No technology can replace human element in judging: Justice Najmi Waziri [Part II]

In the first part of the interview, former Delhi High Court judge Justice Najmi Waziri shared his thoughts the impact his orders have had on the environment in the capital, why he chose law over boxing and more..In Part II, the former judge tells us why artificial intelligence can never replace a judge, delves into the art of judging and how pendency can be brought down by alternative ways of dispute resolution..Edited excerpts follow..Aamir Khan (AK): You spent a decade on the bench before practicing as a lawyer. What changes have you noticed in the legal landscape?.Justice Najmi Waziri: First of all, it is technology. All of us used to have these huge files coming in and out of the courtroom in trolleys. A number of people pushing it from one building to another, and the whole administrative exercise. With technology being adopted in a large way, you don't have to waste time in terms of “get me that file".Even when matters come from the district courts, the digitised copy is already there. It has become faster and more accessible. The counsel also has to be ready. Both sides have to be ready, and then everybody's virtually looking at the same document simultaneously..That has quickened the pace of accessing relevant data. That means faster adjudication. The younger counsel are very adept at the research. I remember being on the tax bench and the tax bar is amazing.Every young counsel has a tablet or some digital machine in their hands. When you ask a point of law, hands start going going up. Young counsel or women counsel will be like, “this is the position of the subject”. They are ready with an order passed yesterday by the Supreme Court or by some other High Court, and they will just come up and assist you..That way, many young counsel are reading and they are either briefing their seniors or they are arguing the cases themselves. They are very focused. I would say the younger members of the bar are truly very focused. They read up a lot.They have a habit of reading and keeping abreast with the latest developments in administrative law, not only in India, but internationally also. They are able to access so much. They are now at par with the best of the best I would find anywhere.They are very savvy and get straight to the point, that's the beauty of it. The ones who want a well-researched argument coming forward. And it's so delightful actually. They assist you in developing that law point..In the process, many counsel develop a point. You suddenly find a whole new world has opened to that point, to that subject, to that issue in law. That’s when the jurisprudence starts evolving. The court acknowledges, accepts that.That’s what intellectual pugilism is - two young counsel arguing on the point. It’s so fascinating. That’s what keeps the court judges going. It's so exciting. Whether it's a word of tax, finance, trade, economics, sociology - everything is so beautifully intertwined..AK: Taking the question forward, what is your opinion on the use of technology, and especially artificial intelligence?.Justice Waziri: I do feel artifical intelligence can only be used with respect to case management. The art of judging requires a human element and it requires compassion. I don't think a machine will show you compassion. A machine can only respond to the data given to it. It doesn't assess what that human is going through. Human beings have many other aspects. When you see a person in front of you, when a lawyer is arguing, your perspective changes. The lawyers take you to a different area. If the argument is developing on the spot, there's a new idea that comes into your mind, and you start working on that idea. The machine is not doing that. The machine is a machine, it's not human, let's not forget that..Judging on the scales of justice is always constantly balancing the equities. It is what is happening there on the spot. Decisions have to be taken there. For example, we need an interim relief. It has to be done on the spot. You can't just give all the data to the machine and ask it to do it.Humans have their own place. Machines are only to facilitate humans. When it comes to case management, data management, putting things together. So you can put all those thousands of cases in one list and you can dispose it off on that point. That is fast.There can be no replacement of the human element in judging. It's as simple as that. .AK: What do you think about the Collegium recommendations not being acted upon? Justice Waziri: I don’t want to comment on that. .AK: Do you think judges should be on social media? .Justice Waziri: No. It’s a personal thing. You’re not supposed to be. You will have to revisit the codes. There are principles, which apply to judges. There is a code applicable to us. We have to only adhere to the code. .AK: Will you be resuming practice after retirement? If yes, in what areas? .Justice Waziri: I came as a 24-year-old young lawyer and today, I'm a 62-year-old young lawyer. I come from a family that has been practicing business for a century. The exposure to business and commerce from a fairly young age shaped the years that followed. There’s a world where one has learned something along the way, experienced so much. I am sure I will have a busy time. There will an occasion to be busy in many ways in the world of law. One has done so much adjudication, so of course arbitration, lots of arbitration. .AK: What inspires you? .Justice Waziri: What inspires me is the spunk of a counsel. Spunk and