Senior Advocate Mukul Rohatgi, Senior Lawyer, Raian Karanjawala, Managing Partner, Karanjawala & Co., and Senior Advocate Vivek Tankha speak to Tarun Nangia on the Legally Speaking program aired on NewsX about Parliamentary Committee Report on E- Courts.


T.N: Hello and welcome to Legally Speaking with me Tarun Nangia. Today we are going to discuss the Parliamentary standing Comm. Report on the functioning of E- Courts, and we are lucky to have a very eminent Panel today. I have got with me Mr. Mukul Rohatgi, he is a Senior Advocate and has served as the Attorney General of India, I have with me Mr. Vivek Tankha, he is a member of Rajya Sabha, a Senior Advocate and he is also a member of the Committee that drafted this report. I have with me Mr. Raian Karanjawala, who is Managing Partner of Karanjawala & Co. I would like to welcome my three Panellists for sparing their time for this episode of Legally Speaking, we will start with a round of opening comments by all three Panellists now?

Karanjawala: So Tarun, people say that every cloud has a silver lining, and everyone has been wondering what the silver lining of this particular pandemic will be. So, I think years later, when we look back at this time, we may feel the silver lining of this pandemic for the Legal profession was the introduction, in a real manner, of the Virtual hearing process, and this particular report, the Bhupinder Yadav report, of which Vivek was also a learned member, has done a lot to promote that. Further, what the report recognises, is the following – essentially what does the Virtual hearing do and why was it necessitated? It was necessitated because of the inability to hold physical hearings in these times. So, the virtual hearing began to take place and people came from all over the country, even directly to the Supreme Court, on video conference. Now in essential terms, what people have come to realise is that the practice of virtual hearings does three things – it eliminates distance, it saves time, it saves cost. This is cheaper for the litigant, as he does not have to fly down to brief a local lawyer in the Supreme Court but can appear through his local lawyer directly. Further, it saves time because he does not have to travel, and obviously it eliminates all distance because people from all over the country and in fact the world, can appear virtually. As a matter of fact, some of our counsels have been coming in from London. What is recognised and emphasised in the latter part of the report is the convenience that this system represents for the Lower Courts. There are, for example, District Courts in India, which are larger than some small countries. Originally people would have had to travel all the way to the District Courts to attend the hearing, sometimes only to find that it had been adjourned, and go all the way back. The new system has cut all this out, and it is because of the pandemic that we have been forced to deal with this reality of hearing things in a virtual manner. The report, of course, is not just one sided, or presenting a rosy picture. Right in the beginning, it points out several difficulties faced by the system that have to be sorted out. There are three kinds of difficulties – one is access to the hardware that is required to make a virtual hearing effective, the second is access to connectivity, which is not good in many areas, and third of course, is technical skills. I mean, all of us, Mukul, Vivek and I will find that our children are far more technically skilled in the handling of computers than we are. Other friends of mine, for example, Rajiv Nayar, often takes advantage of his son living in the same house, in sorting out his technical difficulties. I don’t know if Mukul does, but Mukul himself seems to be fairly proficient with computers. So, that is how it goes, and this is an ongoing experiment and what this particular report has done is emphasize this point and I think it has rightly suggested, that in the future, even when the pandemic goes away, at least part of the hearings should be virtual.

T.N: Mr. Tankha you have had the unique experience of being the part of the Committee and drafting this report on the working of the E- Courts that the parliamentary committee has in a sense proposed could you share with us the experiences while making this report and what was the Broadcasting that happened and what can we expect now?

