Artificial Intelligence and the law
By Ankur Kushwaha, IIM Indore (Doctoral Scholar), 1 October, 2020, 04:30PM
The beginning of digital age and the age of Artificial Intelligence
Ever since the dawn of the digital technology which roughly started with IBM 650 in mid-1950s and 1960s. Since then, we have come a long way to the new age of computing. Although we refer our contemporary times to be a digital age but without its roots being laid down back in 1950s, it wasn’t possible to make this long journey and progress in the field of computer science. Artificial Intelligence (AI) being the next big leap in the technological advancement is the potential enabler for many sectors. These sectors can certainly benefit in terms of efficiency, and also in terms of accuracy. We just need to see if the tradeoff cost while making a transition from human intelligence to artificial intelligence be borne by us or not? If yes, then to what extent? In making such a transition we need to ensure that this transition is peaceful and sustained and without any compromise with human interests. Any technology which comes with certain advantages also comes with some disadvantages attached to it by the very nature of its existence. Artificial intelligence which has developed recently to an extent that businesses across the world are benefitting out of it immensely. During last 3-4 years the integration of software with hardware has been really successful and that is evident in tools like predictive modeling. Predictive modeling basically uses all the data which already exists and predicts the best possible solution for a particular problem. Now, technology like this can really be helpful not just for a specific sector but it can be applicable in all the fields. There are some sectors like automobile which largely rely on automation which is nothing but artificial intelligence at work. While there are others like medical science, aviation, etc. which require artificial intelligence as ancillary unit to enable them in performing their functions.
Can Artificial Intelligence offer us anything in the field of law governance?
Use of artificial intelligence in governing laws is a debatable issue. But it has much to offer us, if understood correctly and with the right mindset. An assertion is always made by a large section of the scientific community and the social scientists that the artificial intelligence cannot have the same qualities as to what we as humans possess. But, the truth is we still don’t know if human emotions like empathy, humility and other positive traits which make us human can be instilled in the machine or not. Maybe we can answer this with more clarity in the times to come with more such technological advancement in this field. But to understand how we can use the existing technology and integrate it with the required sector we need to understand the nature of that sector and the limit to which we can integrate the AI. In our case this sector is the governance of law and order in our society. Law contains two branches i.e. civil and criminal. How and to what extent application of AI can be extended to these two branches is a question of great importance and an in-depth study of this is must before integrating AI with the field of law. To the question whether AI can help in bolstering the governance of law in a system or not, we only can answer after properly analyzing the system of law governance in our society and more specifically in the Indian context.
Artificial Intelligence and Civil Law
In a country where there is an acute shortage of the number of Judges artificial intelligence can certainly turn out to be a boon. Also, for those who are struggling in a legal battle since years. It’s futile to say that justice delayed is justice denied because if that may be the case then there are at least 30 million cases awaited for justice delivery. We can never account in actual terms for how much burden such delays put on exchequer. There are total 8847023 civil cases pending with the Indian courts and 6347080 of them are those cases which are pending for more than a year. A simple calculation reveals that 2499943 cases were left pending in year alone. Special courts have been instituted to fast track the justice delivery system in the past. It was also successful in bringing down the pendency of cases. Here we are referring to the National Lok Adalat which cleared the pendency to a significantly large extent. Data of one of the National Lok Adalat’s which was organized on 10th March 2018 reveals that 1263474 cases were disposed of. Now, this raises our brows to the question that the judiciary which is not so efficient to dispose of 2499943 in a year suddenly becomes world’s most efficient judiciary in a day. There must be a large number of flawed judgments and anyone can see that with the data being provided to us. The current system for justice delivery is not totally flawed and can be improved greatly with the inclusion of new developments like artificial intelligence. Now the question arises as to how we can use artificial intelligence to increase the efficiency of the current justice delivery system? In civil cases where there is a provision of damages only, we can maintain a database of all the civil cases preferably the landmark judgments of the Supreme Court and various high courts. The next thing will be predictive modeling software handy with the judges who now can use this tool to match with their requirements (facts of the case and similar cases) or the information be introduced to this software setup itself and it predicts on its own for the best probable outcome with the proper citation of the leading cases. But, now the question of the discretionary power as to delivery of the judgment arises. Is it the artificial intelligence (the Robot) or the human judge who has the ultimate power of pronouncing the judgment? Now if we leave this question of judgment delivery to the machine then there would be a strict follow-up of the rules setup by the machines themselves and there will be no margin for change if desired so. Because we know that emotions like empathy can still not be a part of a machine’s character. On humanitarian