Necessity may be the mother of invention, but technology is its midwife. The Supreme Court of India’s use of videoconferencing, to take up urgent matters while regular hearings stand suspended in all courts during the lockdown period, has the potential to accelerate the pace at which technology could be adopted by the judiciary at all levels.
India, with its large population and multiple problems such as judicial delays, pendency and lack of access to the justice system, is uniquely positioned to spearhead the adoption of technology in decongesting its courts, physically as well as in terms of case load.
At a time when social distancing is being emphasised as the only way to slow down the spread of COVID-19, the spectre of crowded court premises continues to haunt litigants, lawyers and Judges alike. This is an apt moment to partially explore, experiment and adopt the viability of electronic courts.
The Supreme Court Bench on 6-4-2020 [1] comprising of S.A. Bobde, C.J., D.Y. Chandrachud and L. Nageshwara Rao, JJ. passed directions in a suo motu case pertaining to issuing of guidelines for the functioning of courts via videoconferencing during the COVID-19 lockdown and further stated the need for applying tech-friendly and viable options, lasting the tenure of the lockdown and for the future.
e-Courts to e-Litigation: Taking a cue from ODR
The e-Courts Project [2] was an early step. It laid the groundwork in terms of networking of courts, digitisation of records and provision of information to litigants and lawyers. In fact, the Objectives Accomplishment Report of Phase II of the e-Courts Project [3] reveals that the goal of setting up videoconferencing facilities for all the courts with jails has already been achieved. However, while the e-Courts Project makes a good beginning with case information systems, the need is to move towards comprehensive dispute resolution process, with a blend of permanent benches of electronic courts and the physical courts.
World over, the experimentation has already commenced with what is more popularly known as the Online Dispute Resolution (‘ODR’). The ODR system, which includes e-negotiation, e-mediation and e-arbitration techniques, goes a step farther than the ADR system. ODR is mainly used in the resolution of cross-border electronic commerce disputes. However, ODR techniques can also be used in the resolution of traditional cross-border commercial disputes, if the parties agree in their contract to settle any dispute that may arise through one of the ODR techniques, particularly online arbitration. E-arbitration is mainly used for the resolution of Business to Business (‘B2B’) cross-border e-commerce disputes, and partially used for the resolution of traditional cross-border commercial disputes.
National laws regulating arbitration in many civil law countries have broadened the form requirement of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 [4] (‘the New York Convention’). These include Germany, France, Austria, Slovenia, Greece, The Netherlands, Ukraine, and Switzerland. Under the laws of these countries, the form requirement includes electronic communications such as e-mail communications.
Types of Cases
Incremental steps, and not a giant leap will take the system to the desired end i.e. a situation where most types of cases can be litigated online stipulating a pecuniary jurisdiction. This is a situation where documents and written submissions may be filed digitally while oral arguments and witness examination may be carried out remotely via video conferencing, with the need for physical court visits to be maintained on matters of importance.
E-commerce transactions and relationships generate disputes, and this has translated into an unprecedented “growth industry” of disputes. In recent decades, global companies have handled disputes involving domain names which have been resolved through an online arbitration process. India has the potential of a larger growth industry of disputes in the 2020s because the new technologies have made possible huge numbers of transactions and relationships across the board.
For this, the low hanging fruits to be plucked are those cases which are document heavy. Civil cases and commercial dispute resolution offer an ideal starting point.
Hearings in court would take place only when necessary and proportionate. It would be useful eventually to have a blend of e-court rooms and the physical courts to make progress and deliver justice to all sections of the society. No doubt there would be teething problems initially like everything else, but in the long term there lies a great opportunity and solution.
Videoconferencing also offers a secure and convenient way of obtaining evidence from vulnerable or intimidated witnesses. India is not known for witness protection programmes and effective whistleblower protection. There is an immense scope to scale up videoconferencing in cases involving vulnerable witnesses.
So far, so good
A beginning has already been made. Several High Courts in India have issued detailed guidelines on the use of videoconferencing.
The Videoconferencing Guidelines issued by the Himachal Pradesh High Court[5] note that “Videoconferencing facilities can be used in matters including remands, bail applications and in civil and criminal trials, where a witness is located intra-State, inter-State or overseas.”
The Videoconferencing Guidelines issued by the High Court of Delhi[6] state that “Videoconferencing facilities provide courts in Delhi with the capacity to receive evidence and submissions from witnesses or persons involved in court proceedings in circumstances where it would be expensive, inconvenient or otherwise not desirable for a person to attend a court in person. An overriding factor is that the use of videoconferencing in any particular case must be consistent with furthering the interests of justice and should cause minimal disadvantage to the parties. However, it is for the court to decide whether evidence should be recorded by videoconferencing.”
