Governance and Social Justice (E-Governance- Applications, Models, Successes, limitations, and Potential) by Abhishiekh Saxena

Model Answer

Question #1.India's push for e-governance faces a serious challenge from the weak cyber security system and infrastructure in India. Analyse. 10 marks (150 words)

Approach:

• Introduce with a fact or statistics or recent news regarding cyber threats
• Explain how weak cyber security system poses a challenge to e-governance plans
• Mentioning government steps, suggest measures to secure cyber systems
• Conclusion

Hints:

E-governmence is seen as an instrument to simultaneously increase the efficiency, transparency and accountability of public administration and improve public service delivery. In E-Governance, governance makes best possible use of internet technology to communicate and provide information to common peoples and businessman. However, cyber security becomes sine-qua-non for smooth functioning of e-governance systems.

Cyber threats and vulnerabilities pose following challenges to e-governance implentation:

• According to the World Economic Forum's (WEF's) Global Risks Report 2019, "The largest (data breach) was in India, where the government ID database, Aadhaar, reportedly suffered multiple breaches that potentially compromised the records of all 1.1 billion registered citizens. 
• A recent investigation by The Tribuneuncovered that anonymous individuals were ready to sell the Aadhaar card details of any individual with an Aadhaar number against the payment of a sum of Rs 500. 
• While Aadhar is a very important enabler in accessing government aid and targeted subsidies, such data thefts expose the lacunae in cyber security systems and the fact that genuine beneficiaries may remain excluded from public services.
• Recently, a data leak related to users in India, over a million medical records and 121 Mn medical images of Indian patients, including X-rays and scans, have been leaked online to be freely accessible by anyone.
• According to German cybersecurity company Greenbone Networks, the patient records and scans and images from India also include details such as the name of the patient, their date of birth, the national ID, name of the medical institution, their medical history, physician names and other details that are meant to be classified.
• People who have been infected with the coronavirus are staring at a new kind of privacy breach, with their leaked health data being allegedly used by insurers and lenders to take a call on, say, their insurance premium.
• Sensitive data related to around seven million credit and debit cardholders has surfaced online through dark Web. The data included not only the names of affected Indian cardholders but also their mobile numbers, income levels, email addresses, and Permanent Account Number (PAN) details.

It is evident that the level of secure cyber infrastructure that is essential for pushing forward the agenda of National e-Governance Plan and Digital India are not yet ready. Despite being an IT powerhouse, India’s cyber security infrastructure and preparedness is below par. While data security and privacy are the most talked about priorities, there have been many data thefts ranging from personal data, financial and health data to extremely critical government data.

An end result of a weak cyber infrastructure in failure in passing on the benefits of e-governance to the citizens, fall in service delivery, exclusion of beneficiaries and leakage of sensitive data.

Thus, to gain the fruits of e-governance, cyber security infrastructure needs a revamp in following way:

• Establishing security ratings: The government needs to develop a quantitative framework that they can use to evaluate security infrastructure of both companies and government departments. Similar to companies like Crisil and ICRA which do credit ratings, there are companies like Bitsight and Security Scorecard that have developed security ratings.
• Set standards around cyber-hygiene: Another way the government can help drive market solutions is by setting standards around cyber-hygiene for critical industry verticals like banking, insurance, telecommunications, and retail. The "Cyber Swachhta Kendra" (Botnet Cleaning and Malware Analysis Centre) is a part of the Government of India's Digital India initiative under the Ministry of Electronics and Information Technology (MeitY) to create a secure cyber space by detecting botnet infections in India and to notify, enable cleaning and securing systems of end users so as to prevent further infections.
• Enable legal frameworks for companies to share and exchange data: There is limited information flow today between companies and government. There is also minimal data sharing between companies, as people are worried about legal liabilities and reputational damage by disclosing data around breaches and malware. We need a better legal framework that allows more data sharing so that companies can team up against external threats, learn from each other, and benefit from each other’s solutions.
• Establishing institutional capacities: A National Cyber Security Command Center, such as the recently announced National Cyber Security Center created by IBM for Australia, would boost India’s cyber security defenses, make Indian businesses globally competitive and create a safer Digital India
• Implementing BASEL III which requires financial institutions to have robust data architecture and IT infrastructure to provide an automated process to correctly identify and combine all material enterprise risks

Conclusion:

