India: Litigation

Civil and commercial disputes in India are resolved either through litigation before courts or specifically constituted tribunals, or through alternative dispute resolution mechanisms, such as arbitration or conciliation / mediation.

Litigation:

India’s judicial system is broken up into three distinct streams, i.e. criminal, civil cases and other cases, which may be referred to specific statutorily constituted courts and tribunals depending on subject matter and the status concerned. Jurisdiction of a court is dependent on its territorial and pecuniary limits and may also be circumscribed by subject matter. Some courts or tribunals are conferred with exclusive jurisdiction over matters and disputes of a particular subject matter.

Arbitration:

Arbitration has emerged as the preferred mode of dispute resolution for commercial contracts in India – partly on account of the narrow scope of court intervention, including review of awards, but also on account of the huge delays in Indian courts. Part I of the Arbitration & Conciliation Act, 1996 (amended in 2015, 2019 and 2020) (the “Arbitration Act”), contains provisions relating to the commencement and conduct of arbitral proceedings held in India, as also challenge to and enforcement of awards. Part II deals with referring parties to (foreign seated) arbitration and enforcement of foreign awards. While historically Indian parties have preferred ad hoc arbitration, there has been a push by the Government and international parties towards institutional arbitration through established arbitral institutions.

Conciliation / Mediation:

Part III of the Arbitration Act deals with conciliation. A settlement agreement has the same status and effect as an arbitral award on agreed terms and would be enforceable as if it were a decree of the court.

Civil courts in India are primarily governed by the procedure set out in the Code of Civil Procedure, 1908 (“CPC”). Other procedural rules governing commercial litigation in India are set out in the Commercial Courts Act, 2015 (“Commercial Courts Act”)., the Indian Evidence Act, 1872, and the Limitation Act, 1963.

Court proceedings in support of arbitration are governed by the Arbitration Act and relevant rules under the CPC and Commercial Courts Act.

The principal court of original jurisdiction is the City Civil Court (in metropolitan areas) and the Court of Civil Judge, Senior Division (in non-metropolitan areas). The High Court is the court of appeal and has supervisory jurisdiction over all lower courts and tribunals in over which it has territorial jurisdiction. The High Courts of Bombay, Delhi, Calcutta, Madras and Himachal Pradesh, also have original jurisdiction i.e. a case may be instituted before them in the first instance.

Insofar as ‘Commercial Disputes’ are concerned (which includes transactions relating to general trade and commerce), where the dispute is above a ‘Specified Value’ (INR 0.3 million in most States, including Maharashtra, but differing values in some other States), they will be resolved by the relevant Commercial Court / Commercial Division having the relevant territorial jurisdiction, under the Commercial Courts Act.

The proceedings will lie before the court which has territorial and pecuniary jurisdiction.

Under the Constitution of India, the Supreme Court is the federal court, guardian of the Constitution and the highest / final court of appeal, having overall supervisory jurisdiction over State High Courts and all lower courts and tribunals in India.

Subject matter jurisdiction may be statutorily conferred upon certain courts or tribunals, to the exclusion of regular civil courts, depending on the subject matter of the claim or dispute. For instance:

• The National Company Law Tribunal (“NCLT”) has exclusive jurisdiction for disputes and matters arising under the Companies Act, 2013 (including oppress/mismanagement and minority protection), and the Insolvency & Bankruptcy Code, 2016. Appeals from the NCLT lie before the National Company Law Appellate Tribunal (“NCLAT”).
• The Debt Recovery Tribunal (“DRT”) constituted under the Recovery of Debts and Bankruptcy Act, 1993, has jurisdiction over adjudication and recovery of debts due to banks and financial institutions and for matters connected therewith. Appeals from the DRT lie before the Debt Recovery Appellate Tribunal (“DRAT”).
• The Securities & Exchange Board of India (“SEBI”), was set up to protect interests of investors in securities and to promote the development of and regulate the securities market. It has 3 functions rolled into one body: (i) quasi-legislative – issuing regulations, (ii) quasi-executive – conducting investigation and enforcement action, and (iii) quasi-judicial – issuing rulings and orders. Appeals against orders passed by SEBI lie before the Securities Appellate Tribunal (“SAT”).
• The Consumer Protection Act, 2019 (“CPA”) establishes District, State, and National Consumer Dispute Redressal Commissions for consumer disputes. Each forum has specific pecuniary and territorial jurisdiction to entertain disputes between consumers and goods / services providers, including and complaints against unfair contracts and trade practices. Appeals from the District Commission lie to the State Commission, and from the State to the National Commission.
• Appeals against decisions of lower courts / commercial courts lie to the relevant State High Court. An appeal to the decision of the commercial division of a High Court lies to the Commercial Appellate Division of that High Court. Appeals against decisions of tribunals lie to their respective appellate tribunal / bench. The Supreme Court’s appellate jurisdiction can be invoked in respect of any judgment, decree, or final order of a High Court (in both civil and criminal cases). Invocation of its appellate jurisdiction is on the basis of a certificate from the High Court concerned that the case involves a substantial question of law as to the interpretation of the Constitution, or of general importance which needs to be decided by the Supreme Court. In criminal cases, an appeal lies to the Supreme Court if the High Court has reversed an order of acquittal and sentenced a person to death, or imprisonment for at least 10 years, or certified that the case is fit for appeal to the Supreme Court. In fit cases, on important issues of law, the Supreme Court may be approached for special leave to appeal, against any judgment, or order of any court in India (not including a court constituted by, or under any law relating to the Armed Forces), including against an order / judgment against which there is no statutory right of appeal.

