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[Column] 'Dispute Resolution As A Service And The New Normal': By CS Vaidyanathan, Senior Advocate

C S Vaidyanathan, Senior Advocate
2 May 2020 12:27 PM GMT
[Column]
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The people have a huge stake in the integrity and independence of the judiciary. In the system of checks and balances, the judiciary as the sentinel on the qui vive has to be ever alert and vigilant to any transgression of the Constitutional limitation by the executive or the legislature. The people have reposed immense faith and trust in the institution of judiciary, because of the watchful role played thus far in a fair and transparent manner. The lawyers have played an active and constructive role and the very charter of their duties casts a huge responsibility on them to discharge the same to the best of their abilities in respect of all the stakeholders viz their clients, the institution of judiciary and the society. Of course, they have a right to a reasonable recompense for their efforts and the time.

In a democracy governed by rule of laws and not the whims of men, the judiciary fulfils the role of the neutral arbiter. There have always been disputes and differences between man and man, man and woman, state and the citizen.

If force and might is not to prevail we need institutions to resolve the disputes and differences. We had the panchayats and the Court of the Rajas. Then came the hierarchy of courts.
All powers are derived from the Constitution and all the organs of the state and the citizens are answerable to the Constitution. The speedy resolution of disputes in a just, fair and equitable manner is the Constitutional mandate. We have been lamenting the huge time lag involved in the disposal of cases and the humongous number of pending cases. The system and the institution , of which we are a part, exists for the people. The continued relevance of the institution is premised on the continued confidence and faith of the people in the institution of judiciary. We should not belie their expectations. We have to exert every sinew of our system to reach justice to the people in the least possible time. Wars may come, plagues may ravage, but the institution of judiciary has to discharge its Constitutional role and the lawyers have to play their part.

Judiciary is an essential service and the lawyers being an integral part of the judiciary need to be recognised as performing an essential service. They should be accessible to the consumers of justice and they should have access to the portals of justice. Immediacy and emergency is to be judged on objective factors and there will be cases which can brook no delay.

The Covid 19 virus is a wholly unanticipated global crisis and India has saved itself from doomsday projections by a timely lockdown. The phased exit from the lockdown is underway. But the scientists, medical experts ,virologists and community health professionals are advising continued social distancing to avoid community spread. We should heed such sane advice till we have developed a successful vaccine and an antidote to the virus. The reasonable time frame projected presently is a year.

A pragmatic solution is to be devised as a way forward. The courts and tribunals are not handling even 1% of the normal workload. Such a situation will cause acute distress and suffering to the litigants who are waiting anxiously for their turn for resolution of disputes and grievances.

In our vast country of a population of about 135 crores, we have about 19 lakhs lawyers and about 21000 judges and tribunal members.

We have a humongous caseload of almost 4 crores of which about 3.25crores are in District and subordinate courts, about 48 lacs in High courts. There are about 15 lac cases in various tribunals and appellate authorities. About 60000 cases are pending in the Supreme Court
Taking the institution and disposal data, there has been a net addition every month of 2.5 lac cases in the district and subordinate courts and 30000 cases in the High Courts. Almost two months are lost due to the lockdown. When the courts start accepting filing of all new cases, there is bound to be an upsurge. The arrears will mount. It is difficult to foresee full and effective functioning and disposal of cases at least for six months more, if not longer.

We have therefore to evolve systems and methods to balance the health interests of all stakeholders while at the same time ensuring access to justice and timely relief.
The new normal of social distancing is a given and we have to accept this reality. Till two months ago, the ground reality was that there were milling crowds of lawyers, interns, clerks and litigants in the Court halls, hallways ,corridors and canteens . Apart from judges, the court staff including court masters, stenographer secretaries, library assistants etc will also have to be present.

Virtual courts or online courts with video conferencing will only touch the fringe and cannot be the panacea at least in the short or medium term. Even in the long term, the virtual courts cannot entirely replace the physical courts and arguments therein, more so, in public interest cases.

We need to find innovative solutions. The crisis is an opportunity. The mindset will perforce have to change to adjust to the constraints and new realities. For the pending cases, we need to vigorously apply solutions suggested earlier but not effectively acted upon. The procedure codes have been amended to mandate mediation in civil cases and plea bargaining in criminal cases. But the mindset of the judiciary, the legal fraternity, the litigants and the accused has been resistant to these time saving methods. Reasons are many. Training and reskilling may be needed. Acceptance of the alternative methods are also dependent on dissemination of information on the advantages in terms of time, money and effort saved.

