Covid-19 and the courts

Apart from the threat to life posed by the pandemic, another dramatic impact was the crippling of the justice system. Overnight the courts had to be shutdown. This was at a time when the cry for justice was the shrillest. Disasters such as these are opportunities for autocrats to tighten their grip; for unscrupulous politicians to exploit the situation to their advantage; intrusive surveillance; lockdown of protests, and the tragic trampling of human rights arising from the sheer confusion of authorities battling the unprecedented, silent, fury of nature. For two months the Indian bureaucrats issued over 4,000 different rules attempting to keep a population of 1.3 billion shut indoors. The labour migrations was the most immediate effect visible. The arbitrariness of the rules were enhanced by what the Economist described as the “petal plucking” changes of mind by the Indian authorities.

 Subsequently there were stirrings of courts through the online system. Without detracting from the tragedy, one needs to note that Covid, like war, is forcing innovation at a scale and pace, that no government could contemplate. It is forcing overhaul of decades or even centuries of procedures and habits. In UK for example reforms which were languishing are suddenly being implemented. In 2016 the UK government had launched what it claimed was the most ambitious court modernisation program in the world. More than 100 courts were told to finance a vast digitisation of justice. But by the time the pandemic struck little had changed. One pilot to test video courts involved only 11 hearings. All that has changed with the pandemic. Technology began to be used which even a month ago would have been unthinkable.

 In India the move to online working has been surprisingly smooth ( the glitches notwithstanding) . As Justice A.K. Jayasankaran Nambiar of the High Court of Kerala perceptively remarked in one of the online webinars, that switching to this technology is a matter of change of mindset more than anything else. Till the first week of July the Supreme Court had heard 7,800 cases online, and the High Courts about 1.75 lakh cases. Out of this Delhi High Court had taken 9000 cases through video conferencing from the beginning of the lockdown till first week of July. While in isolation this is an impressive figure, the volume of cases dealt with and the disposal rate when the physical hearings were taking place normally were far more.

The experience online has been refreshing. One has to ensure that one has downloaded the necessary apps which is usually Webex, Vidyo, or Zoom depending on the forum one is arguing in . The hearing can be conducted not just on a desktop but various other instruments such as a cell phone, IPAd or the surface pro from the comfort of one’s home. There is tremendous flexibility in the hearings.

One day before the hearing a link is generated and a designated time is given. However it is not certain that the designated time is the time when the hearing will be actually taken up. More often than not the hearing is delayed.

There is a discipline in the manner in which arguments are conducted. The lawyers and judges are both aware of the time limitations and so the arguments are made brief and to the point. Interruptions from the opposite party while one side is arguing are reduced. The sound distortions which occur during the hearings make the participants extra sensitive to not disturbing the flow, when one side is arguing. Initially the duration of the hearings tended to be short. As the participants became more used to the technology, lengthy hearings have become more common. The excuse of any party, that the records are voluminous are now being swiftly rejected as not being germane to whether the final hearing can be held or not.

There is ease of conferences, as lawyers and clients are adopting Zoom and similar apps for conferences. Considerable commuting time is freed up and expenses saved, both within or between cities. The stakeholders have become familiar with technology. There is far greater ease and efficiency with which legal work can be transacted. It is becoming apparent, that this transition is not impermanent. Even when physical hearings begin, the online system will be used. I envisage a hybrid system. Any unfamiliarity with technology for online hearing is fatal for lawyers and will ensure that even the most technophobic lawyer embraces technology.

Yet there are costs for this transition. The biggest issue is the infrastructural restraints. Many of the lawyers have gone back to their native places where the connectivity may not be very good, making it difficult for him/her to participate in online hearings. Not every lawyer has the access to a laptop or a good quality cell phone. Many of the lawyers are living with joint families and face constraints of space, making it difficult for them to participate in virtual hearings or conferences. Some High Courts have used the online systems extensively and some have been slower to adapt. The lower courts have also not taken to the online systems easily. Infrastructural challenges is one of the biggest challenges which could derail the entire process of online transformation.

At the same time technology offers opportunities and solutions which were never possible before. Covid has permanently altered the conception of the court as a physical space, where lawyers congregate for a hearing. It is now a virtual space accessible from anywhere. Complex arguments are often being advanced through mobile phones. With commuting time being saved, it is not only the lawyers who have cause to celebrate but it has also become easy for the client to access the court without having to trudge all the way physically to where the Court is situated.

