The Impending Judicial Crisis Post COVID-19

Blogs · April 27, 2020
Author(s): Deepika Kinhal and Tarika Jain

The judiciary needs to prepare for an avalanche of COVID-19 litigation

The repercussions of COVID-19 are here to stay. Even after the lockdown is lifted and life returns to a semblance of normalcy, its aftermath will be felt for a long time by individuals, businesses and institutions alike. This especially holds true for the judiciary in the country. The massive disruption in trade and commerce is likely to manifest itself in a host of disputes specifically in employment, tenancy and contractual matters. Undoubtedly, the courts across the country will be flooded with such COVID-19 induced cases. These cases will be entering a system already suffering under a burgeoning caseload, which has now only aggravated due to unanticipated shutdown of courts.

In such a scenario, the judiciary will be wise to prepare in advance by putting in place a system that can absorb this influx of cases. For instance, China’s Ministry of Justice has issued guidelines for “internet arbitration systems” which will be developed to deal with the expected rise in disputes. Similarly, the Department of Justice, of the Hong Kong Special Administrative Region has launched the COVID-19 Online Dispute Resolution (ODR) Scheme under which disputes involving micro, small and medium-sized enterprises will be resolved. Under the Scheme, a low cost three tiered method is proposed to be followed – first, negotiation, second, mediation and if both these fail, then arbitration. The entire process is also time bound to ensure swift resolution of disputes.

It is clear that jurisdictions which have certain advanced level of online dispute resolution (ODR) capabilities are looking at leveraging it. Significantly, they are looking towards alternate dispute resolution (ADR) to enable swifter resolution of disputes while avoiding over-burdening of courts. Given that even post the lock-down period, it cannot be business as usual for any institution, much less the overcrowded courts, the Indian judiciary must similarly anticipate and plan for COVID-19 related surge in cases. This is critical as much for the judiciary as for the economy since resolution of disputes is key for individuals and industries to get back to work.

ADR in Indian judiciary

Court annexed mediation, that is, when the judge asks parties to attempt resolution through mediation instead of adversarial court process, is well entrenched in the judiciary with legislative backing. It is a tried and tested solution for reducing workload of judges while also ensuring that parties get enforceable settlements. In fact, the categories of cases where there is expected to be a steep rise, that is, family, labour and commercial matters, the respective legislations provide for settlement of disputes through pre-litigation mediation. 

However, like in other jurisdictions (such as Hong Kong and China referred above), it is time for the scope of court annexed ADR to not be limited to just mediation. Negotiation and arbitration hold immense potential to resolve contractual disputes. In these times, every legitimate means available to help people resolve disputes and move on must be encouraged and facilitated by the judiciary and the government alike.

Court annexed ADR through technology

Indian judiciary has taken swift measures to ensure people have a way to access the system, albeit in an extremely limited capacity. The video-conference hearings and e-filing facilities in a few courts are significant first strides towards embracing technology in court processes. However, it is to be borne in mind that most of the virtual hearings are happening only in a few High Courts and the Supreme Court, which in any case do not deal with low value disputes. There is no clarity on how many district courts, if at all, are conducting online hearings or enabling e-filing. The first point of entry for most COVID-19 related disputes is going to be the district judiciary, specifically the labor, family and commercial courts in districts. It is critical that the judiciary builds capacity in such courts to deal with disputes arising out of COVID-19 crisis.

To this end, the judiciary, along with the government (Department of Justice), must take the following measures:

1. Develop a policy framework to enable court annexed ODR through mediation, negotiation and arbitration specifically for COVID-19 related disputes;

2. Adopt and infuse technology solutions in designated courts in each district to facilitate court annexed ODR through ADR mechanisms.

For this, the judiciary will need to work with mediation and arbitration institutions to tap into existing capacity in quality mediators and arbitrators. In addition, for the post lock-down phase, the judiciary must streamline the handling of all COVID-19 cases by designating specific courts (and judges) as special courts to deal with all such disputes. This will prevent the entire system from collapsing from the sheer volume of cases.

Timely disposal of cases is essential to open up stalled services and industries. More importantly, access to the judiciary is important to give respite to individuals suffering from financial, emotional and physical duress. The readiness of the judiciary will determine the lives and fates of businesses and individuals in the coming few months. Failure to take necessary measures will not only result in a judicial crisis, but also a judiciary induced crisis on an already suffering nation.

Views are personal. 

About Deepika Kinhal:

Deepika Kinhal is a Senior Resident Fellow at Vidhi Karnataka. Her areas of interest are judicial reforms, women and child rights, and legal-technology. Since graduating from NLSIU in 2012, she has worked at Cyril Amarchand Mangaldas (real estate and capital markets) and Dua Associates (litigation team). At Vidhi, she has undertaken independent and engaged projects studying court and case management systems across different levels of judicial hierarchy. Significantly, she has lead a team engaged by the J&K High Court to improve its court management systems. She considers tackling government litigation as one of the key ways of addressing judicial overload and is working with the Government of Karnataka in formulating litigation management policies for different departments. She is a co-founder of an online dispute resolution platform and has keen interest in legal-technology solutions for problems plaguing the judiciary and legal industry. She writes regularly in leading newspapers on topics related to the judiciary and women and child rights, and collaborates with other CSOs to conduct legal awareness campaigns. While not worrying about the state of the judiciary in the country, she sings and paints. She is a trained Carnatic singer with a brief stint at All India Radio and in Kannada movies.   

About Tarika Jain:

Tarika is a Research Fellow with the Judicial Reforms team. At Vidhi, she researches on gender representation, efficient budgeting and transparency in the judiciary with an empirical lens. Her areas of interest include law and economics, and governance. Tarika graduated from Gujarat National Law University with B.A. LL.B. (Hons.) in 2017. She has publications in peer reviewed law and social sciences journals and online platforms like Firstpost and Oxford Human Rights Blog. Prior to joining Vidhi, she was working for Gujarat State Petronet Limited, a state Public Sector Undertaking in the oil and gas sector where she was involved in various litigation and arbitration matters. She has previously interned with the Law Commission of India and Hon’ble Justice N.V. Ramana at the Supreme Court. Tarika is a pop culture enthusiast and enjoys watching anime and rockumentaries in her free time. Link to full bio