Out of 2.1 crores of original criminal trials which are pending, only less than 10% are sessions cases or cases relating to corruption, rape, murder, national security etc which cannot go for plea bargaining. We need a special cadre of public prosecutors who have greater receptivity to act with alacrity on plea bargaining. We need to encourage defence counsel to educate the undertrials who are languishing in jail or on bail on the expediency of plea bargaining.
The judiciary should be forthcoming in undertaking special efforts for expeditious disposal of pending criminal cases without having to go through the full fledged trials. The low conviction rate should persuade the judges and public prosecutors to show greater leniency in minor cases
pre institution and pre trial mediation with open minds should be mandatory in civil cases. In pending cases, the courts should actively encourage resolution of disputes by settlement. If an offer is made and not accepted and the ultimate result in the suit is worse than the offer, such a party who unreasonably declined the offer should be mulcted with heavy costs. A message should go to the litigants and lawyers to see the writing on the wall and be pragmatic in their approach. We have 66 lakhs civil cases awaiting trial and arguments. Other jurisdictions which have plea bargaining have almost 90% criminal cases resolved without trials. Nearly the same percentage of civil cases do not go to trial because they are settled at the first hearing or during discovery. Why we are wary of pre trial resolution is a mystery which has to be cracked by the lawyers and judges. If trial is to be conducted, there should be a video recording and the reality today is that almost in all cases the judges before whom the evidence is taken are not the judges who hear arguments. All these can effectively go on even with social distancing.

I have seen plaints and writ petitions in 2/3 pages. I have seen handwritten judgments of half a page or one page. Today, technology is being wrongly applied for copy paste with long pleading and judgment. We need to unlearn such wrong practices and re-skill ourselves for greater precision in drafting pleading and written submissions.

We, the entire fraternity, must be receptive to changes and the times are such that we should actively cooperate and coordinate with all the stakeholders not only to tide over the crisis but to make a sea change in the systems and procedures to make the institution of judiciary more meaningful to the consumers of justice.

Courts should start listing lesser number of cases per day to avoid crowding but should effectively dispose them off. For final hearing time slots should be given.

I. Broad Concerns:

a. Access to the digital courts by all – on account of technological divide

b. Security and integrity of court records against hacking and disruptions

c. Do we have infrastructure and technology in place to seamlessly move into this space

d. How to maintain social distancing for the present and later reduce the stress on physical infrastructure

e. Expedite process and procedures for having batter case management systems

f. Optimise the present judicial capacity

g. Enhance court room participation

II. Possibilities:

Immediate:

a. E-Court Project has put in place a robust e filing system which has hardly been put to use. There is portal available to make online payment of court fees, penalty, charges etc which is hardly used. E-filing protocols are in place to a large extent but even they are underutilised or not utilised at all.

b. Since these technologies are already available and has been ironed out for court process, they should be implemented in full. May be incentives can be considered for filings done on E-Filing protocols. E.g - For those who opt for the process; case listing would be prioritised, court orders digitally signed will be made available the same day instead of certified copy process, access to court files for inspection will be available on line, the litigant and Advocate will get the same digitised regularly updated file identical to the court file

c. Digital signing, e-pay, e-filing will enable an advocate and litigant to file or pay charges from any part of India without being physically present to notarise, sign and file at the concerned court premises.

d. This will enhance the VC hearings as the struggle to access and have the same file as the court file and digitally take the judge through the relevant part of the paper book would be seamless.

e. There is technology already in place used for e-filings by US and UK to maintain the security and integrity of the documents filed to prevent subsequent tampering and hacking. This tech can be adapted instead of re inventing a new protocol

f. There are more that 3 lakh common service centres as envisaged under the e-court project at Gram Panchayat levels. The litigant can access these CSC for getting information and update of their matters. The CSC infrastructure can be expanded to permit a litigant/ advocate to e-file, e- pay from these CSC. The CSC can be staffed by court-tech person who would assist the litigant/ advocate to access the process. This may address the digital divide issue.

g. You tube videos in vernacular and helplines can be set up to assist litigant/ lawyers to understand and transit into the system. We already access you tube videos to understand any tech or machine (vacuum cleaner to and app on the ipad) and how to resolve the problem. And this is across various cross sections and not limited to only elite and metro based advocates.

Mid term- Long term:

a. Filings across the country for similar category of cases to be in the same format. This will make it machine readable.

b. The benefits would help in courts collating data for better case flow systems and utilising judicial capacity

c. Language transcription and translation of documents will be available to the courts for effective filing and hearing of appeals by higher courts

d. CSC can provide for audio of the court orders to enable litigants to understand the status of the matters

e. Templates of pleading will be accessible to all litigant/ advocate on the court portal across the country to have same format of pleadings under various categories

f. Have 24 hr helpline like customer service to assist for technical glitches or issues which may be delaying a filing or deposit which is time bound or otherwise

g. The portal can be ramped up to provide a prospective litigant options:

     a. To decide the appropriate court based on cause of action;

      b. Calculation of court fees

     c. Option of nearest mediation centres

     d. Whether entitled to legal aid and apply for the same where the litigant will be informed about the details of the advocate who is appointed

III. Hearing:

a. The courts have to identify the categories of cases (NI Act) / or stages of a trial (certain IA's like for condonation of delay, service of a defendant by other modes, filing of additional documents, interrogatories) which can be transitioned to written arguments with brief oral hearing.

b. VC hearing to be an option provided to parties with final discretion with the court.

c. Certain witnesses (expert, or elderly and handicapped, official) can be examined by VC. The CSC can provided VC facilities too.

d. Virtual courts for certain disputes like traffic violation, small consumer complaints etc.

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