Justice J R Midha, Delhi High Court, is a thinking Judge, with a spiritual streak. He has been a path breaker and his innovations have been appropriated even by the Supreme Court, for Pan India application, as in Rajesh Tyagi case, for one. His genre of ‘judicial overreach’ has been transformational and beneficially impactful. Particularly, to those who live on the margins. Typically, therefore, he has been thinking hard about this virtual ‘Judiciary Shutdown’, and why not turn the challenge into an opportunity for Judiciary to go virtual. E-Governance and Digital India is real. But Judiciary, the world over, has been last to embrace technology. There may be legacy issues that may need to be shed and India is trying, but we are yet to reach even the foothills of The Everest, ahead of us, in this regard.
Picking upon the theme of my write-up in this space (https://myvoice.opindia.com/2020/04/judiciary-may-need-to-adapt-itself-in-these-pandemic-times/) suggesting that the Global Health Emergency and these viral Pandemic times, may be just the time, when the Judiciary may need to adapt itself, (euphemistically the docket explosion – the basic elephant in the room) to whiplash a strict timeline for ‘oral submissions’ in courts, which take an eternity with no discipline or control. Equally, insistence on Written Submissions or Skeleton Submissions (to ensure that they were not lengthy but focused, specific and bullet pointed) as they are crisply alluded to in United Kingdom, as the way to go.
Justice J R Midha thought loud on this theme and exchanged notes, with me, on why the Judiciary cannot go beyond the Videoconferencing route, which had its technical glitches and logistics issues, to introduce ‘ the precept and practice of video clippings not exceeding 30 minutes from opposing counsel, being shared and furnished to court, to be heard at leisure and uninterrupted, alongside the Skeleton Submissions, affording opportunity, for effective disposal of cases, to the satisfaction of the Bar and the litigant community.”
We had a long conversation and the result of the exchange and the reading up of the incorporated bibliography, is before you, the readers and users who matter. It is a sort of a loud thinking for the stakeholders- the robed brethren as Justice V R Krishna Iyer called us together, lawyers and judges, and the compelled litigants who knock the doors of the temple of Lady Justice.
On a reading of the said material and its practice, in the Western Hemisphere and experience gained, juxtaposed on the lockdown climes, it does appear that ‘video clippings’ or ‘oral submissions’ the digital way, from the contesting counsel, submitted in capsule form, by mail, may serve the cause of the crisis now, and possibly beyond, when we get to calmer waters, whenever that is, as well. A scan of the happenings around the world- with over 180 countries facing Covid-19- suggests that the chaotic times are not going anywhere yet. It may be quite a while before we are rid of the viral impact, if the history of Bubonic Plague, Black Death, Spanish Flu, across earlier centuries, is any indication. So, Justice J R Midha may be on the right track, when he is suggesting these ‘video clippings’.
Dissenters and naysayers, the usual suspects, trained on the traditional path, may be many. Anything new or novel is bound to be perceived as disruptive. The mobile, which we swear and live by today, was of that genre. And in the judicial firmament, where we comfortably cite and rely on Federal Court and Privy Council decisions even today, and now suddenly exposed to the Epidemic Diseases Act, 1897, bigly, with an Ordinance in 2020, to boot, enhancing the punishments for offences against medical professionals or frontline Covid-19 warriors, the idea for ‘video clippings’ to replace the physical ‘oral submissions’, may seem a tough call, and a far cry.
We live in such calamitous and apocalyptic times that strictly timed ‘ video clippings’ to replace the endless ‘oral submissions’, may just be the vaccine, we are looking for, to put a full stop to this virtual shutdown of Judiciary. Videoconferencing is too few and far between and the Judges’ themselves are finding it a tough formula to overcome. Videoconferencing is not serving the purpose as THE digital route today. What then is the alternative?
