By Shambhavi Mishra-
The Covid-19 pandemic outbreak poses a challenge for many public functions beyond India’s health care system. Through the wake of this pandemic, the Judiciary of India is under tremendous pressure to develop and balance public health issues with access to justice. Covid-19 has called into question access to justice in an unimaginable manner. In India, the court’s first reaction as to restrict the number of lawyers and litigants entering the courtroom. But this did not significantly reduce daily footfall due to the sheer amount of pending and reported events. This led to a further decision by several courts to limit the naming of cases to ‘urgent’ matters only and finally to ‘very urgent cases only. Now we are overtaken by the coronavirus pandemic, India is in Lockdown and the courts are shut down.
To resolve the denial of justice in lockdown, several constitutional courts, including the Supreme Court, are struggling with the videoconferencing in hearing proceedings. It has made headlines as it is the first time in the superior courts that it has been found out. Hearing selected cases by videoconferencing has been the standard in many trial courts in different parts of the country for more than 10 years. They have used the facilities of videoconferencing units were provided to all prisons and court complexes and equipped in their operations. The units were also used for recording the testimony of alleged terrorist and insurgents in a few trials. Lastly, some cases of family law were hard an decided by videoconferencing, especially where one of the parties is not resident in India.
India’s Supreme Court heard three lawsuits over videoconferencing on 23rd March 2020. Accounts say quite a positive experiment. Many constitutional courts have heard some few cases without any obvious glitch by videoconferencing. This has been found possible to seek justice through videoconferencing technology and it has many benefits, including no travel time and decreased footfall in overcrowded courts.
Perhaps with a view to striking that balance, the Supreme Court recently issued a notice[1] stating that only urgent matters will be heard, with the number of benches decided as needed. Although the Supreme Court is concerned with its own workings, at the other echelons of the Indian justice system there are no clear guidelines as to what would constitute urgent matters. The lack of continuity is apparent as various strategies are being implemented by the high courts to deal with this pandemic. This haphazard approach to handling their cases by various high courts and the Supreme Court at a period such as this exposes an institutional vacuum in the higher judiciary.
- Arbitrary positions, unexplained:
Many high courts, close to the Supreme Court, only deal with urgent matters for hearing. It’s not clear what includes as urgent matters. Both the Patna High Court and the Gauhati High Court, for example, have given notices on how to handle interim cases. Although it emphasizes hearing only ‘urgent matters,’ the Gauhati High Court does not refer to written petition related to citizenship[2].Even its notification does not address the listing of bail matters and requests for habeas corpus, which are urgent as they entail the deprivation of rights.
The Patna High Court stresses that bail applications should be given priority, but the number of these issues is arbitrarily limited to 25 applications per day. It is not clear if this amount was reached after evaluating the total number of bail applications filed by the court. Legal professionals are well aware that urgent matters frequently turn into the presence of senior counsel and a high profile cases. It will postpone common lawyer and common litigant proceedings, which may be urgent for certain purposes[3].
- Worse conditions of District and Family Court:
We are also left wondering what about the district court cases of great importance. When it comes to infrastructure, these courts, which are dependent on instructions from the higher judiciary, are already neglected. A research[4] conducted by Vidhi Legal Policy on infrastructure amenities in the district courts of Delhi showed that the bathrooms still lack running water. While the Supreme Court may seek sanitation of the premises and may procure the facility, while this is not true of the district courts.
Over the time of this public health crisis, the district courts are in greater danger, accentuated by their current infrastructure problems. Litigation, as we now know it, is not conducive to the concept of ‘work from home’ which is becoming a trend in coronavirus times. Cases allow attorneys and parties to travel to court, and often move between various courts of justice.
Social distancing, another significant way of helping to suppress the virus, is not an choice. Family courts are places where the virus can spread, too. The parties are also asked to be present at any hearing in the divorce proceedings. The system will unwittingly get to be complicit in creating a health hazard for the employees, attorneys and the parties themselves, given the present circumstances[5].
