The trial of technology in litigation: Technical difficulties

Technology has the capacity to revolutionise our legal system; it is time our courts moved from merely opining to fully embracing it. Technology can have a deep and constructive influence on litigation, not just during the COVID-19 pandemic, but also after.

The Indian Judiciary is rising to the challenge posed by the COVID-19 pandemic and is striving to ensure dispensation of justice in extremely urgent matters via video conferencing.

Unfortunately, the existing ecosystem appears to have certain inherent flaws that may prevent the full and efficient use of technology. It is said that every innovative step, when tested, reveals areas to smoothen.

This discussion seeks to highlight some of the weak spots in the present system, along with potential solutions.

A glitch in the system

Physical Infrastructure

To avail a hearing via video conferencing, one eitherutilizes their own mobile/computer or the infrastructure provided by the courts. The biggest question is whether majority of lawyers in India have access to personal systems and if not, whether the local courts provide them with such facilities.

The answer finds mention in the recent video conference held by the E-Committee of the Supreme Court, where it noted the various difficulties in some states in e-filing, operating virtual courts, and conducting hearings through video-conferencing, including the non-availability of requisite infrastructure.

Legal acumen does not always translate to Tech savvy

A majority of the advocates and judges across the hierarchy of courts may candidly confess that technology is something that does not come to them organically. The most recent examples can be seen in the various difficulties being reported in even the e-filing process adopted presently. In one case, the dedicated email ID of a High Court got overloaded due to a single litigant’s filing.

Add to this, the very real scenario that now the most vociferous advocate may stand speechless before the virtual world. There can be no denying that there may be considerable resistance to technology due to lack of understanding and it remains to be seen whether this will adversely affect the justice delivery system.

Access - Equal, Uniform, Proper and Intended

The next issue is whether technology is available to all advocates/litigants and in every part of the country, that too without burning a hole in their pockets. Another issue is that of uniform access, ie whether the same technology is being made available or are different courts relying on different platforms, thereby leading to chaos.

Next and most important is proper access, ie whether the advocates are able to use the software properly, efficiently and with due respect to courtroom decorum. The culture of litigation in India is stereotypically considered to be aggressive or heated. While refraining from commenting on the merits or demerits of this culture, from a practical standpoint, such a culture over video conferencing will lead to overburdening of the virtual platform and a breakdown of the proceedings.

Lastly, is intended access, which requires that only the advocates, parties, media persons who are authorized to access the video conference should be able to do so. Presently, with different courts using different platforms to conduct these proceedings ranging from Vidyo, WhatsApp Video, Zoom, Skype, Microsoft Teams, etc. there is an absolute lack of uniform access. And with questions being raised about the security features in these applications, there is a genuine concern about intended access as well.

In fact, it may be highly pertinent to note that as on date, India still does not have a comprehensive data protection and privacy legislation. It will not be unreasonable to presume that most of the aforesaid platforms have foreign offices; their servers will be outside India. Therefore, the serious question to be considered is whether these proceedings are truly secure from a national interest perspective.

Bandwidth and Connectivity

While these are the most basic concepts, they are also the most vital. A fault in either can derail the entire system and its efficiency. In the absence of adequate bandwidth, the dream to embrace technology will remain just a dream.

Practically, we have noticed that on a Monday or a Friday, the Supreme Court has nearly 60 matters across each of its court rooms, i.e. potentially 1,140 matters being heard in a single day. Does the present bandwidth in the Supreme Court allow nineteen courts to function simultaneously? Further, most cases have more than 3-4 advocates appearing.

Therefore, does the bandwidth allow so many simultaneous, active connections into a single video-conferencing link?

Additionally, and in a very practical sense, the question that we should ask ourselves is: how efficient is the connectivity in the courts across the country or even in the chambers of judges and lawyers to withstand even a full day’s worth of matters? Do we have a robust wireless internet service across India?

Unfortunately, one cannot make a confident statement for all the courts, tribunals, etc. in India, some of which are still in the process of getting a full time staff/address.

The Anti Virus?

Uniform Platform, Protocols and Standard Operating Procedure

Presently, an advocate from Calcutta not only needs Skype, but also Microsoft Teams to practice before the High Court and will additionally need Vidyo to approach the Supreme Court.

