COURTS DURING PANDEMIC:A Blessing In Disguise for the Judiciary System in India?
BY- SREYASI BHATTACHARAYA (Heritage Law College)
The surge in the COVID-19 or Coronavirus cases has brought the world to a near stand-still. With several countries going into lockdown, India had also entered its first 21 days lockdown phase-I from March 25, 2020, to curb the spread of the pandemic following an extension of lockdown phase-II for 19 days from April 15, a 14-day phase-III lockdown from May 4 and a 14-day phase-IV lockdown from 18 May during which only the essential services were allowed to function including some private offices and pivotal governmental departments but many with the skeletal workforce.
In these uncertain times, the judiciary system which is rarely known for its fast pace has been left to decide the course of action on its own. For the safety of public health, courts decided to close their premises to the public. The Supreme Court and the other High courts also suspended administrative and judicial based work making exceptions for crucial matters. But even during this ongoing pandemic, many things can be put on hold but not justice. Hence, the long-pending technology solution of the system of “Virtual Sessions” by courts was adapted. The Supreme Court and other state high courts have heard urgent matters through video conferencing. The courts have also expanded the use of electronic filing cases. Here the facilities are provided to the litigants through e-filing and can also pay the court fees or fine online.
The update in India’s antiquated court processes during the pandemic and lockdown indicates that modernization of the judiciary system should be taken into count even after courts resume normal functioning. For the first time on March 27, the Supreme Court conducted the court proceedings through video conferences. The development has been noticed after the Supreme Court allowed the lawyers to file online cases anytime and argue cases through video conferences.
THE SUPREME COURT ADAPTING TO THE PANDEMIC CRISIS:
Though, some quarters have criticized the practice of holding court hearings through video conference on the ground that the system does not cohere to the concept of ‘open courts’, the Supreme Court defended strongly saying it was to ensure that the “Administration of Justice” does not fall apart during this pandemic. The Supreme Court mentioned that video conferencing has been used by civil and criminal matters over a decennium. Before, there have been certain efforts made by the Supreme Court to enhance the efficiency and effectiveness of technologies through different projects. In the year 2005, the e-courts program was launched for digital operations by setting up computers and servers in every court across the country. In 2006, the Supreme Court launched another program for the e-filing of petitions, but the program did not gain popularity as it received a low number of petitions from lawyers and litigants. However, the severe spread of the pandemic has led the judiciary system to hold virtual sessions in place of open courts.
The apex court backed their performance with data showing it had heard matters on 22 days. It said 116 benches assembled which included 73 benches for the adjudication of the review petitions. The data also showed a total of 538 cases with 297 connected matters were taken on board. The available data shows that there were 60,469 pending cases as of March 20. The Supreme Court defending its virtual courts and said, ‘There cannot be divergent views about the fact that justice cannot be spoon-fed’. The Supreme Court also mentioned that justice delivery even at the stakeholder’s doorsteps requires the stakeholders of the ecosystem to discharge their roles and duties diligently, prescribed, and required in the scheme of things. The Supreme Court uses emails and messaging services for conducting business and for filing of matters.
THE HIGH COURTS AND SUBORDINATE COURTS ADAPTING TO THE PANDEMIC CRISIS:
In New Delhi, over 18,000 cases have been heard out of which a total of 3,787 cases have been heard by the Delhi High Court and 14,482 cases have been heard by the subordinate courts till June 9 through video conferencing during the lockdown period which began in March due to novel coronavirus. On June 30, the Delhi High Court and its subordinate courts decided not to resume its physical hearing till July 15. Virtual proceeding through video conferencing will continue to take up urgent matters.
As per the direction of the Patna High Court, to facilitate case proceedings through video conferencing in the District and Sub-division courts for considering deemed urgent matters like remand and bail matters.
The Judicial work in the High Court of Andhra Pradesh, the High Court Legal Services Committee, the Andhra Pradesh Legal Services Authority, and the Arbitration and Mediation Centre is through video conferencing only as mentioned in their video conferencing guidelines for the High Court of Andhra Pradesh.
The Bombay High Court and trial courts in Maharashtra had been hearing only urgent matters. The High Court since the lockdown functioned through e-filing, scanned documents being uploaded for parties and through video conferencing. The trial courts, on the other hand, had to function with limited staff due to the flooding of bail applicants.
The High Court of Judicature, Calcutta is presently holding court hearings through video conference and the judges hear virtual hearing from their residences.
The Supreme Court on April 6, issued seven-page guidelines for court functioning through video conferencing during COVID-19 pandemic discussing "The Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies, and Consistent with the peculiarities of the judicial system in every state and the dynamically developing public health situation, every High Court is authorized to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies."
Adaptation to Pandemic Crisis in other countries:
The countries like USA, Brazil, Singapore, Bangladesh, Nigeria, Peru, France, the United Kingdom, and Hungary have adapted to virtual courts. The U.S. Supreme Court has been hearing oral arguments through telephone. The Supreme Court of South Africa decided not to hold any physical hearing in May. A Court in Canada suggested tele-warrants and PDFs must be made acceptable.
The Supreme Court of India referring to the above countries mentioned even though many countries have been using a virtual court system but India is ahead in terms of the output.
