Lawyers and judges are learning how videoconferencing works because a pandemic must not be allowed to stop the wheels of justice from churning
The nationwide lockdown on account of COVID-19 has forced the Indian judiciary to rely heavily on technology and the internet. The need to ensure the safety of citizens and to provide access to justice even during a pandemic has opened the doors to virtual courts. Extremely urgent cases are being heard through video-conferencing by the apex and other courts. Lawyers and judges are learning and understanding how videoconferencing works because a pandemic must not be allowed to stop the wheels of justice from churning. On April 6, the Supreme Court asked all courts to develop and determine modalities for proper operation of court proceedings through videoconferencing technology so that the overwhelming backlog of cases that India already has doesn’t grow further.
As per national judicial data grid data, a whopping 37 million cases were pending in the country till April. Once the shutdown ends and the courts return to business as usual, they will be swamped with new cases. Some of those cases might have emerged due to the lockdown itself. For instance divorce filings, domestic violence, sexual assault, breach of contracts, insolvency and so on. Thus, the courts will not only have to deal with pending cases but also fresh cases waiting for resolution. It is at this time that the importance of teleconferencing grows even further.
However, India is not the only nation relying heavily on technology to deliver justice during the times of COVID. Chief Justice Geoffrey Morawetz of the Ontario Superior Court of Justice recently said, “The court is never going to stop operating and if there is one positive that is going to come out of this crisis, it is that we have been forced to accelerate plans into electronic hearings and we cannot go back.”
Similarly, the courts in England and Wales have recorded that between March 19 and April 6, the number of audio hearings increased from 100 to 1,850 and video hearings rose from 150 to 1,100.
The big question is can we expect normalcy after COVID-19? Is this an opportunity for the Indian legal system to use more technology to deliver justice by remote and reduce case pendency?
A proactive Supreme Court: In 2005, the e-Committee of the apex court conceptualised the e-Courts Project with a vision to transform the Indian judiciary through the use of Information and Communication Technology (ICT). The Supreme Court has accomplished the gargantuan task of computerisation of 39 High Court complexes and 3,219 District Court complexes across India since then. In 2013 the e-Courts National portal was launched, thereby giving free online access to case status and cause lists and case information of about 70 million pending cases and 330 million orders. The significant achievement of the e-Courts Project includes the computerisation of courts, implementation of hardware and training of judicial officers. The project also connected court complexes with jails through desktop teleconferencing to go beyond remand and production of undertrial prisoners.
In 2019, a whopping 28,262 videoconferences were held between courts and jails through the e-Court system. This indicates that the Indian judiciary is conscious of the importance of technology, computerisation and connectivity. As a large number of judicial officers and staff are conversant with videoconferencing technology, it may not be difficult for courts to adapt to full-fledged remote hearings in appropriate cases after the pandemic is over.
Right now, as the Coronavirus ravages India, measures are being adopted by the judiciary to ensure the robust functioning of the judicial system through teleconferencing. The courts have been directed to maintain a helpline with regard to complaints of quality and audibility of the feed.
Apart from this, the Supreme Court has said that the courts should duly notify and make available the facilities of videoconferencing for such litigants who do not have the means or access to teleconferencing facilities. In appropriate cases, an amicus curiae may be appointed to assist the court.
On April 15, the apex court issued standard operating procedures (SOPs) to deal with filing and mentioning of urgent cases. The web-based videoconferencing system VI-DYO platform hosted on the servers of the national data centre of the National Informatics Centre is being used now. As the smooth functioning of video-conferencing would depend on the connectivity at the end of the remote user the guidelines recommended that all parties have a dedicated minimum of two Mbps or 4G broadband connection.
Rising to the occasion: A dedicated judiciary is working hard to facilitate justice through technology. Justice GS Patel of the Bombay High Court conducted a public access hearing on April 11. The Supreme Court, too, directed the Ministry of Health and Family Welfare to ensure availability of personal protective equipment (PPE) to all health workers. Similarly, courts have taken up cases of migrant workers and also a case of advocates and clerks on the verge of starvation because of COVID.
The challenges: Understandably, there may be some who are not comfortable with working with technology. The Bar Council of Delhi expressed concerns that a majority of the advocates are not computer savvy and may be handicapped approaching the courts as they are unable to use the videoconferencing facility.
The overriding objective of using technology is to further the interest of justice and no party should be placed at a disadvantage for want of internet access or hardware such as computers. Help must be provided to lawyers, litigants and others, who may be in need of technical assistance for teleconferencing so that the system adapts and we are ready for the internet age.
Not very tech-savvy: The typewriter was a prominent feature of the Indian court system throughout most of the 20th century. Even up to the late 1990s, some lawyers continued to use typewriters for court work. Thankfully, at some point the transition from typewriters to computers enabled advance use of technology. Similarly, judicial filings were made on legal-size paper typed on one-side only. Some courts accepted only green parchment paper in legal-size. The shift from legal-size to conventional A4 size has happened only recently. Now the Supreme Court accepts A4 size paper, printed on both sides.
The apex court has also dispensed with the practice of sending letters to lawyers and now corresponds through e-mail and SMSs. The courts are moving towards dependence on the internet and technology.
The changes ahead: The court drama associated with a conventional court may be absent in virtual courts. All the guidelines clearly state that the mikes must be muted and only one person will speak at a time. Lawyers may have to develop new advocacy skills. Doubtless, they will innovate. As far as the dress code is concerned, the lawyers are required to be dressed according to court conventions.
Making a case for technology: Courts have held that the internet is a basic human right. The internet has transformed banking, travel and other industries. COVID has pushed us online and this will forever change the way courts function. Consequently, litigation lawyers will have to adapt. Video and audio hearings are here to stay. The e-Courts project has introduced new technologies in Indian courts over the last few years. India has one of the youngest populations in the world. It can build an adequate resource of tech-savvy personnel to assist with the strengthening of the use of electronic litigation. This is an opportunity for the Indian judiciary to make use of the existing infrastructure and talent developed through the e-Courts Project. The judiciary must capitalise on the existing robust infrastructure that caters to more than 3,248 court complexes all over the country and about 37 million pending cases today.
Further, online hearings will help reduce emissions and the country’s carbon footprint. On April 15, about 8,75,000 cases were adjourned in the District Courts because of COVID on April 16 about 9,34, 000 cases were again adjourned. The vexed problem of court delays in courts will worsen at this rate. Further, judicial vacancies in the High Courts are at about 36 per cent as there are 389 vacancies. This is an appropriate time for the judiciary and Government to seriously consider filling judicial vacancies and use technology efficiently to reduce pendency of litigation.
However, videoconference hearings may not be appropriate for every case. Cases involving a large number of parties, voluminous documents or complicated questions of fact may not suitable for this. Guidelines may have to be framed classifying matters that can be heard online. Courts in England are holding hearings through video and audioconferencing. The Indian judiciary may also consider using audioconferencing with appropriate safeguards as this will be easier than videoconferencing.
(Writer: Robin David; Courtesy: The Pioneer)