Already in the UK there is talk of makeshift courtrooms in bigger venues. There is the possibility of requisitioning empty London theatres; jurors logging in from church halls with someone to help with the IT. This is a model which can be followed in India. Malls and other public spaces can be used, if proper infrastructure is put in, with common facilities for lawyers and other stakeholders to access for the purpose of online hearings. This would reduce the space constraints on the main court rooms and enable proper social distancing. It would also enable lawyers particularly the young lawyers who do not have access to proper infrastructure to have access to such facilities being made available publicly.

While equality of access is something which can be addressed by proper government investment in infrastructure, there are certain types of matters inherently unsuited to online hearings. Criminal cases involving extensive oral evidence cross examination etc; digital death sentencing is not what any justice system would have in mind; delicate matters like child custody, family hearings, jury hearings ( in UK) are outside the pale of video conferencing; important constitutional matters are awkward guests in the virtual world. Judges are less likely to grant bail online than physically. There are grave fears of compromise in fairness of judicial process. It either requires a leap of faith or a leap of technology for these types of matters to be brought in to online embrace.

Such leaps are not fanciful. Parties could consent to have the delicate matters conducted online. Fit-bits and apple watches are able to monitor our bodily functions far more accurately than ever. It is a matter of time before the technology evolves sensors which can detect micro emotions, making it possible for Judges to observe demeanour of witnesses in a manner far superior to what is possible through the human eye. However these are musings for the future.(Although in arbitrations online evidence by videoconferencing is very common) It is essential at present, to take stock of how digitisation was initiated in India and where we are in terms of online capabilities.

Attempts at online transformation is something which has been attempted for quite some time in India. The Salem Advocate Bar Association Case was one of the first cases that broadly interpreted the provisions of the Civil Procedure Code and allowed for the use of electronic media during the evidence stage. In the State of Mahrashtra vs Dr Praful B Desai the Supreme Court in the context of Criminal Procedure held that the term presence does not only mean physical presence. In 2005 itself a proposal which was mooted by Rajendra Babu J for the digitisation of courts, was accepted. There was the Constitution of the E Committee. It functions under the aegis of the Supreme Court with the Chief Justice of India as the Patron in Chief cum Ad-Hon’ble Court Chairman. The E Committee published the National Policy and Action Plan for the Implementation of Information and Communication Technology.

In 2008 the CrPC was amended to include the use of audio electronic means. In 2014 the Supreme Court e- committee initiated a pilot exercise to study Video conferencing in certain jails and courts. In 2016 video conferencing equipments were installed in 704 locations. Use of video conferencing in family courts was allowed in family courts pursuant to the decision in Santhini v Vijaya by the Supreme Court. In the Swapnil Case in 2018 it was held that if no person can plead ignorance of law, there is a corresponding duty to spread awareness of the law. Law should not just mean the statutory law but also the procedural aspects of the law. This was the principle to justify live streaming of important issues of Constitutional and National importance. By 2019, 488 court complexes and 342 jails in the country had a video conferencing set up. Currently in sensitive matters the court has allowed trial by video conferencing for a substantial part. Currently, video online facilities are now being regularly used.

For the future we need a vision of what we need to deliver through technology. The goals must be rooted in principal rather than potential technical achievements. Technology must ultimately serve goals that are socially desirable and the strategy adopted to fulfil them must be based on morality and Constitutional values.

Guiding principles of technological innovation have to involve minimal asymmetry of information; digitilisation should be implemented uniformly in one swoop; There should be interoperability; Ease of use; accessibility; Automation of key processes; Intelligent tools to stakeholders; and transparency. Most importantly there should be privacy of information. In India currently personal usage of personal data or information of the citizens is protected by the IT Act and the rules. These rules do not apply to data generated by the Government. The recent Puttaswamy Case will no doubt greatly influence the promotion of a legal regime where personal data is adequately protected.

The basic precepts of open justice have to be promoted which is (a) Entitlement to attend the proceedings. (b) Promotion of full fair and accurate reporting; (c) duty to give reasoned judgments; (d) Public access to the judgments of the court.

 Richard Sisskind, President of Society For Computers and Law, and also holding the Chair of the Advisory Board of Oxford Internet Institute at Oxford is a pioneer in this field. Author of the seminal book ‘Online Courts and the Future of Justice’, he envisages two stages of evolution in Online Justice. The first generation is when judges make the decision without being in the physical court rooms. The second generation is artificial intelligence giving out binding decisions without human agency for large volume mall causes matter.

