An Analysis Of Accessing High Courts During COVID Lockdown: March To August 2020

With this background, this article, which is the first of its series, looks at the functioning and access of High Courts (HCs) in India from the perspective of :

i) the criteria for hearing and deciding cases, while Courts functioned with a limited capacity and during restricted hours;

ii) the response of the High Courts to the shift from a physical filing and hearing system to an electronic one and lastly

iii) Accessibility of the High Courts in terms of the procedure for hearing.

Data Sources & Objectives

For the purpose of this working paper, we have relied on notifications, circulars and administrative orders passed by all the High Courts in India which were available on their respective websites, for the period starting from March 2020 until August 2020, since it was observed that a number of courts had expanded the scope of listing post August. One of the many aims of this working paper is to contribute to a worldwide database of Covid-19 policy measures. Another aim is to provide an insight into the functioning of Indian High Courts during an unprecedented public health crisis and the support provided by the Indian judicial system in managing the crisis.

Hearing of 'Urgent' matters

Since mid- March 2020, beginning with the first nation-wide lockdown, most High Courts vide notifications, circulars and orders decided to hear a limited number of cases on the basis of 'urgency'. However, the definition of 'urgency' was set out clearly by only some High Courts, as against others, which left the decision to be made on a case to case basis.

For the time period of data collected, between March 2020 and 31st August 2020 for this article, of the 25 High Courts, 11 had explained 'urgency' to different extents. While some HCs such as Delhi, have categorized case types as urgent from the very outset in April 2020, others such as Gujarat and Jharkhand HCs,categorised certain types of cases to be urgent, only gradually over a period of time. 14 of the 25 HCs did not put out any criteria for urgency at all. The process followed by the courts for determining urgency in each case has been discussed in detail below.

*Cells marked with (*) signify  urgency was defined

Criteria for Urgency:

All 11 HCs that had laid down criteria for urgency, have classified bail applications (regular and anticipatory) as urgent. Some HCs have even laid down a special process or created exceptions for hearing bail applications. Gujarat HC, and initially the Patna HC as well, assigned bail applications to be heard by a special bench. Jharkhand, Kerala and Rajasthan HCs exempted bail applications from providing any specific cause of urgency and the Jharkhand and Kerala HCs also provided for a separate process for filing these applications. Within bail applications, the Madhya Pradesh HC clarified that priority would be given to first bail applications over second and subsequent bail applications. Related to bail applications, other cases affecting personal liberty have been prioritized by some HCs too, and the Andhra Pradesh HC deemed suspension of sentences' applications as urgent. The Gujarat and Kerala HCs included a wider ambit of cases as urgent, including habeas corpus petitions and term of detention and sentencing related cases. In addition to these cases, the Uttarakhand HC further also prioritized criminal appeals against conviction, criminal revisions against order confirming conviction and criminal writs.

Delhi HC had a very comprehensive and unique list of matters that were to receive a hearing on priority. Cases such as those under the Protection of Women from Domestic Violence Act 2005, matrimonial matters, eviction cases, MACT Appeals involving death and permanent disability, amongst others were deemed urgent by the Delhi HC, provided that these cases were ready for final hearing. Like Delhi, the Tripura HC during the lockdown, decided to hear matters which were at the stage of final hearing. Similarly, the Uttarakhand HC in May 2020 categorized a wider variety of cases such as writ petitions seeking relief against eviction, ejectment or dispossession from property or its demolition, against attachment, auction or similar legal course with respect to property, writ petitions against major penalty passed in departmental hearing and service matters where recruitment, selection, promotion, and transfer took place during the nationwide lockdown. Uttarakhand therefore appears to have included most types of civil cases in its list of urgent matters.

*Cells marked with (*)signify the HCs that defined urgency criteria early on in the lockdown

An interesting approach seems to have been adopted by the Andhra Pradesh HC. The court while making it clear in March 2020 that only 'imminently urgent' matters will be heard and categorizing bail and suspension of sentence related proceedings as urgent, in May 2020 went on to describe which kind of cases were not urgent and hence would not be entertained for hearing. Criminal writs for quashing, service matters, cases for release of vehicles, stamp duty issues - were all categorized to not be urgent, as per the Andhra Pradesh HC.