Providing public sector information and services online poses profound challenges to security and citizens’ trust in Governances, including threats to identity, privacy and data systems. Thus, safeguarding data and systems is of pivotal importance since it can influence Governances’ and users’ willingness to adopt the online services offered. The policy aims at facilitating creation of secure computing environment and enabling adequate trust and confidence in electronic transactions and also guiding stakeholders actions for protection of cyber space.National Cyber Policy offers a vision to strengthen the cyber defence systems

Question #2. There is a growing need for the creative technology-assisted alternative dispute resolution process in India. Critically Analyse the statement while highlighting the recent transformation made in this area.  15 marks (250 words)

Approach: 

• Contextual Introduction to the Online Dispute Resolution (ODR) in India
• The ODR in India-The Legislative Framework .The Significance of the ODR in India
• Advantages of the ODR .Disadvantages of the ODR
• Way Forward
• Conclusion

Hint: 

The NITI Aayog, in association with other key stakeholders, has called for advancing Online Dispute Resolution (ODR) in India. The ODR is a resolution of dispute outside courts, particularly of small and medium-value cases, using digital technology, a technique of alternative dispute resolution, such as negotiation, meditation, and arbitration. 

The NITI Aayog has also launched a handbook on the ODR; the handbook will be an invitation to businesses to adopt the ODR in India. Moreover, while the courts are digitalized through the efforts of the judiciary, a more effective, scalable, and collaborative mechanism of containment and resolution is urgently needed. 

The ODR in India: 

The Legislative Framework: 

1. The United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration in 1985 and the UNCITRAL Conciliation Rules in 1980 call for the adoption of measures that seek an amicable settlement of that dispute by recourse to conciliation. 
2. Moreover, the Indian Arbitration and Conciliation Act provides for a mechanism for alternative dispute resolution (ADR) for national, and international stakeholders. 
3. A high-level committee headed by Justice A.K. Sikri (Retd), which was constituted by the government last year to suggest measures to advance access to justice through ODR, has called for umbrella legislation backing online dispute resolution (ODR). 

The Significance of the ODR in India:

Judicial Backlog: 

According to reports from the National Judicial Data Grid and the Supreme Court, at present, there are 3.9 crore cases pending in the district and subordinate courts, 58.5 lakh cases in the various high courts, and more than 69,000 cases in the Supreme Court. This data makes it not only significant but inevitable to access justice in an effective manner. 

Pandemic, and Post-Pandemic Set-up: 

During the ongoing COVID-19 pandemic, the target is to look into the COVID-19 related disputes, such as lending, credit, property, medium and small enterprises (MSE), commerce, and retail, etc through the ODR, which is important for the economic rejuvenation. 

The framework will set into motion the use of technology towards efficient and affordable access to justice, especially in post-pandemic times.

Expeditious Justice: 

The ODR Framework is not only less forbidding but also increases the probability to access justice, as it seeks to unclog the courts by offering online alternative dispute resolution (ADR) mechanisms. In coming times, the ODR could be the mechanism to assist the parties in achieving the expedient resolution. 

The Characteristics of the ODR: 

Voluntary: Parties are allowed to choose to participate in ODR as a dispute resolution mechanism; however, they may pursue their claim through a different forum too. Similarly, parties are at liberty to withdraw at any time as they desire.

Informal: The tone and setup of the entire proceeding are informal and casual as against ADR proceedings such as mediation or arbitration.

Confidential: Unless otherwise agreed by the parties, the entire process of ODR is strictly confidential.

Advantages of the ODR:

1. A Relief for the Court: The ODR Framework helps to relieve court congestion.
2. Community Participation: The Framework enhances community involvement in the dispute resolution mechanism. Parties to ODR can themselves negotiate their settlement with the help of an independent mediatory. Thus, ODR sessions are flexible and non-afflicted with rigours of rules of procedures.
3. E-Transaction: It is an appropriate alternative to exchange documents online through e-mediums. Since the venue of proceedings is pre-decided, that is through virtual calls, it becomes relatively cheaper as the documents need not be sent through posts and can be delivered online.
4. Digitalization of Records: ODR enables the recording of oral or visual communications, statements, and pleadings, which solely are dependent upon digital records. It eases the process of storing data.
5. Accessible Justice: The Framework paves the way for accessible justice. It is a non-confrontational apparatus where the litigant is not expected to appear in courts, and the responsibility to resolve the dispute is adjudicated to ODR, which only gives insight into the merits of the case.
6. Cost-Effective: Cost plays a major role in a civil or criminal case. The ODR Framework is an economically feasible process that reduces the undue cost spent on litigating procedures. 
7. Time Saviour: The process of the ODR saves time as well as effort. On one hand, where litigation proceedings last for centuries, and ADR sessions carry on for a long and take months to pass an award, the ODR mechanism takes only a few weeks to pass awards for the conflicting parties.