All the above objectives may require a statutory framework in place. The votaries of a statutory framework argue that such a frame work would ensure that the design and operation of the platform, follows well defined principles at every level including the planning, monitoring the progress of implementation, redressing breaches of data and redressing any harm done to an individual citizen through any misuse or malfunction of the platform. It would help adapt the laws and rules on judicial procedure, and administration to an online platform and not require repeated re-interpretation or amendment of the existing laws in these areas.

 It is further argued that no statutory backing makes it impossible to enforce the digitisation of the court through filing of Petitions. It will ensure justiciability of the platform processes and accountability of the platform authorities. A policy framework lacks legislative guidance.

It can also be argued that the existence of a statute will be of little consequence as far as judicial administration of the online regime is concerned. There is a limit to which the legislature can interfere with the functioning of the courts so that the independence of the judiciary is preserved. Too much regulation may stultify the system. The rapid changes in technology would require flexibility of response best done through practice directions and policies. In fact the UK has no legislative framework. The directions and the policy should be implemented by the staff and officials of the court, who are trained in IT along with an IT cell, well advised by experts of the highest calibre and expertise. The accountability of the functionaries in the court can be enforced easily. This is because any of these processes would involve lawyers who, being affected by these procedures are more likely to keep the authorities/functionaries on their toes.

An important factor to be kept in mind in the administration of an online system is the relative difficulty of any person to keep up with the latest developments in technology. Often impact on privacy etc becomes apparent only later. It would therefore be critical that the courts are well advised by the best experts in the field and with high levels of integrity. Selection process for the experts for technological advice would have to be rigorous.

It would also have to be ensured that the technology being used by the court systems are similar or at the very least easily adaptable to one another. The inter connectivity would be a greatly empowering feature increasing the efficiency of the justice system considerably.

For the moment, video conferencing and online hearing is here to stay. It is already being used for sensitive cases. It is also used for cases having outstation experts/witnesses etc and emergency cases. A hybrid system will definitely emerge in the very near future. The online forms of justice delivery are now getting similar to other forms of service delivery where there is a combination of physical service with the online services. Apart from the High Courts and the Supreme Court the, NCLT, Income Tax appellate tribunal etc are all using video conferencing. It may be useful for all the forums to use one type of app for the purpose of administration of Justice. Even better would be the development of a customised app by the Supreme Court which could be used by all the courts and tribunals all over the country, after rigorous trial runs.

The benefits of the online system would be considerable. The E filing enables access to the court records at any time of the day. There is a huge saving of time in service of pleadings, etc which otherwise considerably delay the process. Now even service by whats app has been accepted as an admissible form of service by the Supreme Court in a Suo Motu case recently. It is far more difficult for the recalcitrant litigant to evade service of processes. In the past such evasion has been an important factor for considerable delay in proceedings. It is easy to attach court records. Appellate courts would be able to access court records through the online system and would not need to wait for the next date for the records to be procured from the lower court. The chances of pass overs are less in the online system. Technology is something that the younger generation is comfortable with and would therefore be well suited to use the system. Even the older generation has taken well to the technology.

The Covid has compelled the stakeholders in the legal ecosystem to engage with technology. It has achieved the impossible, which is to shock us into realising the need for up-scaling technology. The nature of practice is such that the risks and uncertainties of the hearing process made it appear that it would be impossible to make the transition to an online/digital form of hearing. Covid has demonstrated how easy it is to make the transition, the fears and hesitations have been self created.

 It is not just a matter of practical necessity but also of Judicial Independence. A situation where for sometime due to the lockdown the legal system was almost paralysed cannot be repeated. Even if wholesale digital reforms are not embraced, there must be sufficient capacity to continue the functioning of the court system, even if there is a lockdown due to a pandemic or even for any other reason. If we don’t heed the warning, the existence of those spared by the Covid would still be hollowed out because as Immanuel Kant once said “If justice perishes human life on earth has lost its meaning”

NB: the author would like to acknowledge that a lot of information in this article has been derived from Daksh which is an NGO based in Bangalore and has done pioneering work in this field including preparing a white paper on the subject. Sr. Prashanto Chandra Sen (B.A LL.B BCL Oxford University). He practices at the Supreme Court of India and Delhi High Court.

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