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Reviving the pandemic-hit legal services economy through litigation reform

Arun Sri Kumar

The closure/reduced functioning of courts on account of COVID-19 has hit the legal services sector hard. Litigating lawyers earn a lion’s share of their professional incomes through representational services to clients at hearings daily before more than 15,000 courts and tribunals across India.

With a vast majority of these representational opportunities now unavailable, advocates have been rendered without income-generating opportunities for nearly two months now.

As a result, the litigation services market in India – which was conservatively sized at Rs 2,500 crores just two years ago – is, like the rest of our economy, standing on the precipice. Given the devastation to the fraternity, demands have already been made that Bar Councils pay stipends to out-of-work lawyers, and especially to junior advocates without savings. Restoring economic opportunities for the Bar is therefore now urgent.

No republic founded on the idea of Rule of Law can close its courts indefinitely. Even with the relaxation of limitation laws, not every litigant can afford to wait for prolonged periods to seek judicial redress.

Moreover, aside from the routine contract disputes, property squabbles and succession claims – many of which are also ‘urgent’ – our courts deal with several lakh cases where citizens on the margins seek some monetary compensation and succour to make ends meet. Delayed adjudication in these cases can push litigants into poverty.

In criminal matters – which contribute significantly to pendency – victims of crime await closure for years on end, while undertrials and prisoners equally seek urgent hearings to establish their innocence and secure their liberty. It is not possible to defer all these cases indefinitely without fatally compromising the citizens’ Fundamental Rights.

Further, no lockdown can stop contracts from being broken, crimes from being committed, or citizens’ rights from being violated by the State, each passing day. Litigants therefore require effective access to justice not only in existing cases, but also in fresh cases.

Given these twin challenges – of enabling lawyers to survive financially, and also providing our society with a functioning justice system – it is necessary for us to make our courts much more functional than they are currently. However, ‘business as usual’ in our crowded court complexes cannot be the first option; we must not imperil lives if other reasonable solutions are available.

Considering that we may have a long wait for a vaccine, a sincere attempt must thus now be made by the Bar and the Bench to embrace solutions that may previously have been deemed “too radical”. With that objective, I have put down a few ideas with the hope that other solutions may come forth from the community.

‘Virtual’ courts as a norm

As a first (and obvious) measure, it is necessary that a vast majority of judicial hearings must now take place online – and not only in the higher courts. Judges and lawyers alike must upskill themselves and become computer-savvy, and shun any inherent aversion to technology. It will no doubt take some time and effort for us all to adapt: after all, a successful ‘virtual’ hearing is not a mere matter of being able to log into a Zoom call – effective advocacy will require lawyers to deftly use features such as ‘screen share’ (to draw a judge’s attention to evidence, or to precedents being cited), and to familiarise themselves with programs such as PowerPoint (and thus increasingly use visual presentation).

There is, of course, the practical matter that not all judges and lawyers will have access to high-speed internet, or even to robust computer systems. This needs to be solved urgently, by increasing infrastructure and bandwidth in courts and in judges’ home offices, and by making adequate facilities available in various shared “hubs” for less privileged lawyers.

The ‘virtual’ courts functioning in the past two months have been largely unable to hear old cases, owing to the absence of physical files for access to the judges. With easing travel restrictions, this challenge may become a thing of the past. However, wherever feasible, courts should aim to scan and upload historical records onto a secure cloud platform, to ensure easy availability of a common record to all participants at e-hearings.

In new cases, to avoid the need for lawyers to learn different programs, protocols and interfaces every time they are required to make e-filings in a new court or tribunal, it would be desirable to build a common platform for use by all judicial fora in the country.

E-hearings must become a feature not only in cases where lawyers are required to present oral arguments, but also in matters where witnesses are to be examined. Naturally, concerns regarding the integrity of these hearings will have to be addressed in some meaningful way; perhaps by deputing notaries to the witness’ location.

Outsourcing of court functions

Widespread adoption of ‘virtual’ courts may mean that judges can no longer schedule as many cases as on a usual working day, because virtual hearings tend to proceed at a slow pace. By the time relevant e-files are opened, screens are shared, connectivity issues are overcome, and business is conducted, a lot of time is spent.

To ensure that the system remains productive despite a significant reduction in daily listings before ‘virtual’ courts, it is necessary to ease some of the existing judicial workload. One way to do so is to radically change some of the procedures that consume a lot of judicial time on a typical workday.

