Time to make lemonade! A normative analysis of the Judiciary’s response to the global pandemic

In these dark and disheartening times of a global pandemic, as the nation has crossed 2 million confirmed cases of COVID-19, it has become increasingly difficult to derive any inspiration from the proverbial phrase, “[w]hen life gives you lemons, make lemonade.”

However, this adversity has presented us with an incredible opportunity to bring a new dawn and revolutionize the administration of justice in the country. I have no doubt in my mind that this great nation, which boasts of some of the best legal and technological minds in the world, has the potential to set a benchmark in adapting to meet the challenges posed by the current pandemic.

While the voices coming from amongst the judges that physical hearings cannot be dispensed with have been reassuring to the lawyer community, it is equally important that we as lawyers must rise to the occasion and prepare ourselves for technological advancements that were always expected to eventually pervade the administration of justice. The pandemic has only accelerated the unavoidable awakening.

The present article therefore seeks to proffer certain recommendations/suggestions to meet the challenges posed by the pandemic that could render the administration of justice more efficient, transparent, accessible and inexpensive, thereby, bringing about a new dawn in the practice of law.

Single point of access for all courts and tribunals

Presently, access to the Supreme Court of India, the High Courts and their respective subordinate courts and tribunals is available through separate portals. Many of the said portals do not serve the purpose of their conception, as lawyers often experience that the orders/proceedings of the day are not uploaded/updated on time. There is a dire need to dispense with the same and introduce a consolidated point of online access (available as both Website and Mobile App) to all courts and tribunals within the territory of India where the litigants and lawyers may access not only case details and daily orders, but also pleadings and court records.

This can easily be achieved by providing a secure gateway through which the requisite fee for certified copies can be deposited. Upon payment of the requisite fee, digitally certified copies could be supplied to the applicant on his/her registered email address under the digital signatures of the concerned judge or court master. Supply of copies to registered email address of the advocate or the party shall also ensure that the court records do not fall into the hands of third parties without authorisation.

There is also a need for overhauling the system of regular uploading of daily orders. Accountability must be fixed for failure of court staff to upload the orders on the same day or within a period of 24 hours.

Further, in respect of sensitive matters where the identities of the parties are not to be disclosed, such as matters pending before the family courts or matters involving juveniles, sexual offences, POCSO matters, etc, the access to case details and court records can be provided only to lawyers acting in the matter and parties through an additional authentication/verification process, if required.

Common High Court Rules, rules of procedure, evidence and practice directions

A drafting committee comprising judges from each High Court must be constituted to draft a common set of Rules which would be followed in all High Courts (and their respective subordinate courts and tribunals, wherever applicable) within the territory of India. The diverse practices in different courts and tribunals with respect to listing of matters, attestation of affidavits, format of pleadings etc., and even with respect to the size and colour of papers to be used for pleadings, often result in chaos and confusion.

It becomes particularly difficult for an outstation litigant or lawyer to keep abreast of different prevailing practices in different courts. It is therefore submitted that these diverse practices must be harmonised and brought under a common umbrella of rules and practice directions which could be applicable to all courts and tribunals.

E-Filing

While the present system for E-Filing has been a welcome development, there is much to be desired inasmuch as it could be made a lot more user-friendly for lawyers and parties in person. This could be achieved by a periodical review of the user interface. It is also submitted that the common website/app for all courts and tribunals as suggested above must also be the point for e-filing in all courts and tribunals.

Further, in order to bring uniformity in the drafting of pleadings, the webpage for e-filing must provide the litigants/lawyers with the prescribed format of pleadings in the form of an online form (similar to Google Forms) with the option to save the drafts or incomplete pleadings (while it is a work in progress) before exercising the option of submitting the same for filing. A similar form is already in use for filing urgency applications in Delhi High Court at present.

In addition to the common online form, there must also be an option to upload any additional information, submissions or annexures. Also, a secure gateway must be available for online payment towards e-court fee/welfare stamp as soon as the option to submit the pleading is exercised by the litigant or lawyer. In order to further facilitate the same, a Court fee calculator must be provided therein for the ordinary litigant to calculate and deposit the same instantly. An attempt must be made to allow payment of court fee to be made by all modes including online wallets. Separate link for payment of court fee followed by manual entering of eCourt fee reference number must be dispensed with.

Video conferencing should be the norm, physical hearings the exception

The need for physical hearings could be assuaged considerably in respect of fresh/miscellaneous matters if the judges are allowed to exercise their discretion to issue notice and grant a stay order in fresh matters without hearing the party. Physical hearings in fresh matters must be restricted to cases where there is a caveat filed in the matter or where the concerned judge is not inclined to issue notice or grant a stay, or where the judge wishes to seek any further clarification in the matter. Such a practice may considerably save the time of the court and at the same time incentivise clarity in the drafting of pleadings.

Further, with the consent of the parties, the Court may also render its judgment or final order upon written submissions of arguments being filed by the parties. It is submitted that physical hearings may be restricted to recording of evidence, final arguments or voluminous cases, wherever necessary.

It is also submitted that the causelist must also indicate the time slot allotted to a particular case in order to enable parties to log in at the appropriate time for the hearing over video conferencing. The matter should not be allowed to proceed beyond the time limit and if the concerned judge or judges are inclined to hear a matter beyond the prescribed duration, it may either be passed over and allotted a time slot at the end of the board or adjourned and given a time slot with a longer duration on the next date of hearing.

This may reduce the waiting time for litigants/lawyers and improve the rate of disposal as it would ensure that short matters are taken up on time and are disposed of in all likelihood. At the same time, longer arguments can take place at the end of the board when the concerned judges are not under the pressure of a swollen docket.

Better connectivity and access to online hearings

The service providers must be directed to ensure that there is excellent and consistent high-speed internet connectivity in all courts. In addition to this, within the premises of every court, there must be computer booths installed on the lines of the old fashioned PCO booths (to provide privacy/noise cancellation) for lawyers who do not have access to computers or internet facility to attend hearings online. These booths must also have operators to provide assistance/training/tutorials/demonstration to such lawyers in order to equip them with the required skills and knowledge to appear through video conferencing.

These measures would enable a lawyer sitting in any corner of any town or city, to appear in various courts scattered around miles apart in different parts of the country in a day without having to travel an inch. Not only would it curtail the cost of litigation for the client, but it would also result in saving time for the lawyers which they would have had to spend in travelling for outstation matters. Resultantly, the lawyers would be able to attend outstation hearings and yet put in more working hours, be better prepared, and consequently, be in a position to assist the courts more effectively.

Further, the Courts and their respective Bar Associations must also digitise their respective libraries and provide lawyers with online access to e-books. It is also submitted that every lawyer should be provided access to the free online database of case laws through the proposed common website/mobile app. This would enable the poorest lawyers in the country to improve and update their knowledge of the law and thus ensure equal opportunity for all to excel in the profession.

Epilogue

I am reminded of the famous quote – “[t]he measure of intelligence is the ability to change.” This period could be seen as a phase in the evolution of humans which has necessitated adaptation for us to survive it. It is submitted that the changes proposed in this paper have the potential to put the judiciary at the forefront of the Digital India movement and set a benchmark for the world inasmuch as it would result in the establishment of not only the largest, but also the most efficient and accessible judicial system to be administered online.

The author is a practicing Advocate. For any clarifications about the paper, he may be contacted on email at divyadeepchaturvedi@gmail.com