LITIGATION AND VIRTUAL COURTS: RETHINKING ACCESS OF JUSTICE IN THE TIME OF COVID-19

LITIGATION AND VIRTUAL COURTS: RETHINKING ACCESS OF JUSTICE IN THE TIME OF COVID-19

Author- Pranav Kumar
College- Kaushal Bahra University

ABSTRACT

We all human beings are caught in an inescapable network of homogeneity, whatever affects one directly affects all indirectly”.

How can a health crisis translate to the economic crisis? How the spread of COVID-19 brought the world economy on its knees?

The answer to these two questions lies in the two methods by which Coronavirus stifled the economic activities. Firstly, with the spread of COVID-19, the virus has encouraged social distancing which led to the shutdown of financial markets, corporate offices, businesses, schools, colleges, factories, industries, etc.  Secondly, the exponential rate at which the virus is spreading and the heightened uncertainty about how bad the situation could get, led us to flight to safety in consumption and investment among consumers, investors and international trade partners.”[1]

The whole global supply chain mechanism has been disrupted because of this virus. The effect of this virus is not limited to the parties of contract but also to the employment agreements, insurance agreement, loan agreement, etc. The virus has conquered many potential implications for the economy of the country. COVID-19 waves have adversely affected the economy of many developed and developing countries. Apart from this, the deadly pandemic has affected the functioning of the court too. This article highlights the issues of prospects and challenges of Litigation and Virtual courts amid the COVID-19 crisis.

Keywords

COVID-19, HEALTH EMERGENCY, JUDICIAL RESPONSE, LAW FIRMS, LITIGATION, TECHNOLOGY ADVANCEMENT, RESPONSIBILITY, VIRTUAL COURTS  

CORONA AND THE COURT

“Democracy is a fragile virtue. Wars, economic meltdowns, and of late terrorism are the known viruses that eat into the vitals of democracy. Of late COVID-19 is seen as yet another threat to democracy.”[2]

The Health and safety of an individual are everyone’s priority as today the pandemic COVID-19 unprecedented impact continues to grow with the passing of each day. Needless to say, that outbreak of COVID-19 has left its impact on rights of citizen to have access of justice as the door of justice has opened its window only for the most urgent cases during this pandemic. With the view to ensure minimal disruption, courts around the world have swiftly embraced the technology, including mandatory electronic filing, restricting hearing to only critical cases, and conducting video conferencing. Although it may necessitate the creation of specialized advisory focussed on guiding various challenges that will come up both in the short term and long term.[3] 

INDIAN COURTS V. COVID-19

Amidst the clash of arms, the law is not silent. Lord Atkinson legendry dictum applies to the public health crisis as it does in times of war. Amidst in the time of Corona, the functioning of most of the courts in the country has been severely restricted and social distancing is the only sanjeevani to prevent the spread of this virus. The judicial system of the country has been made to adapt certain changes during this time of pandemic to maintain public safety, which requires the need to have the Digitalization of the Indian Courts and setting up the theme for virtual courts.

India is emphasizing on the scheme of virtual courts to carry out the functioning in a smothering manner but without acknowledging the low technological literacy. The idea of the Digitalization of the court and theme to have virtual courts in India was floated in the year 2005 under the project headed by Justice Dr. Bharuka, former Honourable Judge of High Court of Karnataka. The plan of the Digitalization of the court was carried out in three stages. In the first stage project created computer centers and server rooms in 15,000 courts operating from 2500 court complexes in India. The second stage focussed upon the ICT Coverage and third on the information gateways among courts.[4]

The primary purpose of the Digitalization of the Indian Court is to further the concept of open justice as a common law concept that encourages the court proceeding to be open and transparent to the public and is the cardinal principle of the judicial process. But with the outbreak of this pandemic, the apex court of India i.e. Supreme Court of India and other courts too in all its fairness has subsequently taken to continue the hearing of all the urgent matters via alternative means such video conferencing, Skype, etc. It is worth important to mention that internationally too, while the wheel of justice turns slow in battling against the graver virus of COVID-19 but still courts continue to serviceable.

