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Justice GS Patel was speaking on the theme "E-court and legal practice after COVID-19” in a Webinar organised by the Consumer Courts Advocates Association, Maharashtra as part of their LawSpeaks series.
"We live in, what I would describe as, a time of fracture. Everything that we took for granted has taken an unsettling turn."
These were part of the opening remarks made by Bombay High Court judge, Justice GS Patel while speaking on the theme "E-court and legal practice after COVID-19” in a Webinar organised by the Consumer Courts Advocates Association, Maharashtra as part of their LawSpeaks series.
The Judge added that what he may have to say on the topic may not necessarily "reflect a ray of hope", observing that,
"I am not seeing any quick restoration to the way we were in January 2020, a time I think we made the mistake of taking everything for granted. We heard stories from Wuhan and Hong Kong... But we didn't pay enough attention."
Justice Patel observed that the Indian Court system ordinarily involves large crowds, and that while people from foreign jurisdictions may find it chaotic, it has worked so far in the country.
However, this may all have to change after the COVID-19 pandemic. In this regard, the Judge observed that unless a medical solution is developed to tackle the virus, we may have to devise methods and means to live with it.
The process would be very difficult, the judge remarked, adding that a change in mindset would be required for the likely compulsion to completely change the way in which the court system is approached.
It is no longer going to be possible for lawyers, clients and others to all meet together in courts, bar-rooms. Even in lawyers' chambers, there is going to be a huge, dramatic change, the Judge opined.
To guard against the spread of the virus, the judge pointed out that the rate of case disposal is bound to reduce, given that daily hearing lists will shrink as a measure for crowd reduction.
There will have to be distancing between a lawyer and his litigant client, the judge added. He noted that this may create problems particularly for criminal trials where the counsel has to interact with his client or the accused being examined in Court.
In other (civil) cases, the problem may not be as severe, but it may affect them nevertheless, Justice Patel said.
As far as court-room hearings go, the judge observed that adjournments would become fewer.
During the course of his talk, the judge also remarked that he expects a surge in cases being referred to alternative dispute mechanisms such as arbitration and meditation, as physical court sittings become less.
He pointed out that these mechanisms have all the characteristics required, i.e.dispute resolution within the framework of the law, a setting that does not require a court structure, possibilities for social distancing and a system that can be easily managed.
As Courts begin to employ technology to aid safe hearings in the wake of the COVID-19 pandemic, Justice Patel observed that lawyers and Judges will have to adapt to the same.
To this end, Justice Patel observed that it is not necessary to have very high-end equipment or multiple devices. Rather, he assured that what was required was basic infrastructure such as a computer or laptop and a phone, with strong internet connectivity.
He added that facilitation centres will have to be put into place by courts for those people who do not have access to the internet.
"You cannot tell people 'sorry because you do not have the bandwidth, you do not have access to justice'", Justice Patel observed, emphasizing that access to justice for all had to be ensured.
During the Q&A session, the judge also pointed out the training of court staff to adapt to the technological changes would have to be undertaken "on war footing". He emphasised that while technological challenges can appear daunting, they are not insurmountable.
Another issue raised was regarding the potential breaches of security in conducting Video Conference hearing. The judge opined that this is not as significant a concern, given that "it is an open Court."
In any case, he pointed out that security breaches have occured during physical court sittings as well, while recalling a recent incident where a Court order was forged in his name.
On a related note, Justice Patel also emphasised that lawyers must learn to conduct themselves before the camera.
"One of the things we are going to have to learn is how to conduct ourselves in front of a video camera. People make the mistake of thinking that as long as their speaking... no one will notice what is happening around you. That is not true", he pointed out.
Recalling his experience while hearing cases through Video Conferencing amid the lockdown, the judge remarked that it was "absolutely hell" for a judge to conduct the hearing when others speak over him.
Because of such factors, the judge observed that Video Conference hearings are generally slower and more stressful. It is distracting when there are so many activities being displayed on the screen, he added.
Just because the hearing is being attended from home, it doesn't make the hearing any less than if it is being conducted in court, the Judge said. It has to be viewed with the same seriousness that is brought to a regular court of law, he added.
Habits of advocacy have to be adapted to the new technology and culture, he said, noting that both Judges and lawyers will have to learn it. On a related note, the Judge also opined that counsel may have to make arguments via written submissions to put them across to the judge more effectively.
Justice Patel noted that the likely effect of COVID-19 on earnings and the income of legal practitioners is generally one approached with reluctance.
However, the judge observed that the issue must be dealt with, remarking "Let's not shy away from addressing the monster in the room, this will have to be addressed."
On this topic, he opined that there is going to be a severe, adverse impact on earnings. Litigants may not be willing to pay as much as they did, even as recently as January 2020, the judge observed. The volumes of cases will go down, he added.
All the same, he added that the legal community is resilient enough to brave through this issue. He remarked,
He added that "It is going to be a rough ride. We are going to have all kinds of teething problems."
In this regard, he pointed out that the focus of Court administrations everywhere is on ensuring the access to justice for all, as emphasised yesterday by Supreme Court e-Court Committee Chairman Justice DY Chandrachud. As he concluded his main address, Justice Patel also added,