First and foremost, the Judiciary needs to admit and agree, meaning Bar and Bench both, we need a surgical remedy to deal with the pendency. The Pandemic times are exacerbating the epidemic of pendency. If we cannot unite to embrace disruptive technologies, we may as well forget the pendency, as a lost cause and leave the cause of litigants to the vultures and possibly the Bats as in the wet markets of Wuhan. Let us get real and deal with the pendency diseased fabric of Judiciary with a vaccine like ‘video clipping’ route. This may be the best possible option in the given and difficult circumstances, unless magically, someone somewhere can challenge the Midha vaccine.
To begin with, it is a matter of common knowledge that among the dust laden dockets, is a huge percentage of causes, which the late, lamented Justice S. Mohan, Supreme Court, christened as ‘Leave it to Your Lordships’ cases. The Judges may need to read and compile them. Surely, the Judges are learned enough to recognise them. Get them listed on the website. Counsel are bound to see the writing on the wall, update their clients and take them into confidence, and offer huge scope for closure of these cases. The causes get decided by themselves. A joint effort of this kind would be enhancing of the prestige of the institution itself.
And then, get petitions to condone delay in filing appeals listed, wherever service was complete, or where it was possible to give a quietus. The advocates on either side or concerned, can provide their consent, for a decent burial or at least get the delay condoned and cases ripened for final disposal. At least, a step could have been taken to go beyond the present and idle, in the right direction.
Thirdly, there are thousands of appeals pending before various High Courts, impacting the lives of innocent motor accidents claims. Law in this jurisprudence is no rocket science. It is almost too well settled. With MV Act, 1988 as amended by Act 32 of 2019, to take its place, it may just be the time to apply the broomstick on the pending, in one fell swoop. Skeleton Submissions, in such appeals may suffice, with no need for even ‘video clippings’ as ‘oral submissions’. The scope of dispute would surely fall within a short canvass, that these appeals can be listed, literally before the entire complement of Judges, to afford an expeditious closure for at least one waiting lot of litigants. The entire pendency in this critical portfolio could get washed away. Why not?
Going beyond, first appeals and second appeals, in civil cases, could also be dealt with on the basis of Skeleton Submissions allied with ‘video clippings’ from the contesting counsel. The Courts can impose a length limit for Skeleton Submissions- say skeletal not elaborate and not exceeding 5 pages with a List of Dates and Events- and ‘video clippings’, not exceeding say 30 minutes, from either side.
It needs to be highlighted that ‘video clippings’, in comparison to video conferencing, is any day a better and more accessible tool. Video conferencing, as on date, is not and may not be accessible to any and every lawyer in practice. In the absence of such video conferencing facility, the lawyer concerned may be compelled to seek the facility before the court. It may not be possible to provide simultaneous video conferencing access, by several courts at the same time. On the other hand, access to Mobile/ Smartphone is easy and readily accessible. For operational reasons also, it is a simple tool, which can provide the answer for preparing the ‘video clippings’ and forwarding it by e-mail or WhatsApp. Ministry of Home Affairs, having raised doubts on the Zoom platform, as a secure one, recording/‘video clippings’ and WhatsApp-ing them or e-mailing them may be the appropriate remedy. Thus, ‘video clippings’ score over video conferencing, even on the availability and practical plane.
Cutting back to the novel idea of ‘video clippings’, to replace the ‘oral submissions’, which is the basic purport of this piece, it does appear that it has not been tried or tested or implemented anywhere in the world, in a systemic manner. It would be novel, new and experimental, as a variant of the now well entrenched Videoconferencing kind.
Videoconferencing is now on in a big way, throughout the world, on the judicial front. In the US of A, it has always been in vogue, for over two decades now, as a reading of the material in the Bibliography, relied on, reveal. Judges may be in different places or States or physical and time zones. Lawyers too. They all would get together for a Video conference hearing, with strict and set timelines. But, there are occasions, where ‘video clippings’ were pressed into service, from lawyers, when they were unavailable for a live appearance. As in the recent Trump Travel Ban case, which was escalated up to the Supreme Court. But, nothing recorded, as utilised in a structured manner. Now, of course, in a historic first. in 11 seminal cases, SCOTUS is slated to hear advocates on live audio route, The Nine and lawyers concerned,living in different places and time zones too.