hard work. And the most fascinating part is that every day, I see new persons with a lot of courage, energy, gumption, passion, research and hard work which keeps me excited, realising this phenomenon is never going to fade away.Seeing younger people, or some older people, or some seniors, they carry on so beautifully. There's a drive inside them keeps you going.Sometimes, you don't even possibly rationalise it. You just naturally get drawn towards that approach and disposition towards life. There’s so much excitement, justified self-assurance actually. And that comes from hard work, constant sheer hard work. Striving to do better the next moment, the next day, seizing the day. .The excitement of being with the finest minds amongst the lawyers, amongst the judges. The minds are so sharp. They keep you engaged. And there's so much reading to be done. Every day. The practice of law is just not law. This has really a lot of literature. The world of business, a world of everything under the sun. An exciting world of finance, business and finding out new concepts, in technology. What’s happening in the world of technology, unless one is abreast with it, you will miss out on many aspects. But if you ask for that one streak which is there, which would keep anybody excited, it is the sharpness of the mind. Sometimes, the arguments or submissions in court just blow you over..AK: Any words of advice for younger lawyers or judges? .Justice Waziri: That’s being very presumptive that I would know a lot to advise people now. I feel good and extremely grateful to the almighty for giving me the opportunity that I could do something for my society, for the country. For all the wonderful people I met along the way, and the myriad variety of cases I got to do at the Delhi High Court. This is where a whole lot of work is happening.The young, fresh people coming in, that is the excitement. The younger lot will face it. Fresh from the law schools, and those who have gone abroad and studied and come back with a notion that “I want to do something in my country.” This is the place, the exciting place to be. That's what they're doing..That gives you a lot of reassurance. The system will work. The judiciary is working. That we will find the change, we are the change for the better. You feel that if you can do good, if you've done your bit, you'll continue to do your bit in that direction. And I think it's a wonderful objective towards life and a wonderful disposition towards everything. Why does a person come to a lawyer or to a court? Go to a court only when there's no solution coming out. Whether it's against the government or against a private party. Even if we have 50% or 40% (of the total cases) against a private party, and if we are able to settle it, imagine how much pendency will reduce. If you go to a court and you show a willingness that I want to settle it, you can go to the mediation centres. Or you can mediate before going to court. That's a huge area for work..I feel when a lawyer is more of a solution finder, he will keep getting more cases. People don't want to spend time and money on litigation. A businessman wants quick solutions. Everybody wants quick solutions. They don't want to spend time on litigation.If you find quick solutions for people, you're taking the society forward. You're taking the world of business forward. And that's adding to the nation's growth. You're a responsible citizen at every moment. People will want that same person who has found a solution. You will keep coming back to him and he's your best ambassador to get you more work.That is how society goes forward. That is how you develop fraternity. How do you make a settlement? How do you come to a compromise? It comes from the idea of accommodating the other person also. A step back, an apology or moving beyond egos can a long way in settling disputes..Once that happens, there's a growth in the mediator. There's a growth in the counsel and there's a growth in the relationship between the parties who were otherwise at loggerheads. If you find peace, then you're a big contributor to finding resolutions. The work will keep coming back to you. Everybody wants somebody who can help you to go forward. That’s a huge area where we can reduce pendency of cases. Alternative dispute resolution. The most complex of cases can find solutions through mediation and arbitration. .AK: Do you see a lot of potential for alternative dispute resolution in India?.Justice Waziri: Yes. In arbitration, you’re dealing with the best of the best. You're dealing with the finest of the bar. These are very sharp minds you're dealing with.The arbitrators would be always encouraging this and as I said, it has to come from the basic idea as to why is this lis still pending. What is the dispute about? Sometimes it has to go through the process of arbitration..These are very complex areas of facts. So it has to go through the process. Intractable cases, some of them. But I'm saying on the wider aspect, if people have an open mind, you will find the number of cases being filed reducing. Pendency will come down.People go to various fora not to prove a point. They go there to find solutions by way of adjudication or settlement. Whatever comes their way. First part is by mediation, then arbitration. You look all over the world, big corporations try to find solutions. How quickly can they do it so that the time, effort, best of the man-hours are not lost. The focus is on actual augmentation of business and services.That's what they're working on. We have to focus on that.