The socio-economic circumstances of a vast majority of lawyers and litigants make their access to technology and technological skills, incompatible with an immediate shift to virtual courts. While the virtual courts have provided access to justice, while physical courts are closed due to the Covid 19 outbreak, they are by no means, accessible to all.

 

THERE can be no two opinions, that the novel coronavirus caught the entire world by surprise, and what set countries apart is how they responded to the crisis.  India chose the world’s strictest stay-at-home restrictions to ensure life is preserved while allowing only essential services. Although judicial services isn’t listed as an essential service as per the Essential Services Maintenance Act, 1980, Indian courts moved quickly to ensure justice wasn’t denied to citizens at this time of crisis.

Since the lockdown was announced, and in some cases much before that, Indian courts had started to put in place measures that didn’t require the physical presence of litigants, lawyers and other actors of the court. While the Supreme Court of India had initially thought of a mixed arrangement of physical and virtual access, where the judges can sit in isolation and lawyers can argue from another room, enjoined by a large screen inside the courtroom, all within the Supreme Court premises, it had to raise the bar given the fact that the lockdown has been extended, and to ensure there’s no crowding. That’s prompted the Supreme Court as well as many High Courts in the country to move to a completely virtual Court mechanism using video conferencing.

While this arrangement has been successful in providing access to justice, albeit with certain new challenges, continuing with this approach needs to take into account the harsh realities with regard to the difficulties faced by advocates and litigants alike.

As we shift more towards electronic filings and video hearings from physical access, the system must take into account that not even a single person is denied the facility for the mere lack of acquaintance with the appropriate technology. While it is far easier for Millennials and Gen Z to adapt to modern technology, the fact remains a large number of Indians find technology difficult, if not intimidating, given poor literacy levels or technological familiarity. There are indeed individuals, who are technologically handicapped and may not be able to access technology or to make use of it with the same efficiency as others.

The problem is not limited to just that. Another aspect of virtual courts is access to the Internet and good bandwidth, if not for filing then at least for video conferencing.

It is indeed true that a system of virtual courts would reduce distances, manual work and transmission of physical documents etc. However, an Internet-based system cannot exist without a viable alternative for those who might not have proper access to the Internet or maybe technologically handicapped in some other manner.

During the inauguration of the Supreme Court’s e-filing module, held through a webinar, this issue was flagged by both, Mr Shivaji Jadhav, President of the Supreme Court Advocates’ on Record Association (SCAORA) as well as Mr Dushyant Dave, President of the Supreme Court Bar Association (SCBA). In the words of the SCAORA president, while the Supreme Court had quickly responded in order to adopt the facility of virtual hearings and e-filing to facilitate access to justice delivery, the system of virtual courts, however, had run into limitations. While being a “wonderful stop-gap arrangement,” it was still far from replacing physical courts and filing, he said. The issues raised include the challenges faced by the non-tech savvy generation, dependence on electricity and data connection, not being able to record all that is said during a video conference due to coinciding sounds, glitches like login issues, and limitations on sharing of links, among others. Senior Advocate Dushyant Dave, who is also the president of the SCBA, also echoed similar concerns and added that any such shift toward virtual courts should take on board the members of the Bar. Dave said these efforts can be pushed faster and better with the involvement of the Bar and suggested “a combination of digitisation and e-hearings with physical hearings.”

This concern was, however, not limited to the members of the Bar, the Chief Justice of India too conceded that while few of his brother judges were well acquainted with the system of virtual courts, he himself was not. Terming his own experience, as a judge, of participating in virtual hearings had been “disappointing” and noted that the non-acquaintance of the virtual systems aside, there existed other problems such as taking notes and marking the files, as the judges have been used to.

A complete shift, therefore, towards a virtual or digital system of courts without addressing the issues pertaining to access and familiarity with technology by a vast section of the population isn’t advisable in the interest of legal rights and therefore can never replace the physical courts and the justice delivery system.

While the Supreme Court has considerably revised its own e-filing module making the same as user friendly as possible, a mere comparison of the number of hearings conducted before and after the lockdown would indicate the limits as to productivity. As we go further down the hierarchy of courts, the number of cases and their complexities also increase. Apart from this is the concern as to when and how, through virtual hearings, the regular matters, civil appeals etc. shall be heard.

Admittedly, the need of the hour is to limit crowds to ensure the virus doesn’t spread; the question that needs to be addressed is how do courts function once the movement restrictions are lifted in the cities? Should a robust set of guidelines be observed to facilitate physical functioning, must the courts be limited, however temporary it may be, to only virtual access? The same is bound to present a variety of problems for a number of advocates and litigants. In any such attempt, we must be cognizant that not everyone, has the same understanding of the technology, and not all persons would have access to or could afford, appropriate Internet connections for an uninterrupted live video conference, and not all areas of the country have uninterrupted electricity supply. If you take Kashmir as an example, intermittent suspension of Internet and lowering of bandwidth speeds makes virtual courts impossible.

If the present developments are to be taken as a first step, many such steps would be required to reconcile with these issues as well as the problems faced by different generations and in the words of the Chief Justice of India, “eventually it must settle down to a system which is a combination of two – the new and the old.”

 

(Saniya Siddiqui is an advocate enrolled in Delhi and is currently pursuing her Master’s degree in Law)

Note: This is an opinion piece, and the views expressed are the author’s own.

 

Supreme Court’s Standard Operating Procedure for Advocate/Party-in-person for e-filing, Mentioning, Listing and Video Conferencing Hearing can be read here

 

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