Even amongst the HCs that had classified certain cases as urgent, the timing of the classification did not necessarily coincide with the declaration of the nationwide lockdown in March 2020. Some HCs such as Andhra Pradesh, Gauhati, Jharkhand, Madhya Pradesh declared on and around 24 March 2020 that the HC would only hear urgent matters of the specified nature. Andhra Pradesh seems to lead the board by specifying urgency criteria as early as 16 March 2020. Other HCs did not immediately prescribe urgency criteria such as Delhi, Gujarat, Uttarakhand, Rajasthan in April, Kerala and Tripura in May and Telangana prescribed the criteria as late as in June. From only a bare reading of the circulars and administrative orders issued by the HCs, the reason for delay in specifying urgency remains incomprehensible.

Of the 11 HCs that have specified criteria for urgency, some widened the criteria over time. In May 2020, the Andhra Pradesh HC, as mentioned earlier, clarified the kind of matters that were not to be taken up for hearing and were deemed not urgent. In August, Delhi HC began to allow listing of cases other than those classified urgent, by taking up 4-5 cases per day before each working bench. In June, the Gujarat HC began hearing urgent freshly filed civil matters as compared to earlier when it was only hearing pending civil cases. By July, the Jharkhand and Tripura HCs had considerably relaxed the urgency criteria and were hearing cases of a wider variety. The Bombay High Court, as early as April 2020 had also started listing writ petitions, criminal matters, suits and arbitration matters, in which urgent applications were filed during the lockdown for hearings.

Urgency in Bail Matters:

On 24 March 2020, in a suo motu case, the Supreme Court of India expressed concern over the health of inmates in India's overcrowded prisons and asked each State/HC to form a special committee to determine which class of convicts or undertrials can be released on parole or interim bail. However, on 31 March 2020, the Rajasthan High Court in an ex-parte bail application held that bail applications, applications for suspension of sentences are not 'extremely urgent matters'^[1] and directed its registry to not list such matters. The Court held that considering the lockdown being in place, when only essential services are effective, allowing bail or revision of sentences jeopardizes the health of State and jail authorities, sureties, advocates of parties who would all have to be involved. Adding to that, the Court said that the right to liberty can be reasonably restricted in such circumstances. The Rajasthan HC order was followed by a Bombay High Court order, which gave almost identical reasoning and held that bail applications are not 'urgent' matters. Since then, the Rajasthan High Court order has been stayed by the Supreme Court. On 3 April 2020, the Bombay HC while hearing a bail application^[2] observed that the term 'urgency' is very subjective and the circumstances in which a bail application is made must be considered. The HC held that several staff members and law enforcement members need to coordinate and work on a bail writ once it is issued by a HC which can expose them to Covid. As per the court, in the circumstances of a lockdown, issuing a bail order virtually amounts to a breach of the lockdown. The non availability of inter and intra State transport will mean that an accused released on bail cannot reach home anyway. Hence as per the Court, mere fact that the accused is undergoing a pretrial or post trial detention does not by itself warrant granting bail while a lockdown is in effect. Interestingly, the risk of contracting Covid due to crowding within prisons and the related hazards were not discussed by the Bombay HC.

The above information goes on to show that if matters of personal liberty are not deemed to be 'urgent' during a pandemic, the definition of urgency only becomes hazier. Arguably, bail during a pandemic is not only a matter of liberty but of health and endangerment of life, with the public health system already under a massive strain and shortage of beds and ventilators.

HCs where urgency was not defined:

For the remaining 14 of the 25 HCs, the circulars notifications, directions, et al. shed little clarity on what 'urgent' means. All these 14 HCs decided to not categorize specific cases as urgent and instead decided 'urgency' on a case-to-case basis. For instance, on 25 March 2020, the Allahabad High Court suspended regular functioning and issued a notice stating that 'imminently emergent and urgent cases' were to only be heard by a designated bench of the High Court. While it was not clarified or described which type of cases were imminently urgent, based on an application made in advance, it was left to the Court to determine urgency in each case^[3],. Similarly, on 14 March 2020^[4], the Bombay High Court restricted all hearings to only 'urgent' matters, where in each case the litigant/lawyer was to convince the court as to the urgency via an application. Deciding on the matters to be listed was an extremely crucial decision to be made by the HCs. The courts that did not lay down urgency criteria seem to have followed the method of an authority determining urgency on a case-to-case basis. While in some courts, it was the Chief Justice or the other judges who determine the urgency, in many Courts it is not clear which authority was making these decisions-whether a judicial mind was being applied at all or not also is unclear.

In addition, there seems to be a complete lack of transparency regarding the procedure of listing these 'urgent' matters in most HCs. Circulars issued by HCs such as Bombay, Calcutta, Jharkhand, Manipur, to name a few, do not discuss any provision for oral mentioning for urgent cases and require the same to be done through emails. There also does not seem to be a way for the Advocates to know the reason for rejection of urgent listing of the matters in most cases.

