Traditionally speaking, courts in India have, for time immemorial, functioned as 'physical courts'. The COVID-19 pandemic has resulted in an extraordinary and unprecedented crisis that, has affected the world at large, and has also posed many challenges on the ability of the judiciary to administer and effectively dispense justice. On the basis of the inputs and opinions rendered by...
Traditionally speaking, courts in India have, for time immemorial, functioned as 'physical courts'. The COVID-19 pandemic has resulted in an extraordinary and unprecedented crisis that, has affected the world at large, and has also posed many challenges on the ability of the judiciary to administer and effectively dispense justice. On the basis of the inputs and opinions rendered by experts across the world, it is more or less certain that this abrupt halt in 'normalcy' due to the pandemic is here to stay for a while. It is imperative that during such testing times, we as a community, strive towards arriving at viable and practical solutions, so as to assist the court in performing its duties. Courts are an essential service for civil society. In the wake of this pandemic, courts across the country have gone into an urgent-only, online-only mode with electronic filings, mentionings by way of e-mails and, in certain exceptional cases, conducting online hearings via video conferencing / video calling facilities. It would not be out of place to say that E-Courts have their own limitations, as has been experienced by lawyers, litigants and judges alike. However, merely providing ad-hoc solutions, in a situation where we do not have any clarity or time frame as to when the courts will be able to function at full strength again, it is necessary that we recalibrate our approach and adapt to this new status quo that has emerged. The underlying object of this piece is to supplement the already existing solutions and steps taken by the authorities strictly inasmuch as the functioning of the Hon'ble Supreme Court of India is concerned, and throw light on certain aspects that may be taken into consideration for the effective dispensation and administration of justice.
- Since the stakeholders of our entire judicial system i.e., judges, registrars, court masters and other court officials, apart from lawyers and litigants, have only ever operated in the traditional manner wherein their physical presence has always been a pre-requisite for the functioning of the courts as a whole, a sudden and drastic shift to virtual courts not only poses various technological and infrastructural issues, but also raises questions related to access to justice. It is thus, imperative that not only do we rapidly address the infrastructural shortcomings that enables a seamless functioning of virtual courts, but for the administrative resource persons to impart the requisite knowledge to the legal fraternity at large, that is necessary for the effective participation of the stakeholders, in a coherent and lucid manner. It is extremely important that the same is done while keeping in mind those stakeholders, who are challenged with limited access and understanding of technology. The E-Courts system must be made robust by cogent strategy regarding the implementation of the digital platform's details with proper training of lawyers and Court staff in E-Court management.
- The logical sequitur of the first suggestion, in order to enable seamless functioning of virtual courtrooms, and for the maximum number of matters to be heard by as many benches possible, the administrative wing of the Hon'ble Supreme Court ought to ensure out the digitization of court records in a speedy manner to give full effect to e-courts. Copies of the records digitised, or links thereto can then be circulated with the Advocates on Record concerned with the brief, who may then be in a position to share it with the counsels engaged to argue their respective matters. This will not only enable the access to case files for lawyers and judges alike, but will be a substantial step towards the elimination of paper and physical briefs in future. Digitization of records will enable remote access for all at the click of a button, and mark a shift into a new era for Courts. It is only fit that the Apex Court leads all other subordinate courts in this direction by setting an example.
- The culture of lengthy arguments can be dispensed with, by setting time limits for counsel to present their submissions and conclude hearings in a timely and expeditious manner. This can be supplemented with a direction to the counsels to submit brief written submissions in furtherance of their oral pleadings.
- On the basis of the experiences of lawyers and judges with virtual Courts till now, certain teething problems have arisen inasmuch as far as the 'efficacy' aspect of this alternative is concerned. Over a period of time, they will all be addressed by strengthening the bandwidth etc.
- It is suggested that matters concerning constitutional challenges, original suits state inter-se disputes and well as old matters, matters with extremely voluminous records are concerned, or where there are numerous parties and several legal representatives are involved, it would be impractical to conduct proceedings through the video conferencing model, and would therefore warrant for retaining the traditional approach in such peculiar situations. Those can be tried if the social distancing has to be maintained beyond a few weeks. Having said that, the court and the stakeholders ought to endeavour and all Miscellaneous/Admission matters can be conducted through virtual Courts.
- The lawyers may get the records of their cases digitised apart from hard copies wherever it is possible and affordable as an option. For convenience, digital records may be exchanged between both sides according to their consent and preference. In all cases where State or Central Governments are a party, they can also help by digitising all case files, so that individual litigants do not suffer.
- The Alternate Dispute Resolution Systems (ADRS) such as conciliation and mediations must be encouraged wherever possible.
- For the convenience of litigants from remote areas the videoconferencing links provided can be accessed from District Court compounds or Collectorate in exceptional cases.
- Over a period of time when the Courts will have to sit in open court, the Hon'ble Judges can sit with appropriate Social distancing and the Bench can be separated through glass partition as further precautionary measure. It should be ensured that the mic system installed in all courts be mandatorily used.
Humanity has to come through, withstand and outlast this pandemic with a solution-oriented approach. Infrastructure and technology will need to be rapidly elevated, this presently is the best way forward. The legal fraternity has never been rigid nor averse to changes. The legal fraternity have come a long way from times of typewriters to photocopies to emails to video conferencing methods in serving the society as Judges and lawyers. Justice through digital platforms is the new age phenomenon. Even the conservative traditional methods have gradually evolved and are widely accepted by all. Therefore, justice through digital platforms are going to be the new normal in times to come.
Access to justice to all and opportunity to effectively present the case is a core aspect of administration of justice. Therefore, in my opinion, a blend of both the options i.e., the hearing through virtual courts and the limited benches of physical courts will go a long way in serving the needs of the time.
Views Are Personal Only
(with inputs from Ms. Ankita Sharma and Ms. Nikita Capoor, Advocates)