The pandemic has pushed courts to undergo a technological evolution, but is it working? Gautam Kagalwala reports
before the pandemic reached Indian shores, video conferencing was used in some cases for recording evidence in areas such as matrimonial disputes, where one of the parties was residing abroad. But the situation upended once the nationwide lockdown came into place at the end of March, following Prime Minister Narendra Modi’s speech. Unable to conduct physical hearings, courts have been pushed to embrace video conferencing technologies.
Lawyers say measures to digitize the court system that would have taken 10 years have now been fast tracked to happen in two. This transition is underway, and the courts have gradually increased their capacity and frequency to hear more cases virtually.
This has also allowed judges to see a new side of advocates. During a hearing in June, seeing statues and antiques as the backdrop of senior advocate and former attorney general Mukul Rohatgi’s room, Chief Justice Sharad Arvind Bobde quizzed him on whether he was in a museum. Rohatgi replied he had moved to his farmhouse so he could swim regularly.
Apart from computers and laptops, some lawyers have also been using smartphones and iPads to log into hearings. This freedom has allowed them to appear from unconventional places. “I have noticed lawyers appearing from their homes, offices, chambers and sometimes even sitting in their cars, and in parks,” says senior advocate Vikas Pahwa. The series of amusing exchanges between judges and advocates over video conferences has given birth to the popular hashtag #CourtroomExchange on Twitter, which documents these encounters.
Priority work only
As it became apparent that the pandemic would not go away quickly, and would have a long-term impact on the court system, steps began to hear cases through virtual means. The first priority was given to cases related to the lockdown, such as issues pertaining to migrant workers returning to their home states. Commercial disputes were related to force majeure and invocation of pledged shares.
“The pre-covid matters have been adjourned and blocked without any discrimination,” says Pravin Anand, the managing partner of Anand and Anand. “If [parties] feel they have an urgent matter, then an application has to be made asking for it to be taken out of turn.”
“The courts have been operating far below their workload” says advocate Hasit Seth. “Only a few benches in each high court are using video conferencing.” To be heard, parties needed to convince courts of the urgency and this also led the courts to hearing admiralty disputes.
“These cases have been pertaining to maritime liens and claims,” says Seth. “For example, if a ship left Dubai without paying its dues, and the party finds out the ship will dock in India, then they move to Indian courts. Once the ship leaves the port and is in international waters, then you cannot do anything.” Kingshuk Banerjee, a disputes partner at Khaitan & Co, says the courts are only hearing very urgent matters. “There are no physical hearings at all, as far as high courts are concerned,” he says. “I think from the second week of May onwards, the court system started getting more organized. We were able to file proceedings and participate in online hearings. Before that, we were limited to only doing advisory work.”
In the current environment the virtual courts system has thrown a lifeline for advocates. “For a litigator, incomes would have fallen dramatically,” says Anand. “The fact that you remained busy from morning to night, without the virtual courts you would be absolutely unemployed. In these four months entire practices would have fallen.”
Despite the convenience of working from home, there are aspects of practising in physical courts that lawyers miss, and they do not want a fully online court system even if it were possible. “I have been going to Delhi High Court for 41 years, on all working days that I was in the country,” says Anand. “To go from such an extensive litigation practice to being ‘jailed’ at home, it gets terribly depressing. But on the bright side, my grandson was born a year ago and I can spend more time with him.”
He adds that virtual courts have blurred the boundaries of time and space. “You can now have a hearing at 12 at night, because the judge is at his home and you’re at your home,” he says. “Normal court hours are only till 4.30pm. As for space, in yesterday’s matter I had attorneys appearing from Kolkata. They can appear from anywhere in India.”
Pahwa says he misses the table discussions in the bar room with lawyers from all spheres. “I also miss sharing the outcome of the hearing immediately after coming out of the courtroom with my colleagues. I most definitely miss the free flow of coffee every one hour in the criminal-side bar room,” he says.