The lack of a definition of 'urgency' has meant that the same could be inferred only after an extensive examination of cases heard, decided and even adjourned by such courts, which is the next analysis in this series. This shortfall would lead to several applications being filed stating their own definition of urgency, increasing the overall number of applications manifold. This is not ideal in a time where the courts are functioning with a limited capacity.

The vagueness over what urgency means has not only given the deciding authority complete discretion regarding its determination, it has not necessarily considered the circumstances of a pandemic. It is obvious that urgency in ordinary circumstances and urgency during a pandemic, are different situations and ought to have been taken into consideration by the Courts. In our examination of notices and circulars released by HCs across the country, none of the Courts seem to have tried to make a distinction between urgency in general and urgency during a pandemic, except for bail matters, which instead of being considered in light of the overcrowding of prisons, were termed "not urgent" by some of the HCs due to the pandemic situation.

Comparative Numbers:

Post the lockdown, the institution of cases at the Tripura HC dropped to only 5 new civil cases and 21 criminal cases in April 2020. In the subsequent months, filings of new cases increased with July seeing 175 new civil cases and 283 criminal filings. Further, at the Allahabad HC in March 2020, when the lockdown set in, over 8,000 cases were filed at the High Court of which the writ pleas filed were 190. Both writ petitions, filed for violations of fundamental rights, and criminal appeals, were qualified as "urgent" by Allahabad HC and were heard during the restricted functioning of courts following the pandemic.^[5] Comparatively, early in 2020 in the months of January and February, there were a total of over 22,000 filings of all types of cases, which was relative to approximately 20,000 cases filed every month in the HC in 2019.

In comparison, the Punjab & Haryana HC in March 2020 alone, had no less than 1,07,079 cases filed.^[6] Moreover, Gujarat HC during the period of 24.03.2020 to 30.06.2020 had 8138 matters filed through email filing, and a total of 5232 cases were filed during the period of 01.07.2020 to 31.07.2020 with 2178 Civil and 3054 Criminal cases (including the Interim Applications) filed through exclusive email addresses.

Electronic filings and online hearings

Another significant shift in the functioning of courts has been a move towards electronic filing of cases and hearing of matters over web - based applications and software. The Indian judicial system is heavily dependent on paper based filings and physical hearings, with most courts not using the pre-existing infrastructure for e-filings. Although the National e-governance plan^[7] has been in the offing for some time, a complete shift to an electronic or web-based system had not occurred prior to the pandemic. While owing to the pandemic, all High Courts were constrained to make this move, the method of filings and hearings, varies significantly across States. Much is expected from the E-committee of the Supreme Court, which is undertaking a monumental process for using one platform for virtual hearings across the entire Indian judicial system^[8].

Need for a uniform platform for virtual court hearings

Hearings being conducted through virtual mode became the new normal during the lockdown. Different High Courts and Tribunals opted using different web based applications and platforms for the virtual hearings. Cisco Webex, Zoom, Microsoft Teams, Vidyo, Jitsi, Bluejeans and even Whatsapp have been used by the High Courts, which are regular platforms for online interactions. It is surprising that the need for a uniform system for virtual hearings across the country was not devised which could have been a dedicated platform for the purpose of court hearings, tailor made for the efficiency of courts. A platform that would facilitate citing of judgments, giving appearance slips, better screen sharing features for going through the pleadings, have a feature for audience mode for litigants and media, to name a few.

Multiple and non-uniform platforms for different forums and at times even different forums for different benches within the same court was found to be cumbersome and inefficient. For instance, certain such applications have limited features when downloaded on a phone as compared to a desktop. It is also cumbersome to have multiple applications on devices and remembering varying procedures for appearances through each platform. Uniformity for the sake of consistency in efficient court hearings across the country unfortunately has been overlooked.

In a few courts, from April/May onwards, dedicated shops opened up which for a hefty fee, assisted the lawyers in creating PDF documents which could be filed electronically. Apart from the privacy issues that this raises in sensitive matters, it also throws light on the fact that not all persons in the legal field have the understanding and/or the access to equipment and applications which assist in electronic filings. The question of affordability is also writ large as only a lawyer with access to an electronic set-up could appear before the virtual courts and argue the cases.

If the move is towards a virtual system or even a hybrid system of physical and virtual hearings, the courts as a system of justice will need to ensure that it remains accessible, to all classes and categories of lawyers as well as litigants.

Conclusion