If the courts need to effectively replace court hearings with video conferencing, the need of the hour is a uniform platform coupled with a uniform protocol and standard operating procedure which would apply to all courts and tribunals in the country.

While the protocol may be aimed at ensuring all records are digitized and maintained in a harmonious format, the platform may include tools that allow one counsel to prefer an objection without speaking over the other in the midst of arguments. These objections can be recorded in the software itself to enable the judge to refer to the same later.

In fact, a specific recording tool may also be incorporated to enable smooth transition when there is a change in roster or retirement of a judge. As an added option, courts may consider using teleconference facilities for the purpose of procedural hearings or matters listed for directions, etc. The possibilities are countless.

The Supreme Court has recently issued a comprehensive Standard Operating Procedure dated April 15, which includes directions where only one party must address the court, opposite party may raise her hand in case of an objection, both parties remain on mute unless directed otherwise by the Court, etc.

Further, specific practice rules are needed, whereby in addition to rules for trial, evidence, etc, a structured approach may be advised in order to prevent overburdening the software and causing inadvertent breaks in the proceedings.

It may be considered that the courts adopt an approach similar to the National Company Law Tribunal, wherein parties have been directed to submit joint submissions to facilitate proceedings along with dedicated time slots for arguments.

Infrastructure and Adequate Training

Conducting virtual proceedings seamlessly inherently requires a strong and robust technological infrastructure, including dedicated and secure video and audio conferencing systems and internet connectivity for each courtroom, chamber and/or office with a sufficiently high bandwidth. The Supreme Court’s recent Standard Operating Procedure itself requires that a lawyer must ensure robust connectivity and bandwidth for smooth functioning.

Additionally, the immediate next step ought to be ensuring that an advocate does not have to bear the additional burden of the shift to technology. As recently directed by the Supreme Court, each High Court has the duty to make available the facilities for video conferencing.

The meeting of the E-Committee of the Supreme Court has recommended that the budget for the Phase II E-Courts Project may be utilized for this purpose, till a dedicated budget is earmarked by the state. As a suggestion, perhaps the courts could consider levying a nominal e-hearing fee that could be utilized towards infrastructure development.

Simultaneously, it is necessary that lawyers and even judges are not rendered technologically handicapped. Therefore, it is vital that adequate training be imparted to ease the transition from the traditional paper briefs.

In this regard, it may be noted that the Delhi High Court’s office order dated April 15 provides for online training for use of video conferencing software ‘Cisco WebEx’ to all the judicial officers of the district courts. These training sessions should be extended to lawyers as well and not only be regular and aimed at familiarizing one with the use of technology, but also the manner of presenting arguments over such audio/video conference.

It cannot be stressed enough that as a unified fraternity, we will have to re-tune our entire approach to trial and arguments.

Regulatory Framework

One of the biggest dangers in such virtual courts is ensuring cyber-security and privacy. Breach of cyber-security is not unheard of even in international arbitration and with regard to some of the platforms the courts in India have deployed, similar potential red flags have been raised.

The need of an umbrella regulatory framework to regulate conduct of audio/video conferencing in courts, in addition to a robust data protection and privacy law, is beyond doubt.

Such framework may lay down standard security features aimed at ensuring that the audio/video-conference links are protected from security breach, only accessible by authorized persons, prevent recording, etc.

Additionally, a log may be maintained of those who have accessed the links in order to facilitate the investigation, in case of any breach or unauthorized use. By way of example, India may consider referring to the Seoul Protocol on Video Conferencing in International Arbitration as a benchmark.

Conclusion

In order to effectively substitute the present system with virtual courts, the technological infrastructure available will require to be rapidly up-scaled in an organized and planned manner.

There is a need for the Ministry of Law & Justice to enter into a public-private partnership with a leading network service provider, preferable one that has pan-India presence and infrastructure and an advanced security system that services sectors such as the banking and financial sector.

In fact, it may be beneficial to engage the services of a single entity such that there is a uniform infrastructure across the board, to give the judges, lawyers and litigants a single window to access the judicial system. This would give true meaning to the idea of ‘access to justice.’

The authors are lawyers at IndusLaw. [We would like to express our deep gratitude to Mr. Manish Sansi, Company Secretary and General Counsel (India), Tata Communications Ltd. for his special inputs and expert suggestions that have helped guide our analysis.]