Many have heard of India’s ambition of becoming a $5 trillion economy. But, some experts believe that with some reforms accelerated and policies implemented, India could even become a $55 trillion economy. So, what’s the role that the judiciary can play in such economic growth? Because it may not be just about legal principles in isolation, the judiciary just might be the cornerstone of India’s economic success. And has the impact of technology on justice delivery meant that how justice is looked at changed?
And what could be hindering the judiciary from curating meaningful economic growth?
According to Former Justice Gautam Patel, “The general impression has been that commercial disputes are something of an indulgence and this seems to have resulted in commercial disputes being relegated to the backburner… Instinctively, as a judge, one may feel that commercial disputes have to do with money and interest & that can wait. But, money has a carrying cost that can go beyond the actual interest cost, since it affects everything, including how effective businesses can be in India. If someone is at a policy level and the phrase ‘ease of doing business’ is used, it cannot just be flung around in the judiciary space. Commercial disputes have to be seen in a different light. A law firm would begin by putting in dispute avoidance and there are mechanisms for disputes that would contractually have to be resolved before one goes to court or arbitration. But, when that system doesn’t yield a result, people wind up in a dispute resolution forum. It’s at this point that perspectives have to change that such matters shouldn’t be allowed to clog up the system, because they take up an extraordinary amount of time, so one has to get rid of them and resolve them as soon as possible and free up time. If this doesn’t happen, what actually begins to happen is that there is a pile-up of commercial cases waiting for resolution”.
Patel remarks, “The Commercial Courts Act has timelines, which the Delhi High Court has hammered down. And that works, because people know the rules of the game at the outset of a commercial litigation… There needs to be a dedicated infrastructure that deals with commercial cases and to the extent possible, a team of dedicated courts, which don’t have to deal with non-commercial litigation simultaneously… We have a track record of consistently inconsistent decision-making, which has to stop. One can’t keep swinging the pendulum, because this is severely damaging to the psyche of any corporate, be it domestic or international. One has to know where they stand and the goalposts can’t keep shifting. Plus, the winning party has to be assured that enforcement and recovery would happen without delay and effectively”.
So, how could this be augmented?
“There needs to be a well-equipped third-party agency that understands systems and processes, with whom the judges have to work with to define the bottlenecks and choke points… Plus, there’s a complete lack of standardization. The key to an efficient system is the standardization of processes and formats… For instance, writs are the single largest segment of filing in any High Court in India. This must be standard, whether one is in Delhi, Kolkata, Madras, Telangana or Bombay. Even the Supreme Court’s process is to find one standardized process and use it. Even the forms must be standardized”, states Patel.
And what about the concept of justice? Has it evolved, even more so after the COVID-19 pandemic, that it could be a service? Has it gone beyond being just a place?
Patel opines, “What emerged from the COVID-19 pandemic is that when the physical systems failed and the halls of the courts of the law were no longer available, there was a Plan B that worked effectively. To my mind, this was a watershed moment where we moved from being a destination to being a service provider. The concept of the temple of justice got smashed during COVID, becoming a movable temple or a temple on wheels. And wherever you are, justice will be available to you, even in a digital form”.
So, is it all puppies and sunshine? Can justice just be automated like that?
Patel comments, “I’m worried that we don’t have a Plan C and that’s a very serious concern. We are now so totally dependent on digital systems that if there’s a concerted attack or a failure or a breakdown or a disaster, our courts will shut down. There wouldn’t be a daily list and one would not be able to upload orders… We need invasive audits with ethical hackers to see how closely protected our systems are, because we can’t go back to a physical system that’s behind us now”.
“Justice is not akin to the kind of services people are familiar with, like manufacturing services or buying an airline ticket. That’s a one-off thing that doesn’t require a level of customization to be custom-tailored to the facts of a particular case. The litigant wants to be heard by a human being, not just go to a court, but to a judge there who will apply a process. But, the automation that must happen at that level is what I consider to be mechanical or donkey work, like filing or filing compliance. Let’s say a law firm files a fresh lawsuit. This could go automatically through a process of checking for requirements and compliance and automatically find itself listed without the law firm having to send a junior to get it listed… The access to the judge could be provided more remotely, but every litigant would want the judge to hear what they have to say”, declares Patel.
And is the apprenticeship model in the legal world broken?
Patel notes, “Consider a large law firm. Typically, the hierarchy tends to the super-senior, the second-tier senior, the third-tier senior and the fourth-tier senior. The fourth-tier senior is not yet designated, but getting there… The Council Bar has been almost entirely substituted by in-house advocates from the firms, which may make sense from the perspective of client servicing and cost management. I understand the need to do this, but this is a disservice, because there would be people not looked at for judgeships, since their careers have not taken off… And mental health is not a trivial concept. On one hand, a law firm has an expectation of a certain quality of work and when that is not met, there should be an appropriate response from the law firm. On the other hand, the entrant may accept they may have messed up, but may also assert that some reactions may be uncalled for. Hopefully, within law firms, space and time would be allocated for these conversations in a non-adversarial and non-antagonistic environment, which would be important for the growth of firms and its youngsters”.
“I, also, think that the legal educational system has spectacularly failed, especially in the training of younger advocates and their preparedness to get into the rough and tumble of litigation. Documentation is something that a firm would be able to handle in-house and instead of setting up more law colleges or redoing courses that actually provide necessary foundations, there must be a multi-denominational effort to provide necessary and essential toolkits by law firms. This could include exercises, like what would be an appropriate litigation strategy or how a cross-examination ought to be constructed. Books would not teach this, so this needs to be taught and experienced”, quips Patel.
Watch the entire interaction here:
