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Pushback Against ODR, Virtual Courts Based On Fear Of Unknown; Information Can Make TheTransition Easier: Justice DY Chandrachud
Mehal Jain
11 April 2021 11:27 AM GMT
"The pushback against Online Dispute Resolution and virtual courts is often based on a fear of the unknown. I am not criticising this fear, but only emphasising the importance of valuable information in making this transition into the unknown easier", said Justice DY Chandrachud on Friday.Speaking at the launch of Niti Aayog's Online Dispute Resolution Handbook, the judge urged that one...
"The pushback against Online Dispute Resolution and virtual courts is often based on a fear of the unknown. I am not criticising this fear, but only emphasising the importance of valuable information in making this transition into the unknown easier", said Justice DY Chandrachud on Friday.
Speaking at the launch of Niti Aayog's Online Dispute Resolution Handbook, the judge urged that one must remember that "change is nature" and that it should not be avoided for too long, "lest we, particularly us in judiciary, get left behind".
He underlined the need "to reconsider a preconceived bias to a full fledged adoption of ODR"
Justice Chandrachud canvassed that in the last one year, the sudden onset of the COVID pandemic has transformed all our lives in unimaginable ways, including the ways in which the courts operated. "
With necessary lock downs, physical hearings gave way to virtual hearings. This transition was difficult for everyone- me and my colleagues in the judiciary, the advocates, the litigants, and the court staff".
Justice Chandrachud went on to assert that even though the process was initially slow, virtual hearings have found a place in the judicial ecosystem.
"Admittedly, even today, there is resistance to a system of entirely virtual hearings. Although many had acknowledged this as a need at the peak of the pandemic, they were quick to request a move back to physical hearings as and when the pandemic seemed to have subsided", he expressed.
He added that was not there to discuss the merits of virtual hearings, but, in light of the lessons of the past year, highlight that "ODR is the need of the hour".
"The use of a virtual mechanism to ensure efficient resolution of disputes is even more important to me as I am also the chairperson of the E-Committee of the Supreme Court… ", he said.
Justice Chandrachud indicated how when the ATMs were first introduced back in 1967, the individuals assumed that it would be an erosion of the position of the friendly bank clerk-
"Now, we can safely say that the fear of the ATM was unfounded".
"Fear is explained by behavioural economists as a 'status quo' bias, which is a preference for things as they are in the present ", he continued.
He explained that since this bias can be mostly subconscious, we must call upon ourselves to introspect what is stopping us from adopting newer solutions such as ODR.
"The handbook notes that traditional litigation in India can be time-consuming and expensive and onerous. As a representative of the judiciary, I can say that we are doing all that we can to remedy this. For example, we have made the pendency data of all cases before the High Courts and the district courts public on the National Judicial Data Grid with a view to become more transparent ", discussed Justice Chandrachud.
He elaborated that ODR can further provide a helping hand in this endeavour in limiting the kind of disputes that often come to courts in the first place.
"When ADR (Alternative Dispute Resolution) was first used as an alternative to the court system, it was never meant to eradicate the role of the courts completely. That is why I always call ADR 'Appropriate Dispute Resolution'. It was intended to reduce the burden of the courts and ensure an efficient solution to certain kinds of disputes which are better resolved outside of the traditional, adversarial court system. I believe in today's digitally transformed world, a similar role can be played by ODR… I believe the ODR has potential over and above the traditional means of ADR, not just because of the process being conducted virtually, but because of its firm willingness to adopt all forms of digital solutions available", he continued.
It was his opinion that an important learning in the past one year has been that the process can be far more efficient with simple changes – the use of digital files by all parties, the ability to make digital notes and having all documents in one place in ways that make them more accessible to everyone.
"This enhanced efficiency of the proceedings enables a quick resolution of disputes", he explained.
"By conducting all dispute resolution online, a large amount of data will come to be collected, which will in turn lay the groundwork for improving ODR. The data can be used to improve the virtual experience of courts", continued Justice Chandrachud.
He was of the view that another major change brought about would be in the perception of the parties involved – with the dispute resolution process becoming more accessible, affordable and participatory, the parties tend to become more amicable and solution-oriented.
"With a shift to virtual hearings in all courts, the question of its efficacy is no longer theoretical. Although there will always be things to improve and issues to resolve, the system, as it stands, does work! The story with ODR is similar", he commented in context of the handbook regarding ODR as 'the right thing to do at the right time'
Justice Chandrachud recognised that this push for ODR cannot mean substituting it for every dispute resolution process-
"That is a distant and unreal possibility till we achieve digital penetration and literacy everywhere in India". However, he clarified that this is not a downside of ODR, and instead its usefulness can actually become a factor to push for cent percent digital penetration and literacy".
He echoed that the strength of ODR is founded in the need to decentralise, the need to diversify, the need to democratise the process of justice delivery as a service, and finally, the need to disentangle justice from all its complexities.
"The time for a change to ODR has come. And it is here to stay", he asserted.
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