This article is written by Akankshya Misra, a student of Jindal Global Law School.
Table of Contents
A Glance at the Initiation
Alternative Dispute Resolution has become an integral part of the justice system in the current times since it involves rapid settlements and results in outcomes that are often favorable to both parties. Online dispute resolution is a further extension of the same, and the only differentiation is that it involves the utilization or assistance of technology to resolve the disputes. While India has been moving forward on the path of digitalization thus, where some would argue that it was necessary to inculcate ODR techniques, others would be quite against it.
This technique is often understood to be at par with Alternative dispute resolution but at the same time uses technology to facilitate the process. (see here) ODR specifically became more popular during the ongoing COVID-19 Pandemic, where even the traditional courts began hearing matters through video conferencing. While using Online Dispute Resolution as a method for resolving the disputes can be quite beneficial for the parties because it extends benefits such as efficient management, ease of accessibility, synchronized communications, and speedy disposal, on the other hand, it is also backed by many questions on compromised confidentiality, literacy rate and the actual ease of usage by all. This article seeks into the depth of the matter to understand if adapting Online Dispute Resolution has been beneficial for dispute resolution in India, or it is merely an overrated concept with laid-back results and entails more harm than welfare.
Two Major Issues
- While privacy has been an integral part of the Indian justice system, does the introduction of technology-based dispute resolution tools compromise the same?
- Whether the absolute inter-dependence on technology has resulted in justice being inaccessible to the targeted subjects.
Online Dispute Resolution as the need of the hour
The outbreak of COVID-19 has made the judiciary think about strengthening the alternative platforms to avoid the complete shutdown of the justice mechanism. (see here) The first formal step in the development of Online Dispute Resolution in India is based on the Report of the High-Level Committee on Deepening of Digital Payments on the recommendation of the Nilekani Panel in 2019, which provided for setting ODR for dispute about digital payments. (see here) Even in the case of Shakti Bhog v. Kola Shipping, 2012, the Supreme Court (see here) has held that online arbitration agreements are lawful as fulfilling the essentials of a complaint under sections 4 and 5 of the Information Technology Act (see here). Read with section 65B of the Evidence Act. (see here) But even after this legislative and judicial preparedness, there are some significant logistical and infrastructural areas that need specific attention.
Online Dispute Resolution has been successful in bringing about the much-desired change, which was the need of the hour. It acted as a medium that not only facilitated communication between the parties but also assisted them in resolving out the issues at the comfort of their homes. (see here) Not only do the benefits of the method apply to the people who are into dispute resolution, but at the same time, it assists in reducing the burden of the court and also saves the parties from the unnecessary hassle of taking the matter to court, which can be pretty time-consuming. (see here)
Online Dispute Resolution and its effects on Privacy
Two of the major concerns which can be related to the advent of Online Dispute Resolution are associated with the usage of computer programs and the concern of cybersecurity. It is initially essential to discuss why privacy is a crucial aspect. It is also important to examine whether the usage of Online Dispute Resolution has any impact on privacy concerns.
Privacy has always been considered an integral part of the justice system of India because it is not merely essential to ensure that justice is brought to the parties to the dispute but also to protect the rights of the concerned parties. (see here) The involvement of bigger parties in the disputes entails such disclosures in the course of resolution of disputes that it becomes an absolute necessity that it is not compromised in any circumstance. Such disclosures cannot only lead to an adverse effect on business but also lead to the disclosure of trade secrets. Not only does disclosure of sensitive information affect large corporations, but it also has a major impact on the people or families who choose mediation or other alternatives as a method to resolve their disputes.
When one chooses to use the online services for any purposes, such as banking, discussions, or dispute resolution, one is in inhibition of doing so because of the extent of security provided by the service providers. Many times, people find themselves to be a victim of hacking, wherein they lose their money, reputation, and personal information. (see here)
Ease of accessibility of Online Dispute Resolution
The success of Online Dispute Resolution is dependent on the accessibility of technology to both ends, that is, the justice imparting authority and the justice-seeking subjects. After 2016, there has been a substantial boom in internet usage in India because of cutthroat competition between the service providers. According to the internet live stats, India is considered to the largest internet consumer, but when this fact is seen on the document, it amounted to only 34.8% of the population having access to the internet in 2016, which increased to 50% in 2020 (see here). Hence, the major fraction of the society is still lacking the basic thing required for setting the Online Dispute Resolution. But there is one positive to the development that the number of users over the year has increased, and by this rate, in the coming few years, the population has an active internet connection will be sufficient to make Online Dispute Resolution accessible to every nook of the society.