ground sometimes judges also want to deviate from the already passed judgments. This discretion of judges would vanish if we leave everything to the machines. There is a high place for a judge’s conscience and a high regard is attached to his status in any society around the globe. So, whatever judgment is passed by a judge should be his own discretion. But, we strictly need to draw a line as to what extent machines can interfere with or enable any human task. In petty cases where there the severity of the wrong is far too less than the economic cost incurred by the State machinery to hold and run it with itself for justice delivery, we can setup an automated justice delivery system. For example, jumping a traffic signal is a wrong and we all are aware of it. Now, can automated fine be delivered for such a wrong? There is no doubt to it that in certain cases where severity of wrong committed is less significant then immediate delivery of justice to people is the need of the hour. Also such responsive justice systems also make people to follow the rules and laws of the system more often. In those cases we can fully integrate justice delivery system with the artificial intelligence. Use of AI doesn’t mean that such judicial system becomes impeccable. So, in the light of any failure there should be a proper provision of taking control over such systems.
Artificial Intelligence and Criminal Law
There are in total 21996675 criminal cases pending with the Indian courts. Now the situation with the criminal cases is completely different and the application of artificial intelligence to it is much more difficult a task as it is to climb the Mount Everest. We again here in the criminal cases can maintain a database as we can in the civil cases but the use of it can be fruitful on one hand but can also be detrimental to a large extent on the other if not understood well. In criminal cases where fact of each case is completely different from the facts of the other case being referred to, it is hard for a judge to completely rely on a certain case law. In fact sometimes he needs to go through a lot many similar cases to reach his conclusion and of course in the end what matters is his own conscience. The facts of the criminal case are generally intertwined which again has barely anything in common with the cases which are even similar to that particular case. In such a scenario integrating judicial system with the AI technology becomes a complex task. However, a small push in this direction can make us learn from our own experience. We should first of all initiate a process to establish a framework for the artificial intelligence in the field of criminal law. A database like that of civil matters but on a separate one from that of civil database be maintained. This database would be helpful in reaching a judgment by the judges. Maintaining database is not the key issue here but a prediction software which not only enables the judge to find similar cases to the one he is working on but also deciphering all the similarities of the case he is currently working on with ones which he has been referred to. Also, there are other already existing databases which are both by private and governmental organizations but when we are referring to a database then it means a reliable and an authoritative database from the government itself. More so, the existing databases have nothing (predictive software) which enables judges’ to mine cases of their interest. In criminal cases it is always about the life and death of an individual and anything related to it cannot be left alone in the hands of the private individuals.
Artificial Intelligence and Morality
Can a machine act like a human? It is the big question of our time and is a major cause of concern for many around the world and it includes the likes of Elon Musk who is owner of leading AI Company and famous physicist Late Stephen Hawking. To them if we leave everything to AI then it has the potential to take over the world from humans. Well, it maybe true to some extent but it doesn’t mean we need to stop technological advancement in this direction. Rolling back what already has been done is never a great idea. Taking it forward and considering options which only take the society at large towards development is not only wise but also conducive for coexistence of humans with these machines. Without technological advancement we could have never reached to this stage where we can even discuss about the morality of the AI. We can never put a full stop on the development when we know we can put fetters on machines at our disposal. Recently a humanoid robot named Sophia developed by Hanson Robotics an AI company had been granted the citizenship of Saudi Arabia on 25 October 2017. If we look into how advanced these human like robots are then it means how close are we to develop a machine which looks exactly like a human and does it all what a human can. Sophia in this case was designed to help in financial matters. But can a humanoid robot be a judge? That is a difficult question to answer as from where these robots derive their morality is still questionable. These robots are designed so that they mine data from the already available sources online and then interpret them for us. But the question here is if we can truly rely on the information provided by these robots? As we know there are a lot of information on the internet some are right and some are wrong. If we compare the right information on the internet with the good conscience of the robot then we can easily infer that wrong information will be the bad one. Hence, again robots will be like humans, that is, sometimes they will be good towards the work but equally on the other hand will be bad towards the task being provided to them. If these robots ultimately have to act like humans then what is the point in replacing humans with the humanoid robots. We cannot for surely say that if these machines will be good or bad for us but one thing is for sure that we need these machines to some extent to increase the efficiency in completing our various tasks. None can deny this fact and we should rather embrace what has to come than negating it.
