The push for Digitization and Transparency in the wake of COVID-19

In light of the COVID-19 pandemic, businesses all over the world have had to re-imagine their conventional structure and utilize the internet effectively to ensure vital functioning.

But how long can vital functioning of the justice system be kept in abeyance given the mountain of already pending cases?

A push for complete digitization of the judicial system amid the lockdown is being echoed throughout the country. This doesn't just mean conducting regular hearings over Video Conferencing (although a vital first step). It is an opportunity to reimagine the way the entire legal system fundamentally functions beyond just this pandemic.

The decisions taken now in the short term will undoubtedly have a lasting effect for months to come, as social distancing norms are not likely to be completely eased in the foreseeable future, atleast till a vaccine for the Novel Coronavirus is developed and deployed.

The Supreme Court issued guidelines to reduce physical presence in courts so as to maintain social distancing. Recently, Justice DY Chandrachud stated that video conferencing in the Supreme Court was functioning smoothly and an e-filing software was being developed and was in the advanced stages of trial.

Though this is a welcome development, an e-filing system alone is not nearly enough. There must also be a corresponding change in the manner of arguments. Any such change in the system of filing and arguing must be carefully analyzed so as to ensure that the efficacy and sanctity of the process are preserved.

While it cannot be disputed that shifting of the legal profession to a technology-dependent practice is going to pose a large number of challenges, the same can be scaled in an efficient manner, by ensuring a few simple tweaks to the present way of practice.

The biggest hurdle in shifting the working of the courts to an online platform is the time management and related logistical issues that would be required to be ironed out to ensure the functioning of the court in an efficient manner.

The present form of practice, where lawyers are expected to be physically present in the court till their cases are called out, is not the most economical utilization of the time of those engaged in the legal profession. Lawyers practicing regularly in the High Courts/Supreme Court and other tribunals are resigned to the fact that the first half of their day is to be spent waiting for their matter to be called up, if it indeed does get called up. Physical presence at all times needs to be ensured in the courtroom, lest the matter be is called out of order due to adjournments in the previous matters.

This diminishes opportunities to attend matters in multiple courts, due to paucity of time and long distances, often forcing lawyers to prioritize certain matters over others at the cost of irking clients and harming ones’ reputation.

If planned properly, the technological shift can eliminate this conundrum and save invaluable time, allowing lawyers to appear in different courts within minutes of each other. One of the biggest challenges that will be faced in implementing such an approach will be proper logistical management in the calling out of cases. A shift to online courts, however, would require precision in time management since both the parties and the advocates would be expected to join the virtual courts at a pre-determined time.

In such a scenario, it becomes imperative that the cases listed for the day are dealt with in a time-bound manner to ensure less online traffic (so as to prevent overloading of the system), and most importantly, to ensure quick and effective justice.

In this context, it becomes imperative to re examine the 99^th Report of the Law Commission published in the year 1984. The report attempted to address the question of certain time saving changes to the system of ‘Oral and Written Arguments in the Higher Courts’. To address this question, the Law Commission released a questionnaire aimed at seeking opinions of knowledgeable persons and bodies on certain questions concerning the organization and improvement of the functioning of the higher Judiciary.

One question related to limiting the time for oral presentations in court. Even though an exact mathematical formula was never arrived upon, the Commission suggested that some sort of limitation be imposed on the time provided for oral presentations to each side.

The suggestions placed a large dependency on ‘statement of case’, which were considered by the Law Commission to be a necessary tool to allow limiting of oral arguments. After much deliberation on the necessity for ‘Written Briefs’, the report concluded that it could be an effective tool. But in the absence of technology and proper assistance, large amounts of time would be required by judges to sufficiently go through the briefs so as to make them helpful, which was not possible at that time.

Fast-forward to the present day, judges are now equipped with state-of-the-art computers and other technological paraphernalia allowing quick and efficient research. Further, there now exist a plethora of programs such as Judicial Clerkship at Supreme Court and High Courts and other internship opportunities which not only allow the young legal minds to be shaped by the judges, but also provides judges with the resources to help them sift through large amounts of information which was understandably considered insurmountable in 1984.

