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As we enter into the eighth week of the COVID-19 lockdown, a lot has been written and said about the “new normal” and the adoption of technology by the judiciary.
The Supreme Court and the High Courts have been at the forefront of embracing new technologies, ensuring that the wheels of justice are not brought to a halt. It is testament to the strength and commitment of the judiciary that justice is delivered in these times of need by conducting hearings via video conferencing.
Yet, the justice delivery system has been limited to the category of “very urgent” matters, due to which a limited number of petitions and cases have been taken up by the courts. The Supreme Court and the Delhi High Court have ensured that petitions with respect to ensuring aid and assistance to the most harshly affected strata of society are given precedence.
The restricted functioning of the courts has thus given rise to a situation wherein cases which have been pending for long, and would have ordinarily been taken up for day-to-day hearings, have been seriously impacted. This is a situation that needs to be tackled immediately with the co-operation and co-ordination of the Bar and the Bench.
As the weeks roll into months, there appears to be no end in sight to the pandemic. We are now reaching a stage where the strategy of lockdowns, if continued further, may do more harm than good. The effects of the lockdowns are being felt in various sectors of society and the economy. Government policy and strategy is moving - slowly but steadily - towards normalcy, as we are now being sensitized to living with COVID-19.
It is also the right time that the lawyers, as the largest stakeholders of the judicial system along with the judiciary, work together to chart out a clear roadmap towards resuming normal functioning. This should be done through both, physical court hearings, and by expanding the scope of hearings by way of video conferencing.
Phase-II of the eCourts project has envisaged, executed, and implemented the concept of video conferencing, e-filing, virtual courts, and digitisation of court records across the High Courts of the country and the Supreme Court. As a result of the above, in the Delhi High Court, where the authors primarily practice and are well versed with, a large category of matters are e-filed. For all other categories of cases, for which the e-filing facility has not yet been initiated, a separate scanning fee is charged by the High Court Registry at the time of filing itself, which is in fact for the very purpose of preserving a digitised scan of the hard copy filed.
The above is being highlighted to assert that the basic groundwork for moving to virtual hearings is well laid down and should be taken advantage of by the concerted and coordinated efforts of the Bar, the judges, and most importantly, the court staff.
A wide range of matters have been languishing in our courts for years, especially at the appellate stage. These include criminal appeals, first appeals from decrees, second appeals, final arguments in suits, and challenges to arbitral awards, on the commercial side. A large number of such matters are those in which pleadings have been completed and are ripe for hearing.
It is proposed that the categories of matters for which digitised records are available, should be taken up for hearing in a phased manner. A cause list of matters which qualify as being ripe for hearing may be prepared by the respective courts along with the date on which the said matters will be taken up for hearing.
The success of this model will require commitment and adherence by lawyers towards the cause and to ensure that they are prepared to present their case on the day it is listed for hearing. In case the counsel appearing in these matters do not have the files readily available,the same may be exchanged by the counsel on either side, if any one of them has access to the same.
In the alternative, files of these matters can be made available by the Registry of the court to the counsel via email or access to a central server on payment of a nominal fee of Rs. 100, as is already the practice in the Delhi High Court.
Vide its notification dated May 1, the MHA has allowed the reopening of private offices with 33% percent occupancy. Taking a cue from this relaxation, the High Courts and the district courts may consider resuming functioning by listing 12 to 15 matters a day to begin with, while strictly following social distancing norms and other safety measures.
This would also be to the benefit of the older generation of lawyers (one of the authors included), with all due respect, who may not be abreast with the latest technological developments. Therefore, it is necessary that normal functioning of the courts is resumed to a certain extent.
This can be done by ensuring that the cause list is divided into time slots and the particular slots have a given number of matters. With a little co-operation between the Bench and the Bar, it can be ensured that lawyers do not descend on the court room all at the same time, as it happens presently. They can arrive at the court room for the session in which their matter is listed.
Another huge burden on the courts, which would result in overcrowding, are matters in which evidence is to be recorded, specifically civil suits. In this regard, the courts may consider appointing 5-7 local commissioners having 5-10 years of experience for each court.
At the time of appointing a local commissioner, it may be taken into account as to whether he has access to a chamber or office. Once the appointment is complete, matters pending in the said court for evidence may be marked to the so-appointed local commissioners for recording of evidence. The case files of these matters can be sent to the local commissioners by email, password protected access to a server, or by court staff, if the examination is being held in chambers within the court premises.
This would ensure that matters are heard while complying with social distancing norms and avoiding the overcrowding of court rooms by litigants and witnesses in each matter. This practice would also serve another purpose of engaging young lawyers at the Bar and helping them hone their skills of conducting evidence and also giving them a stipend by way of local commissioner’s fee, so as to enable them to sustain themselves in these uncertain times.
It is no secret that with the limited functioning of the courts, not only are the rights of people embroiled in various disputes negatively affected, there is also major cost with respect to the livelihoods of the entire legal fraternity. This includes not only lawyers, court clerks, and office staff, but also hundreds of small businesses providing services ancillary to the functioning of the courts, such as photocopy/printing units, stenographers, courier services, etc. Thousands of people are dependent on continuous functioning of courts.
A major casualty of the lockdown and consequent closure of courts has been young lawyers with 1-15 years standing in particular, as they are dependent on daily appearances and conferences with Senior Counsel for preparation of on-going matters. Since many young lawyers may not have the requisite infrastructure to do e-filing or appear through video conferencing, the cubicles made in the Chamber Block of the High Court can be made available on a token system basis, to ensure social distancing.
There is no doubt that to chalk out a roadmap ahead of these troubled times, one should take into account the lingual, social and economic diversity of the litigants, as well as the diversity in age and technical knowledge within the legal fraternity. A comprehensive plan keeping in mind the above would ensure equal access to justice and pave the way for reducing the pendency of matters.
With the above suggestions, it is the attempt of the authors to stimulate the stakeholders of the legal profession to take back the reins of the justice delivery system and express their assurance to the courts that we are ready, willing and prepared for the challenges before us.
Kirti Uppal is a Senior Advocate and Former President of the Delhi High Court Bar Association. Aman Bhalla is a Delhi-based Advocate.