Wednesday, September 30, 2020
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E-Courts: A virtual reality?

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Jokes on Lawyers are as old as the profession of Law. Unarguably, one of the most popular jokes is borrowed from William Shakespeare’s Henry VI, part 2, when a character named Dick the Butcher says the often quoted and more often misunderstood famous line “The first thing we do, let’s kill all the lawyers”. Perhaps William Shakespeare, in his wisdom, would not have foreseen that in 2020, a Virus will get the better of this all-time favourite.

The Hon’ble Supreme Court of India has issued a series of directions to various Courts in the Country to conduct proceedings through video conferencing. Since the lockdown in the Country, various Courts are conducting hearings through video conferencing keeping in view the need for social distancing due to the spread of the deadly virus. However, the nature of hearings is limited to urgent matters inter-alia bail, injunction, other matters which are of utmost importance to the public welfare and matters related to the COVID-19 crisis. The urgency of the matter is to be decided by the Administrative Officer in some cases, and in other cases, by the Court. Although, these steps have ushered the Indian Judicial system into a new era of virtual Courts, however, the reality is that we are far away from the system of virtual Courts. The Supreme Court has practically reduced to a PIL Court during the lockdown period.

In 2018, the Supreme Court delivered a verdict allowing the live streaming of court proceedings of cases of constitutional and national importance, saying this openness would be like sunlight which is the best disinfectant. However, in February 2020, the Supreme Court in a Petition related to the implementation of the 2018 Judgment, refused to pass any Judicial Order and observed that the matter should be dealt with on the administrative side. Furthermore, it was submitted by the Law Officers appearing for the Secretary General, Supreme Court that the process of installing infrastructure for live streaming is already going on. It will be safe to presume that if allowed, the telecast/ live streaming of proceedings will be done on the lines of the Rajya Sabha & Lok Sabha sessions and the general public will be able to access the same.

Leading Lawyers, Law Firms and other stakeholders have taken a good initiative by starting interactive live sessions on various social media platforms in order to enlighten young Lawyers, Law students and the public at large on diverse topics related to Law and litigation, where most of them have focused on the transition and the reforms required to ease the process of the proceedings to be conducted through the mode of E-Courts. However, there is another side to the coin, which is not so shiny and smooth. Since the announcement of the lockdown in India, most of the Lawyers, particularly those who are Litigators are facing financial difficulties as a Lawyer is like a daily wage earner. Contrary to popular belief, a Lawyer has to go to Court daily in order to run his kitchen. In these times of distress, many Bar Associations across the country have resolved to provide financial assistance to those Lawyers who are in dire need of money. But this is a temporary phase, which will pass. However, considering the nature of the pandemic, many experts have predicted that a massive change will take place when the situation becomes normal.

When it comes to District Courts in the Country, E-Courts are still a distant dream. Barring District Courts situated in the capital city and other metropolitan areas in the country, most of the Munsif and Moffusil Courts are still years away from the dream of E-Courts. Archaic buildings, Old and broken benches, unclean record rooms, encroachments on the premises inter-alia are hallmarks of most of the Court premises in towns and villages across the Country. Despite the initiation of digitalized judicial records, the system of handwritten orders and pleadings is still in practice in a large number of Courts, some of which are situated within a range of 150 kilometers from Tilak Marg. Can it be said to be the tyranny of distance? It reminds me of 1985, the then Prime Minister of India, during a rally in Odisha, said that, “For every rupee, which I send from Delhi, only 15 paise reach its intended destination. Because रूपया घिसता है”. The same was also noted and observed by the Supreme Court in the judgment on the validity of Aadhar Card. The Supreme Court went on to observe that this “malaise” can be taken care of by the Aadhar scheme. The present directions of the Apex Court can at most be a makeshift arrangement for hearing of urgent matters that too only at the preliminary hearing stage.

With respect to the development of infrastructure in various High Courts in the Country, positive steps are taken in this direction. The Delhi High Court is already following the concept of E-Courts or paperless Courts in letter and spirit. Except for a few Courtrooms, most of the Hon’ble Judges in the Delhi High Court have adopted the same. However, we are yet to find a solution to curtail the excessive use of papers for the purposes of filing. So much so that despite having the facility of e-filing on the original side of the High Court, the Counsel is still required to submit the original set of the Petition with the registry. At times, the Petitions run into multiple volumes. Typed and translated copies of documents, lower Court records, and other ancillary documents add a substantial number of pages to the Petition and make them voluminous. Multiple copies of Judgment relied upon at the time of arguments in cases add to the already bulky pile.

Regarding other matters such as those pertaining to Tax, Service, Criminal and Civil Writs, e-filing is still a no-no. Moreover, upon issuance of notice, the process fee is accompanied by multiple sets for the completion of service upon the parties. Except for a few commercial matters, E-mail and/ or WhatsApp are still additional modes of service. The bills of the photocopier runs into thousands and the process is time-consuming. By the time, the pleadings are completed in a matter, the files become bulky and at times, it gets difficult for the Counsel to carry them in overcrowded Courtrooms. The storage of files is also an issue for many Lawyers due to limited availability of space. Carrying files from office(s) to Court(s) and vice-versa, which is usually entrusted upon Clerks and/ or Junior Lawyers, is a tedious task.

I recall an anecdote, where I was waiting for my matter in Court when a Petitioner in person, an old lady, appeared before the Court with her matter. The Judge told her that her file is not as per the proper format as per the High Court rules and she will have to refile it. The old lady told the Judge that if this is the issue, then in order to save money, paper and time, the Court must direct that she should be allowed to take back the 2 sets of the Petition filed with the registry and another 5 sets of the Petition which she had served upon various Respondents before filing of the matter with the Registry. The Judge was kind enough to direct that one set of the Petition be returned to her and orally requested the Counsel for the Respondents to consider her suggestion. Many Lawyers try to utilize rough papers. Most of the them take out the print outs of the daily cause list and rough drafts of Petitions and/ or other drafts on rough paper and several Courts use the rough paper as appearance slips. Sooner or later, the excessive reliance on paper and hard copies by Courts will have to go. This will not only save a lot of money, storage space, effort, and beyond everything, the environment.

The transition of the present system to the E-Court system seems inevitable. For some, it will be smooth, however, it will be difficult for others. I sincerely hope for a better future for all the Lawyers and litigants.

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