By Eshwar Agarwal, Bani Singh And M.P. Ram Mohan 

The entrance to the Sanchi Stupa narrates the tale of the Battle of the Relics. Mythology states that the Kingdom of Mallas held all of Buddha’s relics and refused to part with any. This angered kings of seven other countries and war was imminent. Drona, a respected sage, intervened and questioned the motive behind the war. He reasoned that war will only lead to destruction and resentment among former allies in contravention to Buddha’s ideology. Sense prevailed and the kings agreed to the division of the relics.

In today’s democratic India, battlefields have been replaced by courts, relics by properties and disputes, and warring parties with emotionally charged family members, estranged couples, businesses and government-citizens. Many of these disputes are settled through an adversarial system where litigants may be dissatisfied given that there is necessarily a losing side. A trust-based society requires, in addition to adversarial systems, a Drona equivalent ecosystem that can help mediate millions of cases with fairness, reason and trust, leaving all parties satisfied and without acrimony.

Mediation can be understood as a process where an impartial third-party is appointed to facilitate structured negotiation between disputing parties and help them reach a mutually agreeable settlement. In addition to saving time and reducing litigation costs, mediation helps maintain relationships by promoting an amicable agreement. It also provides greater flexibility to find a solution, since it is not bound as courts are by the application of law and legal precedents. The focus shifts from asserting one’s legal rights to understanding the interests that each party wants to protect.

In India, courts can refer disputes which are capable of being settled between parties to alternate dispute resolution (Code of Civil Procedure 1908, sec. 89). The Supreme Court has been encouraging parties to take up pre-litigation mediation to settle their dispute before resorting to court proceedings. In Afcons Infrastructure v. Cherian Varkey Construction (2010), the Supreme Court emphasised the importance of mediation, especially in commercial matters, and observed that this type of Alternative Dispute Resolution (ADR) is ideal for parties faced with complex issues that they are willing to resolve through negotiations.

However, mediation in India has had limited success, both in terms of the cases referred as well as the resolution rate. For example, in Ahmedabad, from 2008 to 2019, merely 1075 cases were referred to the Ahmedabad City Civil Court Mediation centre, of which only 278 cases were successfully mediated as per Gujarat High Court website. As per this source, as of December 2019, around 30,000 cases in total had been referred to mediation centres since their establishment in Gujarat, less than 7 per cent of the over 4.5 lakh civil cases pending in Gujarat as of then. Even of the cases referred, less than 5000 had been successfully settled, leading to a success rate of around 16 per cent, which is dismal compared to a success rate of 80 per cent in the US, as found by studies.

To understand why mediation has not achieved the same level of success in India, we conducted in-depth interviews with litigants at the Ahmedabad District and Sessions Court. Our research revealed that a majority of them were not even aware of the existence of a formal mediation process. Indeed, most of them had minimal understanding of their case itself, much less of alternative legal remedies.

Further, even after having the process explained to them, many litigants were sceptical of mediation. Previously unsuccessful attempts at informal mediation definitely contributed to this attitude. Kailash (name changed), was a daily wage labourer we interviewed, whose case had been pending in court for the last 7 years. Initially, he had tried asking the help of his extended family to resolve the issue. However, as several unrelated but unresolved issues clouded the judgement of the family members, he ended up filing a court case. Having lost faith in the informal mediation process, Kailash was adamant that the only acceptable outcome was a decision completely in his favour. Thus, all scope of finding a middle ground had been lost.

For the small proportion of litigants who had tried formal mediation based on the court’s recommendations, the results were not very promising. Litigants often entered the process with a ‘win-or-lose’ mindset. Vishal, a cloth trader we interviewed, told us about his experience with mediation (which is mandated in commercial cases). According to him, the opposing party was set against the idea of mediation and insisted on getting a final and binding decision by a judge.

One of the reasons behind this behaviour could be the well-documented deference towards authority in Indian culture. Since mediation is aimed at facilitating discussion, the mediator does not have the authority to enforce an agreement without the consent of the involved parties. This, along with a general lack of awareness of the mediator’s role, makes the process lose credibility. Litigants may go through with it as a mere formality rather than giving it a fair chance.

