Poor internet access, inadequate training and lack of technical skills were some of the biggest obstacles in facilitating a smooth transition from physical to virtual courts, said lawyers.
Hesitancy always sets in when one thinks of getting involved in a legal matter. They are seen as ‘hassles’ or ‘battles’ but never a smooth sailing journey for access to justice. The reason is the Indian judiciary’s struggle with disposing lakhs of cases stretching for years on end. With a backlog as high as India’s (crossing 30 million pan India), a worldwide pandemic that forced the courts to improvise with social distancing and video conferencing was bound to leave many litigants in a fix.
Sneha (name changed) has been fighting a case for maintenance in Bangalore since the pandemic began. She had delivered a baby girl under a lot of duress as her family had refused to accept her. Afterwards, her live-in partner also refused to accept the child. She has lost her job because of the pandemic. Her only hope is the Court to get some justice for her new-born baby girl from her separated partner. But the pandemic has delayed the process of litigation as dates keep coming with no hopes for resolution. “My family has disowned me and I am taking care of my baby on my savings. I have no one to support me anymore,” added Sneha with a sigh of resignation.
This is just one story in a mix of millions of countless cases that suffered during the pandemic.
Tarun Juyal is a practicing lawyer with cases in Bangalore and Delhi. He had started his practice right before the pandemic. Currently, he is trying to build his independent practice. Exactly one year since the World Health Organization (WHO) had declared a pandemic in March 2020, he sits in his office; rustling paperwork in his hand. “Looking back at when it had started, civil cases were not being filed at all. We were getting dates for more than a year later,” he said. “The files were not moving ahead. Most of the files lay on the admission desks for days because of sanitizing and restrictions on contact. It was a really bad time.”
“While earlier there were around 50-70 cases being heard in one day, in the virtual hearing mode, only 5 cases a day were being heard. There was no network sometimes and senior advocates at times were not able to understand the situation,” Juyal said. “Clients have been struggling as well, especially people who got dates that were very unrealistic; often times more than a year late. While people or companies who needed time, took advantage of this scenario, many clients who needed justice urgently suffered a lot.”
In March 2021, the Ministry of Law and Justice released a press note stating that the training program conducted by the Supreme Court e-Committee between May 2020 to December 2020 was able to reach 1.67 lakh people.
This included advocates, High Court judges and other court staff. The training program included appraising the advocates with the basics of e-courts services like electronic case management tools, how to appear in VC, how to scan a document, etc.
A Matter of Urgency
One major thing that disrupted many lives is that in most of the cases, registry had the discretion to decide what cases are urgent. Lawyers said that there were no clear guidelines on what matters were to be declared urgent.
A lawyer in the High Court of Jammu and Kashmir said that cases of urgency usually depend on various factors like how long the case has been in court and how it impacts the society as a whole. Apart from this, anticipatory bail hearings are the most common example of urgent court hearings. “In criminal cases, the dates are a little earlier because there is a sense of urgency. Before pandemic, I used to get dates for bail hearings very quickly. But pandemic led to a slow-down of process which potentially harmed a lot of clients stuck in criminal cases,” said Juyal. “No one followed any protocols. There were no set of rules on what case should be considered urgent.”
Juyal added that one of his clients was very sick and needed to be bailed out of jail urgently on medical grounds. But the Court expected him to follow the same procedure as any other case. “It took me a while to get him out. He got very serious and had to be hospitalized,” he exclaimed. “What if he would have died? At least create a different protocol for urgent cases.” Many lawyers also said that lack of network also led to a lot of bail hearings being postponed.
While criminal cases were still given some priority, civil case litigants went through a much worse time. Alok Prasanna, legal expert and co-founder of Vidhi Centre for Legal policy said, “In criminal cases, the Courts might say that it is a matter of civil liberties and they might give some priority but no such thing would happen in civil matters. This would lead to a rise in the number of civil cases.”
“Maintenance cases come under civil cases. Usually, the litigant should be provided with interim maintenance while the hearing is on-going. Even that is being extended in many cases. Without interim maintenance, many clients cannot even afford court fees,” Juyal said. Sneha is one such litigant stuck in a loop as the Courts keep extending the dates without reaching any concrete resolution. Meanwhile, she has no other alternative but to wait. Her plea in the High Court to expedite the case has also been rejected. She said, “I don’t know how I will sustain if this keeps happening.”
District Courts: In the Margins of Judiciary
Advocate Gopal Krishna Kundu, a senior district court lawyer in Durgapur, West Bengal said, “There is no proper infrastructure for virtual hearings in district courts. Even if we have computers, we do not have infrastructure for e-filings. Due to this, a lot of litigants faced problems, especially clients who have urgent matters like monetary releases.”
“The District Courts kind of always get neglected in the discourse in India. We had a mix of rural and urban districts in our survey to understand the difference in experiences of lawyers during the (first) lockdown,” Leah Verghese, the research manager at DAKSH, a civil-society organization in Bangalore, said. The survey was conducted across the district courts of Karnataka, Delhi and Madhya Pradesh. The report stated that poor internet access, lack of adequate assistance and inadequate technical skills made this transition difficult for several lawyers and judges.
The researchers found that the experience varied depending on where they lived. Verghese explained, “Lawyers in districts courts in Madhya Pradesh were very upset. They did not have the equipment for video conferencing and had bad network connectivity. In many district courts, they had set up booths which defeated the whole purpose of online hearing. Distancing was anyway not happening.” She added, “When we talked to lawyers in Karnataka, we found that there was a rural-urban divide. If you look at Bangalore vs Kalaburgi, there was a huge difference in lawyers’ experience.”
The Ministry of Law and Justice in the parliament stated that there was an increase of pending cases by 1,81,390 in the Karnataka District and Subordinate Courts between January 2020 and September 2020. More importantly, in most district courts, only bail (on the criminal side) and injunction matters (on the civil side) were heard. “For months it was just these two kinds of cases. Everything else was adjourned. Due to this, whatever backlog there was in these courts just became much worse,” Verghese said.
One more thing that made the system worse was that a lot of lawyers lost their livelihood. Verghese said that lawyers who have smaller practices suffered due to reduction in the volume of litigants. She added, “In rural areas, a lot of lawyers lost their livelihood and started working as labourers, selling oil or driving transport. They were unable to support their families. That period really affected a lot of people.”
The Case for an Alternative
“Litigants are trying to resolve whatever can be resolved out of the court because they also know that the courts are not working at their 100 percent,” Verghese said. Research scholars working in judicial reform believe that there are two major approaches to deal with judicial backlog. One is to reform judicial processes and structures that could facilitate faster adjudication while the other is to seek Alternative Dispute Resolution (ADR) mechanisms like mediation.
Badarivishal Kinhal, co-founder of the Centre for Online Resolution of Disputes (CORD) in Bangalore realized that his organization could be one of the players that could bridge the gap for access to justice. “We conceptualized Online Dispute Resolution (ODR), which is part of ADR before we had any idea of pandemic and suddenly it was pushed to the forefront because of the lockdown,” said Kinhal. He added, “Before it was accessible to the elite, because one it was expensive and there was no access to arbitrators. Nobody knew how to find arbitrators. They were limited to high-value and extremely complicated disputes. The awareness was missing.”
India Justice Report 2020 published by the independent think-tank, Vidhi Centre for Legal Policy, stated that mediation can play a significant role in reducing the number of cases that enter the formal justice delivery system. According to the India Justice report, while Karnataka was unable to dispose even 10% of the pre-litigation cases offered through the State Legal Services Authority (SLSA), Bihar had a 90% disposal rate in clearing pre-litigation cases. The report stated that the State was unable to adequately utilize its Lok Adalat mechanisms well.
Mediators said that the brick-and-mortar mediation centres can resolve a fixed number of cases per day but technology makes it infinite. Kinhal responded, “I think the judiciary has to recognize ODR does have the capacity to resolve the backlog in cases, especially at the rate with which it is piling. The government is the biggest litigant in this country. They are one of the parties involved in more than 50 percent of the cases pending in courts. So, at least they could make attempts to start resolving these cases and find a sector to which they could mandate ODR.”
Prasanna said, “It will be very difficult for the courts to make up for the last year’s backlog especially with the second wave. ODR prevents disputes from coming to court. So, it is a good way to ensure that more cases are not added to the system. But regular ADR is something that the court should recommend parties who are already in court.” He added that the only issue in this scenario is that the Court cannot unanimously direct any party to go for ADR. “There is no concept of mandatory dispute resolutions. But even the act of referring could help a lot.”
On March 27, 2021, the Karnataka State Legal Services Authority (KSLSA) organized a mega Lok Adalat where 3,32,936 cases were settled. This included 19,113 pre litigation cases and 313,823 pending cases. “Let’s start thinking that there could be a quick end to the litigation. Those who enter the justice delivery system must also have a quick exit,” said Justice Santosh Hegde, former Judge of Supreme Court during the inauguration of the mega Lok Adalat.
Prof. CS Patil, Dean and Director, Karnataka State Law University (KSLU) said that legal awareness is also very important for a robust system of access to justice. “Student legal aid teams should be established in colleges apart from the legal services authority,” Prof Patil said.
The Second Wave: Looking Backwards and Onwards
India is battling one of the worst phases of the pandemic as the recorded number of cases reached 24 million as of May 2021. As was the case last year, many lawyers have been seeking financial assistance due to a loss of their livelihood. The Supreme Court Bar Council (SCBC) has announced financial assistance on May 12, 2021. Lawyers said that only if they have assistance could they assist their clients.
Prabhu N Savanur, a civil lawyer with an independent practice in Bangalore said, “I am a first-generation lawyer. It was difficult to sustain in the first wave but we managed it. But right now, all the courts have gone again. Everything is at a halt. We don’t have any clients.” Assistant Public Prosecutor Srinivasan Vaskula, Telangana, said that even though they are having internet issues, they are not having any financial troubles as they are getting paid by the government.
Prof. Patil has been teaching in the KSLU for many years and looking at the current scenario, he still has something positive to look forward to. “If you look closely, the legal profession is probably the only profession that had not changed at all. The pandemic has changed everything when it comes to technology. These are irreversible changes that in the end will help the legal fraternity and the society,” he added. He believes that the technological shift which was not allowed to interfere with the legal system will definitely be advantageous for the future.
As there is no guarantee on when the pandemic will be over, with the cases seeing another surge, lawyers only wish that they are able to give justice to the clients who need it. There are lines of frustration on Juyal’s forehead. The clock in his office is ticking away as he said, “We have an obligation towards our client and to justice. In this scenario, we can only wish for things to get better.”