By Dilip Bobb
Last week, two Supreme Court judges travelled 5,000 miles to Kenya. No, not for a wildlife safari, but for a week-long engagement between the two Supreme Courts. Justices BR Gavai and Surya Kant were attending a session where both sides discussed the theme: “Justice delivery and the adoption of technology within the judicial system”.
Justice Gavai participated in a discussion on possible ways of collaboration between the two Supreme Courts while Justice Kant took part in an interaction on optimising service delivery in the judiciary and best practices, challenges and innovative solutions. Both judges will also deliver addresses at the law school of University of Nairobi.
Martha K Koome, chief justice and president of the Supreme Court of Kenya, will also be part of the interactions during the week-long judges’ meet. Koome, the first woman justice of Kenya, visited India in 2023 where she attended a Supreme Court hearing and sat with the five-judge Constitution bench.
The Kenya legal safari was not just a one-off meeting of judicial minds. Sharing of experiences and discussions on events that impact judiciaries across the world is actually an on-going process. In this case, the discussions in Kenya took place at a time when technology has raised several legal questions about the right to privacy, protection of personal data, surveillance, artificial intelligence and the governance and guardrails for such emerging technologies. Justice Gavai, on his part, said that protection of personal data was an integral part of the right to privacy which was, in turn, part of right to life. “Courts are increasingly being called upon to balance freedom of speech and expression with the need to curb misinformation and online harassment,” Justice Gavai told his Kenyan counterparts. What is the common linkage between the two judicial bodies is that both are developing countries and are still striving to define the limits of digital rights and government regulation of digital platforms.
Justice Kant referred to the recent case involving YouTuber Ranveer Allahbadia which was heard by a bench he headed, and had asked the government to deliberate and devise the contours of free speech on social media. Justice Gavai added that courts around the world will need to “ensure that technology serves as an enabler of justice while safeguarding constitutional rights, a key challenge in the year ahead.” He also proposed closer interaction between judiciaries of the global south. “Both India and Kenya are large populations that face barriers in accessing legal services. Joint initiatives could include setting up mobile courts in remote areas and increasing pro bono legal work. A collaborative approach could ensure that legal aid schemes are efficiently implemented.”
Justice Gavai was expansive on artificial intelligence and its drawbacks. “The increasing reliance on technology in the judiciary has emerged as a response to longstanding institutional challenges, such as case backlogs and procedural inefficiencies, while also serving as a means to strengthen and modernise existing systems for improved functionality. Solutions based on artificial intelligence are transforming various aspects of the judiciary,” he said. He, however, underlined the significant risks surrounding the use of AI in legal research referring to instances where a platform like ChatGPT generated “fake case citations and fabricated legal facts.” He said: “While AI can process vast amounts of legal data and provide quick summaries, it lacks the ability to verify sources with human-level discernment.
This has led to situations where lawyers and researchers, trusting AI-generated information, have unknowingly cited non-existent cases or misleading legal precedents, resulting in professional embarrassment and potential legal consequences.” AI was also being used to predict court outcomes, triggering debates on its role in judicial decision-making, said Justice Gavai. “This raises fundamental questions about the very nature of justice. Can a machine, lacking human emotions and moral reasoning, truly grasp the complexities and nuances of legal disputes?” the judge asked.
Kenya can learn a lot from Justice Gavai and Justice Kant considering that the African nation’s Supreme Court is one of the youngest in the world, having being set up in 2010, under a new Constitution. Justice Gavai is next in line for the post of chief justice. Besides being among the senior-most judges of the top court, he is the executive chairman of the National Legal Services Authority. The next in line for the top judicial post, after Justice Gavai, is Justice Kant, also chairman of the Supreme Court legal services committee and chief patron of the Commonwealth Legal Education Association.
