8 April, 2020
Work from home for a litigating lawyer in India currently looks like endless hours of reading, chores and on-demand video. In this blog, we argue that this will be a short-lived state of affairs. Remote working for litigation will be operationalised soon and will become the new normal for litigating lawyers in the not too distant future.
Courts are an essential service for civil society. In the wake of the COVID-19 pandemic, courts across the country have gone into an urgent-only, online-only mode with electronic filings, email mentions and, in exceptional cases, online hearings via video conferencing/ video calling facilities. This urgent only model of restricted judicial access is not sustainable past the initial lockdown. Courts will have to resume a full-time case load in the near future, albeit in a form that will be quite different from the way as we knew it. The urgent-only format will come to pass, with courts adopting the online-only format for its regular functioning. As a first step, the Supreme Court of India issued a suo-motu order yesterday setting out guidelines for courts to function through video conferencing during the COVID 19 Pandemic.All estimates expect that the need for social distancing to address the COVID-19 pandemic will continue well into the third quarter of 2020. This will inhibit the resurrection of a packed court room. The new normal that we must prepare for, therefore, will be one where social distancing, remote working and electronic communication becomes the basic fabric of all engagement with the courts.
Industries and services across the world are reviewing their immediate and rapid migration from offline frameworks to completely online systems. We expect that the justice delivery mechanisms will also catch-up and become a digital offering by sovereign countries across the world in short order. In his 2019 book Online Courts and the Future of Justice, Professor Richard Susskind argues that the global access to justice problem will be solved by adoption of modern technology and envisages that online courts facilitate courts to function as a ‘service’, and not a ‘place’. He presents what he believes is glaringly obvious – “that in a digital society it makes sense for much of the work of the courts to be conducted online”.
Remote working is a tried and tested model for arbitrations, and courts can adopt it very easily. Hiccups are only a mindset problem. Article 141/ 142 can be used for this to be effected in a timely manner.
– Justice.(Retd.) B. N. Srikrishna, Supreme Court of India
In fact, several countries have already enabled online courts, and we can reasonably expect that India will not be far behind. Triggered by the COVID-19 Pandemic, the UK passed the Coronavirus Act, 2020 and amended the provisions of various statutes to facilitate the regular operation of its courts by participating through video or audio conference through a combination of Skype for Business, Justice Video Service and BT Meet Me. It has also provided for public participation through live links. Specifically the background to the Bill states “The measures will enable a wider range of proceedings to be carried out by video, so that courts can continue to function and remain open to the public, without the need for participants to attend in person. This will give judges more options for avoiding adjournments and keeping business moving through the courts to help reduce delays in the administration of justice and alleviate the impact on families, victims, witnesses and defendants.” The pilot project for remote courts in the UK was operationalised in 2018 through the Traffic Penalty Tribunal with the heartening statistics that parties requested a review of only three percent (3 %) of the decisions.
Similarly, the Singapore Supreme Court, High Court and Family Courts have adopted video conferencing or telephone conferencing through the Zoom platform for hearings, counselling and mediation. Courts in the United States of America, Canada and Australia too are bracing themselves to conduct matters in a similar manner.
India has been preparing for this leap for over 15 years now. The Indian Government established the e-Committee of the Judiciary in December 2004, which has overseen the steady adoption of electronic infrastructure by courts across the country. The Policy and Action Plan Document for Phase-II of the e-Courts Project of January 2014, already contemplated video conferencing and recording facility for courts and jails for more than just remand matters. It was expected to be used for recording evidence in sensitive cases and to be gradually extended to cover as many kinds of cases as viable. The Objectives Accomplishment Report (2019) of Phase II of the e-Courts Project states that as many as 3,388 court complexes and 16,755 court rooms across India have already been computerised. Video-conferencing equipment has been provided to 3,240 court complexes and 1,272 jails. Way back in 2015, evidence of Dera Sacha Sauda sect chief Gurmeet Ram Rahim Singh was recorded via video conferencing by the Special Court, Panchkula.
The overnight notifications issued across the various courts during COVID pandemic is demonstrative of the fact that our courts are well equipped to act fast and act decisively.
Even more heartening is the open-minded adoption of existing technology like Zoom, WhatsApp and Vidyo – without being held back by the limitations of having to reinvent the wheel with internally developed infrastructure. We have sat in our home offices watching the urgent hearings being held by the High Courts of Kerala and Gujarat and marveled at the quantum leap the legal profession has already made in a span of two weeks in India.
This is an inflection point for the legal profession in India. Till now, the mindset was one of resistance to change, or at best, incremental change. The disruption occasioned by COVID 19 has put forward challenges that can be best countered with wholesome and wholesale changes – by the adoption of online courts with limited or no oral hearing but based on brief written submissions.
