Open Access Research Article
ARTIFICIAL INTELLIGENCE AND CENTRE FOR RESEARCH AND PLANNING By: PARAS CHAUDHARY
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Article Details
ARTIFICIAL INTELLIGENCE AND
CENTRE FOR RESEARCH AND PLANNING
Authored By: Paras Chaudhary
Designation:
Research Scholar
Institution:
University of Delhi, Delhi
Educational
qualification: Ph.D. (Pursuing), LL.M., B.A.LL.B.
E-mail id:
pchaudhary@law.du.ac.in
Address:
#455, Sector-7, Karnal, Haryana (132001)
Mobile no.:
9991119964
Abstract:
The article aims to propose a crafty
solution to one of the most stubborn problem at hand, in judicial appointments
to the courts of records. It is one such problem that still eludes a workable
solution for reasons more than one. The present mechanism in place for judicial
appointments to Supreme Court and High Court is facing some strong criticism
and had it not been the refusal to change by the Supreme Court this collegium
system of appointments would have long gone. In this maze, one strong argument
for change is the absence of a Secretariat, which can not only scrutinizes the
name of candidates for appointment but also, proposes the names to collegium.
The Centre for research and planning will go a long way in meeting this need of
the hour.
The Collegium system of appointments
adopts a method for a crucial task and if it does not promote nepotism it
certainly adopts a method of “pick and choose” in the judicial appointments. It
inter-alia has adverse effects on judicial independence. The sentinel built to
watch and protect judicial independence is failing to do the needful.
The fact of the matter is that
judiciary is over-burdened in its judicial affairs. The latest status of
pending cases presented by Law minister in Rajya Sabha states that the Supreme
Court has 71,114 cases pending. With 10,491 cases are pending disposal for over
a decade. However, it is not even a hidden fact that this combined with
administrative functions leaves little to no scope for analyzing the
candidature of a name proposed before it. So, the idea of CRP to do the needful
has merit.
But the work of researcher in the
field has suggested that judiciary has serious reservations against not only
giving up the present system but also to the idea of Secretariat to analyse and
propose the name to the panel of judges. Implementing CRP is a leap ahead of
the stagnant situation. The premise of the argument thought of and revealed in
research of author is that they fear the babus or officials coming under the
influence of candidates. The chances of corruption are too great. Corruption
may be of money or ideological or anything which should not have been there.
There is also fear of officials becoming too powerful and influencing the
outcome of the process. These fears are not ill-founded. So what seems as a ray
of hope in this technological age is use of artificial intelligence for
scrutiny and analyzing the works of a candidate.
The researcher proposes to give way
to the untapped field in the present appointment regime. But we are also aware
of the chances of danger of using technology in the field. However, there is no
field that is left untouched by the advent of technology and artificial
intelligence can solve many problems at the same time eliminating the threat of
corruption in the field.
Even it may seem, difficult to accept
what the researcher propose and harder by the judiciary to allow the change but
we should remember that necessity is mother of invention and if a pilot project
in this regard is successful then we surely can adopt the process. However, the
idea can be implemented by the experts in the field of artificial intelligence
under close monitoring of the judiciary with the help from resources of state.
Only then this idea can succeed.
Key words: Collegium, judicial
appointments, Secretariat, CRP, artificial intelligence.
Introduction:
In every civilized state
the judiciary is regarded as an institution independent of the legislature and
the executive. Indeed, the legislature, the executive and the judiciary are
regarded as three organs of the state which are functioning as independent of
each other. Our Constitution adopts this scheme. The framework of the state in
India is based on three pillars, namely, legislature, executive and judiciary,
and each of them has been treated as separate and independent of others. This
is an additional reason why judiciary has to be regarded as
independent.
The Constitution was
framed on the foundation of a century old tradition of the independence of
judiciary already established in India. All that was needed to continue the
independence of judiciary. Thus independence of judiciary was assumed as a
reality and also as desirability without question.
The Constituent Assembly
discussed several aspects of this independence out of these, it is necessary
for the purpose of this paper to consider the method of appointment of High
Court and Supreme Court judges and how this process can be facilitated by use
of artificial intelligence.
With paucity of space and
necessity of focusing on the task at hand this research article seeks to deal
with two things. First that whether the appointment process in place is
justified and if it is, how the changes can be made within the system itself to
deal with shortcomings of the process? Amongst the proposed changes in the system,
the article narrows on the need of CRP for the short listing of candidates or
responding to the inputs provided by collegium and assisting the collegium to
make informed decision.
