Senior Advocate Dr Abhishek Manu Singhvi, Raian Karanjawala, Managing Partner, Karanjawala & Co., and Senior Advocate Rajiv Nayyar speak to Tarun Nangia on the Legally Speaking program aired on NewsX about how litigation has changed in the time of the corona pandemic.
T.N: Sir, If I may ask you what has been this litigation experience like during the corona time that we have today?
Karanjawala: Let me start with a phrase that you used namely “May you live in interesting times”. This has actually, over the years, always been described as a Chinese curse. When the Chinese wanted to curse someone, they always said, “May you live in interesting times,” and we at this moment are living in such a time. So, the question that you are asking me is, “what is the immediate impact that we have felt of this pandemic on our practices?” Now, there are two obvious and basic impacts, which have been felt that we will deal with straight away and then there’s a third one that I myself have observed, but I will allude to that later in the programme if I think it is relevant. You are little young Tarun, but Manu and Rajiv Nayyar would recollect that when the first satellite phone Iridiumwas introduced into the world, it came by a way of an advertisement. I still remember the advertisement, which was a full page ad that came out in a newspaper, there was a photograph of the satellite phone and on top of it there were three words that read, “Geography becomes History.” Now that’s what has happened to litigation and advocacy in the times of the pandemic.
For example, Manu and Rajiv will agree with me that one of India’s greatest and busiest counsels was a man called Ashok Sen. Ashok Sen had a prodigious practice and he had a reputation of almost never saying no to work. He would take matters in as many different courts that he could. And one story, a legend that goes about him is that on a particular day, he started early morning in the Shimla High Court, did a matter, took a private plane and reached Chandigarh before lunch, finished the matter in Chandigarh, reached Delhi after lunch and finished the matter in Delhi. And everyone said, “My God! He appeared in three separate high courts in one day.” Today, twice a week Manu must be doing the same thing and Rajiv himself must be doing exactly the same thing. So that’s the first thing that this pandemic has done. It has sort of just made geography history. Today, sitting from where we are, we can handle matters in different parts of the country. And Manu will tell you his own experiences of how sitting in one place he has been able to handle far more work than he earlier would have been able to handle. So the variety of your practice as a result of this pandemic has changed in the sense we are not doing different kinds of cases but we are appearing in many different kinds of forums, which we were never ever able to reach.
The second and somewhat obvious fallout also of this pandemic is that it’s not just a pandemic that makes people sit at home, it’s a pandemic that has caused the lockdown of economic activity and any such lockdown of an economic activity necessarily means that the clients almost automatically ask you for a bit of a rebate. So, to some extent there has been that issue of discounts that law firms have been asked to give and perhaps even the counsel have had to deal with at times. Sometimes when clients find themselves in a harder position, they lean towards you and say look we have always been with you and now you need to accommodate us on this occasion and then at least as a firm, we have always had a policy over the years of being accommodative of people’s request for discount. These are the two obvious impacts I have found in the handling of the pandemic. There are of course many other internal problems which our law firm faces that we will talk later about like how you have to keep your offices open yet closed, how you have to ensure that people as far as possible work from home because if one person gets Covid the whole office has to shut down and things like that.
T.N: Thank you so much Mr Karanjawala for you initial comment. Now I go to Dr Singhvi and I have learnt one thing from him in all these years, the volume of your voice will not increase the validity of your argument. In a sense, his voice never increases in the courts, but the arguments he makes pass muster many times with the bench. How has his habit stood him in these times because I know whatever be the reasons nobody would be shouted at when one is listening to a video argument? This is said in jest but I would like him to comment on it and also give his introductory comment.
Singhvi: Thanks Tarun for a very generous introduction. Now the other perspective from the point of view of a litigator, which two of us are and the third one runs a firm litigation is clearly that on your specific narrow comment, arguments are more disciplined, they are more pointed, they are not necessarily briefer but certainly more pointed and precise, interruptions are less by the very nature of the process and therefore it’s a more harmonious process of arguments. Secondly, while broadly agreeing with Raian, I think you have to see the flip side also. I think it would be wrong to suggest as if practices have increased generally across the board during Covid. There are two aspects here. I would imagine that in all levels practice in quantum terms would have decreased. There’s a very top, then a below top, and a middle top and then below to below and then there are other levels.
