Real justice in virtual courts

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Anil Malhotra

Malhotra & Malhotra, Associates, Chandigarh



Two’s company, three’s a crowd, and any more is now an unlawful Covid-19 assembly. Undefined in law, it threatens human life, without being an offence. It also poses a threat to the rule of law. Covid-19 and attendant social distancing pose challenges unknown to the judicial system. Otherwise, online professional engagements and working from home are now the safe way out. Even weddings, funerals and prayer meetings have online options. Are online courts then the future of justice? Information technology and e-courts answer Covid-19’s contact prohibitions. To prove it, all high courts in India are conducting live streaming video conference proceedings providing access to courts and justice. The Delhi High Court has made video conferencing rules. All Benches of the Supreme Court of India are functioning as virtual courts. All India’s courts have cancelled the June month of summer holidays and are working in remote mode.

India is privy to unique cross-border family law and allied litigation. According to Government of India statistics, an estimated over three million non-resident Indians have registered as Overseas Citizen of India Card holders (OCIs) to acquire lifelong visa free entry to India. Non Resident Indians (NRIs) in actual numbers may be more than 30 million. These global Indians have inhabited, settled and thrived in almost two hundred countries across the globe. Undoubtedly, these international Indians are a unique nationality in themselves. They propel a dire need for a global law to govern their conflicts. The link and retention of their ties with extended families in India and abroad has found expression in issues relating to nationality, citizenship, marriage, divorce, spousal maintenance, alimony, inter-parental child removal, custody and guardianship of children, division of matrimonial property, inter-country adoptions, succession and inheritance of Indian property and last, but not the least, in surrogacy arrangements. Domestic violence in abusive marriages of international couples has created a new jurisprudence. Foreign courts and overseas law practitioners are all at sea attempting to resolve these problems for lack of any updated and amended Indian laws or reasoned interpretation of law on these contemporary subjects. The conflict of laws are abundant. Parallel simultaneous adjudications in different jurisdictions create irregular complications which compound legal dilemmas of human relationships.

Applicability of foreign laws, validity of judgments pronounced overseas and verdicts of India’s courts which need expounding are consequential issues requiring interpretation and expert opinion. India’s courts perform a herculean task in carving individual solutions in complex litigations under outdated Indian legislation. The situation will now be even more grim, as there will be no actual physical courtroom litigation due to travel and other prohibitions.

The spectrum of conflicts is widespread. It ranges from urgent nationality/citizenship issues to family and marital settlements, surrogacy agreements, child custody conflicts, secular adoptions, limping marriages, succession issues, conflict of jurisdictions besides the need for revamping family law for non-resident Indians. Law of spousal maintenance in India from a worldwide perception needs constant judicial interpretation. Family and child disputes cannot wait. Child laws and global adoptions in an international jurisdiction as a fast emerging jurisprudence in Indian law, need answers when conventional court hearings are not possible. Issues relating to dual nationality, passports and citizenship perspectives will require attention. Ailing family domestic violence quandaries will need resolution. Emerging predicaments and practices arising out of surrogacy with the law in flux will need answers. NRI property problems, wills, succession and their possible solutions cannot wait. Will these disputes be litigated? Who will decide them? Where? When? How? Will we need new online laws for them? Who will make them? Unpredictable. Unprecedented.

The European Commission has banned all non-essential travel throughout the EU, and the United States had already banned travel between Europe and the US. Besides, the US is undergoing turmoil and rioting because of internal issues. Curfews have replaced lockdowns. Australia has already decided to ban international travel in 2020. India’s international borders are sealed, except for emergency flights. An unparalleled pandemic crisis threatens human safety and public health. In this backdrop, all cross-border family law litigation, wherever existing or arising, will have only online options. With physical movements frozen, rights of access to children in custodial battles will only be possible by online adjudication. All overseas matrimonial litigation may be reduced to video conferencing. As a member of the Justice Rajesh Bindal Committee constituted by the Government of India to formulate a report on inter-country child removal issues, the author was a witness to various proceedings conducted with various stakeholders worldwide via Skype and WhatsApp contact. It was the only workable medium of eliciting views of all concerned. It worked. Ample precedent is also available through judgments of various High Courts exempting personal presence of parties in matrimonial litigation when spouses reside abroad. Undertakings are recorded through video conferencing and spouses are identified by representatives who appear before India’s courts as power of attorney holders. Relaxations and waivers are granted according to law, in due exercise of judicial discretion, to bury the matrimonial hatchet. An online jurisprudence of family law litigation and settlement of matrimonial disputes has already evolved. It may now see a further evolution of e-access and other virtual rights in a new global family law jurisprudence with domestic courts in different nations enforcing them.

The Indian Family Courts Act, 1984, enacted to secure speedy settlement of disputes relating to marriage and family affairs overrides all other laws in India. It permits a family court to lay down its own procedure with a view to arrive at a settlement in respect of matters before it and to arrive at the truth of the facts. For this process, the family court is not bound by formal admissibility provisions of the Indian Evidence Act, 1872. Therefore, family courts have the liberty to devise their own procedure and seek assistance of medical or welfare experts, whenever desired. Right of legal representation by a lawyer is not permitted unless allowed by the Family Court. Australian family law courts function independently too. On 31 March 2020, the Family Court of Australia changed the procedures relating to its hearings and has issued exhaustive Joint Practice Directions 2020 – Special Measures in response to Covid-19. They contain complete details of documentation filing, listing of cases, telephone/video conference hearing, face-to-face protocol, courtroom process, border restrictions and shared parenting orders, listing/mentioning methods, besides interim hearing direction details with final hearing procedures. We in India can emulate these practice directions. To provide a uniform protocol, India’s National Judicial Academy, Bhopal, can prepare a national e-module of Covid-19 family court procedures, where parties can be given the option to adopt.

The courts must now equip themselves for a future of online dispensation of justice. A possible solution could be found in apportioning some judicial time on designated days for e-proceedings, in addition to normal court working. The judicial system will have to devise ways and improvise means of allocating time for settlement of emergent child custody, matrimonial, domestic violence, spousal maintenance, inter-country adoptions, surrogacy, succession, inheritance issues besides resolving nationality and citizenship issues. The diaspora is huge. The problems are multiple. The resolution in law to provide access to justice has to switch gears to steer in new highways and drive over unseen flyovers which obstruct justice. The rule of law cannot be blindsided by the emergencies of the hour. Judicial academies must start preparing programmes for training in e-modes. We cannot sacrifice our commitment to the rule of law as the world’s largest democracy. Unique times pose exclusive problems. Laws are not silent. They speak through interpretation. They may change. Regardless, they answer the needs of the hour in a crisis. We must prepare for the future and look at virtual courts as an alternative, exceptional and emergent option, which may ultimately develop to a new method of dispensing justice. Let us make a start to prepare for the future. The sooner the better. India’s non-resident diaspora exceeding 30 million will invoke the jurisdiction of the Indian courts for e-solutions in the years to come. Let us be prepared for them. Make haste while the sun shines.

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