Litigation in the time of the Coronavirus Lockdown

Despite the large-scale discontent and uncertainty over the past week, the legal profession has largely just been catching up on reading, TV shows, with friends and with distant family. It is hard to think of the last time that lawyers, and the legal profession as a whole, were left feeling this bored, and sometimes this helpless.

It is not like clients don’t need to get to court. NGOs need help with securing personnel to deliver food rations, transporters need help with illogical border stoppages, agribusiness providers are calling for access to markets (which are allegedly open), and multiple businesses and professionals need intervention because their representations have not been responded to by the government.

Non-COVID days would see lawyers in serpentine queues seeking to mention their cases for urgent listing.

COVID days, however, present us with trying our luck before four learned Registrars, to whom we have to present our requests for urgent listings. Bail applications “are not being listed”, as a whole. A whole category of persons that is clogging up jails, which are recognized as the largest petridish of persons susceptible to a large scale outbreak, are just being made to remain so.

Urgent petitions seeking directions to state agencies, to public authorities “are not being listed”, because IT personnel need to be called from their houses to set up video-conferencing facilities in court, or because the stenographer who will note down the order passed, cannot physically come to the house of the judge.

You read that right. Lawyers are required to physically leave their residence, present themselves in court, to a camera, so that they can argue ‘remotely’. This complicated foxtrot of access to justice in already tough times, in days of easy video-linkages with fantastic availability and permeation of broadband is disappointing.

A simple example of the actual number of cases taken by the Hon’ble Delhi High Court over the past week would show this. There are two judgments in the “list of important judgments passed after 20.03.2020” available on the Delhi High Court website. Some other cases stand heard, but it would be a pleasant surprise if actual cases being heard since the lockdown would number over 50.

Such inactivity is incongruous in a High Court that prides itself on speedy disposal of cases, on keeping up with technology and the need of the times by accepting service of parties by WhatsApp, for its e-filing facilities, and for video-conferencing by linking multiple jails with the High Court premises. The Delhi High Court Rules are, to my knowledge, the only rules that put primacy on privacy of litigants, and envisage a confidentiality club.

The need for physical distancing is simply not the answer. The answer simply cannot be that the infrastructure for courts through video-conferencing is not there. The Delhi High Court Legal Services Committee permits its beneficiaries in custody to video-conference with panel counsel on an everyday basis. On the criminal side, most of the trial court records are scanned, and available for counsel to take on a pendrive.

Each court room has a minimum of 20 regular hearing cases that are, in most court-rooms, left untouched due to the daily load of fresh cases. These cases are waiting to be heard. 33 of our onourable judges are also waiting to hear them. Social media showed us at least one distinguished judge of the Delhi High Court sitting in front of a phone conducting proceedings at ease.

At a time when multiple labourers are waiting to get access to basic facilities such as sanitation, food, shelter, clean water, with reports of lack of information on manner of spread of the Coronavirus, would court monitoring not be appropriate?

Would not a bi-weekly, if not daily report of steps taken, along with suggestions of steps through constitution of boards, be helpful? Would no one want their COVID testing procedures to pass through bureaucratic languor and actually receive government approval?

It is in light of this difficulty in access to justice, that the following solutions are proposed:

1. Identify an application such as Zoom that permits multiple persons to be on videoconference at the same time. For instance, video-conferencing applications permit:

• video-recording of the entire videoconference, which could be used to verify arguments/submissions during such a hearing at a later point in time for a stenographer;

• highlighting the profile of the party that is speaking, to ensure that others are also visually aware of which video-conference box the sound is coming from;

• Screenshare, which permits one user to share her computer screen as she sees it to all participants in the video conference. This obviates the need to handover copies of documents that are being read out (such as cases, or documents that are not filed, or maps, or colour photographs), and is actually a useful tool even during physical hearings to avoid wastage of paper.

2. Identification of a set of cases that are ripe for arguments, with pleadings complete, and scans of the case record being available. If scans are not available with counsel, the registry can email a link to such scanned record, upon an email requisition.

3. A notification calling upon counsel (for both parties) to indicate whether they would be comfortable with arguments. In criminal cases, prosecutors could ask for Investigating Officers to also join in by videoconference through their local police stations, or from the jurisdictional DCP Office. Clients may also be permitted to join in, with lawyers undertaking for their clients to be on mute the entire time.

4. Training court staff, particularly stenographers, to participate in such Video conference (Most of these Applications are extremely simple, requiring less than half hour of training even to a computer dinosaur);

5. Ensuring pick-up and drop facilities (if required) for such court staff. The High Court has multiple cars/vehicles that are on duty. Sanitized buses/mini-vans may also be used.

6. A causelist that would indicate hearing times, along with calling upon counsel who have given their assent for hearing to provide their telephone numbers/WhatsApp/Skype ID (in case of an unlikely failure of the videoconference set-up).

7. The stenographer being told to give counsel for the next case a heads up about ten minutes before winding up of the hearing. This obligation may also be placed upon the judge (who in turn directs the steno to call the next set of counsel), who can best sense when a hearing is likely to end.

8. Court fee (for fresh matters) may be paid online through netbanking, and proof of the same may be attached. Accounts may be created in relation to advocates welfare stamps (or exemptions may be granted for them).

9. Scans of fresh petitions may be asked for. Registry officials may, from their homes, point out defects, which can be emailed back to counsel.

The above suggestions are merely illustrative. A fresh application need not be developed, as businesses world over are using applications such as Zoom. At the time of writing this, a welcome notification appears to have been issued by the District Judge (HQ) that permits videoconferencing through Zoom, for urgent cases in the Central District.

The purpose of the present article is, however, not to have solutions for urgent hearings, but to incept the thought of putting in place a system that restores normalcy. Normal non-urgent petitions may also be heard, as there are forecasts of social distancing and quarantine norms in place for more than just the next 16 days. It is also not as if courts have been inelastic to technological advancements. Not so long ago, cases would be researched by using digests and physical reporters.

The people of Delhi need access to their judges, to justice, and most of all, to an idea that things can roll back to normal. It is for our High Court, which has set a sterling example of firsts in the past, to show the way forward in these distressing times.

If courts function, judges do what they do best, and lawyers can best put forth grievances of their clients. As a collateral, lawyers can get paid, and orders passed by judges can lead to restoring vibrancy in some businesses. Economic activity can also increase.

50 rupees in our clients' pockets is worth 50 rupees in economic terms. But if that 50 rupees is used to pay counsel, 30 rupees of which is used to pay a clerk, who in turn uses that entire amount to pay his rent, an immediate economic activity of 50 + 30 +30 stands generated.

It is this economic activity that may additionally help to bring about some financial security to those who we most rely upon – our juniors, our clerks, and our office staff.