Disadvantages of the ODR: 

1. Lack of Accountability: The process is not as easy as it seems. It can cause misunderstanding between the parties and the adjudicating authority. It becomes difficult to judge the accountability of the witnesses and parties. 
2. Lack of Interaction: The process lacks face to face interaction, thus it can hamper the credibility of parties that reside in different countries and commute in different languages. As the whole process takes over the internet, it lacks face to face interaction.
3. Limited Area/Subject-Matter: ODR is only suitable for a limited range of subjects such as e-commerce, domain name, etc, and may not be suitable for grave disputes like trespass which requires discovery and claims, defamation, and so on.
4. Lack of the Data Protection Regime: Adequate confidentiality cannot be ensured. Though data protection law is implemented it becomes difficult for the authorities when hackers try to hamper the information.
5. Jurisdictional Issues: The Framework may give rise to jurisdictional issues. In the case of international law, four things are to be kept for consideration:

1. Details and merits of parties;
2. The redressal to obtain the claim;

• Law to be applied for arbitration proceedings; and

1. Conflict of respective country’s rules applicable to each of the foregoing laws.

6. Cumbersome Mechanism: While the arbitration was intended as an alternative to going to court for certain kinds of disputes, that mechanism itself has become cumbersome and often expensive.
7. Lack of Expertise: Another challenging factor in the framework is that there is a lack of enough arbitrators and building trust among consumers. Moreover, we have a lack of experts in various specific areas that the resolution process deals in. 
8. Inadequacy in Digital Penetration: We are one of the highest internet users in the world; but, we need to build up a requisite digital ecosystem for establishing a better understanding of its functionalities. 

Way Forward: 

1. Creation of National ODR Platform: The government must create a national ODR platform to help mainstream the process. The government must put together a team of technology experts, technocrats, and other experts to create a blueprint for a national ODR platform, and subsequently make a sufficient budgetary allocation towards building, maintaining, and evaluating it
2. Private Participation: Private ODR and ADR providers need to be added to the system to ensure that online resolution can reach different industries, locations, and parts of the country and also support the public institutions.

Multi-stakeholder exercises need to be undertaken to help achieve this in a sustainable, efficient, and collaborative manner for the transformation of justice delivery across various facets.

3. ODR Entrepreneurship: For all kinds of dispute resolutions, there are relevant Acts and procedures, so for ODR as well, a platform that would regulate practices is needed. This is especially important since there will be several startups that offer ODR services in the country, and persons other than judicial officers could be allowed to perform the role of ‘neutrals’ or dispute resolution professionals. 
4. Mandatory Implementation: Making ODR or ADR voluntary will defeat the purpose so it should be made mandatory (for specified categories) and it should cover about three sessions so that parties don’t feel that it’s a mere formality.
5. Enhance Public Outreach: More recognition should be given to the online redressal processes so that its idea reaches people and they can use these online processes.
6. Independent Government Regulator: While the platform will not interfere in day-to-day ODR mechanisms, an independent government regulator has its value. Hence, it is important to establish an independent regulatory body to look into the fair ODR mechanism. 
7. Change in the Mindset: There needs to be a fundamental change in the mindset to separate the idea of justice from the place called, court. In India, people still take in the justice system by the Courts; it is important for us to spread awareness, and build more understanding over the alternative methods of dispute resolution. 
8. Hybrid Model: With the changes in resource utilization due to the pandemic, the future will be a hybrid model that combines the best of the real and the virtual world. People need to reimagine the whole process of justice delivery to work in the hybrid system.

Conclusion

ODR has the potential to be an effective alternative to raise equity, fairness, access in the dispute resolution ecosystem in India. Supply-side capabilities could also be enhanced through a relatively large and competent services pool for adjudication and representation. The need of the hour is to maximize the reach of access to the justice delivery system to all the sections of society. 

A strong infrastructure for easy access and for ensuring that justice must be delivered in minimal time and in an adequate manner by increasing literacy rate, reducing language and cultural barriers, and easy access to the ODR platform might be the stepping stone towards the achievement of the same. Thus, the step to advance ODR is a key to facilitate global harmony and encouraging international relationships in cross-border disputes.