During times of crisis, it becomes important to scrutinize the sweeping of powers of the government which may tend to entrench in themselves after the crisis has passed. In the view of the larger pandemic outbreak in the country, courts have to monitor each and every action of the government with regard to the constitutional exigencies such as lay-offs, massive salary cuts, denial of basic human rights by the police personnel, restriction on movement of individuals all these things are to be monitored by the courts. Another important challenge that is being faced by the courts is the lack of infrastructure to withhold with modern technologies and management especially the lower court in the times of social distancing.

LITIGATION AND VIRTUAL COURT: PROSPECTS AND CHALLENGES

LIMITATION OF COURT AMIDST COVID-19

The idea of the virtual courts sounds alluring amid the outbreak of COVID-19 but there are still many technological challenges which are associated with virtual courts. Still, in this case, the technology seems to trip itself over because the hurdles so created by technology such as mammoth of the data which will be collected, stored, or collated needs to be protected through the use of proper encryption techniques when deposition of such data is important, confidential and vulnerable.

Though creating a virtual court is economically easy but challenges like adequate encryption and security facilities while dealing with the confidential cases and further absence of electronic signatures, electronic vakalatnamans, and electronic attestation are still the major technological challenges which are still present on the way of the functioning of Virtual Courts. Another important challenge that is being faced by the courts is the lack of infrastructure to withhold with modern technologies and management especially the lower court in the times of social distancing.

POWER AND RESPONSIBILITY OF THE COURT DURING HEALTH EMERGENCY

Thus, Benjamin Franklin attributed a maxim which states that,

We must indeed all hang together or most assuredly we shall all hang separately”

Benjamin Franklin

The Indian Courts amidst COVID-19 have unsurprisingly shown remarkable deference to the executives in dealing with the cases being brought by interest groups claiming to be the champions of rights of those who had been forgotten by the system.

The court always rings the bell to attract the attention of the government towards issues forgotten or overlooked. The Indian judiciary has relaxed the rigour of the Locus Standi limitation and at the same time has given an expansive meaning to the constitutional freedoms which are remarkable. But these measures also have different consequences. First, it has widened the judicial reach beyond its traditional self imposed boundaries. There have been moments of overreach which needed to be recognized for the sake of judiciary credibility.

Secondly, it has given rise to the formation of special interest groups who frequently use the court to push their agenda. Courts have played a seminal role in bringing social change all over the world. But still, the areas of executive discretion are the matters of governance that are politically and socially neutral; in times of emergency cannot be a matter of subject to the judicial interference.”

Perhaps those imbued with public spirit can occupy themselves by truly directly serving those who cause seeks to espouse.

LITIGATION V VIRTUAL COURTS: JUDICIAL RESPONSE AMIDST COVID-19 (MIGRANT WORKERS HUMAN RIGHTS VIOLATIONS AND UNSEEN CRISIS OF DOMESTIC VIOLENCE)

 “Every day hundreds of migrant workers with small children are to be seen at different parts of the state more particularly on the highway.  Their condition is to be pathetic. As on date, these migrant workers are living in the most inhumane and horrendous situation. All necessary steps are being taken by the state government, yet we are of the view that few more modalities need to be worked out at the earliest to ease the suffering of people at large”[5]

“Amidst in the time of such confusion, fear, threat, and uncertainty of spreading of COVID- 19 the migrants are trapped in extremely upsetting condition. This exceptional situation and sudden announcement of lockdown with a notice of fewer than four hours have created havoc to the labour migrants in different parts of the country. Nonetheless, the migrants having no other options started braved their long marches which ultimately have resulted in the deaths of many migrants labour due to hunger, dehydration, and exhaustion.”[6]

The Gujarat High Court in re; Suo Motu v. State of Gujarat, while disposing of a PIL was of the opinion that, “It appears that people at large are hungry. People are without food or shelter. It seems that it is the outcome of a complete lockdown. Whatever a little help the poor people used to receive from the NGO’s other charitable institutions and volunteers have come to a grinding halt. It has been reported that more than two hundred people living on the footpaths have not had a morsel of food for the past four days noted by a division bench comprising Justices J.B Pardiwala and Ilesh J. Vora.” 

In the another PIL filed on the behalf of Harsh Mandar and Anjali Bhardwaj v. Union of India[7] which was related to the concern of the situation of payment of wages of migrant workers, the Supreme Court of India ordered the respondent (Union of India) to look into such kinds of situation and take steps which should suffice the concerns raised in the particular petition.