The culmination of all these factors has contributed to an overall lack of adoption of mediation in India, leaving the courts straining under the burden of millions of cases that could perhaps have been settled outside.

An opportunity

The current COVID-19 pandemic will only exacerbate the case backlog in courts. The courts are expected to be flooded with pending cases post the pandemic. This, coupled with restrictions on travel, fear of coronavirus and reduced workforce, will impact the disposal rates. The reluctance to gather in public spaces and expose oneself to the pandemic could be used to galvanise efforts for increasing the use of mediation. Recently, there have been several well-articulated views pushing for a greater role of mediation in dispute resolution. Efforts have to be taken by the judiciary, lawyers, government, and litigants to create an ecosystem conducive for mediation.

Firstly, an attitudinal change is required among people to go for mediation. With mediation currently being a largely informal (and often emotional) process, many litigants have already had a bad experience previously. They need to be made aware of the benefits of mediation, specifically its ability to generate mutually acceptable resolutions. Successful examples of mediated cases should be prominently highlighted on notice boards in courts so that litigants know that there are other ways to resolve disputes. This will help build legitimacy and credibility for the formal mediation system in the eyes of the litigants. Mediation drives can be conducted that work on a two pronged approach of creating awareness and onboarding litigants to try the route of mediation.

The government can play a role by actively promoting mediation, creating trained mediation personnel, laying down rules and terminologies for the process, and incorporating the required legal support. With the Supreme Court setting up a Special Committee to draft a mediation law, the government should closely follow the committee’s work and consider proposing the resulting draft legislation before Parliament. Further, given that the central and state governments are the most prolific litigators in the country, they can push for mediation in the cases they are party to, thus unburdening courts and building a culture of mediation. A system that dispenses quick acceptable solutions for business litigants will also increase the ease of doing business. Scores of small and medium business owners like Vishal could save time and expenses they would have incurred otherwise.

Courts also need to provide support in the form of infrastructure and resources for mediation centres, the performance of which must be monitored by the highest authority of the respective courts. A combination of quicker resolution through mediations and a consequential faster disposal of cases requiring adjudication will increase the trust reposed in the judicial system. Lawyers, too, are a key element and need to make an active effort to integrate mediation into their practice in order to increase its use.

Further, mediation can ride on the back of the digitalization wave during the pandemic, with online mediation providing an alternative to the conventional process. The Department of Justice has compiled a list of twelve organisations which provide online mediation services. More such organisations will be required to increase the frequency with which mediation is used. Online mediation promotes asynchronous communication, making it easier to keep emotions in check and helping parties openly communicate with the mediator. It works well with the social distancing and travel restriction norms currently in place. Further, it can learn from the quick dispute resolution mechanism of internet marketplaces and platforms. Many of them are routinely involved in disputes on issues ranging from non-payment, faulty returns and reneging on pre-agreed terms. Rather than going through courts which consume a lot of time, a precious commodity in the start-up world, they prefer online dispute resolution platforms.

Perhaps, mediation of court cases can serve as a blue ocean opportunity for start-ups to exploit. They could explore technologies such as AI and machine learning, to help customers gauge the tentative time frame and likely outcome in courts. This will give litigants realistic expectations, nudging them to look after interests than being swept away by their emotional conviction about the strength of their cases. However, appropriate safeguards are required to ensure that the digital divide does not let affluence skew outcomes.

A holistic approach involving all the stakeholders is the way forward to achieving the required change in the alternate dispute mechanism process of mediation. The COVID19 pandemic adds to the reasons we need to accelerate these changes. We are thus faced with the question—are we, like Drona, sagacious enough to act wisely in this hour of need?

The authors are associated with IIM Ahmedabad.

Pinky Anand

Procedural law in India requires statements to be made in the presence of the magistrate to ensure it is made without duress. In video conferencing, the entire process is depersonalised. The spur of necessity pushes for innovative changes in the manner how we live; run our businesses; conduct our affairs and even the manner in which we resolve our disputes. As efficiency, the ratio of output to input, became the buzz word and the focal point of the brain-storming sessions in every industry, the legal sector too was not left untouched.