Hindrances in the way of Online Dispute Resolution
- Hardware concerns
Apart from the internet-related issue, some hardware-related concerns make the ODR inaccessible to a major portion of society. The data charges in India are the lowest all over the world, like in the US per GB Data costs Rs. Five hundred ninety-two whereas in India it cost only Rs. 7 per GB. But providing cheap data does not mean the devices which are required to operate it are readily available. Therefore, the lack of infrastructure and accessibility to computer resources is posing to be a major roadblock in the development of ODR.
The next technological roadblock in the way of ODR is the awareness among the users. Technology and digital literacy among users are the poorest among internet users across the globe. More than 90% of the Indian population (see here) does not know the scope and proper usage of the internet and technology and is completely dependent upon the younger generation for even basic setup of Facebook and WhatsApp. Hence this lack of knowledge and mental barrier of the people need to be tackled and improved to make it accessible to the crowd at large.
- Training and Infrastructure
Another major barrier to the inaccessibility of Online Dispute Resolution is the lack of trained professionals. Even though 10% of the Indian population is considered to be Digitally literate, such literacy is majorly in the informal sector only. But the courts and justice mechanism in India operate procedurally, and shifting the same to an entirely new platform needs that the support system is well strengthened and taught. Only when the justice support system is trained, then can they take further steps in imparting the knowledge to people about ODR and another online court mechanism.
Hence since the inception of Online Dispute Resolution, there have been multiple roadblocks in growth and development. Most of that area of concern was because of the absolute interdependence of technology. The ODR was rolled out more in an optimistic way rather than the realistic way. Very little investment in the setting up of the infrastructure and logistics was made because of which it is more of a luxury for major strata of the society. Had there been no internet boom in India in 2016, the status of ODR would have still been in its infant phase. But even after so many hindrances, as discussed above, there is a need for major infrastructure intervention both from the government and the private players in making the digital environment more conducive for Online Dispute resolution.
There is no doubt as to the positives which Online Dispute Resolution has injected into the Indian system, including the benefit of speedy and hassle-free justice, but at the same time, the drawbacks of the usage of technological aspects in the resolution of disputes cannot be ignored. The main reason behind the idea is the constant fear of disclosure of information and the non-availability of resources to engage and capture the benefits of the same. Since every aspect of the process moves online, it involves uploading documents, data, and other personal information on the desired platforms. It certainly renders the information vulnerable at the hands of miscreants who can hack into the systems and get the same information. It has also time and again been emphasized that more private sector expertise should be utilized in the context so that the existing problems especially related to the safeguards, can be taken care of. (see here)
In recent times, the government and the courts have become more vigilant towards the development of the ODR mechanism. Some of the notable steps taken are the initiative by the ministry of corporate affairs tying with the law colleges in setting up online consumer redressal centers. One of such centers in the online consumer center at the national law school Bengaluru to resolve consumer disputes through online medium. (see here) To reach the needful people, spread technical awareness, and resolve disputes at a basic level, independent private Online Dispute resolutions like CORD, Presolv360, and CADRe have also been established. When it concerns the steps by the government in recent times to adopt Online Dispute Resolution, the E-Assessment by the Income Tax Department and the INDRP by the national stock exchange has been worthy mention for the development of ODR.
Justice DY Chandrachud, while addressing the issue of technology and access to justice (see here), has successfully managed to include his opinion upon the importance of responsibilities of the stakeholders such as the technology service providers, government, and professional bodies. While identifying the role of the internet service providers, he mentions that such systems through which the parties can be made aware of their rights and the platforms which facilitate the resolution of disputes should be established.