For instance, evidence in civil suits must not be recorded by judges. Civil courts must issue ‘commissions’ to young lawyers (with, say, 5-15 years’ standing), to preside over virtual hearings for examination of witnesses. The use of software can even enable these sessions to be recorded for subsequent verification, thus removing all concerns. This will also help in augmenting young lawyers’ incomes.

However, care should be taken to ensure that while lawyers are suitably compensated for their time, an unduly high additional financial burden is not placed on litigants.

Senior members of the Bar can be effectively used in the COVID-era by making it legally mandatory to refer many routine civil actions (like money suits, IPR cases, succession and inheritance disputes etc.) to arbitration, under Section 89 of the Civil Procedure Code. The available time of senior lawyers during extended lockdown periods can thus effectively be used for the larger public good, while simultaneously also freeing up judicial time to tackle the workload of criminal courts.

It may sound radical, but only actions that are not amenable to arbitration before retired judges and senior members of the Bar should be retained in most regular civil courts.

Embracing technology to remove pre-existing system inefficiencies

Much judicial time is spent in reviewing the status of summons issued to various parties. With small amendments to procedural laws, service of summons by email, WhatsApp, and other technological modes can be made the norm.

In matters involving companies especially, since a registered email ID is already publicly available on the official portal of the Ministry of Corporate Affairs, such processes can be easily mandated.

Amendments can similarly be made to the Negotiable Instruments Act to ensure that in cheque dishonour complaints, bankers are compelled to disclose the email address of the accused account-holder, to expedite digital service. To avoid delays associated with executing ‘warrants’ to parties who do not appear before court, the act of ‘dishonour’ of cheques can be made a civil wrong (carrying very stringent fines), so that matters can even proceed ex parte.

These cases can also then be referred to arbitrators; the fines awarded by such arbitrators can be made recoverable as money debts (where, too, imprisonment in civil prison is a threat – and thus all deterrent elements can remain).

With the move to virtual courts, the litigant public’s complaint concerning indefinite adjournments and arbitrariness in scheduling next hearing dates can also be addressed. Technology can make a court’s calendar transparent to all parties at a virtual hearing: a computer system can be used to allot future hearing dates, based on the time anticipated to be required for concluding next business.

Further, older cases can be given priority of listing through intelligent system design, thus truly ushering in a case management system. Calendaring conflicts for lawyers can also be avoided, by assigning specific time slots on given hearing dates. After all, a lawyer will now no longer face any difficulty in attending cases before two far-flung fora if all courts have embraced ‘virtual’ hearings.

Technology can also ensure that similar cases, i.e., those involving a common question of law, or in which the same litigant is involved, are listed together, so that the presiding judge can take a common view. Thus, efficient calendaring can even ensure qualitatively better judicial outcomes.

All court fees, costs and charges should be payable digitally. This can ensure that there are no hold-ups only because of a party’s default in remitting a fee. The system can even be designed to send automated alerts to lawyers/clerks to ensure promptness in action.

Lastly, with judicial time becoming even more scarce than before, virtual courts must fix strict time limits for oral submissions, and also impose costs where frivolous adjournments are sought. It should also be made mandatory for counsel to file short written arguments, with pre-defined word limits, prior to all final hearings. This can expedite the adjudicatory function of judges.

Re-allocating available human capacities

The role of some court staff may become redundant in a ‘virtual’ system. Efforts must therefore be made to ensure that they can continue to be used productively in a socially-distanced judicial setup. Significant capacities will of course be needed in the short term to scan and upload existing case records, and to recreate a secure digital ‘record room’ for each case (since it is only new cases in which e-filings by parties can be made mandatory).

However, some court staff can now be assigned the task of assisting in enforcing decrees in long-pending execution cases, and in completing physical service of summons (in cases where electronic service is not possible). Similarly, others can be trained and deputed for the purposes of preparing video footage of properties to be auctioned in the enforcement of decrees, and making such data available on an e-portal for ‘online’ public auctions.

There are thus any number of technology-enabled solutions that can be conceived of to get the machinery back to work even in a long era of social distancing. COVID-19 may just prove to be the catalyst that shakes our system out of its lethargy, by forcing it to identify and address all its inefficiencies as we try and adapt to a system that secures justice delivery without access to crowded courtrooms.

The question is only whether there is requisite imaginative leadership available to do what is necessary to ensure access to justice (for litigants) and also access to opportunities (for the Bar).

The author is an advocate practicing at the Supreme Court of India.

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