Live-streaming to be followed:
Even though the Supreme Court is now hearing cases online, there have been several attempts made by many non-profit organizations and many individuals, using the Supreme Court, to broadcast live-streaming of the proceedings for a clearer image in the Apex Court’s cases.
Previously, in September 2018 a three-judge bench held discussions in the case of Swapnil Tripathi vs. The Supreme Court of India, which had urged the Supreme Court to allow live-streaming of the proceedings. The Supreme Court is currently holding closed video-conferencing but said that the project must be implemented in a structured, progressive, and phased manner. The Supreme Court had previously also suggested that proceedings can be broadcasted through radio, TV, and internet through live audiovisual broadcast or telecasting universally by Doordarshan, an official agency. However, there has been so much final decision on the matter of live-streaming of the proceedings.
Demerits to Virtual sessions by the courts during Pandemic:
Even though the courts have started working with the help of video conferencing, the transition will not be so easy. India, as we know has one Supreme Court, 25 High Courts, 674 district courts, and have thousands of magistrate courts and tribunals which consumes over 10 billion sheets of paper every year. After the virtual court hearings which started since March, many logistical and technical problems have arisen.
Official data shows that both in higher judiciary and subordinate judiciary, the number of new cases has come down to tickle after the nationwide lockdown was declared. The decline in the cases begun in March where the number of cases filed was 8.8 lakhs and the number of cases disposed of stood at 6.2 lakh. In the entire month of April, there were 82,725 cases filed while 35,169 cases were disposed of, where the average number of filed cases in 2019 was around 14 lakh. In all, about 3.23 crore cases are pending in the 19,638 subordinates courts. The situation of the high courts is no better. Currently, 48.16 lakh cases are pending in various high courts which include 14.25 writ petitions, over 20.36 lakh civil matters and 13.45 lakh criminal matters. The average of the first four months of the year 2020 has come down to a total of 33.33 lakh cases.
Lawyers have also complained that they have been facing various problems to address their problems through video link, addressing the urgency of a matter to the Judge and sending a PDF file of their applicants.
A report by Daksh, a non-profit organisation raises concerns about the due process. According to them, ill-treatment in custody is common. Video conferencing or virtual platforms may interfere with the right of a detainee from meeting a lawyer or in the participation of the trial.
Again, all platforms do not use the same video platforms some of which are unstable, outdated, and often have a poor connection.
Merits to Virtual Session by the courts during Pandemic:
There has been different issues and concerns with the virtual sessions by the courts, but it was important to maintain social distancing from the transmission of the virus.
The supporters believe that going digital can help judiciary deal with their long-time pending cases over 40 million. Again, it can save the time and money of both the courts and the litigants.
Another merit of the virtual court sessions is that litigants with disabilities or who stay in the remote areas can access to justice easily than they could before. The first step to the road to justice is the accessibility of justice. In this country, many people face serious obstructions in their effort to access justice. Some do not have stable financial conditions to appear physically before courts or even hire a lawyer. Others cannot afford to miss work to appear before the court. This is the reason for which a measure like a video conferencing or virtual court sessions is such a necessity.
Video-conferencing also includes PowerPoint presentations, audio clips, audiovisuals and even short films. This will be more effective than oral submissions.
Digitalisation before courts will reduce the humongous number of pending cases and it will also be a useful remedy for the delayed justice.
In the case of State of Maharashtra vs. Dr Praful Desai, the Supreme Court of India stated that section 273 of CrPC, the term ‘presence’ does not only mean to the actual presence of a person before the court. Evidence can also be recorded without being physically present in court where parties live in remote areas, cases where confidentiality has to be maintained, where there has been the apprehension of danger to the life of the witness or where witnesses fear of giving statements for getting entangled in the court matters. In such kind of matters, the use of the virtual platforms is safe, with security, confidentiality can also be maintained.
During the lockdown, judgements have been delivered by the Supreme Court to a total number of 325 cases with 268 connected matters.
The Supreme Court, apart from judgements, has disposed of 92 writ petitions, 138 review petitions,49 special leave petition (SLPs) and 58 such pleas where prayers were made for interim relief or mentioning matters.
As the condition in the present day scenario keeps deteriorating, people will face difficulties with adapting to the new paradigm. There will be practitioners and judges who will face difficulty to adapt to the virtual medium. With time and technical support, the medium will be understood. Judges and lawyers defend and protect the Constitution. Chief Justice of India S.A Bobde has said that “there is no looking back” even after the lockdown has been lifted.
Unfortunately, the judiciary has adapted to communication and information technology in such dire circumstances but the judiciary has been provided with an opportunity and these solutions should not be abandoned after the pandemic has passed.
· Notification-Andhra Pradesh High Court from hc.ap.nic.in/notifications.html
· Notification Bombay High court from bombayhighcourt.nic.in
· Notification-Calcutta High Court from www.punemirror.indiatimes.com
· http://theprint.in for overburdened –supreme-court-can-use-covid-lockdown-period-to-change-indian-jusiciary-for-good/
· Virtual Civil Trials
· Swapnil Tripathi vs. The Supreme Court of India [(2018)10 SCC 628
· State of Maharashtra vs. Dr Praful Desai (2003 4 SCC 601)
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