The duration for ordinary civil proceedings to reach the trial stage depends and varies from court to court and State to State – anywhere between five to ten years, owing to the backlog of cases in courts and also the formal procedural rules that apply.

In relation to Commercial Disputes above the Specified Value, the Commercial Courts Act prescribes strict timelines for the conduct and disposal of proceedings. The time taken to get to trial in such cases, is much shorter – between one to three years.

Applications for interim relief, to protect subject matter of the dispute or rights of parties can however be decided within a matter of weeks, with ad interim relief and ex parte orders (i.e.in the absence of the respondent) also being available in urgent cases.

Hearings are held in open court and are therefore public. However, should a case be particularly confidential or sensitive, the party concerned may seek an ‘in camera’ hearing.

The pleadings and documents filed by a party and the court record is not accessible to non-parties to the litigation. Additionally, should a case be particularly confidential or sensitive, the party concerned may request the court to keep certain documents sealed and confidential, which may be permitted subject to discretion of the court. The court record may be provided to a party on an application requesting such access and explaining why it is required, including any interest in the proceedings.

There are no pre-action conduct requirements under the CPC for ordinary civil suits.

Under the Commercial Courts Act, a suit cannot be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with procedure under the Commercial Courts (Pre-Institution Mediation & Settlement) Rules, 2018. (A dispute settled through such court sanctioned mediation, can be decreed in Court, so making it enforceable immediately in execution). However, this pre-condition is not compulsory where urgent interim relief has been applied for by the plaintiff.

Where a suit is being filed in respect of an official act against the Government of India, or any State, or a public officer, at least two month’s advance written notice of the intention of filing such suit, is required to be issued to the relevant Government entity. The notice must contain sufficient details of the dispute and the claim. While the suit may be instituted without the full two months’ notice (with the leave of the Court), if there is a need for urgent relief, no relief will be granted unless a reasonable opportunity has been given to the defendant to defend itself.

Where a party wishes to file civil proceedings against a foreign state, written consent of the Government is required before its institution. Consent will not be granted unless the foreign state has subjected itself to the jurisdiction of an Indian court; for instance by the foreign state instituting proceedings in the Indian court against the proposed plaintiff, or the foreign state trading within the court’s jurisdiction or, holding immovable property within the court’s jurisdiction – provided that the consent to sue is requested with reference to such trade, or property.

The CPC also provides for the filing of a caveat. If a party files a caveat, the prospective plaintiff must serve the case papers on such party before the case is heard by the court/tribunal. Failure to serve the party prevents the case from being listed for hearing and a continuance of such non-compliance may result in dismissal of the case.

The law of limitation is set out in the Limitation Act of 1963, which prescribes the time limit within which an aggrieved person must initiate legal proceedings in relation to any cause of action. The period of limitation is computed from the date of accrual of the cause of action, or in the case of a continuing cause of action, from each such day on which it accrues.

Limitation for civil actions and suits for which no period of limitation is prescribed is generally 3 years. Limitation for claims on tortuous liability is generally 1 year. Limitation for suits by, or on behalf of the government is 30 years.

The period of limitation for filing an appeal is between 30 to 90 days, depending on the order / judgment being appealed.

Where any special law prescribes a period of limitation for any suit, appeal or application which is different from the period prescribed under the Limitation Act, then such special statute will override the time period prescribed under the Limitation Act.