Even before the Covid-19 pandemic, lawyers and courts were using artificial intelligence-based case management systems that made legal practice simpler. From my initial days in legal practice, where junior lawyers sprinted from one court room to another keeping tabs on cases to today where the cause list can be accessed online and is updated every 30 seconds, there has been a virtual overhaul of the case management system. I really don’t know how we functioned. The erstwhile system has become a blur!

However, in the Covid-19 times, we are faced with the unique challenge of conducting court hearings while maintaining social distancing. That is quite a challenge considering the number of people, lawyers, juniors, associates, interns, clients with their supporters. Many courts were experimenting with different systems to reduce the clogging. During these dire times, the response from the top court of the country to switch to video conferencing for conducting hearings was both prompt and effective. Although one can only hope that this is a temporary phase and once normalcy is resumed, social distancing mandate relaxed, things will be back to as they were. But an interesting debate has been stirred regarding introduction of Virtual Technology in the justice delivery system, particularly in court hearings and filing of cases.

With economic activities having come to a grinding halt, the big law firms; corporate law firms etc. employing hundreds of lawyers have realised the futility of maintaining huge office spaces at considerable investment and expense. Such firms, working in a highly industrialised corporate sector, possess state-of-the-art digital infrastructure and therefore can successfully explore the option of reducing their real estate requirement by opting for the work from home model. However, dispute resolution/litigation has certain peculiarities which will make the transition to virtual courts difficult.

To what extent will the virtual courts/online dispute resolution make inroads and replace the existing set-up? Are we looking at a total substitution of the crowded court premises with virtual courts?

The answer lies primarily in identifying the type of disputes which can be successfully resolved using virtual hearing and artificial intelligence.

Disputes which can be settled through Alternate Dispute Resolution (ADR) are one such category where the AI techniques are employed successfully. ADR came to occupy the place it has today owing to the delay in resolution of disputes through the traditional infrastructure of Courts as trials took indefinitely long and consequently, the outcome of the case availed no benefit to the successful party and the victory was only pyrrhic. The quest for making ADR efficient, faster and cost effective has taken ADR to online platforms as ODR (Online dispute resolution- to borrow the phrase from www.odr.in). ODR is a step ahead of the ADR process where claims are filed on an online dispute resolution forum and the verdict is given without the parties ever having to be personally present.

The Supreme Court of India already employs Artificial Intelligence for identifying cases involving similar questions of law. This method has been successful in reducing the pendency of cases, particularly in the field of taxation, with great success. “Justice can be equally done without robes or congregation,” said the Hon’ble Chief Justice of India while commending the use of virtual tools.

Such proceedings of the constitutional courts i.e. the Supreme Court and the High Courts, which do not require much face-to-face interaction; and proceedings of specialised tribunals such as the Company Law Tribunals, Income Tax Tribunals, TDSAT etc; proceedings that can be carried on the basis of written submissions and documents which can be filed online obliterating the need of physical filing may be another category where virtual hearing can be successfully implemented.

We have a vast country of 135 crore with a pendency of around 3 crore cases and access of digital technology limited to a minuscule portion of the population. In a judicial system informed by the principle laid down in Naresh Shridhar Mirajkar v. State of Maharashtra [1966] 3 S.C.R 744 which had held that Article 19 of the Constitution included the right of journalists to publish reports of court proceedings thereby accentuating the fundamental legal maxim that justice should not only done but must be seen to be done, a complete turnaround of court proceedings to a virtual world does not seem to be an acceptable solution. We can however evolve in the constitutional courts the much-needed procedures of written submissions and time restricted oral hearings. Live streaming as directed by the Supreme Court in Swapnil Tripathi’s case can aid in reducing the jostling crowds who have a right to the hearings but their rights need to be balanced with rights of health and life by optimisation of digital technology. Structuring court hearings is also an imperative. The old world has to give way to a new discipline at all quarters.

The proceedings in the trial courts–the traditional criminal and civil proceedings stand on a different footing as they require examination and cross-examination of witnesses, production of physical evidence, recording of testimonies etc. For example, the procedural law in India requires statements to be made in the presence of the magistrate, this requirement ensures that the statement is made without duress etc., and therefore requires the personal presence of the maker of the statement. However, in case of IT-enabled video conferencing such assurance will be pyrrhic as the entire process is depersonalised.