Secondly, don’t forget there are many India’s in one in every sector and the legal sector is no exception. So, if you take up the above middle and the top levels obviously if somebody is doing ‘x’ number cases, he’s doing x-y even at the very top. There are no doubts about it other than he would be much better off than somebody at the bottom of the heap. And that is the may India’s in one syndrome because there are difficulties in other parts of India. There’s a contraction because the whole culture is based (Am talking of the litigation culture, not corporate, chamber practice or office work) on personal contact. It’s not so much the litigation part only but the coming of the client and I am talking across the board for lawyers generally, after all we are the second most populous country in the world for lawyers. So I think we need to keep these two contradictory things in view but along with that I think the remedy is not physical courts.
You know there’s a kind of knee-jerk reaction across the board that look you have many Indias in one and you have people suffering and the suffering is genuine. Therefore the answer in the remedy is physical hearing. I don’t agree with that because the answer is partly that you are not utilizing fully your capacity. The Supreme Court is doing well but according to me it is probably functioning 50% to its capacity. VIDYO is a good programme but it is not half as good as WebX, which Rajiv and I use in the High Court. For some reason, I don’t know why we don’t shift to WebX in the Supreme Court. Video works well except when there are batch matters when it doesn’t work as well.
Now these are practical problems, and you need to sure of the capacity I don’t agree with the notion that you must under force and pressure come back to physicals. The perceptions have been that people who are reasonably well off are holding back physical hearings. That may not be a correct perception because when we did try to on a sample basis open physical hearings, the response was point zero some percent of physicals. The reason is we are not allowing the virtual to take full play. We had Constitution Benches, that is five judges being heard on virtual hearing. There is no reason why you can’t have a full court functioning with the various courts in the virtual mode.
I would go further as things improve they also know reason why you can’t have the same case with having one side doing virtual and one side doing physical. Let me tell you with somebody caught your flyer on your advance intimation of your programme on telephone he said, “I believe you are speaking on this, you don’t know that I am doing matters in district courts is what he said to me on telephone, where I am doing virtually the other side is doing physically.” So a lot of good things have happened and we need to be sure up our capacity. Not to say this is permanent, but whenever the physical is possible, we’ll come back to physical. But virtual should become embedded in our system. It should not be an occasional trespass or a temporary aberration.
And one last point before I end, you’ll be interested to know that at least two matters, one involving me personally when I had sued somebody and four out of five people settle. All the settlements are done on virtual. There is no problem. Identification, digital signature, settlement recorded and even mediation is done on virtual. All digital. Now this is a fantastic theme and lastly the same person who telephoned me told me, an old Chandigarh couple who had come frequently to Delhi and as you know and as Rajiv and I know in particular, cases get rolled over to next day, next day and so on. We waited and waited and Supreme Court, they came back three times, old couple, now they can sit in Chandigarh and join and see the hearing. That’s not a small thing for a person who has ailment, who has resource constraint and who has difficulty, and you know the system in our courts. So I think we need to improve the capacity, improve the functioning, but don’t have this mad notion that virtual must end, it’s an aberration and physical must start.
T.N: Those are some very important points made by Dr Singhvi. Supreme Court is a place where clients from all over India have to come, however rich or poor they are. And virtual hearings are an enabler where people from Kerala, Tamil Nadu don’t need to come for physical hearings, a very important point made indeed. I will now go across to Mr Nayyar at this point of time. What will be your introductory comment for today’s episode?
Nayyar: Thank you Tarun for having me on the show. And I want to start from where Abhishek left and that’s a very important aspect that going forward what is the whole of physical vs virtual. Because as we know the pandemic is nowhere near to an end. So we are looking at a least six t nine months more before there can be some semblance of normalcy. Now in Delhi High Court for instance, we went completely virtual and I must say that the Delhi High Court system actually is the one which is working the best because right from item one till the last item, you are actually online in the court. So you’re actually getting a feeling of being in a court because you are seeing other matters being done in your presence and then you can exit as soon as your matter ends. So virtually you are in a court but not in a physical sense. And Abhishek is right, the WebX system is working the best and I must say that the Delhi High Court has evolved it very well.