Civil proceedings are commenced by filing of a plaint before a court of competent jurisdiction.

Service is required to be effected on any defendant/ respondent to a civil suit. After the suit is filed, the court issues a writ of summons (accompanied by the plaint), to the defendant calling upon them to appear and answer the claim of the plaintiff by filing their statement of defence (written statement).

Where a plaintiff seeks interim relief, service of the interim application must be made on the respondent, unless ex parte interim relief is sought and where service of notice may defeat the plaintiff’s claim or rights.

In certain exceptional circumstances, in cases of urgency, such as where the rights of a plaintiff may be defeated should such relief not be granted immediately, a court may pass an ad-interim order granting relief, on an ex parte basis, without directing notice to be issued to the defendant. However, even if relief is granted ex parte notice of the action and service of the application will require to be given. Further, in such an event, the defendant may apply for vacation / modification of the order passed and after hearing the parties, the order may be vacated, modified, or confirmed.

Under the CPC, the jurisdiction of a court is determined by the value of the dispute (pecuniary jurisdiction), and its territorial connection with the cause of action or the defendants (territorial jurisdiction). Indian courts are not entitled to exercise jurisdiction over civil proceedings where they do not have territorial, pecuniary and/or subject matter jurisdiction.

A court has territorial jurisdiction over a dispute if the defendant habitually resides, carries on business, or works for gain within its territory, or, if the cause of action arose, or immoveable property which is the subject matter of the claim lies, within the territorial limits of such court.

The pecuniary jurisdiction of courts is determined by the relevant State in which the court is situated, below or above such threshold, they will not have jurisdiction. Pecuniary thresholds vary from State to State, so for instance, the pecuniary jurisdiction of the Bombay High Court is for claims above INR 10 million, for the Delhi High Court, the threshold is INR 20 million and the Calcutta High Court is INR 1 million.

Generally, the transaction documents executed by the parties will provide for the applicable law which will govern the rights and obligations of the parties.

In absence of any express choice of law governing the contract by the parties or for non-contractual claims (such as torts), the applicable law will be determined based on the closest and most real connection to the dispute between the parties – (i.e. the location of the parties, the place of performance of the contract and the nature of the contract.)

Summary procedure under the CPC:

Summary procedure, without a full trial, is available where the plaintiff’s claim is based upon negotiable instruments (such as bills of exchange, hundis and promissory notes), or for recovery of debt or liquidated demand arising on a written contract, or guarantee, and in respect of which there is an admission/acknowledgment of such claims or part thereof, as the case may be, by the defendant.

Where a suit is instituted as a summary suit, the defendant is not entitled to defend as a matter of right, but must apply to the court for leave to defend and while so applying, be able to establish a prima facie defence in his favour. If he / she establishes a defence to the satisfaction of the court, the defendant is granted leave to defend and the summary suit is transferred to the list of commercial causes to be tried as an ordinary suit. Leave to defend may be unconditional, or conditional upon deposit by the defendant of the whole, or part of the claim amount. If no defence is made out, the court may pass summary judgment on the suit.

No relief other than a monetary decree may be claimed in such a summary suit by the plaintiff.

Summary procedure under the Commercial Courts Act:

A party – either a plaintiff or defendant may apply for a summary judgment, at any time after the writ of summons is served on the defendant but prior to framing of issues.

The court may give a summary judgment against a plaintiff or defendant, if the court considers that, (i) the plaintiff has no real prospect of succeeding in its claim, or the defendant has no real prospect of successfully defending the claim; and (ii) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence. Either party may submit documentary evidence for consideration and the court may make its decision without recording oral evidence.

A party seeking interim relief should satisfy the court of the following three conditions: (i) there is a prima facie case in favour of the party seeking the order; (ii) irreparable damage defeating the very purpose of the suit may be caused to the party if the relief is not granted; and (iii) the balance of convenience lies with the party requesting the order.

Indian courts have extensive powers to grant interim relief as a measure of protection to preserve some property or the rights of a party pending the final disposal of a suit, including:

1. prohibitory or mandatory injunctions,
2. attachment before property,
3. appointment of receiver,
4. status quo order
5. other reliefs, e.g. disclosure of assets/ furnishing of security

A suit or a claim is commenced by filing of the plaint. After being served with the writ of summons, the defendant is required to answer the claim and file his defence through a written statement. The plaintiff may file a rejoinder and the defendant may file a sur-rejoinder, with leave of the court.

During the course of the suit, any party is entitled to file applications for interim relief, and responses to any such applications.

