. However, there needs to be an emphasis on the fact that this path often leads to loss of time, monetary expenses and intangible losses such as business disruption and energy spent on a non-amicable resolution. Even the winner of the case essentially loses. Instead by taking the alternative technology route through remote modalities, there can be preferences developed for dispute avoidance, containment and eventually even quick and expeditious online resolution.
The fifth is about timing. Here, the pandemic has provided an opportunity for technologists and innovators. The positive development in the last few months has been the judiciary, government and industry have time and again emphasised on the importance and irreplaceable presence of technology in the future paradigm for access to justice.
Finally, we need to provide social proof of concepts. The judiciary is facilitating various pilots across India for tech-based solutions, with the Supreme Court’s e-Courts project and e-committee on its way to broad base Phase 3 of this project which would provide avenues for pilots across the litigation lifecycle. Furthermore, there is considerable work being done to advance online dispute resolution (ODR) in India, led by the government.
It is essential to iterate here that nudges in this narrow corridor shouldn’t take away options for litigants but only facilitate a plank over which an economically and socially desirable choice becomes more apparent. To make these nudged transitions more effective, design thinking values must be utilised. Public policies and industries should consider the perspective of consumers at the market place, fitting into the socio-economic dynamics.
The first principle to consider is compliance. For instance, if government contracts mandate ODR mechanisms as the first instance for dispute resolution, it will automatically advance this path of dispute resolution. A good example is the recent design intervention by the Reserve Bank of India which announced that Payment System Operators will be required to establish an ODR system for disputes in the payments ecosystem.
The second principle would come from competitive conformity with businesses taking into cognisance consumer concerns around dispute resolution getting an edge for their products. Today, companies are adopting simple tech-based dispute resolutions mechanisms for consumers. Transport aggregators, e-commerce giants, FMCG leaders, online payment start-ups, all have shown the inclination to facilitating an expeditious resolution. It is a matter of time before this becomes a norm for competitive conformity of ease of living module for consumers.
The link between economic growth and a society that upholds rights enforces contracts, redresses grievances and ensures rule of law is well established across the world. Now, through developments of behaviour science to understand the interplays between people and technology for enhancing processes and accelerating efficiency, uniform access to justice is right around the corner.
Also Read: How design-thinking can help justice delivery in the Covid era