ODR can raise equity and access in the dispute resolution ecosystem in India, through low-cost resolution facilitated in a remote manner by technology
A judge’s position should be to interpret the law, not act on regressive personal understanding of a crime and its context.
By Desh Gaurav Sekhri & Satwik Mishra
The pendency of over 40 million cases in our judicial system remains a focal point for reform and reduction. Nearly a third of these have been pending for three to 30 years due to resource-dwindling litigation, case adjudication and difficulty in consensus resolution. What further exacerbates this situation are barriers to conflict resolution for the common man, whether because of lack of access to courts and representation, or because of entry-level barriers such as linguistic or technology challenges. All of this is, in fact, routinely brought up by those who are impacted by it. And with the pandemic disrupting basic services delivery, the discussion is only going to expand in scope and volume.
The Union minister (law & justice) told the Parliament on September 22 that 62,054 cases were pending at the Supreme Court, 51,57,378 at High Courts (HC) and 3,45,71,854 at the district courts. This seems more than significant, except that the courts are performing in an exemplary fashion to dispose of cases. In 2019, the apex court disposed of 45,787 cases, the HCs disposed 19,17,049 cases, and the district courts disposed a sizeable 1,83,71,574 cases. The law minister recently stated that 25 lakh cases were heard virtually by courts across the country in the wake of the Covid-19 pandemic. The key statistic here, however, is that the number of cases filed surpassed the disposal capacity. The pandemic has, of course, accelerated this trend. Between February and August, pending cases have risen by 3.6% at the Supreme Court, 12.4% at the HCs. In the district courts, cases have risen by 6.6% between January and September.
The actual cost of this jarring reality for the socio-economic fabric of the country has been highlighted in several studies. A 2018 study of manufacturing plants in India by Johannes Boehm and Ezra Oberfield highlighted that ‘production and sourcing decisions were distorted in states with weaker enforcement mechanisms’ and that ‘reducing the average age of pending cases by a year would, on average, increase a state’s aggregate productivity by about three per cent’. A DAKSH study in 2016 brought out the substantial costs borne by private individual litigants at around Rs 500 per day on travel to courts and up to Rs 900 per day in terms of foregone earnings. A study by Manaswini Rao in 2020 analysing data across 6 million cases in 195 district courts, with a large and statistically significant sample of 13,928 companies, showed that sales revenue, wage bills and profits are negatively associated with average case duration for disposal.
The case for online dispute resolution (ODR) It is inevitable that as entrepreneurs innovate, businesses will become multi-layered in terms of operative parties involved. The economy will digitise, transactions will escalate, and hence, disputes will both rise and arise. Pre-emptively preparing for this inevitability, Roger Fisher and William Ury in their book Getting to Yes have strongly asserted how “conflict is a growth industry”.
However, given the escalating pendency, it is important that alternative methods for avoiding, containing and resolving disputes are adopted as access to justice isn’t just about having the means to resolve disputes but also ensuring that the means are efficacious and expeditious. Keeping this context in mind, the growing focus on online dispute resolution (ODR) in India is not without reason. Some might even say it is intuitive. ODR aligns with the current socio-economic milieu, has a global precedent of being extremely successful, and above all, has principles of natural justice in its essence.
Milieu alignment Ethan Katsh and Janet Rifkin theorised that the foundational pillars of any successful ODR regime is trust, convenience and expertise. India now has a long legacy of citizens trusting technology, whether in e-payments or in education and healthcare.
To augment dispute resolution mechanisms, Lok Adalats and Gram Nyalayas have been created as alternative options for affordable justice. In November 2019, a reply to a parliamentary unstarred question revealed that, between 2016 and 2018 regular, national and permanent Lok Adalats cumulatively disposed of 2.68 crore cases. Further, 395 Gram Nyalayas, which are conceptualised on the premise of grassroots access to adjudication mechanisms, have been notified in 12 states with 225 of them being operational, as per a parliamentary question answered on September 21.
Innovation in disputes ODR has significantly large-scale potential for innovation. For instance, the feedback rating system in e-commerce, where parties to a transaction criticise or praise each other has incentivised developing a reputation for scaling activity through smooth transactions. In the Netherlands, the ‘Rechwizer’ system allows for family and debt disputes to be handled by an online negotiating process called ‘separating together’. A software asks the parties a series of lucid questions and then orients the replies in a manner such that the parties know their rights and optimum interests, and are eventually guided towards an amicable agreement.
The potential of ODR for dispute avoidance, containment and resolution are most comprehensively captured in a report by an advisory group in the UK led by professor Richard Susskind. It envisages a three-stage mechanism starting with online ‘evaluation’, where there is dispute diagnosis and exploration of options for litigants. Next, online ‘facilitation’ is resorted to, where facilitators and automated negotiation tools aid in non-adversarial resolution. Finally, if the first two stages don’t result in a resolution, an online hearing is conducted, which is synonymous with online courts.
The Indian fit ODR has the potential to raise equity, fairness, access in the dispute resolution ecosystem in India. The convenience brought by ODR has been exhibited by e-Lok Adalats conducted in several states such as Chhattisgarh, Karnataka, Rajasthan, Gujarat and soon Kerala where disputes were resolved simply over WhatsApp audio/video calls. Supply-side capabilities could also be enhanced through a relatively large and competent services pool for adjudication and representation.
ODR has the potential to be an effective alternative that utilises technology to bridge barriers and access in resolution. Through facilitating low cost, remote, technology-augmented, linguistically- friendly, amicable and incentivised dispute avoidance, containment and resolution while adhering to principles of natural justice, ODR could be the post-pandemic disruption that enhances justice delivery to all.
Sekhri is OSD (Law) and Head-Access to Justice Initiative and Mishra is YP (Governance) and a part of the Access to Justice Initiative, NITI Aayog. Views are personal