The other impediments being;

• Lack of basic IT knowledge amongst lawyers particularly in smaller centres. This sentiment was expressed by the Bar Council of Delhi on behalf of lawyers who were unable to avail the video conferencing facility owing to lack of technical know-how. The same was reiterated by the Bar Council of India in its letter to the CJI.
• The issues related to cyber-security of the proceedings and the exclusion of interference by third parties (read hackers) with the proceedings.
• The unauthorised recording of the proceedings and retransmission of selectively edited parts.
• The current evidence law relating to electronic evidence is in a flux and not yet crystallised, e.g. the question of requirement of Section 65B certificate for admissibility of electronic evidence has now been referred to a larger bench.
• Unavailability of IT infrastructure at the lower court levels.
• The dedicated electronic/virtual systems as that of nuclear fuel complexes, which are guarded by extremely sophisticated security systems, have been hacked into without a trace for months. This only goes to add to the fear of tampering with evidence and electronic record in cases of e-filing and e-storing of evidences.

e.g – NotPetya a ransomware attack that beginning in 2017, caused more than $10 billion in global damages.

Another widely reported incident is when the website of the permanent Court of Arbitration in The Hague went offline during a hearing of the South China Sea dispute. This was attributed to Chinese hackers!!!

Thus, the fear that the trial proceedings can be tampered with by an interested party is not mere fanciful thinking.

• Advocacy requires keen sensitivity to the words and body language of the witness and judges, and some might say that video conferencing affects that aspect as the whole process is depersonalised.

However, these are concerns which will eventually be answered by technological advancements and can at best be categorised as teething problems and need not keep us from discussing the changes, an opportunity which this otherwise grim period offers. It is difficult to predict how the events will unfold and whether the present system of brick and mortar court houses can be replaced by virtual court houses. But what can be said with a great certainty is that the justice dispensation system as we know it is going to change drastically and this change should be embraced.

Pinky Anand is a Senior Advocate and Additional Solicitor General of India. contnet courtsey : https://www.sundayguardianlive.com/

Madan B. Lokur,

The people of our country apparently continue to have faith in our judges and the justice delivery system—and if they did not, there would be chaos. But unfortunately, the faith has been shaken by events of the last couple of years and unless we are rescued from the quicksand through very quick corrective measures, all of us will find ourselves in the sinkhole.

There is no controversy that the biggest problem facing the judiciary is the number of pending cases—over three crores. Before even trying to resolve this problem, the question to be asked is: How does one define a ‘pending case’? Is a case instituted yesterday (a traffic challan) as much a pending case as one instituted twenty years ago (gang rape and murder) both not yet dec­ided? Every law defines the words used in the statute and the court adjudicates on the interpretation of those words. But, we have not yet decided on the definition of a ‘pending case’ and therefore all cases in the courts, inc­luding yesterday’s undecided challan is a pending case. If we take the trouble of defining all necessary terms we will be able to better appreciate the magnitude of the problem of arrears.

The arrears in tribunals and commissions are staggering too and most cases directly impact the common citizen in everyday life. So, even if our definitions are clear, if we add up the cases pending in the courts, tribunals and commissions, we will arrive at an unmanageable caseload that is breaking the back of our justice delivery system. This humungous caseload is the cause of delays, adjournments and frustration among the litigants who suffer the slings and arr­ows of outrageous misfortune. Remedial measures are absolutely necessary and without them, the frustration might turn into anger which will be followed by doomsday.

Signs of the strain are alr­eady felt in the criminal justice system with extra-judicial killings in Uttar Pradesh and Telangana, lynching in several states and threats and killing of victims of rape. I believe that these are unmistakable signs that our criminal justice system has collapsed or is definitely near collapse. Elimination of the accused and not prevention of the crime seems to be the flavour of the year and a society governed by the rule of law should not accept it at all.

The most controversial aspect of justice delivery is the app­ointment of judges, and has been so for many decades. Independent India started off with independent judges who took independent decisions. Many of these decisions were not to the liking of the establishment and plans were made to bring them to heel. But the judges stood like a rock, leading to the establishment theorising on a committed judiciary. To some extent, the establishment succeeded in making inroads into the independence of the judiciary, but the judiciary struck back and arrogated to itself the sole authority to recommend judges for appointment. This was an act of self-preservation and perhaps needed at the time.