Tankha : Tarun let me tell you how this whole thing began it was pandemic has set of in the month of march in a big way in this country there was lockdown and all that Parliament was shut everything was shut court room was shut and court after sometime we began this Virtual hearing s so I called up Bhupendra Ji and asked him and I said Bhupendra Ji is it possible for the standing committees to meet at least do some work he said let me consult other and within a week he gave us a date and that’s how the first meeting of the personal and non-justice standing committee began in the July I think and then this went off for two months we had about seven eight hearings we invited the register general of Supreme Court, Secretary Ministry of justice the President and the members of the Bar Council the President of the Bar Association of Delhi and there were many others there were lots of people who were invited to give their suggestions because what was troubling us was that though we have started the Virtual Hearings in Courts but it was not meeting its end it was one very limited. limited to Supreme Court and High Courts the quality was very bad I remember I don’t know whether Mukul Ji and Raian Ji had the same experience there were times when I would go to different High Courts and VC’s and nothing would happen for days the VC would be down or not audible or aquae and the Courts could not do anything so all these factors all these issues became very important for us and that’s how we started debating and finally we came out with a report and this report also we came out in a record time of two months I was the part of Sub Committee who finalise this report with other two MPs and Bhupendra Ji went and presented this report to the Vice President of India who is the chairman of the Rajya Sabha and the idea was if this report goes to the Government early we will get grants on the basis of this report of the Judiciary and then the Judiciary can take up the work of modernization or expansion or improvement technical improvement of the system there were many short coming notice by us for instance the system was not very good sometimes not audible sometimes not working and industric and the largest number of cases are in District Court now those in District Court the system has really not taken of at all they have one pilot project of one District in each state which is nothing when you have three crores cases pending in the country you have a pilot in one District Court In one District Court in one state is negligible similarly we said the quality of the hearing should also improve Supreme Court quality is much better than what you find in many High Courts today so all these issues were discussed at length I also suggested and we all also suggested why do we insist on just Government agencies doing it when India can do such good work Indians can do such good work world over in the IT sector why don’t we then platforms why don’t we spend money on that and bring a efficient platform I also suggested and this was also because me of the part incorporated in the report later that we have installed those room where which we called e Mitra if you want you can come to the court there is a room designated where you can come and sit and do your VC I said if somebody has to come from Noida every time to do a VC in Supreme Court then the purpose is lost and large majority of people lawyers they even didn’t have the facility of doing it at home so I said why not engage properly private agencies authorised to install VCs install system for that period when the Court is to hear the matter on the payment basis at the home of the offices of the Lawyers make things easy for them this is like hearing at doorstep you make facility available because there is a lot of Lawyers as I have Raian rightly said who can’t operate Computers they don’t know how to connect all this is so huge especially when you go tier 2 tier 3 cities this becomes even worse so it was a very wholesome exercise done in hurry also to some extent but also to push improvement in the system and we always we felt from day 1 this is not going to go this system will come to stay may be as an additionality to the physical system of hearing in the month February or March till we appeared in some matter Mukul was also there could we have imagined that our hence forth we will not be going to the Courts and arguing cases I mean it was something unthinkable that is why people say the world before COVID and the world after COVID is going to be a watershed I mean before crise and after crise the world in future will be seen as a before COVID and after COVID So this is how and every adversity also like Raian said is also opportunity to do better improve your technology improve your systems I mean a lot of thing much have been done much before the COVID even began for instance I recollect in that two thousand twelve we have the meeting in the Delhi High Court where there has been and some other trying to be evolve a methodology by which High Courts and District Courts become more Computer one and connecting District Courts and Session Courts with jail with police station with Hospitals and you have video conferencing between all these Institutions or the movement of people become less so all this was a thought process from very long time but it took a pandemic to make it a reality.

T.N: That’s a very good point shared on the workings of the Standing Committee and the thought process.I will go to Mr. Rahatgi who’s been one of the busiest Lawyers throughput the pandemic he was appearing for the multiple cases all through the pandemic in a sense he has the best experience of what it takes to face the pandemic in terms of appearances Sir could you share how it was this experience like?

Rohatgi : This pandemic is of unparalleled when everything was shut down there was lot of despair and I was also thinking when will I ever go court because we of the older generation have now put it in forty plus years for us it was a daily routine of going to the Court arguing Physically having Coffee in lunch coming back in the evening dealing with our offices dealing with clients suddenly the whole thing changed there was complete paralyses and for a few days or few weeks I would say there was complete uncertain then this virtual court started initially I was very sceptical because the System was not okay many times you could were connected you could not argue couple of time a case get undefended because one party could not be un- muted because Supreme Court controls the muting as opposed to different High Courts where there is not control muting so I was very dis- satisfied and I wanted to go back to the physical System and I have given by telling the Courts that in big matters where they attend twenty Lawyers record is on thousand pages don’t do it on video I means don’t do it on Virtual and we should go back Originally some judges also agreed with us and adjourned larger hearing but then when it was found that COVID is here to stay you have no choice cases are mounting you have to carry on you have to soldier on some problems here some problems there some things will suffer nothing is ideal even in the physical system somethings suffer so everybody corporate and it went on and on and it has become much better than what it was when it started I want to take a minute or two to tell you and all the viewers that if you see last ten years at least in the Delhi High Court there was an experience of an E- Court but physical appearance so idea was that the filling would be E- filling you save paper you save things if a Judge would have a Computer and the Lawyer would be in the Court but the Judge has the Computer it will half made System because the Lawyer went with papers with the physical papers but the Court the Judge won’t have physical paper but the abundant set of question of physical paper was still there so that didn’t really makes sense and it never took off because if the Judge have the Computer the Lawyer should also have the Computer so if bothy have Computers are you required to meet physically because the Computers can do it you know so that never worked that was a complete waste whatever money was employed in that was a waste he says now what yesterday I mean I will you that I have taken the help from my two sons in steering my way through a couple of courts because of different High Courts yesterday unfortunately both my sons were not available and I was operating myself from four screens one I- pad one Computer and two phones it was difficult one Court kind of Manu was and we are back to that system of a Passover we can come back again things have obviously it’s not the same as of physical court because you know physical court how that reacts what is the facial reaction it may not be same one this is better because judges won’t allow it there are going on or were going on earlier I think ultimately it is for the better the problems can be sorted out so that nobody shut out of the hearing but one important thing which has to be addressed is this that in our Constitution in our Democracy a court is supposed to be a Public Court accessible to all though in the recent past everybody is not allowed in the Court because of lack of space but here it is meant to the Public Court that’s over court because that still hasn’t been implemented either by the High Courts or the Supreme Courts only the Lawyers get the links even the Clients sometimes don’t get the link I think we have to work on that this report has come at the right time and I think it’s a big shot in the arm so we should ultimately have a scenario of this staying permanently even if physical hearing opens but one point I wish to raise in which the will know I have noticing in the Delhi High Court couple of Judges have a Physical hearing day may be once a week most Lawyers are not going but this can’t work for the simple reason even if I choose to go for a physical hearing for one case and I happened to a five cases how will I do the other cases from the Court room when I am waiting only for one physical case because I need connectivity so this half way measure won’t work so what we need is if you have physical courts you have virtual courts you can divide the times and something like that as Vivek rightly said that High Courts can’t you have to go to Districts and Munsif Courts as there are twenty thousand of them you have to correct them there is no point just correcting the top of the pyramid and there is to correct them the pyramid won’t help so a proactive look is required by the Judiciary and the Government in providing funds because let me tell you the Supreme Court judges are still not sitting everyday the benches are sitting alternate days because the System is not given enough to take the load of and courts of Supreme Court functions and that is the need of our and everybody need there is the Government and the Courts may be by December or January we will be able to huff and puff about eighty percent of our System in this.

T.N: Mr. Karanjawala what are the implementation challenges that you foresee, implementing something as vast as this whole E- court system, which I think has involved a lot of investment also?

Karanjawala: Ultimately things will be implemented, the question is at what rate of progress will you implement them. One point which Vivek made, which I fully agree with, is that we are not yet fully tapping our in built potential. As Vivek pointed out, and the report points out, India is home to TCS, India is home to Infosys, India is home to HCL, to Wipro and to so many other companies which can very quickly provide the kind of services that the Courts need. This is the time when the Government has to allocate resources, and the Courts have to sit together and plan out a system, so that simultaneously, in each and every Court, infrastructure starts increasing. To implement a system of this nature, you have to have the mindset to employ all the resources you have on hand immediately, and to the maximum fullest extent. One way to meet the additional cost for such a system could be, for example, to determine that the court fees for virtual hearing could be slightly higher than in person hearing. Under any circumstances, a litigant saves a lot of money by approaching the Court in a virtual manner, so therefore, a little extra court fees can be paid in order to supplement these resources and make sure that this system is effectively implemented. Another aspect that I think is important, as Mukul and Vivek have rightly pointed out, is that the back log of cases in Courts today is a serious problem that litigants face, because as long as justice is slowed down, or justice is delayed, people do not get the full sense of what the Courts can achieve. As the report has suggested, a virtual system could help the Appellate Courts and Appellate Tribunals in the disposal of justice at a more efficient rate.

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