Indian courts: Now available online

In a landmark order on Monday, the Supreme Court acknowledged that courts will adopt technology for court hearings even as they move back to regular functioning

In a profession largely pre-occupied with precedent, change and innovation have made limited headway with legal institutions in India. Then came Covid-19. Over the last month, we witnessed major leaps by the Indian judicial system to operationalise an “online only” format of functioning. The speed of action has been impressive and is demonstrative of the fact that our courts are well equipped to act fast and decisively. In a landmark order on Monday, the Supreme Court acknowledged that courts, in the discharge of their duty to respond to the call for social distancing, will adopt technology for court hearings even as they move back to regular functioning. While the changes have been accelerated to meet the challenges of the pandemic, online courts and digital pleadings are set to become the new normal.

As I see it, the speedy move by courts to an online model will see the adoption of many streams of efficiency in judicial functioning which will include electro­nic filings, written submissions of legal arguments and limited oral hearings. This will fundamentally improve access to justice. Pleadings and applications will be electronically uploaded to the relevant court’s database, with review and defects also being cured remotely. Evidence in trial will also be electronica­lly recorded through affidavits and vi­deo recordings. In the ordinary course, precise and concise written submissions of legal arguments will aid the decision making by the bench. On a need basis, where the concerned bench believes that assistance from counsel in an oral hearing is required to meet the ends of justice, a video conference will be scheduled for oral arguments with a time-cap.

The international experience is in sync with this approach. Courts across the world including in the United Ki­ngdom, Singapore, the United States, Australia and Canada have fundamentally and definitively moved into the digital space for the discharge of their judicial functions. The public forum aspect of courts has been enabled through live links that facilitate public participation. Private technology companies, some of which still qualify as “start-ups” have supported this rapid migration by traditional judicial systems world over.

The big winner will be the litigants. Clients that I have discussed this tectonic shift with are keen on embracing the system with open arms. Electronic filings will reduce the archaic requirements of the token notarisation and other last mile hiccups that delay the legal process. Written submissions of legal arguments will enable a much higher involvement of the client than the flurried argument that the packed court room allowed for. “The adjudication of my case will primarily be driven by the considered and strategically crafted written submission, and not be left to the chance of what my counsel was allowed to say in court on that given day,” says one relieved general counsel.

Where an oral hearing has been allowed, it will have to be completed within the given time slot and require a very different decorum to be adopted. Limited oral hearings via video conference will also see better case management systems and more predictability for clients. There is also that added benefit that will come from parties being able to join hearings remotely and therefore not losing the productivity of what has often been touted as the “tareeq pe tareeq” challenges of litigation where it was often felt that the process was the punishment.
 

The legal profession will also mark a big win. With the speedier and more efficient system, we will be lifted from the weight of pendency in our courts system and perhaps experience the true high of legal strategy and developing jurisprudence. This is the time for the bar to come together with a solution oriented mindset to forge the fabric of the new normal. It is the kind of black swan event that may come just once in our lifetime; we will be amiss to waste the crisis. In his 2019 book Online Courts and The Future of Justice, noted author Richard Susskind contemplated the justice delivery system becoming an online service as glaringly obvious. The technological and ubiquitous judicial reform that we will see in the next few months will stand true to this observation.

The author is managing partner, Cyril Amarchand Mangaldas