Application of AI in legal studies and research
Recently Chief Justice of India made an assertion that more students should opt for legal profession after completing their law studies. He said that not many students are opting for legal profession and they are more into law firms than becoming lawyers. According to him lawyers are the ones who interpret and mould laws and ultimately help judges laying down the legal proposition that has a binding effect on generations to come. Now, if the aspirations are so high then can we settle down to an inefficient judiciary? Of course not! Students are opting out of legal profession not because of lack of opportunity but there is a mix of both inefficiency and also the struggle they face at the start of their career as a legal professional. In short it is more about the existence of an unprofessional culture and exploitation faced by these budding lawyers at the hands of already existing legal professionals in the system. Low pay or sometimes no pay at all is offered by senior advocates to the new entrants in the name of gaining some experience which only they can provide to this new entrant. But, it has also to be determined if merit is well appreciated or not in this system. Now, what can AI offer us in honing the skill of new entrants so that he doesn’t get himself into the traps of senior lawyers? Educational institutions in order to impart a good legal education have a bigger role to play than the system itself. While imparting such legal studies they have to ensure is students are gaining something out of already existing programs like moot court, mock trials, legal aid, etc. or not. With the use of AI, educational institutions will not only empower budding lawyers to enter into judicial system fearlessly but also make them efficient lawyers at the same time. Efficient lawyers here stand for those lawyers who do not want to delay the judicial process which ultimately ends in justice delivery. An efficient lawyer would never want to delay the case he works on just because he has a reliable income from the case he is already working on. But, an efficient lawyer looks forward to wind a case as soon as possible only to work on the next one. This type of professional behavior can seldom be observed in present day lawyers. To empower these new entrants there should also be an AI setup where a well equipped AI can provide a realistic view of how and what all a new lawyer is supposed to do since day one of his legal career. An interactive Q & A form of setup must exist for the students of legal studies which they can truly rely on for their queries rather than a senior lawyer. In this digital age information should come handy but it has not happened so with the legal studies. Majority of students of law are technologically challenged and it has become necessary to include in their studies some kind of minimum literacy about information technology and artificial intelligence. A country which earns most through IT service delivery to the world, the development of such a nation cannot be an all encompassing unless it integrates all its sectors with IT and its enabled services. A lopsided development is neither in favor of national development goals nor with that of becoming a part of the new globalized world.
Citizens and AI enabled legal system
AI in real sense is not just for one but for all. It offers to each one of us solutions to our complex problems at a bare minimum cost. Remember our earlier example of automated fine for breaking traffic rules? If such a system exists where breaking of a law results in instant slapping of fine, then it results into saving a lot of administrative cost on one hand and on the other minimizing almost all the inconveniences caused to the citizens for petty issues which can be solved with the touch of a button. Sometimes the common man is made to feel guilty for petty offences which are not even sometimes accounted for as a big wrong. For example someone borrows a sum of Rs.1000 and defaults it. Now this simple problem which can be solved through just an order of the court doesn’t actually need a lot of legal battle which also puts some cost on the exchequer. It is both in favor of judiciary and citizens that petty cases like these be solved as quickly as possible and reducing the possibility of any pendency at the same time. Solving this type of cases quickly also means that judges and lawyers can give more time and effort in dealing with complex cases. That not only results in a true delivery of justice but also firmly establishes a sense of satisfaction in everyone involved in the case be it the judge, the petitioner or the lawyers.