The other PIL was filed by Advocate Alakh Alok Srivastav[8] concerning the welfare of the migrant workers by proving them with proper place and accommodation and basic amenities like food, clean water, medicine, etc.  To which the respondent Union of India presented a status report claiming various help and policies which are undertaken by the government for the welfare of migrant workers.

“Due to lockdown, victims of domestic violence have been trapped at homes with their abusers and have no access to family, friends, public spaces, legal institutions, etc.

– Chief Justice Gita Mittal(Jammu & Kashmir High Court).”[9] 

“In the wake of such lockdown there has been an undeniable spike in the cases of domestic violence in many countries such as China, Spain, United Kingdom, and India and this pandemic has been now referred as ‘Shadow Pandemic’ for the violence against women and girls in the time of Corona. The black lashing impact of staying at home has specifically loomed the cases of violence against women and girls.”[10]

As per the reports of the World Health Organisation, “one in every three women across the globe experience physical or sexual violence in their lifetime.[11] This situation has left the conduct of abuser unchecked and therefore encourages more perpetration due to lack of sanctions”. 

The Jammu & Kashmir High Court in Re: Court in its own motion v. Union Territory of Jammu & Kashmir and Ladakh took suo moto cognizance of the plight of victims in domestic violence cases amidst lockdown and issued notices to the concerned authorities to submit an action report. Chief Justice Gita Mittal, in this backdrop, has, “issued notices to the Department of Social Welfare, Government of Union Territories, and State legal Service Authority to submit a report with regard to the steps taken by them regarding domestic violence or any kind of violence being faced by women or girls on the account of the implementation of the COVID-19 Lockdown.”

VIRTUAL COURTS V. LEGAL FIRMS

 With the breakdown of the novel Corona Virus and lockdown in India, the legal firms are now electronically communicating with their employees to get their work completed in the prescribed time limit. The firms which already are having the mechanism of online counseling would be benefitted in comparison to those which are new to this technology. This immediate shift of communication to digital communication will be difficult for those legal firms which are new to this technology and would now be rendered helpless with this changing scenario in India.

VIRTUAL COURTS V. YOUNG LAWYERS

The lawyers who just have graduated last year and have entered the world of this legal practice will find themselves in difficult scenarios due to a lack of work in this lockdown. These young lawyers are still interning and training themselves under the guidance of senior and accomplished advocates and it will be difficult for them to understand things from home which can be easily be understood during the court practice.

The imparting of practical knowledge and training is very important for young advocates will be missed out during this lockdown which definitely impacts their career but apart from this experience, the thing which will be having more effect is the economic impact on these young lawyers which would also discourage many young lawyers to continue in this field. The Indian economy is already at stake but with this lockdown, it will bring recession in the economy which will snatch employment and adequate chances of many young advocates in India.

ARE VIRTUAL COURTS IMPORTANT?

The Preamble of the Constitution of India commences with the solemn pledge to secure to the people of India, Justice- Social, economic, and political. The constitutional goals permeate Article 39-A under Part IV of the Indian Constitution which cast an obligation on the state to secure access of justice for all.[12]

The Supreme Court of India has reiterated the position to have equal access of justice for all in the case of Centre of legal research v. State of Kerala[13], M.H Hoskot v. State of Maharashtra[14], and SCAORA v. Union of India[15] where the court observed that “it is essential to ensure the speedy and fair disposal of the cases to ensure that the operation of the legal system promotes justice” and the court further made an observation that “Directive Principles are fundamental in the governance of the country which creates obligations and duty upon the state to observe in all its actions and to make meaningful to the fundamental rights guaranteed under Part III of the Indian Constitution.”

Thus if the society denies justice to the individuals, through its institution, expectations of human beings darken. Such loss of expectation may turn into dread which may further transform into despair. Such despair may form to commit unlawful offenses and that is why it is necessary that court should take all measures to redress the grievances of the citizens of the nation.

In this scenario of COVID-19 which has laid siege the whole nations and ground the whole world to come to halt with only necessities trudging upon it has become the need of the hour to have the Digitalization of courts and Virtual Courts as it is imperative and inevitable to keep the wheels of justice dynamic for an uncertain period of time. 

REMOTE FUNCTIONING: A WIN – WIN SITUATION

Therefore the balance lies in the remote functioning of the court and technology comes to the rescue. Looking to the present scenario of the circumstances created by COVID-19 there is a need for the Digitalization of the Indian Courts and the virtual court is the only method by which the social distancing is maintained while the judicial functions are discharged and justice is to be delivered.