Dealing directly with submission of ‘video clippings’ as replacement for ‘oral submissions’ as add on to Skeleton Submissions in writing, as contemplated by Justice J R Midha, to infuse the necessary and required dose of confidence to the community of practitioners and litigants, may need a bit of elaboration. Mere Skeleton Submissions in writing, may not be seen as sufficient, as the legal fraternity is used to making submissions orally and equally Judges used to hearing them, to pronounce their verdicts. So be it.
The advantages flowing from these ‘video clippings’ in lieu of live oral submissions, in most cases, would be an effective replacement. They would not fall short of serving the intended purpose. Legal fraternity can engage Senior Advocates, at their leisure and pleasure, video record the submissions ( even indulge in take after take before they hit upon their best presentation) and file them in Court by simply mailing them, in present day climes and be done with. Both sides can make a 30 minute presentation, exchanged contemporaneously, alongside submission to Court. If need be, in rare instances, the counsel can exercise a right of reply of not exceeding 5/10 minute video clipping, within a fixed time line, with permission of Court. If this exchange of video clippings alongside Skeleton Submissions, is complied with, in a fixed time line, which shall have to be strictly implemented, disposal can take place at the time and choice of the Court.
The Judge can then get to hear at his chosen time and decide cases with a true, transparent availability of the submissions of either side, and the memory tricks that time lag plays, will be a thing of the past . The same Senior Advocate or appearing counsel can file such video clippings in as many cases as he/she can manage, without fear that the Court may miss a vital point or such like concern. Most importantly, a transcript of the video clipping, can be arranged by the court Registry and thereby forming part of the record, for good. Even if the orders are passed say 3/6 months later after being reserved, or appealed against, there would be open, credible, transparent record of the proceedings available, for fact checking, even at a later date. This would be a huge improvement on the present dispensation when delayed decision making may be susceptible to ‘fading memories’ as jurist Fali S Nariman calls it.
Pertinently, the foundational bug for burgeoning pendency, namely ‘Passovers and adjournments’ in Courts, could be avoided, despite non availability of the arguing counsel. The same counsel can dictate his submissions into a video clipping, in the comfort of his own space, and be available to argue before many a court and many a cause at the simultaneously. Distances can be covered, without the arguing counsel needing to move out of the confines of his/her private space. A dream scenario for any counsel, with even overflowing briefs and unable to offer time/space, before more than one court at any given time. And even junior counsel can enlist the services of willing and able seniors, who may be of the chivalrous kind, and help themselves, with better representations.
The cost factor for the litigant would not be an insignificant factor. Let us be brutally honest. Engaging Senior Advocates does not come cheap. And flying them out of their headquarters, costs more. And time is a constraint. Matters get detained, for their availability, as the litigants may lay store by their chosen counsel. Submission of ‘video clippings’ may come as a huge boon, in such circumstances. The erudition, knowledge, competence of such counsel may be available, simultaneously, to the litigant and the court, if such ‘video clippings’ dispensation comes into vogue. The same counsel can physically argue a case before Supreme Court, on a given day, and be arguing via ‘video clippings’ before Madras, Bombay, Delhi, Kolkata High Courts and more. Not only Senior Advocates, specialist counsel in various portfolios, could also be tapped into for such ‘video clippings’ appearances. Legal practitioners can indulge in extended practice. Most importantly, the clients’ could be tapped into for such ‘video clippings’ and the presentation made to court, to their satisfaction. The cause of clients may be better served and as a permanently available record, it may be of benefit, even if the matter gets escalated to higher courts.
