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Litigation in the time of Covid-19 and the road ahead

The outbreak of Covid-19 has brought the world to its knees and the Indian judiciary is also facing its brunt. Courts are closing their doors and limiting their dockets. The Supreme Court responded to the call of social distancing by issuing guidelines[1] for courts to switch to video conferencing in these unprecedented times. This cannot be seen as a temporary issue. Technology is here to stay, said Chief Justice Bobde.

The bench comprising CJ. Bobde, J. DY Chandrachud (Chairman of Supreme Court E-committee) and J. L. Nageswara Rao exercised its plenary power under Article 142 of the Constitution. It said all measures that shall be taken by court to reduce physical presence shall be deemed to be lawful.” The apex court also asked to direct district courts to follow the videoconferencing rules as formulated by their respective high courts.

Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India. The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it, the bench observed.
The video conferencing has been limited to hearing of ‘extremely urgent matters[2]’ both at trial stage or appellate stage and no recording of evidence can be done without mutual consent of both the parties.

The question however is, what are extremely urgent matters?

The apparent cases that are being taken up by the courts explain what matters of extreme urgency are. These largely include Covid-19 cases relating to personal protection equipment for doctors and medical staff, deployment of security personnel, frees testing, movement of migrant workers and protection of victims of Delhi riots. The second kind of cases involves bail applications most of which notably are seeking social distancing or better facilities in prisons.

The Delhi High Court has extended the liberty to undertrial prisoners to apply for interim bail. The Rajasthan High Court was of the view that bail matters are not matter of extreme urgency but such a view was stayed by the Supreme Court. Thirdly, commercial matters restricted to the pandemic are being heard. Thus, it can be concluded that the extremely urgent matters are largely offshoot of Covid-19.

In these intervening times, relaxation is being given to justice seekers in the litigation process. The Delhi[3] and Bombay[4] High Court had earlier issued notification for extension of interim orders except in cases of extreme urgency. The Supreme Court has extended the limitation timeline with effect from 15th March 2020 until further orders.[5] This includes limitation for petitions, applications, suits, appeals and all other proceedings under the general or special law both under central and/ or state legislations.  Relief measures were announced by our Finance Minister on 24th March 2020 regarding compliances with taxation, banking, IBC, etc.

The silver lining in the time of crisis
Desperate times call for desperate measures and the coronavirus has pushed our judiciary to adapt itself to the changing world. Interestingly, this could pave our way to a more advanced judicial system incorporating electronic means in its dispensation of justice. The High Courts in India have pendency of over 40 lakhs.[6] If technology is adopted, it may become a permanent fixture and would reduce the pendency of cases.

The first e-court in India was established in New Delhi which has brought about a tremendous savings not only for the State exchequer with reference to under trials but also to litigating public who otherwise could not afford loss of time, work and money.  However, it is not a virtual court but a real court where only use of paper is dispensed with. India has no virtual courts yet i.e. courts where arguments are heard online without a tangible courtroom.  Videoconferencing helps save time, money and energy especially in remand cases where the convict need not come from the jail and cases are heard online.

However, it is time to go beyond that. Adopting technology would greatly reduce unnecessary adjournment of cases where the lawyer is unable to present himself in the court. It is also a cost effective measure because various stakeholders would not be required to travel long distances and witnesses could be examined online. 
Such a reform in the judiciary calls for cooperation from the legal fraternity. In my opinion, demeanor may be compromised in a virtual court but that alone should not be a reason to disregard such a development. Hearings in real courts are very protracted and time restraint would be a major concern for virtual courts.

This undoubtedly demands a cultural shift in how proceedings should take place taking example from the American courts. Judges should have a flavor of the case beforehand and lawyers must be concise and articulate in their arguments so as to save time of the court. E-filing could potentially improve the standard of written submissions and ensure strict adherence to time limit during oral arguments. Other methods of de-clogging of courts could be adopted.

The world is living through a challenging time but the silver lining is that it could boost judicial reforms which were sluggish until now. This could possibly tout a revolution in court management and speed up India’s quest for improving its rank in World Bank’s Ease of Doing Business Index. Indian courts should become proactive in embracing the advancements of technology in judicial proceedings. It would patently ensure transparency in courts and be remarkably effective for the overall development of the justice system.


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