A Supreme Court bench headed by Chief Justice Bobde issued guidelines in early April that authorized the use of video conferencing measures for the Supreme Court and high courts for the proper functioning of the judicial system. The guidelines said the high courts were able to choose their own means of adopting video conferencing, and that video conferencing would be the primary method of hearing arguments at the trial stage, or at the appellate stage, but would not be used to record evidence unless there was consent from both parties in the dispute.
The e-committee of the Supreme Court has also been spearheading steps to facilitate the virtual transition, such as training judicial officers to integrate technology into their work, and overcoming issues related to video conferencing. The committee is headed by Supreme Court Justice Dhananjaya Yeshwant Chandrachud, who is in line to become the next Chief Justice of India, in 2022.
Judges who live close to court premises have been able to make use of its infrastructure to hear cases. There hasn’t been a fixed consensus among judges about the video conferencing software, with courts using Cisco WebEx, Zoom, Microsoft Teams or Vidyo, an American app that is otherwise popular with government officials in India. The high demand on bandwidth for video calls has also resulted in technical glitches during hearings.
Lawyers have also had to upgrade their connectivity to ensure a glitch-free experience so that important moments in the hearing are not missed. “I had to install a 100Mbps connection, as a normal internet connection is not strong enough,” says Anand. “We also had to have multiple rooms with multiple computers, in case hearings happen around the same time.” On the connectivity front, Anand observes that the courts have been improving through upgrading their software and hardware. He adds that even though work is virtual, “very serious matters are being heard”.
Pahwa says he is “personally appearing in the Supreme Court, high courts and district courts simultaneously while sitting at home”. In the case of Sarthak Maggon v Union of India & Anr, Pahwa is representing petitioners in a public interest litigation that seeks access for prisoners to their lawyers, either telephonically or through video-conferencing.
“I have seen the Attorney General of India [KK Venugopal] arguing on video conferencing effortlessly at the age of 89 years,” says Pahwa. “The judiciary has tried its best to change gears and make virtual hearings successful all over the country. The Delhi High Court has had an advantage as the judges were already familiar with the technology. All the filings are done online and the petitions can be filed in Delhi from anywhere in the country,” he says.
“Summary proceedings like bail, injunctions, inquiries, supply of documents, trials of compoundable offences, trials where a fine is the only sentence, municipal challans, traffic violations and simple mediations can all be conducted by video conferencing.”
The reduced operational capacity of courts will also have an impact on the amount of cases that are pending. The latest figures from the National Judicial Data Grid show there were more than 33 million cases before the high, district and taluka courts across India.
“I foresee a surge of cases after the lockdown ends, or almost ends, and when the financial situation is improving,” says Seth. “After that, parties will file cases after some proper consultation. Just like hearings have gone down, the filings are also relatively low due to the impact on businesses. Physical filings were not allowed for a long time and had to be sent by email. But recently, courts have started to allow paper filings, with some precautions, and have opened windows in the administrative section.”
Logistical reasons have also hampered the functioning of courts in areas where a lockdown is in effect, as staff have been unable to travel due to suspended public transport.
Banerjee says the logistical challenges to conduct hearings have been more serious. “While we have e-filing and e-courts, court records are not fully digitized,” he says. “And when they are digitized, they are not accessible in a central server that can be accessed remotely.” This inaccessibility of records has prevented some routine matters from proceeding. Judges and court staff are going to court to access these files while lawyers and clients are being asked to log in remotely to discourage people from gathering at court premises.
But in a sign that courts are able to handle more work virtually, Banerjee says matters that were considered not urgent in the month of May are today being taken up by the courts. “This is a reflection of the entire system. Everybody – courts, judges, lawyers and staff – has learned on the job.”
The Supreme Court, Delhi High Court and Bombay High Court are routinely conducting hearings for urgent matters. But the scenario has been quite different for lower courts, where parties have been unable to move matters forward due to the pandemic. District courts stopped working at the end of March.
“With the exception of Chandigarh District Court and a few others, district courts have been unable to organize virtual hearings because of the lack of infrastructure,” says Banerjee. “Only for extremely urgent cases will they organize a physical hearing in the court.” He adds that, due to the pandemic, the threshold for urgent cases has risen significantly. District courts are to follow the rules set by their respective high court for adopting video conferencing. The e-committee chair, Justice DY Chandrachud, has also said that training district court advocates on how to use the e-court’s services and e-filings is a priority.