Videoconferencing has been internationally recognised as a useful tool for obtaining witness testimony and expert evidence in cross-border as well as domestic cases. This could be an opportune time to explore the opportunity of bringing the mainstream litigation and regularise appearances and arguments by lawyers via videoconferencing. No doubt, an expert committee would need to be constituted to examine the feasibility. Needless to say, this will have significant time and cost benefits for all parties involved.
Role of the Private Sector
There is a big opportunity for private enterprises to assist in this process. A Public Private Partnership (PPP) Model suggests itself. This model was effectively used to revamp the Passport Issuance System in India, where TCS established Passport Seva Kendras in multiple cities in India. On similar lines, eLitigation nodal centres may have to be established at the panchayat level and district level to facilitate filing, appearance and related activities.
Increasing Access to Justice
One criticism of the Indian judicial system has been that litigation is only for the rich. The Supreme Court being located in New Delhi, a poor litigant based in a remote corner of India may be disincentivised to avail of the appellate process in even the High Court of a large State, let alone the Supreme Court. In fact, the idea of a National Court of Appeals, with Benches in various parts of India was mooted to address this issue, alongside the equally important issue of relieving the Supreme Court of the burden of dealing with those cases which do not involve an interpretation of the Constitution.
By introducing, in a phased manner, filing and appearance via videoconferencing at all levels of the judicial system, from trial courts to the Supreme Court, as also in various tribunals, the costs associated with physical distance from a court may be greatly reduced. We need to move beyond e-filing and uploading of orders online, to making courts accessible, affordable and visits reduced, for lawyer and litigant alike. This would also provide opportunities for younger members of the Bar. A category of matters would also need to be identified and explored.
The Challenges
The process is not going to be easy. There are several issues to be addressed. Firstly, the requisite network infrastructure has to be put in place across the country. Issues of bandwidth have to be taken care of.
Secondly, the process has to be secured from outside interference of any sort. This has to be balanced with the need for public access to the proceedings, keeping in view the idea of open court. In fact, it is an opportunity to open up court proceedings to a far wider section of the interested public than the limited confines of a courtroom may allow.
Thirdly and most importantly, there will have to be a change in mindsets of litigants, lawyers, Judges and the public. A status quoist mindset will run the risk of overemphasising threats and weaknesses of e-litigation. There was a time in 2013 when lawyers expressed strong reservations against e-causelists[7], citing lack of computer literacy. A change in attitude may be brought about by Bar Associations as well as legal aid clinics, which can spread the message among lawyers and the public respectively. Legal education curriculum may be suitably moulded to ensure that law students graduating in the new decade are equipped for a legal profession that sees increasing use of e-filing and videoconferencing.
Judicial academies too, have a huge role to play in equipping newly appointed Magistrates of the lower judiciary with the requisite skills. The judiciary would need to adapt to the changes which COVID-19 is going to bring into the society with greater speed and flexibility rather a conservative approach.
Conclusion
Even the biggest technological advances will not be effective without addressing the fundamental issues that plague the judicial system. Filling up of vacancies in all the courts as well as increasing the sanctioned strength of Judges is essential. India presently has 20 Judges for every 1 million citizens. The Law Commission of India in its 120th Report[8], suggested that there should be at least 50 Judges per 1 million citizens. The good news is that a technology enabled judiciary will require less brick and mortar infrastructure for expansion.
COVID-19 is presently a grave threat to the human race. It will force the society, governments and countries to change the ways in which work as well as leisure is undertaken. The silver lining is that adopting technology for dispute resolution in an online format, will lead to significant saving in cost and time for parties.
*Kirit Javali, (Barrister) Advocate Supreme Court, Partner at Jafa & Javali, Advocates, New Delhi.
**Vivek Prasad (final year student of law) Campus Law Centre, University of Delhi.
[1]. In re, Guidelines for Court functioning through videoconferencing during Covid-19 pandemic, 2020 SCC OnLine SC 355.
[2]. eCourts Project, https://ecourts.gov.in/ecourts_home/static/about-us.php.
[3]. Ibid.
[4]. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, https://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf
[5]. Videoconferencing Guidelines issued by the High Court of Himachal Pradesh, https://hphighcourt.nic.in/pdf/VC%20_Guidelines_HP_HC.pdf
[6]. Videoconferencing Guidelines issued by the High Court of Delhi, http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_CQ84SWB5.PDF
[7]. The Hindu, ‘Can we think of e-courts if lawyers aren’t ready for even e-cause list?’ dt. 6-4-2013, https://www.thehindu.com/news/national/karnataka/can-we-think-of-ecourts-if-lawyers-arent-ready-for-even-ecause-list/article4585515.ece
[8]. Law Commission of India, 120th Report on Manpower Planning in Judiciary: A Blueprint (July, 1987).
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