‘A lockdown cannot result in locking the courts altogether. And the only method available for holding court hearings is through video conferencing. And this methodology, this mechanism to run the courts in a state of social distancing has given us an opportunity to bring about judicial reforms.” — Justice AK Sikri, former judge of the Supreme Court of India In the wake of the ongoing Covid-19 pandemic, our courts have leapfrogged to the video conferencing format of dispute resolution in their attempt to provide access to justice to those who seek urgent relief. In this article, being published in two parts, the authors analyse the possible implications of moving to a partial online dispute resolution legal system. The following sets out the first part of the article. Virtual courts amidst COVID-19 pandemic The justice delivery mechanism in India is characteristically mired with creaking slow pace, a huge backlog of cases and a host of other inefficiencies which have become our Achilles’ Heel.
It is not an unknown fact that the Indian judiciary is grappling with increasing pendency of matters and is overburdened due to shortage of judges. Illustratively, there are 59,867 cases pending in the Supreme Court, 44.75 lakh cases pending in various high courts and a phenomenal 3.14 crore cases pending before district and subordinate court level1 . Then came the Covid-19 pandemic. Suddenly, India found itself under lockdown. Movement outside the home was restricted and courts got shut. The dreaded pandemic was everywhere. Covid-19 created a humanitarian crisis of epic proportions in human history. The ensuing lockdown suddenly threw everything out of gear. Today everyone, including governments of all nations, healthcare workers, scientific community, media is making all possible efforts to mitigate the scourge and flatten the curve of an unknown virus aka Covid-19 by announcing social distancing measures, lockdown et al.
Foreign governments such as in the United Kingdom and Singapore have quickly enacted legislations which lay down new rules to overhaul their justice system in the face of the pandemic. In India too, various guidelines, notifications, orders, rules and regulations have been put in place for providing the essential services by the Central and/or the state governments. In this watershed moment of exigent crisis, the Indian judicial system, quickly rose to the occasion to ensure that the delivery of and access to justice continues to remain unhindered. Even though many nations exhibited a delayed response towards tracking and containing this life-threatening virus but not our courts. Over the last month, our country witnessed major leaps forward by the Indian judiciary by moving to a partial online dispute resolution format of judicial functioning. The Supreme Court of India set the ball rolling by adopting video-conferencing for hearing urgent matters.
Various High Courts followed suit. Commendably, in its attempt to streamline things further, the Delhi High Court has taken many proactive measures such as—expanding the number of categories meant for urgent hearing along with increasing the number of benches and widening the scope of urgent hearing to include some matters at the stage of final hearing. The way the Indian courts quickly embraced technology as a medium to overcome constraints posed by closure of courts indeed deserves hearty applause and demonstrates that the higher Indian judiciary is capable of acting promptly and decisively. Unsurprisingly, the story changes when we view it in terms of the enormity of the challenge faced by our lower courts. With inadequate infrastructure and lack of latest technological support, various district courts are far from prepared to meet the current constraints. However, as each day sees light, many district courts such as that of Delhi are striving hard to fundamentally reinvent themselves with a different skill-set to discharge judicial functions in a technology driven world.
Alas, Rome cannot be built in a day. Are virtual court hearings, the right medicine for the future? A complete transition to a system of online dispute resolution for adjudicating all types of disputes may still be something far in the future. As a pilot project, the judiciary can begin with specified categories of disputes to be ported to the online dispute resolution process and the learning derived from there can be extended to other cases. Notably, video conferencing has already been taking place in the Delhi courts for about 10 years now in the cases of remand of the accused to judicial custody/ police custody.
Institutionalisation of the Indian legal system with state-of-the-art technology entailing electronic filings of pleadings, virtual court rooms conducting oral hearings through video conferencing, electronic mode of marking of documents and recording evidence, e-submissions of legal arguments and limited physical oral hearings et al will bring in multipronged benefits such as: 1: People from different parts of India will be saved the long treks to district courts, High Courts and Supreme Court to attend hearings. There will be a constructive use of time of lawyers and litigants, who do not have to spend the whole day waiting in courts for their matters to reach and can then attend court hearings through video conferencing at the designated time. 2: Today, voluminous and bulky pleadings are filed in courts which often runs into several hundred pages and as a result, copious amount of paper can then be saved. 3: E-filing would save a lot of time rather than manual filing where it presently takes hours to get a pleading filed in court departments. Efiling in commercial matters has already been introduced in many courts even before the Covid-19 catastrophe. This would also result in substantial savings in terms of the huge manpower deployed and the physical space required for physical filing. 4: Service via electronic mode can be made the default method of service.
5: In a virtual court room, oral arguments will be required to be completed within the allocated time slot and entail quite a different decorum to be adopted by the bar. Virtual court hearings will curtail unnecessary adjournments too and overcome what has often been touted as the “tareeq pe tareeq” nemesis of litigating in Indian courts. 6: With a speedier and more efficient system, the legal profession can be lifted from the heavy weight of pendency plaguing our courts. 7: Evidence in trial can also be recorded electronically via video recordings. Witnesses would then not be required to travel from different parts of the country and can easily depose from their home or office. The other aspect of trials too can be conducted remotely in most cases. 8: Some stages of arbitration proceedings too can be easily conducted via video conferencing mode especially because of the escalating costs in ad-hoc arbitrations. 9: Today, digital devices like smartphones, computers and Internet are available to all from metro cities to small town to villages. Concomitantly, the litigants may not be under any disadvantage with the adoption of technology as it is portrayed to be.
10: There can be a blend of physical courts and permanent benches of virtual courts in all our courts wherein certain category of matters can be dealt with through video conferencing only. For this, the e-courts that have already been established in many courts and can be permanently converted into virtual courts. 11. Lastly, virtual courts will also help to reduce congestion in courts. The second part of the Article will discuss some other ramifications of progressing to a partial online dispute resolution mechanism. (Endnotes) 1 https://thewire.in/law/ pending-court-cases Meghna Mishra, Partner & Sumit Jay Malhotra, Associate, Karanjawala & Co.