Most people in India avoid litigation. This is not just because of the inordinate delays, but also because of the labyrinthine processes that make courts intimidating.
Even lawyers are at the mercy of the system. They are forced to follow outdated and overly complicated processes that were once borne out of necessity, but are now pointless in the 21st century.
Now, one would imagine that these issues of complex processes and lack of transparency would mostly be restricted to the district judiciary and that High Courts would have clear procedures. However, this is not the case.
The possible reason for these unwieldy procedures is that most of these courts did not anticipate receiving so many cases and having the kind of case burden they now have. Their administrative branches (also known as the Registry) grew like unplanned cities to meet the ever-growing needs. Processes evolved based on these needs and in the absence of meaningful planning, processes kept getting more and more complicated.
To illustrate, while studying a High Court, we discovered that to send notices to the respondents, the appellant’s lawyer had to first take as many copies of the pleadings as there are respondents to the post office, get them weighed and then purchase envelopes with stamps based on the addresses of the respondents. The lawyer then had to pay the process fee at the filing counter of the High Court and hand over the envelopes. The filing counter had no idea whether the correct fee was paid and a tiny mistake in the paid process fee meant that the notices were not sent. This was just one part of the puzzle.
Let’s say that the notices were sent, but one of the respondents’ addresses was incorrect and the notice was returned unserved. The lawyer of the appellant would come to know about this only at the next hearing and the court would then order notice to be re-issued. The lawyer would have to correct the address provided and the notice would then be sent again. There was no method to let the lawyer know earlier, let alone automatically reissue notice to a different address.
To make matters worse, these complex practices are not just a matter of practice, but are codified in High Court Rules. They have statutory backing and. hence, these processes cannot be changed or simplified without amending these rules.
Most of these rules, drafted decades ago, have also been unable to keep up with technological advancements despite repeated amendments. The rules that were already structurally fragmented have, over a period of time, now become outdated.
Even the new rules that have been drafted to keep up with technological needs are used in an ad-hoc manner; they often tend to just digitise paper-based processes. This leads to another layer of complexity and even duplication of work. The most relevant example of this are the e-filing Rules adopted by the High Courts. In essence, the Rules have led to both digital and physical copies being filed at most High Courts increasing the burden of the filing staff. It is evident that the High Courts’ attempts to use technology in its workings will remain stunted and ineffective, so long as the very design of their processes remains complicated and dysfunctional as in their current form.
An additional problem comes from the fact that procedures differ from jurisdiction to jurisdiction, making it difficult for lawyers, litigants and judges to be well-versed in processes outside of the ones they are used to.
All the above mentioned issues have real impact on the people’s ability to access justice before the High Courts. There is a need for a fresh framework to govern procedures at the High Courts. To this end, DAKSH recently published Model High Court Rules as a broad framework for High Courts in India. However, to ensure modularity and respect the autonomy of High Courts, we have also developed a draft of practice directions that courts can adopt and modify as per their needs. High Courts often issue amendments to their governing rules for specific procedural matters, given emerging litigation needs, state-specific variations and the need to keep up with new technological advancements. However, some of these amendments are issued as standalone documents (usually circulars), which are not consolidated in one place. Practice directions solve this problem by creating a system where changes can be consolidated and updated into the same framework.
This entire framework of Rules and practice directions follow the following five core principles:
Simplicity: The Rules simplify processes for litigants, lawyers and court staff, without losing sight of rigour. The Rules are also in simple language, in a clear departure from commonly found legal jargon. For example, the Model Rules do away with the requirement of filing paper books from lower courts in appeals. Instead, they not only leverage the digitisation of lower court records but also create channels for them to be transferred directly from the lower court to the High Court.
Predictability: The Rules ensure that all stakeholders have information regarding their cases, from listing to possible reasons for delay. For example, the Rules provide that any case filed must have its first hearing within a specified number of days (as decided by the respective High Court).
Transparency: The Rules clearly define the roles and responsibilities of all stakeholders and provide clear timelines for processes. The consequences of breach of timelines are also clearly defined. For example, if a lawyer does not comply with office objections in a case within the time prescribed, the Registrar has the authority to dismiss the case.
Futuristic: The Rules try to integrate technology wherever possible, while also leaving room for advancements in the future. This is done with the help of the practice directions, which can be easily amended, as described above. For example, each stakeholder has their own customised dashboard and the features are explained in detail in the practice directions. This also means that in the future, if dashboards are replaced with some other technology, practice directions can be easily amended.
Citizen-centricity: High Courts must centre citizens’ ability to access them with ease and their Rules must facilitate the same. The Rules account for these needs in processes such as service of notice, where petitioners can choose multiple, simultaneous modes of service of notice. Further, citizens are not a homogenous group and socio-economic vulnerability can compound barriers to access the High Courts. The Rules try to factor these considerations by identifying groups for whom video-conferencing can be conducted, including minors in juvenile facilities and children’s homes, and people in rescue homes.
The Model High Court Rules published by DAKSH are not meant to offer a prescriptive, one-size-fits-all format for framing Rules of procedure for various High Courts. Rather, the goal is to outline contours for a framework that can promote simple, predictable, transparent, future-ready and citizen-oriented processes for courts, and to transform them from their current complications and dated processes. This is in recognition of the fact that High Court Rules play a fundamental role in making them accessible. Only through meaningful access can High Courts realise the full potential of their constitutional mandates.
Atishya Kumar is a Senior Research Associate and Lakshmi Menon is a Research Associate at DAKSH.
Views are personal.