– C.S. Vaidyanathan, Senior Advocate, Supreme Court of India
A close review of the facilities that have become available overnight shows that rapid migration to online-only can become a new normal for the regular functioning of the courts. Courts can mandate compulsory electronic filings and registering of pleadings/ applications with synopsis of arguments and law relied upon. In the ordinary course, based on the pleadings, synopsis and written submissions filed, the Judge can pass speaking orders that are published (or issue notices that can be communicated electronically to all parties).
Even trials, in most cases, can be conducted remotely where evidence by way of affidavits is filed electronically, documents are marked and cross examination undertaken, not in person, but through video conferencing or by local commissioners conducting the same from remote locations. While it can be expected that written submissions can be the primary mode for case presentation, the concerned bench may require oral hearings in certain cases where the assistance from the lawyers presenting arguments in a time bound manner over video conference would meet the ends of justice. A live link web-streaming of the oral arguments would adequately preserve the `public forum’ foundation of our Indian court system.
Please click on the image to enlarge.
In this manner, the Courts in India can resume full functionality through remote working formats quickly while the health advisory mandating social distancing and avoiding crowded court rooms continues. The lower courts where electronic infrastructure is not yet available can adopt written submission as the basis for arguments in certain categories of matters, and a shift system for oral hearings/ trials to ease the crowding of courts pending electronic enablement.
The biggest winner in this tectonic shift may be pendency problem in the Indian courts. A conservative estimate will cover approximately forty percent (40%) of all pending cases that may be disposed on the basis of written arguments. Illustratively, of the 3.2 crore cases that are pending before the Indian District Courts, around 38 lakh cases pertain to cheque bouncing (N.I Act) and 8.5 lakh cases pertain to motor vehicle accident claims alone. The Supreme Court and the High Courts can do an audit of the nature of matters pending before them and their subordinate courts which can be decided based on written submissions and pleadings without the necessity of oral hearings. Further, while trust in the new system of restricted oral hearings is being built, the remedy of review may need to be more liberal to enable proper assistance to the Judges while deciding cases.
Listed below are the other positives aided by speedy move to online courtrooms:
- Litigants will benefit from the remote and more holistic participation (including avoiding the cost of making the long treks to District Courts, High Courts and Supreme Court and the consequent loss of productivity);
- Purity of legal discourse in litigation will be enhanced;
- Increased predictability and transparency in costs, timelines and outcomes;
- Streamlining and quick and effective disposal of urgent mentions/ adjournments and other applications seeking court directions;
- Effective case management systems in a predictable timeline and uniform format;
- Enhanced public participation through live links, especially in matters of national interest and importance;
- Remote and technology driven filing, case management and written arguments would mean fewer grounds for adjournments and speedier disposal of cases;
- Reduced demand on physical infrastructure and optimal utilisation of resources;
- Increase access to justice by litigants, with the AOR system becoming localised;
- Increased outreach of litigants to various courts in the country through their local lawyers.
We will have to come through, withstand and outlast this pandemic with a solution-oriented outlook. Infrastructure and technology will need to be rapidly ramped up, but that is presently the best way forward. In my experience across jurisdictions, a process of precise written arguments and oral hearings that are limited in time, bring quality and focus to the hearing. I believe virtual courts will have the potential to streamline the court process. While this transformation may start as technologically enabled court process, it will need to also simultaneously evolve other judicial advancements. It would be a welcome change.
– Bhaskar Chandran, Group General Counsel, GMR Group
There will also be big, bold and fundamental changes to the profession. The art of the oral argument being the most impactful part of a litigation will now be substituted by structured and precise pleadings, supported by strategically crafted written submissions. The Judiciary may also need to fundamentally reinvent itself with a different skill set to discharge judicial functions in a technology driven world with limited face-to-face assistance from the Bar. All things considered, the balance of convenience will lie in the immediate adoption of electronic functioning by the court system. In the short run, this may be an effective answer to the extended COVID 19 challenges. In the long term, we are hopeful that this would be the right answer for many a malaise of the Indian legal system.
This tragedy will teach us that Less is More
– Mr. Sanjay Jain (Additional Solicitor General).
Never before (and hopefully never again) has there been a moment in time for a tectonic shift in the functioning of our legal system. Given the relative trade-offs in the current pandemic, it is likely that all stakeholders will be appropriately incentivized to adopt and adapt to the new normal. This is the perfect storm and we cannot waste a crisis.
(Icons in the image are from The Noun Project)
For further information, please contact:
Anuradha Mukherjee, Partner, Cyril Amarchand Mangaldas
anuradha.mukherjee@cyrilshroff.com
