Reopening of physical courts: The need to strike a balance

The challenges raised by the COVID-19 crisis are unprecedented. Several difficult decisions have been taken by the government regarding reopening of the economy, and now the judiciary has some difficult decisions to make.

Foremost of these is the manner and extent to which physical courtrooms should start functioning. The concerns of the litigants to quick and comprehensive dispute resolution and access to justice, as well as the concerns of the members of the Bar - including those of a financial nature - are obvious and pressing.

Currently, while the efforts of the judges and the court staff to provide justice through e-filing and video conferencing are laudable, there are limitations. The courts are functioning at a limited capacity and hearing much fewer matters on a daily basis. Thus, there is a demand for resumption of physical courts so that more matters can be heard, and the courts can go back to a great extent, if not fully, to its style of functioning prior to the lockdown.

While this may seem attractive, what is equally required is a nuanced decision taking into account the competing needs of different stakeholders. The risks associated with re-opening of physical courts pose a serious health hazard for many in the face of a life threatening virus. The Bar comprises several people who are highly vulnerable to complications from any COVID-19 infection, either because they are aged, have lung problems or other chronic ailments, or have either old/unwell parents or small children at home.

The interests of these persons also have to be taken into account. The issue becomes even more tricky because these members of the Bar also have financial necessities as well as the need to handle and respond to the interests of their clients for early hearing and disposal of their matters. Therefore, a balance must be struck in any decision that is taken.

Perhaps an immediate solution that comes to mind is to increase the number of courtrooms that are functioning and the number of cases that are handled by the current video conferencing method. This option may be fully and thoroughly explored with an open mind to invest more resources to have better facilities and address the concerns of lawyers and the difficulties faced by them.

This perhaps is the best option, since it would allow for more matters to be heard and thereby take care to a substantial extent, if not fully, of the financial necessities of lawyers as well the need for access to justice. If it is found that this is not a full and effective solution, and if court rooms have to be opened up physically, then it must be done with an option to vulnerable persons to opt for a hearing via a video conference, at least for the next three to six months till a cure or a vaccine becomes available.

The option would be only regarding the mode of hearing, and not regarding whether to conduct the hearing itself or not. This way, the matter would be heard and disposed of, but at the same time, no vulnerable person is compelled to come to court because their matter is listed in court. It may be argued that it is always open for such a person to ask his client to engage another advocate or seek an adjournment. But, neither of these options would be practical for most. Giving up on a matter is not professionally advisable, and is of course, financially cumbersome and difficult for most. Any decision that is taken must therefore not render a situation which entails such a person to either be in court or else have a very stark choice left for him.

It is also important to realise that while we may make best efforts to take measures to prevent any spread of infection in the courts, by maintaining distance or by wearing masks or washing hands, they may not be sufficient. Surely, the impression that these measures will take care of any concerns or keep the people safe by and large, may turn out to be misplaced in a court type of scenario. The fact is that it is very difficult, if not impossible, to maintain social distancing in courts. COVID-19 cases in India are increasing day by day and are likely to reach their peak in the next few months. The risk of breathing any virus droplets that are suspended in the air is always there.

That apart, cross contamination is a major risk in a court scenario. When a person has been outdoors with his mask for some period of time, there is a strong likelihood that the virus gets caught in mask. When the mask is touched by him or her and thereafter he touches a surface such as files, chairs or other objects or even persons, then the virus can further spread to someone who touches there. This happens very routinely and commonly, as it is very instinctive for anyone wearing a mask for a long time to either touch it to adjust it or for some or the other reason.

Also, the lawyers who are arguing matters before the court would be required to remove their mask when their turn comes. If the mask is left on the table or even kept in their pocket or clothes, then also it can create a risk of cross contamination. It may not be possible to think of all possible scenarios, but it is clear that the issue of cross contamination is very serious and poses a very big risk in the context of a court environment. Even the judges would be vulnerable, as it would not be possible to effectively sanitize all the files given to them or papers that are tendered across the bar during arguments.

The assessment for opening up of the courts that has to be done by the concerned persons must take into account this reality and realize that safety measures may not protect the vulnerable, who would have a risk to their life or their loved ones from a potentially life threatening virus.

Recently, three judges of the Madras High Court tested COVID-19 positive. Thereafter, it was reported that the judges of the High Court who had started functioning from their chambers in the court premises, have rolled back the same and reverted to virtual hearings.

Thus, any decision that is taken just now must be taken keeping in mind the short or medium term sustainability of the same, as it would not serve any purpose to open the courts now and thereafter revert to the present scenario after damage is already done to a large number of people. This also suggests that investment in technology may be made in any case at this stage, as it may prove useful in the future in case courts are opened and we have to revert to the current position due to increased number of cases.

Hence, the best way out perhaps of this conundrum, for the time being, is to ramp up the number of cases heard by video conferencing daily. If after careful consideration, it is felt that physical courtrooms have to be re-opened, then at least an option should be given to the vulnerable persons to conduct their hearings by video conference if they so choose.

If required and considered necessary, a committee could be set up to examine the genuineness or otherwise of such requests, so that the system is not subverted on account of ulterior motives or with a view to stall the progress of a matter.

Surely, while the courts try to implement the right to life, justice and livelihood in favour of members of the Bar and litigants, it would not like to, on the other hand, render a situation which would provide very stark options to people who are more vulnerable to the Coronavirus than others. Thus, a fine balance needs to be struck, and a system may be devised which will suitably deal with these challenges.

The author is a practicing advocate at the Supreme Court.