Present status of technology integration with the judicial system
In 2005, eCourts project was conceptualized which was based on “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005”. Now it needs to be analyzed that if this project achieved anything so far towards its stated objectives or not. The objectives of this project were to provide for: (1) citizen centric service delivery; (2) develop and implement decision support system in courts; (3) automate the processes for transparency to the stakeholders; (4) Increase judicial productivity not just quantitatively but also qualitatively. Indeed to some extent the envisaged goals have been met to some extent. But, largely the judicial system still remains and inefficient machinery with millions of pending cases. Under the same project laptops were also provided to all the judicial officers and that includes judges of the subordinate courts. But do they have enough familiarity with the software designed for their usage? To make them familiar they should be provided with such literacy in this direction at their respective judicial training and research institutions (JTRIs). Without making them learn how to make use of online resources every effort in this direction would only turn out to be futile one. We know even in five year law courses provided by the educational institutions it is not always possible for these institutions to provide for an all encompassing education to their students. We do not assert that efforts should not be made by these institutions but judicial system cannot rely solely on education imparted by these institutions to law students. Any effort in this direction by educational institutions is always much appreciated. But even after completing a law course the law graduate before appointed as a judge is being imparted judicial training at JTRIs training in the field of law. Similarly when we know there is a future of India in information technology then ignoring it would be nothing but a huge mistake and would only make us realize this fact when the world would be 10-20 years ahead of us in times to come. Another problem with educational institutions being faced is that their course structure already includes so much that there is no space for adding much to it. Anything done in this direction would first of all put a lot of burden on the students, and secondly it may or may not invite some opposition by law students themselves as no one wants to be overburdened when they know law and information technology are two completely different fields. But, at some point in time each one of us need to understand this that without integration of these two fields advancement in its true sense cannot be expected, at the least not in entirety. Giving technology in the hands of these budding lawyers and judges would only empower them in future as lawyers and judges respectively. It would make them be efficient both quantitatively and qualitatively. Also it would not only make their burden of pendency far too less but also make the common man build their trust more on judicial system. It would not only build trust in common man that the judiciary not only works for them but also would give him the confidence that if anything wrong happens to him then that wrong doesn’t go unpunished.
Role of Information Technology (IT) industry in integrating AI with Judicial Processes
There is a greater role of the IT industry than anyone to be played as they are the only ones who are required to design these AIs to function as ancillary units for the judiciary. What IT industry has to offer to this field must be researched by them and solution for each task be informed to the law ministry so that it can be evaluated as to if the solutions actually work in the present setup or not. If it can somehow bring some positive change in the existing system then it should be first implemented on a pilot basis in some of the courts and then studied over a period of time. If the result turns out to be in our favor then it should be implemented throughout the country and in all courts. It has not to be done on the basis on “once and for all” but judicially in a staged manner. The target should be to implement this setup first in courts of small causes and then we can move further for a full fledged integration. But before IT professional can offer something to judges they should get full access to the court records and other such logistical support which is required by them in order to put things in order. Without access to all these records they won’t be able to maintain a proper database and henceforth fully functional AI units. Of course how it has to be done must be the concern of law ministry and ministry also should come out with lucrative plans for the IT industry to do some research in the field of law. It can be done on the basis of partial subsidy provided by the government itself to the IT professionals or leading companies in the field of IT.
It’s not always required that certain section of the society should come forward to bring some change. Sometimes it is also the opinion of the masses which changes the course of history. Throughout the history it has always been the efforts of society as a whole which has brought about the major change. In our context also if a public opinion is formed then it would put a lot of pressure on the government in general and law ministry in particular to take some efforts in this direction. It is not just for the sake of an efficient judiciary but also for the citizenry themselves. A complete integration of AI in civil matters and a limited integration of it in criminal matters is being sought and it is the need of hour. IT industry must also come up with the ideas of how they can make judicial processes easier than a hefty process which takes years to reach its finality. The solutions provided by the IT industry will be of a greater value as the ends have to be ultimately met by them only.