Now it was a challenge because this system you know they started with a few judges sitting on some days, then they expanded it a bit and finally the entire court is online according to the roster. Nd let me just share with you this is the only court where the system is being practiced. So every judge has his own roster. Of course he has a lesser number of cases but he has his own roster assigned to him even if he was sitting in physically. For instance, in Mumbai, MaDras, etc. only a few judges are sitting on a limited day-to-day basis.
Now, I myself had written to two letters to Chief Justice of the Delhi High Court…and I have actually said that please don’t open the courts physically. Because if you open the courts, you’ll find that lawyers are being affected with Covid and you’ll have to shelf the courts back again. So virtual courts vis-a-vis physical court, everything is being done very smoothly virtually. Abhishek is right the numbers are down, but numbers are down not because there’s less appetite for litigation. I am noticing that there is less appetite for litigation, people like to settle. Even huge multi nationals and other corporates etc. are going into litigation in a little reserve manner and they are not as if rushing into litigation the next day. So that’s why the impact is being felt by the younger lawyers because the litigation is not across the board. It’s there but it is in a restricted fashion. And if it is in a restricted fashion, then people like Abhishek corner it the most.
We must respect virtual courts, we must expand it and we must give it teeth. Let’s not react to this bar association’s espousing causes of lawyers because they are not espousing causes of lawyers, they are espousing their own political aspirations. And if you take a survey across, 90% of the lawyers don’t want physical hearings, at least in Delhi High Court.
T.N: That’s two important points made by Mr Nayyar, but one very important point he made that how the whole community is envious of Dr Singhvi and I can vouch for it.
Karanjawala: You know people are envious of both Dr Singhvi and Rajiv, but they deserve every inch of the success that they get. They have both worked and worked hard for it. And I can say this because I am on the other side of the coin.
Singhvi: But it’s interesting Tarun, very ironic, just today on my WhatsApp, the whole report has not come, the parliamentary committee with a title very similar to your programme unknown to each other, virtual courts, the concept of virtual courts apparently and it is very interesting as they have come down heavily in favour of virtual courts. And they have said that this should be the new norm even when the normal time returns. Of course not at the cost of replacement, but at the cost of a parallel system giving people the option. And remember one thing Tarun, that you know look at also the saving in many ways in terms of their own health, pollution, Driving. I mean these are things we take for granted. Time for me and a lot of us that 9.45 time period is the worst. Today the luxury of going down and doing it at 10.15 and starting it immediately when you get your virtual contact. The pollution, the petrol, the driving and also I think the fact that judges have only to learn to be a little adaptable. They are already very accommodating but the impatience has to be less. I am not sure if we can do more cases by the way, we can do more cases in multiple cities, that is certainly true but we can do quantitatively more cases. There’s an equalizer applying in Covid I think I comes down as virtual hearing has its own limitations. But I think if you are able to be one, increase the system of VIDYO and other systems which are not as good as WebX and we the judges are a little accommodating, I think there is no problem then. One other point, the small class of people who are genuinely disadvantaged—the elderly, the remote village, the tehsil court—where people have access to the platform or indeed in Delhi, the people who are economically disadvantaged as listed in an article that in fact was published in the Guardian which is your sister concern where I said that there is no reason why the Supreme Court should not have one or two big halls. So somebody who is really in need of it, don’t think there are many exaggerated number, he comes there and in the hall there are 7-8 platforms from where he can do a virtual assisted by people. This can happen in Tehsil courts and district courts also and this should be reserved for the genuinely disadvantaged, either by age, ailment, technology challenge or resources.
Nayyar: Just to add here, as far as the Delhi High Court is concerned, there are two court rooms where if you don’t have access in your own house, you can come there and get connected. That’s one. Second, on this Parliamentary panel report which Abhishek says is very interesting because certain classes of cases have been suggested to be on virtual indefinitely. For instance, traffic cases, check-bouncing cases and those kinds of cases. So it’s a healthy development because as courts are clogged, people have to wait for a long time. And third, as Abhishek rightly said that this can never be the substitute but we may perhaps marry the two to make a system which becomes perfect in the near future.
T.N: One this is sure that Mr Nayyar is happy with the way Delhi High Court has been performing on the digital court front as a whole.