It may not be strictly global in terms of scale and collaboration, but there is increasing exchange of views on contentious and emerging legal issues between Supreme Courts, especially those of the Commonwealth and the Global South, consisting of countries from Asia, Africa, Latin America and Oceana, also loosely dubbed as the Third World. Last Year, India hosted chief justices, judges and law ministers of Global South nations which formulated the “New Delhi Principles on the Role of Judiciary in Ensuring Equal Access to Justice for All.” Indian courts collaborate with courts from other countries through various mechanisms including hosting conferences, participating in judicial exchanges, sharing best practices on legal administration, and referencing foreign case law, particularly when dealing with cross-border issues, demonstrating a growing trend towards international judicial cooperation, with a focus on learning from other legal systems and promoting access to justice on a global scale.
While not directly bound by foreign judgments, Indian courts see benefits from relevant international case law and principles when interpreting domestic laws, especially in cases with transnational elements in areas like commercial law, cybercrime and cross border litigation where international cooperation is required. In fact, judgments from the higher courts in other countries are often cited by the Indian Supreme Court. The most notable and far-reaching include Justice KS Puttaswamy vs Union of India which established that right to privacy is fundamental, citing judgments by courts in other countries, notably the US Supreme Court. Similarly, the judgment in Aruna Shaunbag vs Union of India which allowed passive euthanasia in India, relied on foreign judgments since there was no Indian law on the subject. There was also the decriminalization of Section 377 (which criminalized consensual sexual acts between people of the same sex, a British colonial legacy). Citing US court decisions, the Delhi High Court ruled that Section 377 violated fundamental rights. Also, in judgments relating to freedom of the press, the Supreme Court relied on the judgment of Kovacs vs Cooper in the US, which considered freedom of the press to be of utmost importance.
India also hosted the international conference of Commonwealth Attorney and Solicitors Generals Conference 2024 organised by the Commonwealth Legal Education Association and the ministry of law and justice. The then Chief Justice of India (CJI) DY Chandrachud had remarked that global collaboration and trust building is key to address diverse cross-border challenges to justice delivery. “In today’s rapidly evolving world, characterised by an array of pressing issues, the need to fortify institutional capacity is more urgent than ever before… Courts not only refer to the jurisprudence evolved by courts of other jurisdictions while deciding questions of constitutional importance, but also refer to the best practices on the administrative side,” he said, adding: “I am compelled to underscore the significance of global collaboration and trust-building in addressing the diverse cross-border challenges to justice delivery… by fostering partnerships and sharing best practices, we can amplify our impact and pave the way for a more sustainable future,” said Justice Chandrachud addressing the law officers of 30 countries who had assembled for the two-day conference in New Delhi.
In addition, the judiciaries of Singapore and India had signed two Memoranda of Understanding (MoUs) on September 7, 2023, to promote bilateral judicial cooperation. The two MoUs affirm the common cause of promoting access to justice and collaboration in judicial education and research between Singapore and India. The scope of collaboration covers judicial education and training, leveraging technology to enhance access to justice, as well as promoting multilateral fora for judicial engagement. The Indian delegation headed by then CJI Chandrachud was on an official visit to Singapore for the inaugural Singapore-India Judicial Roundtable, which is to be held annually following the signing of the MoUs. These meetings serve as a platform to exchange knowledge, discuss mutual areas of interest, and advance collaboration and cooperation between the two judiciaries.
At the opening of the Roundtable, Singapore’s Chief Justice Sundaresh Menon said: “In the dynamic and interconnected world in which our courts operate today, we will be confronted with legal issues that will prove to be increasingly difficult; will increasingly transcend jurisdictional boundaries; and may increasingly be shaped by developments that go on in other countries. As we navigate this changing world, platforms that allow us to learn from one another’s rich experiences and insights will take on even greater
importance and significance; and this Roundtable is well placed to provide an invaluable forum for members of our judiciaries to engage in in-depth discussions on topics of mutual interest.”
What is abundantly clear is that increasing global trade and commerce, emerging technologies, and the explosive growth of artificial intelligence has made such collaborations more urgent and necessary.
—The writer is former Senior Managing Editor, India Legal magazine