Reforming Commercial Litigation In India Through Technology

The COVID-19 lockdown exposed the limitations of India’s judicial system to provide litigants with technological recourse to access courts. In a country that is struggling to reduce pendency of cases, the delay of a month or more could push back the already clogged system by many more years.

Approaching a court for legal resolution is a basic right of every citizen. With the overnight imposition of social distancing, Indian courts, habitually crowded with litigants and lawyers, along with their battery of juniors, interns, and court clerks, are facing a new reality: it is no longer a question of whether the legal fraternity is ready to adopt technology, but rather how speedily and sensibly it resolves the conundrum, abandoning age-old practices that hinder the path to systemic reform.

TRYST WITH TECHNOLOGY

The E-Committee of the Supreme Court of India, constituted in 2004, conceptualized the National Policy and Action Plan for the implementation of Information and Communication Technology in Indian Courts. This marked the Indian judicial system’s transition to digitization, and computerized access to court orders, case statuses, office reports, cause lists, etc.

In 2009, the Code of Criminal Procedure, 1973 was amended to permit the recording of audio-video witness statements and evidence to dispense with the physical presence of witnesses and contesting parties. Accordingly, High Courts across the country formulated guidelines for the introduction of video conferencing not only for the recording of evidence but for other proceedings as well. E-filing too has become a practice in several courts and tribunals. However, though India has received global recognition as a technological hub, it has yet to optimize technology to expedite settlement of legal disputes.

GLOBAL POSITION

Courts across the globe are witnessing a fundamental transition to digital operations. The UK has digitized proceedings of civil money claims, settlements, examinations, hearings, and adjudication up to £10,000. Canada first introduced an online dispute resolutions tribunal as the mandatory forum for small claim disputes of less than $5,000 and strata property claims, and later extended this digital exercise to include motor vehicle claims, as also claims under the Societies Act and the Co- operative Association Act. Abu Dhabi instituted a digital court for civil and commercial disputes, which digitalizes the case management system such that all pleadings and documents uploaded are visible by all stakeholders during the video conferencing court proceedings.

CORPORATE AND COMMERCIAL LITIGATION

Securing expeditious justice for the citizens of India in the foreseeable future is no more a matter of choice or luxury. The unprecedented demands of commercial litigation in the aftermath of the COVID-19 outbreak highlight the urgency for technological reform to start somewhere and soon. Though it would be idyllic to scale up the tech drive to reach the country’s 736 districts, the ground reality is that frustrating challenges at the lower judiciary may delay and hinder technological reform at the grassroots level.

However, commercial lawyers have seamlessly incorporated technology in their daily workings by conducting meetings, webinars, and arbitrations through virtual platforms, and also ensuring unhindered exchange of drafts, pleadings, documents, and memos. The first few weeks of nationwide lockdown have shown that a large part of commercial and corporate litigation had been shifting steadily to the e- platform and is ready to migrate into the tech space. What is needed is for lawyers and judges to also embrace technology with a will to make optimal use of the virtual space.

As commercial disputes invariably involve high stakes, command attention, and often need critical infrastructure, they have specially designated courts/tribunals and a specialized bar. Here is a ripe opportunity to digitally rejuvenate the court systems by introducing technological reforms in commercial courts.

REFORMING THE FUNDAMENTALS

Reform starts here: with the commercial courts/tribunals where the Bar and Bench are already in transition and have a supporting eco-system. For corporate litigation, which is tested on established legal principles, the pleadings, documents, and submissions can be filed online. Litigants and litigators have the technological know-how and the infrastructure to sustain virtual proceedings, as experienced during the current lockdown. Conducting proceedings online for hearings that are strongly governed by commercial facts is simple. The migration of such cases to a virtual set-up would de-clog the courts to hear those litigations where physical presence is essential.

Systemic reforms can be implemented expeditiously by fixing a time frame for the filing of pleadings and submissions akin to that followed in Commercial Arbitrations. Upon submissions, parties may be granted specific time slots for arguments, rebuttals, and questions instead of the traditional practice of prolonged arguments. Moreover, such reforms would largely address and eliminate the significant concern of most foreign corporates with regard to protracted court proceedings spanning years and thereby facilitate investments and ease of doing business in India.

Simultaneously, the E-Court committee of the Supreme Court could appoint a representative from the Judiciary to engage with the Bar Council of India and Bar Associations for establishing a national virtual court architecture with the requisite technology infrastructure which has optimized the use of legal resources with scientific caseload and docket management. The transition path would, of course, need governmental support for securing affordable and reliable frontline technology for the various courts and bar associations, while suitably equipping chambers within court precincts for lawyers and parties to conduct virtual court proceedings.

THE WAY FORWARD

The need of the hour is for the Bar and the Bench to work in tandem to formulate and implement a long-term, sustainable strategy s for facilitating seamless e-court hearings. The global experience indicates that effective utilization of technology does address the problems of pendency. The answer to the crying need for systemic reform in the Indian judicial system is speedy implementation of information and communication technology. The sooner, the better.

(with the inputs of- Vishrutyi Sahni & Avni Sharma)