Advocates and court administrators are navigating the technology and direction of virtual courts like never before, but is enough being done to make these forums smooth and accessible? Vandana Chatlani reports.
The debate on how India’s courts have coped during the pandemic is an absorbing one, and India Business Law Journal has been across all sides of the argument, including a recent opinion piece written by Delhi High Court Justice Prathiba M Singh. While some argue many great strides have already been made, others point to gaping holes in operational efficiency. And behind all the to and fro of opinions, the enormous case backlog continues to grow.
Lawyers have expressed conflicting views, some pointing to the success of digitization and virtual hearings; others lamenting that court systems across the country are simply not doing enough. Advocate Hasit Seth has argued in this journal that courts have been operating “far below their workload”, while Khaitan & Co disputes partner Kingshuk Banerjee pointed out that courts became more organized only in mid-May, and have solely been hearing “very urgent matters”.
“It has been an experiment which is improving with time,” says Bijal Chhatrapati, a partner at J Sagar Associates (JSA) in Ahmedabad.
Delhi High Court has been lauded for its efforts in embracing virtual courts. However, Poornima Hatti, a partner at Samvad Partners, points out that even in Delhi the differences across courts are stark. “While Delhi High Court has indeed been one of the courts that has done better in the pandemic, generally in our experience listing pending matters has been difficult,” she says. “District courts have only commenced as a routine in September. A lot more could have been done at the Supreme Court level, which has not been done.”
Chhatrapati summarizes some of the key challenges. “While hearings can be virtual, the back-office work of the court registry needs to be physical,” he says. “The staff has its own challenges – social distancing, covid infections and the precautions to be taken, all of which reduce their ability to process the usual huge load of matters.”
In addition, says Chhatrapati, teething issues are expected, given that lawyers are grappling with new systems of online filing and co-ordination, while judges learn to adapt to virtual arguments and hearings.
Ups and downs
Covid-19 continues to create uncertainty and unpredictability. From 29 June, Rajasthan High Court conducted both virtual and physical hearings with appropriate measures laid out – such as sanitation, social distancing and limitations on the number of staff and advocates present – to prevent the spread of covid-19. However, due to a rise in infections – specifically in Jodhpur and Jaipur – among advocates and staff of the registry, the court announced that it would cease physical hearings and only hear urgent cases via video-conferencing from 14 September to 1 October for the safety of all stakeholders.
Meanwhile, Karnataka High Court announced that it planned to substantially reopen all courts in three phases: First, reopening 55 taluka courts from 28 September; then courts in 13 districts from 5 October; and finally the remaining district courts from 12 October. Courts are permitted to list 30 cases each day – 15 in the morning and the remainder in the afternoon. They are also allowed to record physical evidence from a maximum of five witnesses each morning.
District courts in Gujarat have also started virtual hearings, which until recently was limited to the high court.
Delhi High Court has been hearing cases on a daily basis through virtual courts, as well as physical hearings, confirms Sneha Jaisingh, a partner at Bharucha & Partners, noting: “Substantive arguments are being heard and passed regularly”, adding that the court has permitted the listing of non-urgent cases since 24 August. These are however, limited to three or five before each bench roster.
Courts have put in place standard operating procedures to maintain order and increase safety for all stakeholders. In Delhi High Court, entry has been restricted to only one counsel per party, litigants can enter the court premises only after receiving specific directions from the court for appearance, and registered court clerks can deliver files in court, but only re-enter to remove the files once the hearing is over.
Ruby Singh Ahuja, a senior partner at Karanjawala & Co, appreciates the steps that the courts and staff have taken to resume hearings. “Courts suddenly had to revive operations,” she says. “I think most people believed covid-19 would go away after a few months. But we are still in the same position. The courts’ administrative staff had to set up provisions to make videoconferencing possible, and they have done a very decent job. The Supreme Court’s work in setting up an e-filing system has also been quite remarkable. It’s a great step forward.”