The researcher has been
in the process of conducting interviews of judges to gain insights about the
working of collegium and understanding the need for change, if required? In one
of the interview a retired Supreme Court Judge suggested that there is always
the possibility of para-legal staff becoming too powerful. The Hon’ble judge
without mentioning the name of the Chief Justice of High Court suggested that
the personal secretary of the Chief had become too influential. The Personal
secretary and the protocol officer’s are too difficult to deal with at times.
And the risk of over-powering increases with one moving lower the judiciary.
In an unequivocal voice
all the judges said no to greater say to executive in the process of
appointments. In an equally strong note all refused the idea of secretariat to
be implemented for recommending the names to the collegium. Even if the
executive goes ahead with the idea of secretariat, like N.J.A.C. there is
little to no chance that it will see light of the day. Yet implementing and
forming a Centre for research and planning is a welcome move from the top of
the brass by all means. Only CRP can be further facilitated by artificial
intelligence assisted mechanism. The CRP will be more helpful if idea of artificial
intelligence assisting CRP can be thought of without interference from extraneous
considerations and artificial intelligence can efficiently assist the judiciary
in assessing the value of inputs from the judiciary if not recommending the
names to it for appointment.
The Collegium- Is it theoretically
justified?
It is necessary to
understand in some depth the meaning of the article of constitution governing
appointments, in the background in which it was enacted and in the spirit it is
to be implemented. The background for centuries before the enactment of the
Constitution was that of the independence of judiciary as an absolute necessity.
After independence the spirit in which the article was framed was the
implementation of the constitutional value of justice. It is for this reason
that appointment of judges right from those of the Supreme to those of the
subordinate courts is dealt with by separate provisions in the Constitution.
The judges are not
regarded as civil servants. Indeed, part XIV of the Constitution which deals
with services under the Union and the states deliberately excludes appointment
of judges from its scope. A sharp distinction is, therefore, maintained between
appointment of civil servants and appointment of judges. The impartiality in
appointment of civil servants is ensured by consultation with the Union Public
Service Commission (U.P.S.C.) under article 320 of the Constitution. It is true
that such consultation has been held to be directory and not mandatory. But
this does not mean that even civil servants can be appointed arbitrarily by the
executive. Indeed, the annual report of the U.P.S.C. is placed before
Parliament and the views expressed therein by the Commission are respected by
Parliament. No government can afford to depart from the advice of the Commission
in the matter of
appointment of civil servants and any exceptional case in which such departure
is made is always explained by the government at the bar of Parliament.
Therefore, it is not the letter of the law that consultation is directory and
not mandatory but the spirit of the law which is acted upon even with regard to
appointment of civil servants.
This is even more so with
regard to appointment of High Court and Supreme Court judges. Unlike the
appointment of a civil servant which is made by an ordinary order, even if in
the name of the President, the appointment of a judge of court of records is
made by the President by warrant under his hand and seal. The appointment of a
civil servant is not signed by the President.
The President acts under
article 53 of the Constitution in exercise of his executive power through
officers subordinate to him. Under article 73, rules of business are framed.
Under these rules, the authorized civil servants act for the President and this
is regarded as the act of the President. But the independence of judiciary from
executive is different from its very inception, it is secured by the
appointment of a High Court and Supreme Court judge being made under the
signature of the President himself.
·
Advice
by the President
It is well known that the
real meaning of article 74(1) under which there shall be a Council of Ministers
with the Prime Minister at the head "to aid and advise the President"
is that the President has the power to advice and warn the government. That is
to say, even though the real power is exercised by the government, it has to
listen respectfully to the advice of the President. For, the President is
directly elected. He is above the government and is free from alignment with
parties. It is this position of impartiality of the President which is invoked
in the appointment of a High Court and Supreme Court judge. The spirit of such
appointment is that judges are appointed impartially and are independent of the
government.
·
The
meaning of "consultation’
Another safeguard to
ensure independence of High Court and Supreme Court judges in the appointment
process is that appointment by the President of a Supreme Court judge is made
"after consultation' with the Chief Justice of India and two senior most
judges and additionally two more senior most judges, the governor of the state
and the collegium of High Court for appointment to the High Court. Why? The
reason is also rooted in tradition and in reality. Traditionally, judges in all
civilized states are appointed by the head of the state in consultation with
the head of the judiciary. The Queen hears the Lord Chancellor in England. The
President of the United States hears the Chief Justice of the U.S. Supreme
Court. The purpose of such consultation is to ensure impartiality in the
selection of judges. What is impartiality after all? It boils down to selection
on merit and suitability. The appointment of High Court judges is made either
from the bar or from among the district judges. The quality and character of
members of the bar is best known to chief justices as well as judges of the
Supreme Court and the High Court before whom the members practise. Similarly,
the quality and character of district judges is known to judges of the Supreme
Court and the High Courts because the judgment and orders of the district
judges go in appeal to these higher courts. Judges of the superior courts alone
are, therefore, qualified to assess the merits of members of the bar or of the
district judiciary for being selected for appointment to the High Courts.