Nayyar: Yes, absolutely. And I must say that all the judges have actually suggested to the chief justice now that we must move to phase 2. So phase 1 was urgent matters and we have perfected the system well, but we must now have phase 2 that you must noe get the older cases. You see Tarun what is happening now, all the cases that were originally listed say for March 8, they are automatically adjourned to some date in April, so you those cases are not being taken up. Urgent matters are being mentioned and taken up. So I have now suggested and I think it is time forward that actually those cases that stand adjourned to later dates should actually be taken so a judge may have 20, 30, 40 cases, he may be able to do only 15 or 20 cases, but he may have a rolling list but at least the litigant and the lawyers who are clamouring for physical hearings they will get a sense that the entire court is actually performing.
Karanjawala: I agree with both Manu and Rajiv. In fact I must say speaking for myself and I remember my initial conversations with Rajiv on this I was a slow convert to this system of virtual hearing because I remember right in the beginning of the pandemic Cyril Shroff had requested all us members of the Society of Indian Law Firms (SILF) to meet for a Zoom to discuss the issue of virtual hearings. So, a lot of us had come on board, namely Rajiv Luthra, Zia, Ajay Behl, Rohit Kochar, Mahesh Agarwal and many others. Cyril urged the cause of virtual hearings and I was quite reluctant at that time and so was Mahesh because we were the main litigating firms and we were a bit apprehensive as to how it would suit the system. But as the system has worked more and more, we find that things are working better and better. And frankly to be honest with you, there is no answer to that in the pandemic because frankly as a head of a firm, it is very difficult for me to insist or in a sense it would wrong of me to suggest that other people come to work when I myself being of a particular age, have not stepped out of my house. It willbe very difficult for a person to impose a lockdown on himself and ask others to line up and work. It’s not the kind of culture you want to inculcate. So, what’s happened is that we find this system working well for us. Yes, obviously there are fewer matters, so there’s less work than normally what we would have done, but with every passing month I find work increasing and more and more matters being dealt with. The pandemic can’t last forever. It will end in about 6 months, objectively speaking, and we will have a certain sense of normalcy. Even in that sense of new normalcy, further to what Manu said I think specially a court like the Supreme Court should function in a hybrid way. Part of the reason is that the Supreme Court being the Apex Court gets cases from different parts of the country. Now one way to deal with the same would be while you go back to the system of normal hearing, you can on a particular designated day, say one day in every two weeks, have all the courts seated on a virtual basis and on that particular day, if the chief justice so directs, he can direct the registry to ensure that cases coming from a particular state get listed before a Judge from that state. The advantage of that is that the advocates who are practicing back in say Karnataka or Kerala would come before a judge with whom they are familiar and would therefore be more comfortable when arguing the case in the Supreme Court. So that’s one way to look at it. The other way is to have a designated one or two courts of the SC always function on a virtual basis, and people who want to come virtually are automatically delegated to that particular courtroom. The one thing the pandemic has done is it has showed us that there is a side to a virtual hearing which should not be abandoned merely because physical hearing is now again possible. Also, what Manu said, there may be time when you have a situation where you have in the same matter itself both the physical and the virtual hearing and that’s also a possibility. I do feel that the courts would certainly haveto upgrade and ramp up its virtual capacity to an extent that it makes everything much easier and much more comfortable.
Nayyar: Just on a lighter note, we are now (at least some of us) operating like instead of running from one court to the other, we are actually operating from video screen to video screen. So you could do two or three matters simultaneously which was not feasible to do so. But I just want to also add that Raian gave an example of Ashok Sen that he was able to do two or three courts in a day, what he forgo to actually add was that when Ashok Sen appeared in Delhi High Court, he suddenly in the course of his arguments faints sickness and told the judge that I am sorry I won’t be able to carry on any further and took an adjournment and flew to Srinagar to do an income tax raid case. But here we are doing more authentic version, we are doing video to video.
T.N: That’s interesting and on that note I would like to end the show as we are almost out of time. We will continue in part 2. I would like to thank each one of you for sparing your time on our show on litigation in times of Corona on Legally Speaking. In the second part we will talk of the flip side of what all it is causing in the field of litigation. Thank you.