The repercussions of Covid-19 are here to stay. Even after the lockdown is lifted and life returns to a semblance of normalcy, its aftermath will be felt for a long time by individuals, businesses and institutions alike. This especially holds true for the judiciary in the country. The massive disruption in trade and commerce is likely to manifest itself in a host of disputes specifically in employment, tenancy and contractual matters. Undoubtedly, the courts across the country will be flooded with such Covid-19 induced cases. These cases will be entering a system already suffering under a burgeoning caseload, which has now only aggravated due to unanticipated shutdown of courts.
In such a scenario, the judiciary will be wise to prepare in advance by putting in place a system that can absorb this influx of cases. For instance, China’s Ministry of Justice has issued guidelines for “internet arbitration systems” which will be developed to deal with the expected rise in disputes. Similarly, the Department of Justice, of the Hong Kong Special Administrative Region has launched the Covid-19 Online Dispute Resolution (ODR) Scheme under which disputes involving micro, small and medium-sized enterprises will be resolved. Under the Scheme, a low cost three tiered method is proposed to be followed – first, negotiation, second, mediation and if both these fail, then arbitration. The entire process is also time bound to ensure swift resolution of disputes.
It is clear that jurisdictions which have certain advanced level of online dispute resolution (ODR) capabilities are looking at leveraging it. Significantly, they are looking towards alternate dispute resolution (ADR) to enable swifter resolution of disputes while avoiding over-burdening of courts. Given that even post the lock-down period, it cannot be business as usual for any institution, much less the overcrowded courts, the Indian judiciary must similarly anticipate and plan for Covid-19 related surge in cases. This is critical as much for the judiciary as for the economy since resolution of disputes is key for individuals and industries to get back to work.
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ADR in Indian judiciary
Court annexed mediation, that is, when the judge asks parties to attempt resolution through mediation instead of adversarial court process, is well entrenched in the judiciary with legislative backing. It is a tried and tested solution for reducing workload of judges while also ensuring that parties get enforceable settlements. In fact, the categories of cases where there is expected to be a steep rise, that is, family, labour and commercial matters, the respective legislations provide for settlement of disputes through pre-litigation mediation.
However, like in other jurisdictions (such as Hong Kong and China referred above), it is time for the scope of court annexed ADR to not be limited to just mediation. Negotiation and arbitration hold immense potential to resolve contractual disputes. In these times, every legitimate means available to help people resolve disputes and move on must be encouraged and facilitated by the judiciary and the government alike.
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Court annexed ADR through technology
Indian judiciary has taken swift measures to ensure people have a way to access the system, albeit in an extremely limited capacity. The video-conference hearings and e-filing facilities in a few courts are significant first strides towards embracing technology in court processes. However, it is to be borne in mind that most of the virtual hearings are happening only in a few High Courts and the Supreme Court, which in any case do not deal with low value disputes. There is no clarity on how many district courts, if at all, are conducting online hearings or enabling e-filing. The first point of entry for most Covid-19 related disputes is going to be the district judiciary, specifically the labor, family and commercial courts in districts. It is critical that the judiciary builds capacity in such courts to deal with disputes arising out of Covid-19 crisis.
To this end, the judiciary, along with the government (Department of Justice), must take the following measures:
1. Develop a policy framework to enable court annexed ODR through mediation, negotiation and arbitration specifically for Covid-19 related disputes;
2. Adopt and infuse technology solutions in designated courts in each district to facilitate court annexed ODR through ADR mechanisms.
For this, the judiciary will need to work with mediation and arbitration institutions to tap into existing capacity in quality mediators and arbitrators. In addition, for the post lock-down phase, the judiciary must streamline the handling of all Covid-19 cases by designating specific courts (and judges) as special courts to deal with all such disputes. This will prevent the entire system from collapsing from the sheer volume of cases.
Timely disposal of cases is essential to open up stalled services and industries. More importantly, access to the judiciary is important to give respite to individuals suffering from financial, emotional and physical duress. The readiness of the judiciary will determine the lives and fates of businesses and individuals in the coming few months. Failure to take necessary measures will not only result in a judicial crisis, but also a judiciary induced crisis on an already suffering nation.
Deepika Kinhal is a Senior Resident Fellow at Vidhi Centre for Legal Policy, Karnataka; and Tarika Jain is a Research Fellow, Justice, Access and Lowering Delays in India (JALDI) project, Vidhi Centre for Legal Policy. Views are personal.
This article was first published by the Vidhi Centre for Legal Policy.
Ideally, the Central Government should bring in an Ordinence to forbid legal disputes based on contracts for next six months to one year, as has been done by the UK. Alternate Dispute Resolution can work when there are contractual disputes. It is not a panacea for all legal disputes especially when the contracts do not provide for arbitration or conciliation. In any case, the new normal for court hearings or quasi judicial proceeding should be through video conferencing duly recording the entire argument for the benefit of both the parties, government and the courts. That will save travel time to the courts, congestion on the roads, and overcrowded parking lots in the court complexes. But, regrettably, substantial numbers of lawyers and judges are staid, and bound to convention. Such straightjacketed attitude comes in the way of modernisation of administration of justice.