Indeed, the government would have no knowledge at all of the merits of members
of the bar and of the bench for being appointed to the High Courts. It is true
that the law minister may be a member of the bar, but he does not have the impartial
position which is enjoyed by judges of the superior courts. His assessment
cannot, therefore, be as independent and impartial as that of judges of the
superior courts. It is for this obvious reason that the opinion of only the
Chief Justice of India and chief justices of the High Court is made the
overwhelming consideration for selection of a person for appointment as a High
Court judge.
Just as the appointment
of a High Court judge is to be made after such consultation the appointment of
a district judge has also to be made "in consultation' with the High Court
under article 233(1) of the Constitution. Similarly, appointment of persons
other than district judges to the judicial service of a state has to be made
"after consultation with the State Public Service Commission and with the
High Court" under article 234 of the Constitution. Articles 233 and 234
have come up for construction before the Supreme Court and the court has held
that such consultation is virtually mandatory. In Chandra Mohan v. State
of Uttar Pradesh[1],
the court pointed out that the rules which limited the selection to
a list prepared by a selection committee from which the High Court alone had to
recommend the names for appointment of judges were illegal because article
233(1) and (2) was contravened by these rules. Because of these rules the
governor in effect and substance neither consulted the High Court nor acted on
its recommendation. This was not permissible.
If the governor has to
consult the High Court and also to act on its recommendations, the meaning of
"consultation" is that it is mandatory and also binding on the
government in making the appointment of district judges.
In State
of Assam v. Ranga Muhammad,[2]
the Supreme Court reiterated that consultation is mandatory and
directory. It pointed out that if what the High Court has to say is received by
the government with ill-grace or rejected outright, consultation would lose all
its meaning. Again in A. Pandurangam
Rao v. State of Andhra Pradesh[3]
the Supreme Court held that the consideration for the purpose of
appointment of judges by the governor was confined to the list of such persons
as recommended by the High Court. If the governor cannot go outside the names
recommended by the High Court, the meaning of consultation becomes clear. The
consultation is made with a view to being accepted, and the advice given by the
High Court would be binding on the government. The value of these precedents
given in relation to articles 233 and 234 of the Constitution is obvious.
These decisions were
given precisely on appointment of judges by the government in consultation with
the High Court. The important point is that consultation by the government for
appointment of judges was to be in a different category from consultation by
the government with the public service commission for appointment of civil
servants. The reason is that judiciary was to be truly independent. It is true
that even civil service should be independent, but its independence does not
have the same meaning or at any rate the same degree which the independence of
judiciary has. Even in regard to consultation with the public service
commission, the advice of the commission has to be considered sincerely by the
government. If the government is not bound to do so, then its decision would be
open to the charge of being mala fide.[4] If
consultation with the public service commission regarding appointment and
discipline of civil servants has to be considered fully and sincerely by the
government, a fortiori, the advice given by judges of the superior courts to
the President in the appointment of a High Court judge would have to be
considered even more respectfully. If the advice given by the High Court for
the appointment of a district judge is binding on the government, how can it be
that the advice given by judges of superior courts in the appointment of a High
Court judge is not binding? How can the principle of accepting the advice of
the High Court in the appointment of a district judge be distinguished from the
principle of the advice given by judges of superior courts to the government in
making the appointment of a High Court judge?
What is artificial intelligence?
Artificial intelligence
given in right hands is a potent tool to manage and expedite process of
appointment to courts of records. It may even help and analyse the judgments of
the candidate whose name is proposed by the judiciary or it can be used to help
manage and evaluate the inputs from high court judges proposed to be elevated
to the Courts of records.
To know about its
application, first we need to know what artificial intelligence actually is.
Artificial intelligence in lay man terms means imitation of human reasoning and
judgment by machines or the process by which machines react to information and
situations similar to the way humans react and reach to a conclusion. Here the
mention of machine learning is important. Machine learning is a part of
artificial intelligence that can interpret data and help make informed
decisions. It is this branch of artificial intelligence that can facilitate the
appointment process.
