RECENT DEVELOPMENTS IN RESPONSE TO COVID-19 IN INDIA

This blog is researched and drafted by Ms. Liyana Shaji, student at Symbiosis Law School, Pune.

The COVID-19 pandemic has brought a halt to the justice delivery system globally. The social distancing norms coupled with lockdown directives have led the courts and tribunals to shut their premises to the public. At the same time, ensuring that the disruption does not impair the system significantly is the need of the hour.

Under Article 142 of the Indian Constitution, a bench headed by Chief Justice S.A. Bobde and comprising Justices D.Y. Chandrachud and L. Nageswara Rao, exercised its plenary power to direct all the High Courts to frame a mechanism for hearing through video conferencing. For this, the judicial administrators have utilized technology to meet the challenges posed by the pandemic. Though relevant in the present scenario, they are not adequate per se. This is because of the following reasons:

• The virtual system of functioning has not been adopted by all judicial and quasi-judicial institutions across the country.
• Institutions which have adopted this system have only been employing it for selected matters i.e. for the purpose of hearing and disposing urgent matters.
• The current situation is unpredictable. Given the uncertainty, it is impossible to say for how long social distancing’ directives and restrictions on movement will remain in force. It is likely that these preventive measures will be continued for some time even after the present threat has subsided.^[1]

To ensure that the judicial and quasi- judicial machinery takes the required steps not just to remain operational but to achieve maximum efficiency, the adoption of virtual courts can be said to aid the system to achieve the desired goals.

In this backdrop, the directions passed by the Supreme Court, on 6 April 2020, for the conduct of court proceedings across the country via video conferencing (hereinafter VC), during the period of the outbreak of the COVID-19 pandemic were conceived as a ray of hope. Broadly, the Supreme Court has directed the following:

• All High Courts shall ensure functioning of the judicial system through use of VC technologies and to this end, shall decide the modalities for use of VC technologies after considering relevant factors (such as peculiarities of the judicial system in every state as well as the dynamically developing public health situation).
• District Courts, in every state, shall adopt VC technologies prescribed by the appropriate High Court.
• Courts shall make VC facilities available for those litigants who do not have access to these facilities, including by appointment of advocates as “amicus curiae” and making VC facilities available to such advocates (if necessary).
• Till such time as the High Courts, frame rules in this regard, VC technologies shall primarily be used for hearing arguments, both, at the trial as well as appellate stages. However, evidence shall not be recorded using VC facilities except with the parties’ mutual consent.
• The directions shall remain in force till such time as further orders are passed by the Supreme Court.^[2]

Recognizing the significant role played by the new-age virtual court room system during such testing times, the Supreme Court has stated that the practice of holding Court hearings through the video-conferencing mode was not against the concept of ‘open court hearing’.^[3] As one of the core principles of natural justice, ‘Open Court’ is encapsulated in the Constitution of India under Article 145(4); Section 327 of the Code of Criminal Procedure, 1973; and Section 153B of the Code of Civil Procedure, 1908.

 It preserves the rights to freedom of speech, expression and press provided under Article 19 of the Constitution of India. It is only in “special and limited cases as prescribed by law” or under the Court’s authority to regulate its own proceedings that these central tenets of justice can be deviated from, only to the minimum extent required. Dispelling the notion that Virtual Court rooms do not offer “open access” to court proceedings, the Supreme Court intimated

“ .. besides the parties and their respective Advocates of a case being heard by the Bench, the parties and/or Advocates awaiting the turn of their cases to be taken up are also joined ‘virtually’ beforehand and, exactly in the manner possible in physical Courts, they do witness, albeit on their virtual screens, the live proceedings of cases taken up before theirs. Most importantly, a special Viewing Facility has been provided by the Registry in the Video-Conferencing Room established for parties in the Supreme Court premises, where the media persons, as representatives of the public, are allowed access and can watch the proceedings of all the matters being held before the Virtual Court(s). The proceedings of almost all cases, as well as their outcomes, are being widely reported in the Media.”^[4]

The Supreme Court in the Swapnil Tripathi case[5] has held that the live audio-video streaming of court proceedings is merely an extension of the ‘open court’ principle which is a well-accepted principle in India. For that matter, the Supreme Court so far has heard 593 matters, delivered judgments in 215 cases during the lockdown period and various other courts are issuing special directions for conducting hearings via video- conferencing in their respective states.