Applications may also be filed for amendment of pleadings to bring on record new facts or documents which have occurred after filing of the original pleading, or which could not be brought on record earlier.

The parties are required to file all documents referred to and relied upon as part of the disclosure process.

On completion of disclosure, the court, in consultation with the parties, frames issues for determination in the suit.

Oral testimony and witness evidence in chief is filed by way of an affidavit of evidence in chief, with a right of cross-examination by the counter-party.

The final pleading is generally written submissions filed by the parties after the substantive hearing, with the permission of the court.

Disclosure:

Each party is required to disclose under oath, all documents referred to and relied upon by it (both in support and / or against its case). The counterparty is entitled to take inspection of the documents disclosed. If a party’s disclosure is inadequate, or the party does not provide inspection, the other party has the right to request the court to direct disclosure, or inspection.

A party also has the right to request the court for directions against the other party to provide particulars in relation to statements made in the counter-party’s pleadings, or to answer interrogatories.

A court may non-suit a plaintiff, or strike-out the defence of a defendant who has failed to comply with an order for discovery, or inspection, or to answer interrogatories.

Exceptions:

Indian law exempts from disclosure, privileged documents under the Evidence Act, 1872. It recognizes legal professional privilege such that any communication made to a lawyer by or on behalf of his client, or any legal advice given to a client is privileged.

A party may seek protection from the court from disclosure of documents containing highly confidential, proprietal or sensitive information which could constitute a significant risk to a business if disclosed to an opposing party. Disclosure may be directed by the Court to be made subject to a confidentiality ring, i.e. a group of designated individuals who are authorised by a court to view specified documents, which might be capable of exploitation by third parties / any competitors.

The Government has a right, grounded in public interest, to claim privilege or immunity from disclosing documents, on the basis that the production of the document in question would cause injury to public interest, and that, where a conflict arises between public interest and private interest, the latter must yield to the former

Evidence may be documentary (digital records and email communications are also admissible), or oral, through witness testimony. Witness testimony must be direct and hearsay evidence is inadmissible, except in certain limited circumstances.

Oral evidence is usually given by way of affidavit of examination-in-chief, although for reasons recorded in writing, the court may allow evidence in chief to be led by examination of the witness in open court. The counter-party has the right to cross-examine the witness and the Court also has the power to put questions to the witness. Re-examination of a witness is permissible only under limited circumstances and in relation to questions arising directly out of the cross-examination.

A witness who is outside the jurisdiction of the Court or cannot attend Court may also be examined by way of a commission.

Witnesses must testify under oath before the court and may be liable for the offence of perjury under the Indian Penal Code 1860 if a witness testifies falsely.

Indian court procedure does not provide for the US style of ‘depositions’ (i.e. witness testimony used to gather information as part of the discovery process).

Expert evidence is permitted to be adduced. Independent experts are usually appointed by parties; the court may also appoint an expert, but that is usual only in public interest cases.

An expert would be subject to scrutiny as any other witness and may be subjected to an examination-in-chief or an affidavit in lieu of such examination-in-chief, cross-examination and / or re-examination. The expert owes his duty to the court.

Every original decree may be challenged in appeal, unless an appeal is precluded by statute. An appeal also lies against certain original orders specified in the CPC. The first appeal may include grounds of both questions of fact and/or law. Unless barred by statute, second appeals lie to the High Court only on substantial questions of law.

Where there is no further right to appeal, the Supreme Court, may on the application of an aggrieved party and in its sole discretion, grant special leave to appeal against any order of a court or tribunal, if it feels that the matter involves a substantial question of law.

Only certain orders passed during civil proceedings may be challenged by way of appeal. No appeal lies from an order not specified in the CPC. The alternate remedies of civil revision and review are however available to an aggrieved party.

The period of time to file an appeal is prescribed by the Limitation Act, 1963 and usually ranges between 30 days to 90 days, from the date of receipt of the order / decree being appealed from.

The Government of India has notified certain countries as reciprocating territories and in such case, a foreign decree would be enforceable in India and executed by an Indian court as if it had been passed by an Indian Court, if the decree is for a sum of money, and it has been pronounced by a ‘superior court’ of such reciprocating territory. In such a case, the judgment holder may seek enforcement by filing a simpliciter petition for execution thereof.

Where the judgment is issued by a court of a non-reciprocating territory, it may be enforced by instituting a suit on such judgement.