Application
of artificial intelligence in judicial
appointment
process:
The artificial
intelligence, particularly machine learning can do in minutes what the humans
can do in days or is even better than, what can be done by humans. With huge
volume of data being created everyday assimilating let alone accessing it, is a
huge task which cannot be done easily. And to do it perfectly requires large
office with trained people up for it at all times. On the other hand,
artificial intelligence can turn the large volume of data fed into it, to
actionable information in minutes.
The pros and cons of the
artificial intelligence can easily be understood under following heads:
1. Can assess large amounts of data:
It is common in higher
judiciary with contentious issues to be discussed at length to write long
judgments which can extend your 100’s if not thousands of pages at times. This
with 50-60 cases listed for each judges, and active strength in high court
always above 500. One can understand the amount of data to be accessed to reach
to a informed conclusion for elevation, even if the recruitments from bar and
lower judiciary is also not put to list. It is only machine learning using
artificial intelligence that can solve the problem.
2. Quick availability of ready results:
The A.I. powered machines
not only can do the needful in data heavy fields but also can be quick at doing
it. Artificial intelligence works at three levels; learning, reasoning, and
auto correction. For artificial intelligence to work flawlessly one should
understand that if we can ensure collection of the required data and provide
perfect algorithms for the A.I. to work then we have ensured learning of
machine to be good enough to reaching findings of the research, quickly. Then
the reasoning part must select correct algorithms to reach a perfect
conclusion. If this much can be ensured then we are left with only auto
correction part of A.I. to keep improving with time unless new algorithms are
required to be entered.
3. Reliable outputs:
If all the learning,
reasoning and auto correction can be ensured and the A.I. is otherwise also
strong then one thing is for sure that we can rely on the outcomes of the
process. Weak artificial intelligence can do low and mid level tasks. But to
replicate human like thinking capabilities and then provide solutions to the
problems require strong A.I. Thus only strong A.I. can assist in appointments
regime.
4. Expensive and high technical
expertise:
The cost and technical
expertise is required for the A.I. to provide reliable information which
collegium can act upon. But this will not be an issue for the appointment
process, if it is supported by the government. So if government participates
cost and technical expertise will not be a hurdle in a quick and effective
appointment mechanism.
5. Need to eliminate chances of
interference:
The A.I. works on the
basis of data that is provided. So it is an absolute necessity that the
reliable data from authentic source is provided to the system to ensure that
the outcome of the process is genuine and can be relied upon. Moreover, The
A.I. generally lacks an ability to generalize the concepts and that weakens the
outcome of the process. This needs to be checked therefore only strong A.I.
will work in the appointment regime that is credible and effective.
Furthermore, other chances of manipulation of the process need to be eliminated,
if it is to be used for.
Conclusion:
The collegium is not only
theoretically justified but a necessity for fair and unbiased process free from
extraneous considerations that need not be there. Though, this is also right
that the executive needs to be involved in the process but the judiciary feels
in barge of involvement, the executive needs to dominate the process. In words
of hon’ble retired judge of Supreme Court who was kind enough to share the
views with the author said, ‘Suppose a Yadav from Jharkhand is a Minister of
Law, what does, he know about a Singh from Punjab. It is the judiciary that is
aware about the candidature of the person being considered.’
“Moreover the necessity
of consultee judge who is from the High Court from which the person to be
nominated is concerned is very useful in the light of awareness about the
candidature of a given person.” He then explained it with a personal
experience, “when the lordship was working as Chief Justice of a High Court, a
candidate’s name was proposed for appointment from lower judiciary. Hon’ble
collegium was impressed by the credentials of the person and was thought fit to
be appointed. But the collegium at that time was consisting of judges whose
parent High Court was a different one, then the one they were working in.
So as a matter of caution
hon’ble Chief Justice thought to take views of a local judge. It proved in the
end to be too useful. The local Judge told the collegium that there is a
criminal case pending against him. This proved fatal to the candidature of the
person considered for appointment to the High Court.”
He further said that the
Intelligence Bureau has not much substantial to add to the qualification of the
candidature and everything about him is known to the collegium. There is
mechanism for it. Everything to be known of the candidate is known to the
collegium. A judge retired from Delhi High Court suggested that in fact when
executive decides to oppose the name of a person, then the I.B. comes up with
unfavorable reports. The Centre for research and planning has to maintain a
list of names that can be appointed by the collegium and thus use of artificial
intelligence can be immensely helpful in providing assistance to the collegium.
Article Information
ARTIFICIAL INTELLIGENCE AND CENTRE FOR RESEARCH AND PLANNING By: PARAS CHAUDHARY
Authors: PARAS CHAUDHARY
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/10
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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