Seth agrees that district courts have been a problem. “In contrast, appellate court functions are easy to do through video conferencing, as there are no new documents or witnesses to be examined,” he says. The functioning of the district courts has also been affected by lockdowns being sporadically introduced in various areas, based on the number of cases in that area. “Prior to the pandemic, some district courts had video conferencing equipment on the criminal side, but it was not frequently used, as we never thought that someday we would have to do this.”
The consensus appears to be that virtual courts should continue to supplement physical courts, even when normalcy returns. “Parties are seeing the merit in having some matters taking place remotely,” says Banerjee. “For a client, it would cut long travel times. Even for lawyers, it is a matter of convenience if I am able to sit in my chambers or office, rather than going to court. Integration of a virtual court system into our existing system should happen in my view, but it should complement and not replace it.”
Smile – you’re in arbitration!
Link Legal disputes partner Abhishek Sharma reveals how video has impacted arbitrations during the pandemic
How have ad hoc and institutional arbitrations been faring?
During the initial period of the lockdown, no doubt there was a slow-down in the conduct of arbitration proceedings. But with reality sinking in that this situation is the new normal, there has been a gradual return to normalcy for both ad hoc as well as institutional proceedings. We are witnessing most arbitrations (procedural and substantive hearings) being conducted through video-conferencing, and, where both parties agree, even cross-examination of witnesses is being undertaken through video-conferencing. Though challenges still remain in terms of a reluctance of some parties or their counsel, there is a positive push from the arbitrators, as well as the institutions. I am sure, with time, tribunals and parties will all migrate to hearings through video-conferencing, even when the situation returns to normal.
What workaround measures have arbitrators adopted in response to the lockdown?
Stakeholders in both ad hoc and institutional arbitrations have been undertaking comprehensive measures in order to minimize the disruption. For international commercial arbitration, major arbitral institutions have issued guidelines on measures that can be taken within the various institutional arbitral institute rules for the least disruption to arbitral proceedings, and the use of technology for remote hearings. In domestic ad hoc arbitrations we are witnessing widespread use of video-conferencing for the conducting of hearings. Mandatory requirements for physical filings were done away with during the time when there was a complete suspension of courier services, and requirements of notarized and attested affidavits, pleadings, etc., have also been temporarily suspended in some cases. Section 19 of the Arbitration Act, 1996, has provided the required flexibility in order to continue arbitrations despite the restrictions placed on movement, and arbitrators have made full use of the same.
What impact has the lockdown had on the timelines mentioned under section 29A of the Arbitration Act?
Due to the timely intervention of the Supreme Court, the timelines mentioned under section 29A of the Arbitration Act have been extended until further orders, ensuring that none of the parties are faced with any undue hardship or disadvantage because of the lockdown.
What has been your advice to clients with disputes?
Our advice to clients has been the same as it has been even before the pandemic. All elements required to successfully initiate and carry out an arbitration are in place currently, from the ability to initiate claims, appoint arbitral tribunals – the only exception being the ability to approach the courts for appointment under section 11 [of the Arbitration Act] unless urgency in the matter can be shown – and approaching the courts for interim reliefs under section 9. Depending on the comfort levels of both the parties involved, upon mutual agreement, all stages of arbitration proceedings can be undertaken via video-conferencing.
What long-term changes would you like to see?
On account of the pandemic, courts all over the country had to resort to virtual hearings, and arbitral tribunals were no exception. I would like to see this as a norm for the future. The advantages are many in terms of substantial savings in costs and speedy disposal of cases, but challenges are many, too, like technical failure and sitting for long hours before a computer terminal.
However, these can be overcome as parties can decide on contingent actions to be adopted in case of technical failure or internet failure, and instead of having long hearings for final arguments, the issues can be divided or broken down, and smaller hearings can be done for each respective issue instead of conducting a long final hearing. Written submissions should also be made compulsory, to be filed before final hearing, to restrict the arguments by counsel to the main points only.