Shabbir Wakhariya, the founding principal at Wakhariya & Wakhariya, argues that comparing courts and their implementation of virtual hearings is unfair. He points out that Mumbai and the state of Maharashtra have had the highest incidence of infections, which therefore require a greater level of care. Court staff and lawyers in Mumbai city commute from greater distances and, with the public transport network shut down, have been unable to reach the courts, and Bombay High Court sees the highest number of cases due to it being a charter high court.
“Considering such factors will show that each court has its unique challenges and they have managed as best they can under the circumstances,” says Wakhariya. “Courts are not static institutions. They are made up of judges, lawyers and court staff, who are all human beings who have been equally affected by this pandemic. First and foremost, each person has to care for their own life and safety.”
Some lawyers continue to be optimistic. Pravin Anand, the managing partner of Anand and Anand, says virtual courts have blurred the boundaries of time and space, allowing advocates and foreign clients across India to attend hearings that can now take place beyond regular court times. Anand has appeared in virtual courts 235 times since 15 April. Another plus, he says, is less interference from the opposite side during arguments – which is not often the case in physical hearings. Judges have forced “a certain discipline that parties speak only at their turn” to prevent technical glitches relating to connectivity and sound quality.
A common complaint in the past five months has centred on the decision by many courts to list and prioritize urgent matters. But what exactly constitutes urgency?
“‘Urgency’ is subjective and often enough cases that do require consideration are not taken up,” says Jaisingh. “Comparatively, the Delhi High Court has been somewhat better than the Bombay High Court. Final hearings are sparse, as also recording of evidence. Effectively the huge backlog has worsened. It has been a frustrating experience for the clients and also for us.” Wakhariya says: “Because almost all of our clients are multinational corporates defending contractual disputes, which generally do not require urgent hearings, the involuntary standstill imposed by covid-19 has meant waiting it out until the courts resume regular operations.”
Hatti adds: “Proving urgency has been a high bar in many situations to get heard, particularly in commercial matters.”
The situation appears slightly different for intellectual property (IP) practitioners. Anand says that in a very short period of time courts have gone from hearing only “super-urgent”
IP matters to “the whole range of matters of normal urgency, final category, collection of evidence, mediation and even pre-litigation mediation”.
Jaisingh reports certain improvements to virtual court processes based on the standardization of software and improved bandwidth. As of 31 August, Bombay High Court commenced physical hearings, however this is on an experimental basis and applicable only to criminal appeals.
Furthermore, the court has issued special procedures to hear pending matters along with new matters through videoconferencing, “however, it is at the discretion of the judge to take up such matters”, says Sonam Gupta, a partner at Bharucha & Partners. “No guidelines exist setting out the parameters within which such discretion may be exercised.”
While it may be relatively easy for law firms to pour funds in the necessary technology and infrastructure needed to access virtual courts, this may not be the case for sole practitioners or lawyers practising outside India’s bustling metro cities. “They have other challenges to face – electricity and power cuts can often be an issue,” says Ahuja from Karanjawala & Co. “Their concerns are so much higher because it doesn’t just affect the disposal of cases and large pendency, but their own employment, their bread and butter.”
India’s metropolitan cities enjoy high-speed internet bandwidth, but many parts of India are still struggling, and with it their courts. “Criminal cases never come to the high courts first, they go to a sessions judge” says Ahuja. “Those courts don’t get much attention. The lower judiciary struggles … we need to address this.”
Hatti says that while the high courts and certain tribunals have been able to rise to the challenge to some extent, other tribunals have simply closed down or are working at a very limited capacity. “Some trial courts and tribunals have had no infrastructure at all, leading to the use of free and often unsecure video software platforms,” she says.
Many high courts may have ironed out software and bandwidth problems, however, the lower courts continue to have poor connectivity, says Gupta. And even when hearings take place, orders are not available for days on end.
“In some courts, the efficiency of how they have performed has also been the function of the judge who is involved and their willingness to engage through online processes,” says Hatti, giving the example of some courts in Hyderabad conducting hearings through WhatsApp video due to a lack of infrastructure.
In district courts, too, hearings are largely dependent on the presiding judge, says Gupta. “Some actively hear cases and refuse adjournment requests. Even where the judges are active, no evidence is being recorded and cases are simply adjourned to later in the year, or even early 2021, in the hope that physical hearings will resume by then.” Hatti says courts have been reluctant to pass orders in virtual hearings. “There appears to be a perception that a full and complete hearing has not occurred,” she says.