What the judiciary forgot was the sage advice of Uncle Ben to Peter ‘Spider-Man’ Parker: With great power comes great responsibility. The occasionally unprincipled exercise of that power by the collegium of judges in the Supreme Court in the recent past led the establishment to strike back. The battle lines are drawn and I believe that for now the jud­iciary is on the losing side. The controversy regarding the appointment of judges has led to criticism of the so-called ‘judges appointing judges’ method.There is no doubt that the biggest problem facing the judiciary is the number of pending cases.

Many question this process and some even describe it as incestuous. The criticism is totally misplaced. Judges merely recommend judges for appointment—the process of appointment is still carried out by the political executive with the President signing the warrant of app­ointment. Recent events have clearly demonstrated that the trump cards for app­ointment are with the political executive and sometimes it does not even include these cards in the pack. There is a sure and not so subtle form of arm-twisting being played out, jeopardising the independence of the judiciary. Even the critics do not suggest a better appointment process; they highlight the diminishing faith in the extant process, but they seem to have much lesser faith in the impartiality of the executive appointing judges—the committed judges theory (and perhaps worse) continues to haunt the legal fraternity. There is an uns­tated fear that the great power of appointment will be exe­rcised with little or no responsibility.

Do judges really appoint judges? No. There is sufficient evidence that the government is stalling the appointment of judges emphasising that it is only the government that appoints judges. In response to a question raised in Parliament, it was stated on November 27, 2019 that as many as 239 recommendations made by the high courts are “under various stages of processing” with the government and the Supreme Court collegium. How many recommendations are pending with the government is not known, but it is more than likely that it is the majority. How long it will take for the government to finally process these names is anyone’s guess—it could take several months. The Supreme Court has no power to ensure that the process is expeditiously completed by the government and warrants of appointment signed by the President. It is a myth that judges appoint judges.

The government continues to stall the processing of recommendations, as noted by the Supreme Court. This is a display of misplaced power. It impacts on the seniority of a candidate recommended for appointment as a judge of the high court and we have witnessed, in the Supreme Court as well. We have seen the government stalling the appointment of a judge to the Supreme Court and also in the appointment of a chief justice of a high court. Transfer of judges is ano­ther weapon in the arm­oury of the government and is suggested by the government for reasons that would not stand scrutiny even in the court of a munsif, but the Supreme Court has been unable to stand its ground. Fortunately, there are still some voices that believe in the virtue of an independent judiciary as against a committed one, but we need to hear them loud and clear.A ‘press conference’ by four judges in 2018 intended to restore sanity in the administration of the SC.

A dynamic society is bound to face controversies and the jud­iciary is no exception and cannot be insulated. The courts get embroiled in controversy when they are called upon to decide constitutional matters that impact on the sensitivities of large sections of society. The ‘political thicket’ doctrine has been evolved by the courts to stay away from issues that are purely of a political nat­ure and raise no question of constitutional interpretation, and rightly so—judges are not politicians, but they are nevertheless concerned with matters of constitutional morality. This has led the Supreme Court to pass judgment on matters pertaining to the legislature, inc­luding powers of the governor of a state and installation of a government through a floor test. These decisions have certainly enh­anced the prestige of the jud­iciary without, in any manner, denigrating the elected representatives and without impinging on the separation of powers doctrine.

But there have been inst­ances when the legislature has ref­u­sed to exercise its powers as for example in the decrimi­nalisation of homosexuality. There are instances when statesmanship has been absent in the political executive, as for example on the entry of women to religious places. There are also several instances when the executive failed to implement social justice laws and welfare schemes and which came to be pointed out by the Social Justice Bench of the Supreme Court. The decision in many such cases resulted in unwarranted criticism by the political executive and div­ersionary tactics to side-track governance issues. The political executive accused the judiciary of crossing the Lakshman ­rekha in terms of separation of powers and also of judicial hyper-act­ivism by taking over some functions of the executive.