In the end, it can be stated that indeed the growth of the Online Dispute Resolution has relieved the judiciary of the burden of the cases, but because of lack of proper infrastructure and technology, the efficiency of the decisions was not up to the mark. Only those people were able to take the benefit who were digitally literate and had access to suitable devices. It is only because of Covid-19, people became aware of things that can be done digitally and even the mere fact that the disputes can be resolved through online mediums.
Nonetheless, the steps of the government were lacking in setting up the environment for the Online Dispute Resolution, but the recent actions by the government make up for those omissions, and it can be concluded that the future of ODR is very bright in India. Since ODR is merely at its initial phase in the present scenario in India and has to overcome a lot of obstacles in its adequate implementation, it can be concluded that till now, using Online Dispute Resolution has not depicted exceptional instances of success, but in the times to come, where the cybersecurity and other technological issues shall be favorable, it shall surely be one of the most successful ways to resolve the disputes.
- Hon. Arthur M. Monty Ahalt (ret.), What You Should Know About Online Dispute Resolution, available at https://www.virtualcourthouse.com/index.cfm/feature/1_7/what-you-should-know-about-online-disputeresolution.cfm , accessed on 24 March 2021.
- PTI, ‘CJI rules out total shutdown of Supreme Court amid coronavirus threat’ Livemint 16 May 2020 <https://www.livemint.com/news/india/cji-rules-out-total-shutdown-of-supreme-court-amid-coronavirus-thr.eat11584300621602.html> accessed March 23, 2021.
- Nandan Nilekani and others, ‘Report of the High-Level Committee on Deepening of Digital Payments’ (2019) 97 accessed March 23, 2021.
- (2009) 2 SCC 134
- B. N. Srikrishna, Review: A Superior Form of Dispute Resolution, Economic and Political Weekly Vol. 42, No. 30 (Jul. 28 – Aug. 3, 2007), pp. 3099-3101 https://www.jstor.org/stable/4419838?read-now=1&refreqid=excelsior%3Aad08fcd4f941076c3845cdd7d2826301&seq=2#page_scan_tab_contents
- Soumya Jha, India: Online Dispute Resolution- A Compelling Option Or A Far -Fetched Reality During Pandemic Times, Mondaq, https://www.mondaq.com/india/arbitration-dispute-resolution/972422/online-dispute-resolution-a-compelling-option-or-a-far-fetched-reality-during-pandemic-times accessed March 23, 2021.
- Mohamed S. Abdel Wahab, Ethan Katsh and Daniel Rainey ( Eds.), Online Dispute Resolution: Theory and Practice. A Treatise on Technology and Dispute Resolution at 13. Published, sold, and distributed by Eleven International Publishing, The Hague, Netherlands, available at www.elevenpub.com Accessed on 24th March 2021.
- Darin Thompson, Addressing ‘New’ Challenges to ODR Implementation, SCL, https://www.scl.org/articles/3197-addressing-new-challenges-to-odr- Accessed on 24th March 2021.
- Internet Live Stats, ‘Internet Users by Country (2016)’ https://www.internetlivestats.com/internet-users-by-country/ accessed March 24, 2021
- Statista, “Internet Usage in India- Statistics and Facts’ https://www.statista.com/topics/2157/internet-usage-in-india/#:~:text=Despite%20the%20large%20base%20of,access%20to%20internet%20that%20year. Accessed March 24, 2021.
- Bloomberg, “International Literacy Day: Bridging India’s Digital Divide, https://www.bloombergquint.com/technology/international-literacy-day-bridging-indias-digital-divide, Accessed on March 24, 2021.
- Deepika Kinhal, Tarika Jain, et al, ODR: The Future of Dispute Resolution in India, Vidhi center for legal policy, https://vidhilegalpolicy.in/research/the-future-of-dispute-resolution-in-india/ accessed on 24th March 2021.
- Online Consumer Mediation Centre, https://onlinemediationcenter.ac.in/about-online-consumer-mediation-centre/ accessed March 24, 2021.
- NITI Aayog, Catalyzing Online Dispute Resolution In India, https://niti.gov.in/catalyzing-online-dispute-resolution-india (accessed on 24th March 2021).
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