- Reality Check:
The need of the hour is a strategy that reflects on how the courts will work when met with a pandemic. In 2007, the U.S. Justice Assistance Bureau formed a task force to frame a roadmap[6] on how a pandemic can be fought by courts. The roadmap focuses especially on how to address due process and serious legal problems during a pandemic. That very policy will outline the process for court closures, reduce the conflicting approaches adopted by India’s different courts, and allow a uniform approach to judicial operation. The policy would also help to expand on which types of petitions are deemed urgent in various courts.
Civil cases in this chaos receive the short shrift. Actually, the bulk of cases are adjourned by separate courts to ensure that no adverse orders are issued interim. It will contribute to the question of delay and pendency in the courts. The coronavirus pandemic highlights the need in the justice system to increase the use of technology. While introducing technical systems at our trials, we have fallen spectacularly behind.
Perhaps this health issue is a judicial reality check. This is an opportunity to examine the justice system, and how it is ready to cope with such a crisis.
Conclusion and Suggestions:
Connection to justice is central to the democratic system of India, and should not be overlooked even in these desperate circumstances. One way for most litigants to maintain exposure is through the use of technology, as quarantine, self-isolation and social distancing are introduced to prevent catching the deadly virus. In studies conducted by Indian legal experts, the value of having technology in the judicial process is already recognized. Although courts can not work in the manner in which they do routinely in the midst of a pandemic, to some degree the use of technology can help. They need to be a constructive force in the judiciary that can guarantee access to as many litigants as possible, including during a health crisis.
There are three thumb rules which can be applied to eCourts at this stage:
- The emphasis should be on ‘Courts’ and not ‘e’ in eCourts. The technical changes ought to view the justice system as a systemic body. Fragmented success over the use of technology in various tribunals is unlikely to yield the litigant’s desired results.
- Computerization and eCourts distinguish. In the Indian courts, we are past the computerisation point. Nevertheless, eCourts must consider the needs of the litigants and implement structures capable of meeting those needs precisely. It is the difference between being centered on computers and centered on litigants. The time has arrived to opt in the latter in order to achieve the purpose for which the journey was embarked.
- The emphasis should be on standardizing transformation of the process. This is highly desirable that ICT-based software with a standardized look and feel are implemented for the entire judiciary, and most important, functionality.
- From this stage one can expect the E-Committee to lead the course of the Indian judiciary’s technical upliftment. It was with that aim, after all, that this committee was formed first. The tragic circumstance of today prohibits a litigant from ever entering the courts. Connection to justice is at a standstill. It’s worse than it was during the days of emergency, when at least one sufferer could smash the courts’ doors. Also the road to those doors is blocked today. We need to hear those muffled cries for justice from behind those doors and make sure they are properly responded to before it’s too late. The solution to this impasse would be full-blown implementation of ICT in a consistent manner across the justice system.
[1] https://main.sci.gov.in/pdf/cir/26032020_134544.pdf, 2020. Circular. Supreme Court of India.
[2] Bench, B., 2020. Coronavirus: Patna, Gauhati High Courts Restrict Functioning As Precautionary Measure [Read Notifications]. [online] Bar and Bench – Indian Legal news. Available at: <https://www.barandbench.com/news/coronavirus-patna-gauhati-high-courts-restrict-functioning-as-precautionary-measure-read-notifications> [Accessed 21 August 2020].
[3]Ibid.
[4] https://vidhilegalpolicy.in/wp-content/uploads/2019/08/Delhi_Single.pdf, 2020. Building Better Courts.
[5] Dan Kopf, A., 2020. Social Distancing Is Slowing Not Only Covid-19, But Other Diseases Too. [online] Quartz. Available at: <https://qz.com/1824020/social-distancing-slowing-not-only-covid-19-but-other-diseases-too/> [Accessed 21 August 2020].
[6] Txcourts.gov. 2020. Guidelines For Pandemic Emergency Preparedness Planning: A Road Map For Courts. [online] Available at: <https://www.txcourts.gov/media/1353181/PandemicRoadMapFINAL-031407.pdf> [Accessed 21 August 2020].