Who moved my Cheese? by Dr Spencer Johnson is an enlightening story of four characters who live in a 'Maze' and look for 'Cheese' to nourish and make them happy. 'Cheese' is a metaphor for what you want to have in life — whether it is a good job, a loving relationship, money, health, or spiritual peace of mind. And the 'Maze' is where you look for what you want — the organisation you work in, or the family or community you live in. In the story, the characters are faced with unexpected change. Eventually, one of them deals with it successfully by accepting the reality of change and working around it.
In real life, in a legal community, lawyers look for an accessible court system where they can vindicate the client's cause, take professional steps and leaps but at the end of it and most important – make a living. Fast forward, and we unavoidably reach a stage where the court system is inaccessible, where judges are unapproachable to seek justice – what would be the worth of an advocate? For litigation lawyers, the very existence of the court system is the essence of their existence – it is their 'Maze' as fancied by Dr. Johnson. The fruits of this system is the 'Cheese' for the advocates – making a living, helping someone get justice, serve society et al. The situation is worse than what Dr. Johnson imagined. In our story, the difficulty is that the 'Maze' itself is inaccessible. One has to look for alternatives to enter the 'Maze' and get the 'Cheese'.
It cannot be denied that the present pandemic has been a serious setback to the professional life of all the lawyers. We have all been taken by surprise. But, now that we are faced with the situation, can we still sit tight with a fond hope that status quo ante COVID-19 would somehow materialise to soften the crush. Should we not accept the change and move ahead?
Indian Courts have adopted technology
With its past experience of more than one and half a decade with use of computers, the Indian courts are better positioned to use technology today as compared with many other countries. It is mandatory for each new judge entering the subordinate judiciary to have a comprehensive computer training through State Judicial Academies. This includes a basic computer operation training, working on Ubuntu operating system and the case management application. From day one, they are expected to conduct proceedings where computers are being used. Processed data available on the eCourts portal is based on the raw data being sourced from the subordinate courts across the country. This data is collected and processed through the online National Judicial Data Grid and is a result of use of computers in each and every court in the entire country. The Supreme Court as also every High Court and the subordinate judiciary have moved on with times to use technology.
Since the national lockdown has been declared, unavoidably, we find the Indian courts recoiling themselves with only 'very urgent' interactions with the outer world. Even such minuscule openings are permitted through video conferencing hearings alone. It has been more than a month and the end is nowhere near. Recent reports of COVID-19 affecting Supreme Court employees adds to the concern. Though there have been appeals from different corners to start open court hearings at the earliest, the reality staring on our faces can hardly be overlooked.
A website has been created recently – www.remotecourts.org – which shows how courts and Judges across the globe in around 40 countries (including Kenya, Nigeria, Rwanda) are adopting technology and moving on. For all, just like in India, it has been a difficult shift. But now that the bridge is finally before us, we need to cross it or find ourselves stagnant.
Need for the Indian legal professionals to adopt technology
In any given profession or business, a smart service provider would want to adapt to changing circumstances and update himself to ensure that his profession or business does not suffer. In short, no one can continue to prosper as a status quoist. Present COVID-19 situation calls upon the legal fraternity to adopt new ways to keep their own profession relevant.
The Indian legal profession has been open-minded since long towards embracing technology. From writing by hand to typing on a typewriter to printing from computers, the look and feel of pleadings have changed. Legal research has shifted from using only books to a beneficial mix of books and research facilities like, SCC Online, Manupatra, etc. Documents are no more being cyclostyled but rather photocopied and now being even scanned, stored and printed/emailed. Advocates are progressively getting used to online cause lists, retrieving case status online, receiving orders and judgments through the internet and even following daily court progress through online display boards. Anyone with even a simple smartphone is already using technology as an aid to his own legal practice.
Our vision to take the Indian legal fraternity in the long run – say next 20 years and beyond – requires a deeper reflection. On the one end, we have young minds trained as lawyers who have expertise in using SCC Online, Manupatra, LexisNexis India, JSTOR, Westlaw India, etc. as legal research tools, who communicate through emails, who sign digitally through Digital Signature Certificate (DSC) or DocuSign and who use Mendeley, Zotero and Evernote to organize and systematically retrieve their legal notes and materials; however, on the other end of the spectrum are lawyers (of same age but from humbler background), who lacked resources or opportunities for such learning and exposure. But the fact remains that both would and do stand side by side in a court and both have to live up to the expectation of their client and give their best.