While the Supreme Court Rules already contain provisions on the filing of written briefs and statements of case, it is common knowledge that the same is not taken seriously by the Bar or the Bench.

However, most other judicial systems including those of the USA, Nigeria and Australia, have recognized the importance of the same in the speedy disposal of cases. In fact, Justice Jennifer Davies of the Federal Court of Australia has summarized the importance of the same:

“Written advocacy has played the part of the poor second cousin to oral advocacy but increasingly, written advocacy has taken on a more significant and important role. Opening and closing submissions are usually filed in civil matters and in appeals written arguments must be filed before the hearing. The written argument thus provides an opportunity to persuade the Court before oral address has any role.”

This would undoubtedly cut down the time of oral arguments and streamline the whole process. It is, however, pertinent to note that a standardized format must be adopted so that brief and precise Written Statements can be filed before courts.

The High Court of Delhi has highlighted the essentials of an effective written brief in the case of Mst. Kiran Chhabra And Anr. vs Mr. Pawan Kumar Jain. Though written submissions must not be viewed as an alternative to the oral arguments in toto, they may be the most effective tool to save time.

This would have the additional advantage of weeding out matters with little merit, especially those that do not have a prima facie case made out, especially in appellate courts and tribunals where a large number of appeals are filed simply to defer from having to fulfill the awards passed by the lower courts.

Another recommendation of the report was that in the higher courts, a day may be set apart for holding conferences between judges. The practice of the Federal Court of the United States of America was analyzed wherein the courts listen to arguments on 4 days and take up one day to just go through written submissions and briefs.

Functioning on only four days may not be possible given the existing load on the Indian Judiciary. However, High Courts can follow the practice of the Supreme Court, which reserves two days of the week for miscellaneous matters alone. Certain days can be kept for matters in which the proceedings are at a purely procedural stage,which would take a very limited amount of time.

In such a case, the functioning of the court would not be only for a few hours, and thereafter, time can be taken by the judges to confer amongst themselves on pressing points of law and to read the briefs of cases to be taken up in the coming week. Such a model would allow the entire judicial structure - from the lawyers to judges - to save large amounts of time.

Another pre-requisite for the success of such a model would be the laying down of a unified set of rules for the online functioning of all the courts. The Judiciary of England and Wales has come up with a unified protocol regarding remote hearing of civil matters and the same has been implemented with effect from March 26.

The protocols provide basic guidelines as to the conduct of remote hearings and have declared Skype as the platform to be used by all courts for online hearings. A similar protocol needs to be developed for Indian courts across all jurisdictions to ensure ease of use and availability to the parties as well as practitioners.

A common e-filing practice needs to be developed. As on date, e-filing is present in only a handful of courts across the country. However, it is also necessary to ensure that the rules of such filing are consistent throughout the legal system. Not only will this allow for faster filing, it will also allow for easier movement of files in cases of transfer and appeals to higher courts.

This also presents the judiciary with a unique opportunity to reaffirm the faith of the public and finally dispense with the shroud that covers the functioning of this most vital democratic institution. In many courts, the general viewing public cannot even gain access to the court unless their matter is being heard. This has undoubtedly led to sustained negativity amongst the public, which has little faith in the ideals of open justice and transparency.

Fortunately the Supreme Court in the case of Swapnil Tripathi v. Supreme Court of India has stated that in the interest of the general public, live streaming of court proceedings in matters of public interest and Constitutional matters must be facilitated.

What better time to broadcast and reach the masses than now, when the legal fraternity as a whole is moving towards digitization?

This also has the added advantage of reaffirming the oft-ignored ideal of a ‘Court of Record’ under Article 129. This has unfortunately devolved to mean merely publication of the courts' judgments. However, a court of record should be one that retains records of its proceedings - including oral arguments in the course of submissions - to perpetual memory.

In the Swapnil Tripathi case, the Supreme Court has painstakingly analyzed the practices of several jurisdictions around the world and the advantages of transcription and broadcasting. If other courts have been doing this for several years now, maybe this pandemic is the push needed for our legal fraternity to slow down and introspect, so that we may emerge more efficient, inclusive and transparent.

Athif Ahmed is an associate at AK Law Chambers, Chennai. Varun Chopra is an associate at K Datta & Associates, New Delhi.