A foreign judgment would be enforceable except where it has not been pronounced by a court of competent jurisdiction, or is not on merits of the case (for example, a default judgment or a summary judgment without the judgment debtor entering appearance or where no opportunity to lead evidence is given), or is founded on an incorrect view of international law, or a refusal to recognise Indian law in cases in which such law is applicable, or was obtained in proceedings opposed to natural justice/ obtained by fraud or it sustains a claim which is founded on a breach of any law in force in India.

Once a foreign judgment is held to be enforceable, it will be enforced in the same manner as a decree of an Indian court.

There is no provision under Indian law for enforcement of interim orders of a foreign court as they do not conclusively decide an issue.

Indian law recognises the principle that costs follow the event. Courts have wide discretion in this regard and may also award compensatory costs to be paid by a party who frivolously delays proceedings, or knowingly raises false, or vexatious claims, or defences.

The CPC permits a group of plaintiffs to collectively bring a claim to court in a representative capacity for the benefit of a group or class of persons. It thus carves out an exception to the general rule that all persons interested in a suit should be made parties, and enables a group or class of persons with common interest or grievance in a matter to bring an action through only a few named representative plaintiffs. Similar provisions enable a group of representative defendants to enter a defence on behalf of the entire group.

Under the Companies Act, 2013, members and depositors of a company, may, either individually or as a class, join together, to seek redress and reliefs from the National Company Law Tribunal. The interests of minority shareholders are protected since the Companies Act provides redressal against acts of oppression by the majority shareholders and/or mismanagement of the company by the controlling group. A numerical threshold must however be met, viz:

• In case of a company having a share capital, (i) a minimum of 100 members or 5% of the total number of members of a company, whichever is less or (ii) members holding not less than 5% of the issued share capital if the company is unlisted, or 2% of the issued share capital if the company is listed.
• Where the company does not have share capital, the minimum threshold is 1/5th of the total number of members.
• The requisite number of depositors to initiate a class action is: (i) at least 5% of the total depositors of the company, or 100 depositors of the company, whichever is less or (ii) depositors to whom the company owes at least 5% of its total deposits.

Reliefs may be sought against the company, its directors, auditors, expert, adviser or consultant for any fraudulent, unlawful or wrongful act, including monetary compensation or damages for commission of fraudulent acts or those that that are prejudicial to the interests of the company, or its members or depositors, or against public interest. Orders passed are binding on them all.

The Consumer Protection Act, 2019, which overhauled consumer protection law in India, permits class action, where one or more consumers (where they have a common interest or grievance) to file a class action on behalf of the group. Complaints may be filed in relation to any goods sold or delivered with the permission of the District Forum, provided they have the same interest or grievance and seek the same relief on behalf of or for the benefit of the group.

The plaintiff is in carriage of the proceedings and is entitled to decide which defendants to array in a proceeding.

A necessary or proper party to a dispute, may be joined to the proceeding either on its own application or on the application of any other party to the proceeding and by leave of the court.

Where parties and / or the subject matter of multiple cases are the same / similar, these proceedings may be tagged or clubbed together such that they are heard together and one order is passed in respect of all such proceedings.

There exists no specific legislation or regulation dealing with third party funding in India. However, the common law offences of champerty and maintenance (which are the biggest stumbling blocks to the permissibility of litigation financing), have been held not to apply to India. Additionally, various court decisions (including by the erstwhile Privy Council), have recognised third party funding arrangements over the years, although, none specifically in the modern context with professional funders. On that basis, one may assume that there is no prohibition against third party funding.

The CPC, as amended in the states of Maharashtra, Gujarat, Madhya Pradesh and Uttar Pradesh, empowers a court to implead a third party financier in a suit as a plaintiff (in certain circumstances). The financier may be required to give security for the payment of all costs incurred and likely to be incurred by any defendant failing which, a court is empowered to order a dismissal of the suit so far as the financier’s right or interest in the suit property is concerned.

While courts in India initially shut down in 2020, they have slowly adapted to virtual hearings and are now hearings cases regularly using various video conferencing platforms. Over time, Indian courts have streamlined the process of online filings and virtual hearings, particularly in urgent matters. As the infrastructure is not fully in place, hearings of cases which are not urgent or are at the trial stage, have been delayed, resulting in a mounting backlog.