On 26^th July 2019, the Delhi District Courts under the aegis of the eCommittee, the Supreme Court and the IT Committee, High Court of Delhi had established the first Virtual Court in the country and the Delhi Court inaugurated two more virtual courts on 13 May 2020, in the district courts complex for dealing with “on-spot traffic challans”.

Challenges faced

The idea of digital courts sounds alluring amid the outbreak of COVID-19, but there are other technological challenges as well. Here, the technology seems to trip itself over because the hurdles so created by itself, such as the mammoth of the data which will be collected, collated and stored needs to be protected through proper encryption techniques, particularly when deposition in vulnerable and confidential cases. Though creating a virtual court room is economical and easy but the challenges like adequate encryption and security when dealing with a confidential case, absence of e – signatures, e – attestations, e-vakalatnamas do not seem feasible and thus pose as major hindrance in the digitalization of courts.

Lack of technological literacy: This makes the judges, lawyers and clients equally vulnerable to cyber-attacks. Recently, the advisory issued by the Ministry of Home Affairs has banned the Zoom video conferencing application for government purposes.^[6]

Lack of professional ethics: It also plays an important role as the Advocates Act stipulates lawyers to appear before the court in the prescribed dress code and the decorum should be maintained even when it is functioning through a virtual forum. There are various instances where the lawyers have violated these rules when they appeared for the hearings in their casual clothes.^[7]

It is unquestionable that ICT can play a vital role in facilitating the Court’s function during the pandemic but highlighted shortcomings have to be addressed and adequately mitigated.

Internet not accessible to many: The inaccessibility of internet is also a growing concern. However, statistics suggest that till 2017, nearly 72% of the population did not have any access to internet.^[8] Similarly, the internet connections that India does have are unevenly distributed. While TRAI’s data recognizes that urban India has a high rate of subscriptions, rural India that stands only at 27.57 of subscriptions per 100 people in 2019 and due to lack of access the implementation of virtual courts will be a hindrance to accessing justice to those many.

Demeanor of witnesses and false evidence: Undisputedly, there is a significant difference between audio-video and in-court testimony, as the latter offers greater opportunity for the court to evaluate the witness by way of his testimony along with their demeanor.^[9]

RESPONSE TO THE COVID LOCKDOWN GLOBALLY

• In the United Kingdom, the Ministry of Justice and the Judiciary have urged for the adoption of remote hearings. Wherever possible, media persons will be allowed remote access to hearings, making it public, in order to safeguard the principle of open justice. In other instances, the hearings will be held privately, although they will be recorded.^[10] Moreover, the Coronavirus Act, 2020 enables the use of fully video and video enabled courts for conducting proceedings with all parties at remote locations given the emergency situation.^[11]
• The Supreme People’s Court of China, i.e., the Apex Court, ordered “courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get better legal services and protection.”^[12]The Department of Justice, the Government of the Hong Kong Special Administrative Region has announced the COVID-19 Online Dispute Resolution Scheme. Under this Scheme, a multi layered ODR process is being developed to resolve disputes arising out of COVID-19, especially for those involving micro, small and medium-sized enterprises (hereinafter MSMEs).^[13] This step is likely to help reduce the burden on local courts by absorbing the upsurge of disputes arising out of COVID-19 and increasing access to remedies to the affected persons.
• In the United States, efforts are increasingly being made to hear matters through telephones and videoconferencing.^[14] Courts in New York, in particular, have most recently expanded the virtual courts model (which primarily features videoconferencing) from only essential matters to include non-essential pending matters.^[15]
• In Ontario, the Supreme Court of Justice has extended the horizon of video and teleconferencing from urgent matters to all matters. E-filings are being permitted using electronic signatures. Moreover, members of the media and public can gain access to the proceedings by emailing their requests to the court staff.^[16]
• The Supreme Court of Singapore, too, has issued guidelines for using audio and video conferencing for hearing matters using Zoom.^[17] The COVID-19 (Temporary Measures) Act 2020, now allows court proceedings to be conducted using remote communication technology (e.g. teleconference, video conference, and email) such that physical attendance in the courtroom can be minimized or dispensed with.