CONCLUSION

The courts in India are one of the pillars on which the country’s democracy balances. But due to pandemic Supreme Courts and High Courts have limited themselves to the hearing of urgent matters only which is extremely important at this point in time. But courts in their own way have tried out their best to resolve and redress the grievances of the public by a creative solution to the problem such as setting electronic modes.

The Supreme Court of India has itself shown the way by hearing more than 593 matters and delivered verdicts in 215 cases via video conferencing method during the period of lockdown. And we all need more and more remote functioning by concerted efforts of all.[16]  

I would like to conclude this article with the famous remark of Anatole France, “The law in its majestic equality forbids the rich as well as poor to sleep und bridges, to begging in the streets and to steal bread.”


REFERENCES

[1] Vishesh Gupta, “ A saviour in the time of distress: Analysis of Act of God “ I-pleaders (March 26, 2020) https://blog.ipleaders.in/a-saviour-in-times-of-distress-analysis-of-act-of-god-provisions-in-law/.

[2] Harish Salve, “Corona and the Courts- COVID-19 Crisis is like wartime, Court must not restrict executive from taking decision, Times of India, April 21st 2020,2020 05:00AM) https://timesofindia.indiatimes.com/blogs/toi-edit-page/corona-and-the-courts-covid-19-crisis-is-like-wartime-courts-must-not-restrict-executive-from-taking-decisions/

[3] Paras joshi, “Functioning of Court in India and Abroad During Pandemic COVID-19 Pandemic”, Mondaq,(16th April 2020  https://www.mondaq.com/india/litigation-contracts-and-force-majeure/918068/functioning-of-courts-in-india-and-abroad-during-covid-19-pandemic?signup=true

[4] Kartik Dabas, “Digitalization of Indian courts, mitigating the hurdles Amid outbreak of COVOD-19 with post lock down approach” Live Law, (1st May 2020, 01:07 PM) https://www.livelaw.in/columns/digitalisation-of-indian-courts-mitigating-the-hurdles-amid-outbreak-of-covid-19-with-post-lockdown-approach-156047

[5] Suo Motu v. State of Gujarat (R/Writ Petition PIL No. 42 of 2020) Gujarat High Court Justice J. B Pardiwala and Justice Ilesh. J Vohra

[6] The Tribune, “ Nationwide Tally Crosses 50 K; Health Workers, Security personnel among infeceted” (May 06th 2020 10:10 AM) https://www.tribuneindia.com/news/coronavirus/coronavirus-tally-surges-to-49-391-in-india-death-toll-1-694-81132

[7] Harsh Mandar and Anjali Bhardwaj v. Union of India 2020 S.C.C Online S.C. 345

[8] Alakh Alok Srivastav v. Union of India 2020 S.C.C Online S.C. 345

[9] Re: Court on its own motion v. Union Territories of Jammu & Kashmir and Ladakh through Secretaries Social Welfare Department, Writ Petition (C) PIL No-/2020 decided on dated 16th April 2020.

[10] United Nations Economic and Social Council, “Commission on the Status of women sixty fourth Session, 9th -20th March 2020 https://undocs.org/E/CN.6/2020/3.

[11] World Health Organisation, “ Global and regional estimates of violence against women”, World Health Organisation catalogue, ISBN:9789241564625https://apps.who.int/iris/bitstream/handle/10665/85239/9789241564625_eng.pdf?sequence=1

[12] Justice Anand Venkatesh, “Rethinking access of justicein the time of COVID- 19, Live law, (23rd April 2020  11:52 AM) https://www.livelaw.in/columns/re-thinking-access-to-justice-in-the-times-of-covid-19-155661

[13] Centre of legal research v. State of Kerala A.I.R 1986 SC 1322

[14] M.H Hoskot v. State of Maharashtra A.I.R 1978  S.C 1548

[15] SCAORA v. Union of India (1993) 4 S.C.C. 441

[16] D. Bharatha Chakravarthy, “Of Lawyers, Court and the Remote- Possibility”, Live Law, (28th April 2020 09:41 AM) https://www.livelaw.in/columns/of-lawyerscourt-and-the-remote–possibility-155885

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