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Every Crisis Presents An Opportunity – It's Time For India To Ramp Up Its ODR Capabilities

Deepika Kinhal
22 March 2020 8:50 AM GMT
Every Crisis Presents An Opportunity – It

Amidst all the measures in India to curtail the spread of COVID-19, one thing that is becoming increasingly apparent is the judiciary's and the legal sector's absolute inability to function remotely (except for the top tier law firms who in any case service a miniscule percentage of corporate sector). Even though CJI Bobde attempted to assuage concerns by stating that virtual courts would be a reality 'soon', those closely following the design and implementation of e-courts project know that the judiciary is nowhere close to having streamlined online capability. At best, a few courts might offer online hearings by relying on external service providers such as zoom or skype.

It is ironical that the judiciary, much like the government, while preaching 'self-isolation' and mandating work from home facility for private sector, the best that it has done for its own is decrease the number of regular benches and list only 'urgent matters', which as per ground report is not being followed. If the trajectory in China and Italy is anything to go by, these measures in a typically crowded place such as courts is completely insufficient. The judges and the staff are not only putting themselves at risk, but also litigants and lawyers who are invariably compelled to be present in court. On the other hand, the CJI is right in ruling out the possibility of shutting down the top court or any other court in the country for that matter.

This choice between the devil and the deep sea is a result of decades of negligence in adopting technology, effects of which are unfortunately being discovered in the face of a crisis. However, Indian legal sector or the Indian judiciary is not alone in slow adoption of technology. World over, legal technology has been one of the slowest to take off, especially in comparison to other service sectors such as banking or healthcare.

However, the present crisis might be the final push that was necessary to force both small and big players in the sector to adopt technology or risk perishing. As for the judiciary, it needs to thoroughly rethink what 'access to justice' means in a new world that is getting shaped by COVID-19 experience. Countries like Australia, China and US which are at the forefront in technology adoption, are in these dire times already working towards moving their judiciary entirely online. For instance, China, recognizing the importance of Online Dispute Resolution (ODR) in putting the economy back on track while also preventing the spread of COVID-19, has issued a guideline calling for accelerated development of 'internet arbitration systems'.

India must similarly not let this crisis go to a waste and take immediate steps in building Online Dispute Resolution (ODR) capabilities.

ODR in India - current status

Even before the pressing need that is presently felt for online courts, it has been apparent for a while now that the Indian judiciary was in need of a major technology driven overhaul. The slow administrative processes, poor infrastructure and the oft-cited problem of judicial vacancy have all contributed to a staggering pendency of around 3.2 crores at district judiciary, 46 lakhs in the High Courts and around 60,000 in the Supreme Court.

Judiciary as it currently exists and functions is simply incapable of handling the existing burden, let alone intake the new-age disputes that are not even entering the judicial system due to uncertainties associated with cost and time. The 'justice-gap' is currently being partially addressed through alternate dispute resolution (ADR) mechanisms i.e. negotiation, mediation and arbitration. However, ADR has failed to take off at a scale required in India for umpteen number of reasons such as lack of quality private dispute resolution professionals across the country, importing of procedural complexities from the traditional court system, high costs etc. As an answer to these problems, private ODR platforms are making inroads into dispute resolution ecosystem in India.

Private ODR platforms essentially work as aggregators connecting dispute resolution professionals with disputing parties. For now, a small number of functional ODR platforms are catering to a very small segment of disputes such as low to medium value commercial disputes, consumer disputes, insurance cases etc. Unlike countries such as US or Canada where private ODR is already well recognized and in fact work in partnership with the judiciary, India is yet to see large scale adoption of ODR. This is where the government and judiciary's role in promoting ODR becomes important.

Roadmap for making ODR a reality in India

In the present state of things where the judiciary is still some distance away from having a fully functional ODR capability, it will serve itself well if it can encourage disputants to attempt resolving disputes through private ODR platforms. In addition, the law ministry can issue a notification listing ODR platforms that the disputing parties can avail services from. In the long run however, the law ministry needs to put in place a streamlined mechanism through which ODR platforms can be recognized and regulated to ensure adequate standards of fairness and impartiality. Such efforts are essential to quell concerns regarding legitimacy or enforceability of awards given through private ODR platforms.

That being said, the judiciary should nonetheless march towards operating completely online. This is the only true way of ensuring access to justice in a swift and cost-effective way for every citizen in the country with no bar as to the category of disputes.

A phase-wise implementation plan to build ODR capability in Indian judiciary can roughly be charted along the following lines:

Scope

Description

Phase 1:

25 High Courts and the Supreme Court of India which roughly comprises of 1000 judges and equal number of court halls

Enable e-filing, online payment of court fee and online rectification of scrutiny objections across all High Courts and the Supreme Court of India.

Phase 2:

Move certain special courts and tribunals completely online for the pre-litigation stage.

Legislations such as Consumer Protection Act, 2019, Commercial Courts Act, 2018, and Family Courts Act have provisions for pre-litigation mediation. These are fit cases for resolution through ADR methods and court annexed ODR can ensure cost-effective swifter resolution.

Phase 3:

Enable complete online resolution of certain category of disputes such as motor vehicles accidents cases, loan defaults, consumer cases, with limited questions of law and fact.

This is the first stage of accomplishing truly 'online courts' with state of the art audio and video conferencing facilities, data management and storage capabilities and most importantly, easily navigable user interface across multiple languages.

Phase 4:

Atleast one court room equipped to function online in every District Court in the country.

Apart from e-filing and complete ICT integration in all court processes, atleast one court hall in every District Court in the country will be an end to end online court. Capable of handling all disputes.

The time has now come for the judiciary and the government to work together to make ODR a reality in India. Both private ODR platforms and court-annexed ODR must work hand in hand to ensure that no citizen or entity is left without avenue to resolve disputes. The private sector has already initiated India onto this journey. The onus is now on the government to ensure India achieves milestones listed above swiftly. This is critical to tide over not only the current crisis induced by COVID-19 but will in the long run help India improve its ranking on the World Bank's Ease of Doing Business rankings, further boosting the country's economic growth.

Views Are Personal Only.

(Author Leads Judicial Reforms vertical at Vidhi Centre for Legal Policy)

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