Owing to the outbreak of COVID-19 and the consequential lockdown coupled with difficulty in accessing courts, many High Courts (such as Bombay High Court, Delhi High Court, Karnataka High Court, Kerala High Court), had issued suo motu orders extending interim orders already granted and directing parties to maintain status quo in the proceedings. Where such extension of interim measures causes hardship to a party to such proceeding, parties were granted liberty to seek appropriate relief. For instance, the Bombay High Court passed an omnibus order extending the life of all interim orders until October 11, 2021 (except certain areas in Maharashtra, for which the interim orders were extended till October 21, 2021). Similarly, the Delhi High Court extended such protection until October 22, 2021 for all orders that were to expire on or after April 19, 2021 (except in matters where orders to the contrary were passed by the Supreme Court).

Insofar as limitation is concerned, the Supreme Court issued an order dated January 10, 2022 excluding the time period from March 15, 2020 to February 28, 2022 from computation of limitation ensuring that the rights of litigants who may be unable to institute proceedings due to the pandemic and consequent lockdowns would not be prejudiced.

The advantage of litigating international commercial disputes in India is the low cost but high value that Indian lawyers bring to the table. As a common law jurisdiction, Indian commercial law principles are in line with those followed in other common law jurisdictions including the UK, USA, Hong Kong and Singapore, and court rulings are generally well reasoned.

One caveat in relation to complex commercial contracts is that parties must try and ensure that they prescribe jurisdiction of courts such as Mumbai or Delhi, as the High Courts of both have original jurisdiction and are accustomed to dealing with issues that may arise thereunder. There is some risk of litigating before a district court which may not be able to well appreciate complex and sophisticated transactions.

The primary disadvantage of litigating in India has always been and remains, the length of time it takes for final disposal of proceedings. Note however, that should interim reliefs be required, Indian courts can act with speed and can grant interim relief on the day of an urgent application if required.

Additionally, arbitration is the most preferred form of dispute resolution in commercial contracts. Since 2012, India has also been regularly revising its arbitration regime to make it more user friendly and curtail interference of Indian courts with arbitral proceedings. Simultaneously, efforts have also been made to set up state of the art arbitral institutions intended to make India the new hub for arbitration in India.

In the last decade, India has introduced a slew of economic initiatives including ‘Make in India’, ‘Digital India’ and ‘Atmanirbhar Bharat Abhiyaan (Self-reliant India) campaigns. These initiatives coupled with the push on the development of infrastructure and technology and legislative reforms such as the setting up of the GIFT City International Financial Services Centre, should lead to a spurt in India bound foreign investment. Accordingly, the following areas may see the fastest growth in India in the next 5 years:

• Construction Projects
• Shareholder disputes
• Technology and Data protection
• Insolvency and Recovery proceedings.
• Real Estate Sector
• Labour Disputes
• Healthcare law
• Intellectual Property law

The advent of new forms of technology and their use during the COVID-19 pandemic is likely to usher in a tectonic advancement in the use of technology in litigation in India. In the past years, courts have put in place systems for online filing of pleadings and applications and also payment of court fees – all of which was being done in physical form earlier. High Courts, the Supreme Court and Tribunals have commenced regular hearings through video conferencing and as the system has become more streamlined, courts and judges are better equipped to conduct online hearings with minimal disruptions. Indeed, some courts have also live streamed their proceedings to ensure that their proceedings are accessible to the public.

This is likely to drive down the cost of dispute resolution in India by making it time and cost effective. It is also likely to result in a greater reliance on legal tech (particularly low-cost technology) and innovation by legal practitioners.

However, even as courts and well-placed litigants have adopted and adapted to the use of technology, many ordinary litigants continue to find it difficult to do the same due to financial and logistical barriers. The next challenge for India lies in decentralizing technology and making it available to ordinary litigants. As this plays out, India is likely to achieve a never-seen-before decentralization of justice and a significant improvement in access to justice.

While technology and infrastructure are improving in higher courts, there is a concerted attempt to deal with the issue of judicial delays and substantially reduce the backlog by improving the judge to case ratio and reliance on technology. Options include continuing with a hybrid system of virtual hearings (say for instance, for procedural or interim applications), along with physical hearings. Insofar as lower courts are concerned, the backlog of cases is likely to increase, owing to the lack of facilities in the immediate future. However, Courts are also likely to become more accepting of technology in the filing and hearing of cases which may, in the long run, make dispute resolution more efficient and effective.

On the other hand, the number of transactions and disputes that are referred to arbitration will likely increase, given the several pro-arbitration decisions that have been issued by High Courts and the Supreme Court in the last few years, the faster time frame for disposal and the narrower scope of review of arbitral awards – as opposed to the scope of a first appeal against an order or judgment of a trial court.