Sure, in some instances the judiciary might have overstepped its jurisdiction at the instance of the citizen but the question always left unanswered amidst the criticism by the political executive is: What is a citizen (and the judiciary) to do if the political executive does not perform its constitutional and statutory obligations? Should gay rights be forgotten? What about protecting and supporting women’s rights and children’s rights? What about issues of child pornography? What about trafficking of women and children? What about the safety of women? What about environmental issues? The list can go on and on and on. To expect the judiciary to remain a mute spectator in an ivory tower is a failure to recognise the contribution of the judiciary in social engineering.

On his 90th birthday, Justice Oliver Wendell Holmes Jr of the US Supreme Court said to a journalist, “Young man, the secret of my success is that at an early age I discovered that I was not god.” It would have been wonderful if some of our chief justices had made a similar discovery. Judges are often told that they perform a divine function—it might be true when they decide the fate of the litigants before them. But certainly, no judge performs any divine function when taking administrative decisions and the Chief Justice of India is no exception. Sometimes the headiness of importance and the acc­ompanying power coupled with the title of Master of the Roster makes a mortal succumb to flights of fancy.

Lawyers and judges depend on circumstantial evidence when no eye witness account is available. Circumstances taken as a whole sometimes point to only one inescapable conclusion. A few events led four so-called ‘rebel’ judges (including a then knight in shining armour and myself) to believe that something was administratively terribly amiss in the Supreme Court. The prestige, stature and independence of the judiciary are dependent on public trust and confidence, and it is also dependent on the trust and confidence that the Master enjoys amongst colleagues. That collegial trust and confidence in matters of judicial administration was badly dented, leading to what is euphemistically called a press conference in January 2018, intended to bring back some sanity in the administration of the Supreme Court. The event perplexed many and caused widespread concern and criticism in some quarters but it definitely had a positive impact, particularly in the management of the Supreme Court collegium and gave back to the judiciary some of its lost strength and vigour as well as earthy goodness. Soon, however, all was lost.Prestige, stature and independence of the jud­iciary are dependent on public trust and confidence.

This year has been an annus horribilis. A resolution of the collegium taken last year was superseded without much ado; a complaint of sexual harassment was made by a staffer in the Supreme Court against the then Chief Justice of India who held a surprise sitting on a non-working day, slammed the staffer, protested his innocence (The chief doth protest too much, methinks) and yet the records of the Supreme Court do not show his presence in court that day! The credibility of the Supreme Court hit rock bottom on that day and it continued to scrape the gravel with the emergence of a sealed cover procedure completely unknown to our jurisprudence, whereby law officers of the government handed over ‘secret’ documents to the court in a sealed cover without claiming privilege under the Evidence Act. (This practice is continuing even today, much to the chagrin of lawyers). The armour of the knight was no longer shining.

Personal liberties have been given short shrift by the Supreme Court and traditional and extremely imp­ortant remedies like a writ of habeas corpus, anticipatory bail and indeed bail have given way to detention in det­ention centres, preventive det­ention and denial of bail. It does seem to be an abdication of responsibility or as Pratap Bhanu Mehta recently wrote: “The Supreme Court has badly let us down in recent times, through a combination of avoidance, mendacity and a lack of zeal on behalf of pol­itical liberty.” Is it any wonder that today the infamous ADM Jabalpur case of the Emergency period is being mentioned in hushed tones—hushed for the fear of being slapped with charges of sedition or worse, an order of preventive det­ention. Taking full advantage, the screws have been turned and the lions under the throne have been caged. The gains of the ‘press conference’ have been lost in more ways than one.

But, all is not lost—the criminal justice system has collapsed or is definitely teetering, but the civil justice system is alive and mea­ndering along from one generation to another. Human rights of children and women are intact but only as good discussion points and nothing else. Who cares? A strong will can still take our judiciary out of the morass. Rip Van Winkleism has left a big question mark on the faith and public trust in the functioning and independence of the judiciary, but the situation is not wholly bey­ond repair. It takes one man and a few moments to des­troy an institution—rem­ember Samson and the temple of Dagon, but it takes several people several years to build an institution. Will they work together to reb­uild the Supreme Court or restore the public confidence and trust enj­oyed by the judiciary – the last bastion – or …?

(The author is a former judge of the Supreme Court)