India: India's Embrace Of Online Courts

Past attempts by the Indian judiciary to digitise cases have not met with much success. The lockdowns following Covid 19 have given a renewed and urgent impetus for virtual justice in India. Recent virtual hearings by the Bombay High Court during the lock- down period met with universal admiration with clamours that this process become the new norm for all disputes- not just urgent matters, as is presently the case.

Proactive Courts

There is no gainsaying that the administration of justice is an essential public service that cannot be 'quarantined' during extended periods of lockdown. Indeed, it is in times such as these that recourse to the courts becomes even more critical.

The Indian judiciary has been quick to embrace the 'work from home' model during the lockdown. The Supreme Court issued guidelines for the conduct of virtual hearings.¹ The guidelines directed all High Courts to take all necessary steps to implement virtual hearings through video conferencing both for themselves and for subordinate courts within their jurisdiction. The guidelines are aimed at ensuring access to justice for all during the lockdown. The High Courts in turn have issued directions for the filing and conduct of online hearings.

Online Hearings

Many virtual hearings have been conducted successfully by both the Supreme Court and some High Courts. Most Courts use video-conferencing apps such as Zoom with shared links that are password protected having large meetings with the ultimate aim of live streaming judicial proceedings.

Technology is here to stay

Even though these measures are meant to temporarily tide over the Covid-19 crisis, they are in all probability here to stay, as remarked by the Chief Justice of India.

Virtual hearings graphically illustrate that a court is not a venue but an essential public service. Lawyers and litigants need no longer travel to the court, saving cost and time. The online filing of pleadings, facilitates seamless exchange of documents between parties. The efficiency gains extend to potentially quicker disposal of cases. The guidelines now require written submissions in advance of the hearing in order to reduce the time spent on oral advocacy and to focus the court's attention on the facts and matters directly in controversy. The evil of truncated hearings interspersed by frequent adjournments can be avoided as there can be no excuse for litigants and lawyers not being able to 'attend' court.

Online hearings level the playing field by ensuring that no court is local anymore. A lawyer can now argue in any court in any part of India. Litigants now have a greater choice for representation as also substantial reduction in costs associated with litigation in appellate courts, which may otherwise require instructing a local lawyer.

But the greatest advantage of transitioning to a permanent system of live streaming hearings is that justice will no longer remain a cloistered virtue. Virtual courts empower citizens and litigants alike, who have a ring-side view of how justice is administered by the courts. This transparency in the functioning of the judiciary make both lawyers and judges accountable.

Way Forward- Digitalisation and Remote Login

The process of conducting virtual hearings presently restricted only to the concerned litigants and lawyers (which are not currently live-streamed and whose recording is prohibited) whilst positive, is nonetheless ad-hoc and reactive to the restrictions brought about by the pandemic. Looking ahead, the Indian judiciary needs a systemic change to institutionalise and embed technology and digitisation in its functioning. This requires standardisation of paper sizes, A4, font and most important of all taxonomy, i.e. the proper labelling and naming of files. This is a long-term project and fraught with many challenges given the lack of standardization and the number of pending cases in India. The IT solution provider will need to work alongside experienced litigators. The judiciary will have to commit substantial resources to ensure that digitisation is done properly and in a timely manner. The ultimate objective being full digitalization and remote login.

Conclusion

The judiciary is said to be the most hide bound of all institutions, hostage to vested interests and resistant to change. The adage "never waste a good crisis" presents the Indian judiciary with a historical opportunity to fundamentally change its functioning. The transformative potential of virtual courts if properly implemented and extended to live-streaming of cases is huge.

E Courts can be assigned to deal with new cases digitally filed. Old matters can be allotted to another set of courts. The latter can focus on getting rid of the backlog and the former can devote their energies to ensuring that new matters are disposed of quickly, without the buildup of a backlog.

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