A question we need to answer.

In this pendulum of the pandemic apart from masks and physical distancing, the other change that we have noticed is how every means of action has been diverted towards the virtual mode. Earlier, the use of virtual or online mode was only restricted to the services like shopping, entertainment, and some other services which were in private control. It had nothing to do with the State functions rather than filling feedback or checking queries but with the unavoidable circumstances created by the pandemic, the State function of administration of Justice i.e., functioning of Courts has also shifted to the virtual mode which might be a normal thing in the coming future. It is quite clear that survival is the real motive for creating new ideas to sustain human existence and evolution of these ideas is inevitable till the goal is existence.

No one before the present time had thought about attending school and college lectures online, away from the classroom atmosphere, which has been emphasized throughout our childhood for overall personality development. Infact, no one had ever thought of pleading in virtual space through online medium away from the decorum of the physical Courts. Certainly, it has expanded the definition of the Court premises, now the existence of the Court infrastructure is not only restricted to the physical establishment of the orthodox Court structures but it also includes the online medium of Court proceedings. I don’t think we can take the plea that pleader is not bound by the rules of decorum followed in the physical structure but it is the Chair and presiding officer and her/his presence which has to be respected. With the pre-existing structure, the technologies used in the whole process have also become an element of the Court’s definition we cannot treat them in isolation to the administration of justice when they are in itself the tools to achieve and deliver Justice in the present times. Now, with the effect of the third wave of the Covid-19 in India the whole functioning of society has again been shifted to the online mode which also includes the functioning of the Courts and Judiciary in India.

The recent shockwaves have been delivered by the comments of Justice Chandrachud on the use of the smart technologies in the Justice system during the event of virtually inaugurating a ‘justice clock’ that has been set up in Gujarat High Court, “A healthy balance between the use of technology and human intervention has to be maintained. Technology, we must understand, is the facilitator of change, but the driver of change has been, is, and must continue to be the human mind. The only limitation on the human mind is human commitment to change and to adapt,” adding further “…..technology has taught the judiciary, which is criticized for being “oblivious to time” to “respect time value of all stakeholders”.

The comment is somewhat linked to the query discussed by Shoshana Zuboff in her book In the Age of the Smart Machines and further in some way answered in The Age of Surveillance Capitalism, which explores the anomaly of the Corporate Big Tech. Giants fighting the war of data extraction in the virtual or online space. The author discussed the question posed to her in 1981 that “Are we all going to be working for a smart machine, or we will have smart people around the machine?” The question alarmed her to the oldest political questions: Home or exile? Lord or subject? Master or slave? Thus, the question in itself explained the contractions of authority and will which can never be separated from human existence. The question is an end in itself as it creates a dilemma of what will we better, a smart machine or smart people, because in both ways the authority is vested in those who maybe untouchables and impliedly bringing us within the ambit of sophisticated slavery. While the author in her books has explained and defined the impact of the smart digital technologies in the socio-political and economic spheres, what are the various factors which are working in structuring the outcomes of these inventions and discoveries to retain or keep control and authority over the distribution of resources and the functioning of the present system. The comment of Justice Chandrachud has somewhat brought us to the point where he has cleared the anomaly explored by the author in the area of study. Certainly, it is quite clear that Mr. Justice has voted and advocated for the human mind to be at the driving seat of the change and it is also obvious that the human mind is the one behind these algorithms performing the function of the new smart digital technologies unless we have something like The Matrix or The Terminator. Even going further on this point Mr. Justice has also mentioned the use of Artificial Intelligence (AI) in the administration of Justice.

Though it is quite clear that humans should be the ones to control and regulate these technologies but the question which the author attempts to follow and answer of the Mr. Justice should not be restricted to the binary of machine or the human. The issue is about the term ‘smart human’ or ‘drivers of change’ -a new dimension or class within humans. Further, it's about who will be or who are these humans which should have the capacity and authority to control these technologies. As we know, the technologies we are using have become an inevitable means of production which are not only a symbol of leisure or comfort but are necessary to survive in this digital system, especially when everything is done online. We do not make a Gmail, Twitter, and WhatsApp accounts just for enjoyment but these have become a medium of modern communication to keep hold with the system, like now official statements by the State are being made through Twitter accounts. Thus, at this time the right question to be put forward is who are these Humans who should control these technologies. Unfortunately, the Corporate private world is the present Godfather of these technologies and when we know the Corporate is the structure that only survives on the principle of profit, will it be just and safe to let them indirectly control the administration of justice which time and again people have established with their Will vested in the State authorities representing the symbols of the democratic system achieved by the people. For the better understanding of how Corporate can shape the democratic setup, kindly look at the Facebook’s Cambridge Analytica Data Scandal.

We know that the earlier it was the public investments and institutions which contributed to the development of these technologies (refer to The Internet Should Be a Public Good by BEN TARNOFF published in JACOBIN) but at present, it has merely become a tool of Corporate, indirectly controlling the society which is dependent upon it. Thus, if the similar process of dependency upon the technologies, especially AI ,on which more efforts are being made to bring in the field of Justice, how can we assume that it will not favour its Godfather. Moreover, how can we say that these private players will not affect the functioning of the democratic system when it will come to choosing between values and profit (basic principle). Thus, somewhere the dependency and reliability upon it will bring us to a stage of Digital Dystopia, where though in books and letters we are in control of the system through our elected authority but in reality, it is these corporates who are rock n’ rolling us on their lyrics and music.

I’m nowhere arguing against the use of these technologies, as means of production have always been a tool of human development and betterment but the question is about the authority and control over this means of production. As we also know the Indian Constitution in its principles talks about Justice: social, economic, and political, and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. But the dependency upon the present discourse of technology will, unfortunately, take us away from these goals, mainly from the idea of democracy and authority of those in whom masses have entrusted their will.

So, the right question to be posed is who should be in control of these technologies constructing a way for the delivery of justice, as who will be these humans to be at the driver seat?

BY : Himanshoo Atri