The proactive measures of the e-courts committees of the Supreme Court and various High Courts in promoting e-filing and video conferencing for urgent hearings has certainly helped strike a balance between rival considerations, namely the need for social distancing and the requirement of access to justice. The steps taken so far are useful to start with.
I will highlight my thoughts on the next steps that I believe are critical to ensure our courts do not become coronavirus hotspots. Various studies on Covid-19 point towards the pandemic impacting life for at least a year from now. Hence the need to maintain social distancing is also going to continue. Yet, courts cannot restrict hearings to only extremely urgent matters.
Recent statistics released by the Madras High Court (446 disposals by the Madras HC and 10,206 by the subordinate judiciary during the lockdown) have shown that it is possible to dispose of cases efficiently using video conferencing. The next stage of taking the e-courts system further, therefore, is to extend it to matters that are considered not so urgent as well. The Delhi HC, which already had an e-filing system in place, has started this process.
Digitisation of existing records and e-filing: For a majority of the courts that do not have an e-filing system in place, a large-scale digitisation of records is necessary. Without this, there would be a requirement for the Court Registry to function to deliver hard copies of the bundles to judges. This process would itself contravene social distancing norms. For this purpose, it is imperative that the courts identify a technology partner and follow a Public Private Partnership Model (PPP Model). India is the home of technology giants as well as niche start-ups in the field and hence there is no dearth of expertise available in India in this regard.
Such digitisation is required for existing files. For all new filings, e-filing has been made mandatory by some High Courts and it is advisable that the rest follow suit. In order to ensure that every lawyer has access to a scanner, even mobile phone applications like Cam Scanner should suffice. Of course, when the records are very voluminous, it may require access to a professional scanner; however, most photocopy shops today have high quality scanners and the cost of scanning all the documents would be less than taking multiple photocopies for filing hard copies.
Once e-filing is done, processing an e-record can be difficult if the staff at the Registry are not familiar with the use of technology. This too can be addressed using a PPP Model with the aid of an experienced technology partner. While teething troubles are inevitable, the system will become more efficient with some persistence.
Hearing cases: At the moment, video conferencing systems like Cisco Webex are being used for hearings and these systems are fairly efficient (subject to reasonable internet connectivity). As we move forward, courts may also consider using up-and-coming online dispute resolution (ODR) platforms that provide facilities for uploading records. Such systems would facilitate hearing cases with voluminous records for which purpose existing video conferencing systems are inadequate.
Next steps: Shifting to an online system for filing and hearing necessarily requires drastic changes in the style of advocacy as well as mindset of both lawyers and judges. The system would also need supplementing oral advocacy with concise pre-hearing skeletal arguments and post-hearing closing arguments.
Such a drastic change cannot be imposed on all concerned straightaway and may have to be introduced initially on a voluntary basis. As a first step, each court may request advocates to volunteer to conduct cases using video conferencing and list only matters between lawyers who have volunteered. Such a system may be in place for a limited time (say two to three months). While the number of volunteers at first may be limited, such a system will help identify teething troubles the system may have.
It might also convince naysayers about the need for change. This experiment would also be easier to implement as it would be far simpler to digitise 40-50 case files or even deliver hard copies to the judges. During this period, the technology partner can be identified and the digitisation process can start. With the present advanced state of technology, such a process can move at a rapid pace even with requisite social distancing norms in place.
The next stage can be to extend video conferencing hearings to all cases on a mandatory basis. This process may begin with less voluminous cases being listed and gradually, once everybody gets used to the system, hearing more voluminous cases can start. Perhaps, by this time, a shift can also be made to a reliable ODR platform where case files can be uploaded.
Shifting to such a system also has some long-term benefits. Amongst others, it makes courts more accessible to the common man. A rural litigant would then be able to engage local counsel and handle litigation in the Supreme Court at low cost.
I have suggested the next few steps in a long journey. As set out in the Vidhi Centre’s Strategy Note for Virtual Courts, dedicated legislation of e-courts and standardisation norms across the country are necessary in the long run. As the saying goes, it is time to take a leap of faith. We will either land somewhere new or learn to fly.
Anirudh Krishnan
Advocate at Madras High Court
(Anirudh is co-author of Law of Reservation and Anti-Discrimination and chief editor of Justice R S Bachawat’s Law of Arbitration and Conciliation. Email: anirudh@aklawchambers.com)