Over nine months into the Covid pandemic, the inequity of its impact is undeniable. Rising uncertainty led to a large number of people losing lives, jobs, facing contract violations, and being unable to pay back loans.
As of September 2020, the judiciary of the country had to deal with almost 4 crore pending cases, with a 3.6 per cent rise between February 1 and August 31 in the Supreme Court, a rise of 12.4 per cent since January 29 until September 20 in the High Courts, and a 6.6 per cent increase in the district and subordinate courts in the same period.
Social distancing norms led to transitioning from packed courtrooms to online modes of delivering justice. E-filing and e-courts gained traction as urgent cases were being heard online via video conferencing. On the 100th day of hearings, the Supreme Court announced it had disposed of 14,202 cases virtually. Nevertheless, as these solutions were restricted to the Supreme Court and High Courts, there still lies a task ahead in justice delivery from district and subordinate courts, which have over 3.5 crore pending cases as of November.
Under the Digital India campaign, improving the judiciary with greater speed in disposing of cases and enhancing access to justice was highlighted in the Pro-Bono Legal Services, Tele-Law, and the Nyaya Mitra initiatives launched in 2017.
Slow adoption
However, the rate at which the legal sector has adopted digital solutions has been slower. Covid-19 has reiterated the need for systemic reform, and leveraging digitalisation forms the core of the solution. The first e-resource centre and virtual court — the ‘Nyaya Kaushal,’ — was established in Nagpur on October 31.
This Centre, connected to all three levels of courts in the country, aims to tackle the inequality of access with the use of technology, saving time and energy of the litigants seeking justice in the areas of traffic and transport.
The repercussions of this pandemic on people, businesses, and institutions have underscored the need to look beyond short-term solutions.
One of the primary focus areas of judicial reform has been Online Dispute Resolution (ODR) systems, spearheaded by the NITI Aayog. This refers to bringing alternative modes of dispute resolution, which include arbitration, conciliation and out-of-court settlements, online. These measures are highly effective in reducing the case load of the judiciary, as they help parties reach out-of-court settlement.
The eBay Resolution Centre handles more than 60 million disputes concerning purchases made on the platform each year in a ‘low value, high volume’ process.
The dotcom bubble threw up numerous ODR platforms such as Cybersettle. These early experiences form a basis for policymakers and the judiciary to adopt today.
Challenges still persist, as outlined in a NITI Aayog report ‘Designing the Future of Dispute Resolution: The ODR Policy Plan for India.’
It mentions the dearth of appropriate digital infrastructure, barriers to effective enforcement, and the lack of trust in ODR. The Arbitration and Conciliation Act of 1996 provides the framework required to enforce the online delivery of ADR, and the Civil Procedure Code solidifies the settlement of disputes via mediation. Additionally, cross-border disputes can now look to the Singapore Convention on Mediation, a UN treaty which came into force on September 12, 2020.
With these foundations in place, the work of the Digital India initiative must be broadened to include awareness campaigns to drive digital and legal literacy, specifically for marginalised groups.
The elaborate process of having to go to court in order to enforce ODR outcomes has reduced the incentive to opt for these measures.
Most often, the costs of going to court overtake the potential gain from a favourable judgement, further disincentivising citizens from seeking justice.
In addition to this, cybersecurity risks have led to apprehension towards digitisation, especially in legal matters that involve sharing personal, confidential data. The construction of clearly defined data protection protocols judiciary would help in confidence-building and solidifying the validity of ODR outcomes without having to go to court. To assist citizens in challenging times and in crisis, our systems need to evolve to effectively cater to their demands. A digital revamping of the judiciary presents the best course of action towards improving alternative dispute resolution measures, as well as strengthening the broader governance systems in the country.
The path to recovery for India must consist of a new, forward-looking agenda that builds itself around the ideals of inclusivity, sustainability, and digitalisation.
The writers are with the Strategic Investment Research Unit, Invest India, Union Ministry of Commerce and Industry