Given this deep-rooted disparity between advocates, it is upon the Bar Councils and Bar Associations to bridge this yawning gap. One needs to identify such advocates and ensure appropriate training and provide them system support. If an Indian lawyer is indeed to march along the judiciary to ensure full access to justice, it must transform itself and make use of all such tools for that purpose. We have been at the cross-roads of this gap for a while – COVID-19 has only brought this debate forward with much more intensity.
We are constantly witnessing the movement of myriad services to the online platform. Every day, one receives webinar invites on various topics ranging from general information to yoga to science to management to law to cooking skills to religion, etc. Online banking and e-commerce have been in India for some time with tremendous success. After COVID-19, most of the schools and universities have started with online education. In legal arena as well, alternative disputes resolution mechanisms have already made a head start. There have been thoughtful discussions on e-mediation and e-arbitration. Arbitration, as a mode of dispute resolution, seems to have already adopted the format of virtual hearings in view of the pandemic. Online dispute resolution has been of some interest in Indian circles for a while. Recent ODR webinars have been more emphatic in their approach. All in all, everyone is adopting and adapting.
I truly hope and pray that this pandemic passes by as quickly as possible and open court hearings commence at the earliest. But mere hope and pray cannot be a denial to the extant truth. The present state of affairs does not instill enough confidence that the courts could be made fully functioning in near future. It cannot be gainsaid that the courts can easily turn into hotspots if its full functionality is pre-maturely permitted. The Delhi High Court has already held that it would not use air conditioners for the time being. Advocates from all parts of the cities would attend to the open court hearings. Advocates with chambers within the court premises would come even if they do not have a case listed. The high possibility of the virus spreading quickly in the court premises cannot be treated as a mere fiction.
Use of technology by the legal professionals in India in a balanced manner is the need of the day. It is obvious that all this would not, and cannot, 100% replace the open court hearings. But at the same time, a balance has to be maintained. Technology does not transplant one's practice, it transforms it. Legal practice – lock, stock and barrel – can never be replaced by automation or artificial intelligence. Legal expertise cannot be substituted by technological advancements. To assume and fear that legal profession would be obliterated is a paradigm of futile imagination. The profession would undergo a transformation but surely its relevance would remain so long as we want it to be.
The courts in India have been pioneers in adopting the concept of virtual courts since the pandemic has struck. The Supreme Court has noted in its recent Report on use of virtual courts that, "There cannot be divergent views about the fact that justice cannot be spoon-fed. Justice delivery, even at the door-steps of the stakeholders, requires the stakeholders of the ecosystem to diligently discharge their role and duties, prescribed and required in the scheme of things." Advocates are one of the stakeholders of the system. It is exigent that they too play their part diligently in this transformation and support the courts rather than creating obstacles. We must remember that access to justice does not require a defined form – what is important is access and not the form.
In a recent telephonic interview, Justice Chandrachud, Chairperson of the E-Committee of the Supreme Court, has noted that,
"We were confronted with a situation almost overnight when lockdown was announced and we could not have court hearings. So instead of barring access to justice completely, we thought that the next best option was to have hearings through video conferencing." He has further confirmed that model rules for video conferencing is being finalised and circulated to all the High Courts 'to ensure uniformity in video conferencing but subject to such situational modifications'. Further, the E-Committee at the Supreme Court will soon constitute a panel of experts who will help draw up a standard operating procedure for digitization across the nation. As noted earlier, COVID-19 is an opportunity for creating a system for the present and the future. It is quite clear that the courts are creating alternatives to ensure that the justice delivery continues.
However, it is upon the legal fraternity to play its role in this transformation. Limited functionality with limited open court hearing is unlikely to further the cause of justice and definitely, not of the advocates (for their living). SCBA President Dushyant Dave has rightly pointed out that while physical hearing might not be possible, the court should invest in functioning virtually. Effective support from the advocates would help the courts to adopt a defined, balanced plan for ensuring both limited open as well as virtual court hearings to end the stand-still. The Bar Councils and the Bar Associations have a larger role to play in ensuring an attitudinal change of the advocates towards use of technology and guiding them through adoption and adaption.
It is time that we make an attempt to enter the 'Maze' through alternative routes and find our 'Cheese'. The way forward is laid before us by our Courts and the E-Committee. We need to give up our fears and forge ahead. For the present, each one of us must make the best of the situation and attempt to transform our law practice through training and learning.
Trust me, it is for our own good!
The author is an Advocate-on-Record at the Supreme Court of India. He is a Harvard Law School graduate and a Doctoral Research Candidate (part-time) at Jindal Global Law School. Author's views are personal.