Coming to the legal plane for indulging in this ‘video clippings’ dispensation, it passes muster as permissible under the existing Information Technology driven jurisprudence. A reference to the contents in the links of the a Bibliography, communicate that embracing the ‘video clippings’ route is legal, legitimate and permissible, and surely in these extraordinary times, none can question it. Only the timelines may need to be laid down and be it the Supreme Court or the High Courts or even the subordinate judiciary, would have the jurisdiction to impose them. The litigants and their counsel cannot claims a god given right to engage in timeless hearings or arguments.
The suggested ‘video clippings’ dispensation could be ideally replicated in arbitration proceedings also. More so, in arbitration disputes resolved on Document Only basis, such video recorded submissions may enable expeditious closure of the proceedings. The prohibitive cost factor, always an issue, in these proceedings, can be avoided if the ‘video clippings’ route is adopted. The very purpose of Alternate Dispute Resolution, intended to be an inexpensive affair, ‘video clippings’ offers itself as an effective tool.
In fine, it may seem that while introducing a true, honest, credible and transparent alternative – ‘video clippings’ would come in as a permanent record, to be referred to by the Court hearing it, or even the appellate court. Consistency and complaints that submissions made/but not considered Eet. could get avoided with certainty ushered into the proceedings. Adjournments can be easily prevented as personal/physical appearances are not called for. The entire exchange of ‘video clippings’ with a time limit, along with limited and focused Skeleton Submissions (not limitless written submissions) would enable a certainty, for early disposal. The saving on time and cost of engaging counsel, even across courts and States, would be humongous.
Yes, the Judges may have to read and be ready, with a lot more alacrity and diligence. They cannot afford the luxury of coming to Court ‘totally unprepared and unread’ as Chief Justice M C Chagla could, those days. But that is true and expected anyway. It would not be a bigger burden than the present as assumption of office as a Judge is ‘a thankless job’ as Chief Justice P B Gajendragadkar put it. So be it.
Justice J R Midha may therefore have hit upon a good idea, whose time may have come, in a timely time, as these Pandemic times. Who knows? Judiciary, comprising both the lawmen and laymen, cannot sit back and wait for things to happen, and allow the present impasse to stalling continue, for however long it may seem. The waiting may prove too costly. It may be time to accept the reality as it is, and be proactive to embrace even disruptive technology. Technology is inherently disruptive as Industrial Revolution proved and then Moore’s law for exponential explosion in Chips as part of the Digital Revolution did. But where would we be today if disruptive influences were eschewed by humanity. Why should Judiciary miss the bus?
Judiciary cannot wait for the Pandemic to go. It is not going anywhere or anytime soon. The loss of time is killing. Pendency is as bad a Pandemic as the Coronavirus itself. Covid-19 impacts the respiratory system. Docket explosion is gasping the Judiciary for breath. No big difference. Judiciary cannot wait for the Pandemic to end, and ‘normalcy’ to mysteriously arrive. It is time for proactive solutions. The much anticipated vaccine appears to be ‘video clippings’ as replacement for ‘physical oral submissions’. The pros far outweigh the cons. The lawyer community may have to sacrifice its personal interests, for the expediency of larger public interest. It is not as if the lawyer fraternity would get to lose. A clever exploitation of the disruptive technological tool of ‘video clippings’ may enable them to laugh all the way to the bank. The clients may get better served . The commercial interests of the practitioners, do not seem to be in any jeopardy.
On the other hand, a willing acceptance of this ‘video clipping’ route allied with ‘Skeleton Submissions’ in writing, may not only be in litigant interest but serve the lawyers’ own causes too. It may therefore make robust, common, logical and legal sense, for the entire judicial system to explore, consider and adopt this ‘video clippings’ dispensation, as an effective replacement for ‘physical oral submissions’ (no serious difference except it would not be live) allied with ‘Skeleton Submissions’ in writing, as the immediate and readily available vaccine in these Pandemic times. Judiciary may have done well for itself, to the eternal gratitude of the stakeholders and the litigant public, in particular, in the higher cause of justice.
(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)