Initiating Debate: An Urgent Need for Emergency Supreme Court Procedures [Read Proposed Draft Rules]

Over the past few days my chamber colleagues and I discussed the impact of the Covid-19 pandemic on access to justice here in India and elsewhere.

As we deliberated, we felt that at times like these, the legal community, particularly courts, must respond by upgrading their infrastructure and quickly putting in place a new set of procedural rules. This is imperative because the general sense is that a return to the pre-pandemic manner of working may take several weeks, if not months.

Let me set out what I believe are the most important objectives:

(a) restoring the working of the Supreme Court of India in a meaningful manner where access to justice is restored; and

(b) ensuring that no one in the business of administration of justice in the Supreme Court is put to enhanced risk by the Covid-19 disease.

How do we achieve these objectives?

Keen as we all are for resumption of physical courts, I do not see this as a realistic possibility for several weeks, possibly months. This is because many factors weigh against reopening of physical courts. Adopting even the most stringent physical distancing rules, there remains a very strong likelihood:

a) Lawyers, clients, support staff, members of the Registry will in the coming months get infected. Frankly, all of us are at risk and will continue to be so until the disease abates.

b) Decision makers will not allow physical reopening even post lockdown so long as there remains a non-negligible risk of spreading of Covid 19 through courts.

c) A large number of community members who are in and out of court belong to sections of the community who are medically vulnerable and high risk groups.

d) It will be several weeks, if not months before decision makers can confidently assess as negligible, the risk of exposure to Covid-19 in a court building.

In this backdrop, what are the options?

I do not see an early return of physical court hearings. In other words, if the courts are to function in the near term there is no option except to adopt as a temporary measure virtual courts. The default position is that the present mode of functioning with some cosmetic changes will drag on. This would be most unsatisfactory.

This brings me to draft rules appended to this article. The purpose of the draft rules is to initiate a discussion that hopefully will result in a new set of procedural rules. Unless we have formalized procedures, the current ad hocism will continue.

Both from the standpoint of access to justice as well as protecting the health of those involved in the administration of justice, there is in my view no choice but to have structured virtual court hearings at least for the next few months.

It is the duty of all of us who are involved in the serious business of administration of justice to find solutions. Doubtless, we need a sharp upgrade in the quality of technical infrastructure which must be introduced with the help of technical experts. The Supreme Court of India has an opportunity to lead the way by swiftly adopting emergency pandemic rules to restore court operations post-lockdown.