ODR, INNOVATION AND ACCESS
When we have a record 32.98 million cases pending, our attention cannot be merely to start online dispute resolution process outside court system. Look at the Statistics that NJDG has to offer: https://njdg.ecourts.gov.in/njdgnew/index.php. We should be examining how much of technologically aided formulations are possible to be integrated in the court systems themselves. I will include in this exercise ODR to be of relevance not necessarily when all the processes are done through online mode but also when it is partly ODR and partly physical. Let us assume that we do not have additional manpower deployed as judges to decide cases. Referring to the changes in working environment in courts caused by Covid19, CJI he said recently in a webinar, "Eventually, it must settle down to a system which is a combination of the old and the new. There are cases which have to be heard in congregation (sic). One thing for sure is that there is no looking back. We will have to accept the present situation and change our mindset."
Of all the countries, the Supreme Court of India is reported to have logged the maximum hours of hearing online. No doubt, they have not been accessible to all lawyers and not all cases of constitutionally important cases are heard. As on Mid June 2020 from the inception of national lock-down that was announced on 23rd March 2020, the SC of India has heard over 7000 cases and delivered 670 judgments. In comparison, UK Supreme Court has heard 10 cases. Australia had heard 94 cases and pronounced 12 judgments; Canada SC has heard 17 cases and delivered 5 judgments; SA - 51;Singapore 146 and disposed 98; Spain 800 cases. US SC has normally a light caseload that take up some 100 odd cases for disposal every year.
Let us assume that we have no major infrastructural fillip given by infusion of financial resources. How do we still perform better? I will identify the following areas for work and the innovations that they admit of:
(i)Bail and anticipatory bail that are heard now lend themselves admirably for online process of hearing. Friday evening arrest is the most commonly adopted method of taking a person to custody because, you cannot apply for bail any time before Monday and minimum of 48 hours will b e spent in custody before the case could be brought before court. There is a Civil Service Conduct Rule that could be invoked to operate automatic suspension if the civil servant has served a period of 48 hours of confinement. Now there could be a specifically designated court, that is from Magistrate court upwards in every taluk, to Sessions Court in district to High Court land Supreme Court which will work online, hear and dispose of bail applications.
(ii)Speaking of innovations, the Delhi High Court has, through Justice Midha has given options for lawyers to present their arguments on pen drivers. It could be either audio or video files. There is a time limit prescribed for presentation up to 20 minutes. The advantage of online process is that the lawyers are not likely to be prolix. If you set a time limit, there is not likely to be major objections.
(iii)Court referred mediation cases could be fully automated, from the time when the case is assigned to a lawyer/mediator, when notices are sent to parties by whatsApp, emails or phone calls to schedule meetings and carry on with work.
(iv)In many High Courts, the Chief Justice, who normally shoulders a lot of administrative work has a light board on Fridays. Section 11 applications in Arbitration & Conciliation Act, s 34 admissions and the like are taken. They shall be heard only through online process. Traffic offences lend themselves as eminently fit for ODR. Accident claims and determination of compensation for land acquisition cases shall be handled through application of artificial intelligence and overseen by judges, without putting them through a trial process.
When we speak above improving access in ODR, we normally talk about affordability issues; of ignorance to handle technology; of distancing poor litigants who may feel threatened by the new gadgets and technology. Here then, is a great opportunity to help rural youth folk develop new skills that may incidentally generate employment. Internet kiosks could be set up in courts as well as outside to electronically file cases. Courts will have simultaneously dedicated staff to handle filing. Right now, the online filing process has not been wholesome. This would soon change. I have witnessed tele-medicine being practised at Chandigarh, where the nationally renowned institution PGIMER will be connecting to patients and offering tertiary care to patients referred from primary health centres from villages. There is a substantial patronage to this tele-medicine practice. We should not therefore under-estimate our rural milieu as resistant to changes. We should shed condescension and make our so called have-nots come even with technology to gain better access to courts.