The Magna Carta of 1215 states “To no one will we sell, to no one will we refuse or delay, right or justice”. The fundamental jurisprudence of law abides to the principle of “justice delayed; justice denied”. The primary requirement of any society is to have a speedy justice system, and hence when the courts were found overburdened with pending cases due to various reasons including the cost-effectiveness, several steps were taken to decrease this burden, like the establishment of Tribunals & Commissions. As a future of traditional dispute resolution, ADR- Alternative Dispute Resolution came up. Arbitration, which is the most integral part of ADR, pre- COVID-19 era was treated as the future of Dispute Resolution, but post-COVID-19 now the need of ADR has become a necessity.
Post COVID-19 the future of litigation and ADR is seen from two perspectives- the adjudication process should be made more user friendly and contactless and other ways of providing faster relief to the parties should be adopted, hence one being a technical aspect and another intellectual aspect.
Online Dispute Resolution is one of the most celebrated solutions post-COVID-19. E-filling of cases and documents in the courts was always encouraged, for example in Delhi High Court there are designated e-Courts where the filling is mandatory in electronic form. In the pre-COVID era even after e-filling was encouraged, yet carrying physical files and physical hearing were preferred. But the ongoing pandemic posed challenges towards physical hearings and meetings, hence forcing people to get accustomed to online procedures. Online Dispute Resolution is very popular in International Commercial Arbitration, where parties in dispute reside in different countries, and witnesses and evidence are recorded through video conferencing. In the State of Maharashtra vs. Praful Desai (2003) 4 SCC 601, the Apex Court held that the term ‘evidence’ includes electronic evidence and that video conferencing may be used to record evidence. It was further stated that virtual courts hold the same position as physical courts hold. National Green Tribunal, even before the world was affected by COVID-19, had started taking up matters listed before the Zonal Benches through Video Conferencing.
During the initial days of the pandemic, be it courts or tribunals, only very urgent matters were been taken up, and hence this was causing a delay in justice for several. The Supreme Court of India in Re: Guidelines for Court Functioning Through Video Conferencing During COVID-19 Pandemic took a suo moto decision of issuing and directing courts to adopt video conferencing technologies for hearing cases. This forced various High Courts laid down guidelines for online filling of cases and adjudication through video conferencing technologies.
Despite the advantages, there is no uniformity in the process and hence few challenges are faced by lawyers across the country. In various courts, the video conferencing link is shared with only the Advocate on Record and this link cannot be shared further. Mostly the Advocate on Record is not the Arguing Counsel and hence the Arguing Counsel & Advocate on Record has to come to a place to join the conference which poses as a threat to social distancing. There is no uniformity in using the video conferencing platforms by various courts and data security is also a concern. All petitions are needed to be affirmed by the affidavit, which further needs to be attested, but till now there is no provision for digital attestation of the Affidavits.
Another challenge seen is regarding the recording of trials or evidence. The Cross-Examination of witnesses is not just about recording their statements but also analyze their body language which is not possible during a video conferencing trial. Apart from this, infrastructure also needs an upgrade by installing computer labs in courts and access to a strong internet bandwidth is a must.
Therefore, in view of the above, there is a dire need for having a detailed guideline for Online Dispute Resolution system which will facilitate in removing uniformities and difficulties faced by lawyers or litigants. Proper training sessions for the people regarding necessary software should be provided on regular basis to help them be handy with technology and important tools.
Sanrachana