Tweaks, training, technology
Although high courts are often better placed than district courts where technology and infrastructure is concerned, improvements are still necessary.
Lawyers have encountered teething issues where they have been locked out of a hearing because the available bandwidth means only a certain number of people can be logged in at once. Timed entry for specific cases was a solution offered by some courts, however this was not always a smooth process because arguments from a previous matter would overrun.
Based on their individual and shared experiences, advocates and lawyers are calling for change. Anand says a solution is needed to upload larger documents as the Delhi High Court Registry only seems to have an email capacity of 50MB. This is much lower compared to DVDs of up to 300MB that can be filed physically.
Anand says screen-sharing – which is only permitted by some courts – would be helpful in long and complicated arguments. If some sharing is allowed, he says, junior counsel could assist arguing counsel with the files, including pleadings, documents and the case law concerned, to ensure a smooth continuity in the arguments.
Chhatrapati takes this further, arguing that a competent process to create paper books is vital to enhance digital court proceedings and improve their effectiveness. “A proper thought-out mechanism for creating and compiling case papers would go a long way in creating ease of working,” he says. “Serious online reading of case briefs with its annexures, very often running into hundreds of pages, requires effort.”
Chhatrapati wants to see a uniform method of correct document numbering, proper indexing, default view size, the ability to select text on all pages to facilitate comments and highlights, appropriate bookmark labelling, hyperlinking of the index page, and standardized annexure naming across all courts. This, he says, “is easily done with appropriate software”.
Training is also crucial. Ahuja points out that in smaller courts in some towns, English may not be the operating language – instead, arguments may be heard in Hindi. “If someone doesn’t speak English, you may have to teach them how to navigate Cisco Webex, Zoom, etc,” she says.
India’s courts invested in e-courts well before the pandemic. Hatti says she has seen courts willing to enforce awards or agreements that have been the outcome of the online dispute resolution process. “We know that there has been an increasing push from the government towards these ideas, so perhaps parties should consider writing in online dispute resolution clauses consciously and try seriously to make it work. This will greatly reduce the burden on courts.” However, Hatti adds that everyone must be willing to accept this as the way forward and provide adequate support to continually enhance the process and make it accessible to all. “Facilitating e-filing takes time,” she says. “We have seen this in all major cities in Karnataka, Andhra Pradesh and Telangana. If this is the situation in the cities, you can imagine the situation in smaller towns.”
With urgent cases still being prioritized by most courts, parties may have to wait indefinitely for their cases to be heard. Given the circumstances, many lawyers advise litigants to explore the possibilities of mediation or out-of-court settlements wherever possible. If arbitration is the preferred option for dispute resolution, Chhatrapati says contracts could state that arbitrators would be entitled to conduct virtual hearings even for witness examinations, “since doubts are expressed on the efficacy or advisability of such a course”.
Covid-19 has resulted in a renewed focus on online arbitration and mediation. “Arbitration is easier because it offers much more flexibility and is not court-bound,” says Ahuja. “Arbitrations also continued during lockdown … they didn’t stop the way courts did.”
Chhatrapati adds that virtual hearings before arbitrators are showing good adaptability to the new normal. “I have had occasions where international arbitration hearings before arbitral tribunals comprising foreign-based arbitrators are happening rather well,” he says.
Wakhariya has found that, particularly in real estate contracts, the pandemic as a force majeure event is either not clearly stipulated or not properly understood. “This is an important learning of covid for all of us,” he says.
However, with regard to resolving disputes, he adopts a more philosophical approach, i.e., “that it is best to settle disputes by mediation or internal discussions in the spirit of forgiveness and an expansive gesture of give and take”.
“Litigation in courts or even arbitration often wastes generations of productive resources,” says Wakhariya. “I often get clients, corporates and individuals, who come to me saying, ‘I want to teach so-and-so a lesson’. That’s a vindictive mindset and the wrong approach. When an aggrieved party learns to walk away after being wronged, that’s when their true character shines through.”