M E D I A   L A W   

      I N T E R N A T I O N A L   ®

     


Copyright © Media Law International 2020. All Rights Reserved.                                                                                                              

Specialist Guide to the

Global Leaders in Media Law Practice

Steps in the wake of COVID-19

In an unprecedented situation, where the COVID-19 virus has mandated that the system of courts in this country be revamped, at least for a short period of time, to ensure that large groups of people are not gathered at any given point of time, till this pandemic passes, the judicial bodies of India promptly modernized their procedures. Physical filing of lawsuits converted to e-filing and arguments and hearings in Court premises transitioned to video conferencing. While many businesses and work places have shut down all over the world, the Justice System does not have the liberty to shut its doors,even temporarily.


Therefore, in order to minimize the spread of the virus and simultaneously hear the most urgent and pressing matters, the Supreme Court of India, tookSuo Moto cognizance of the situation and passed guidelines for the hearing of urgent matters through Video Conferencing, in the apex court and its subordinate courts, in the case titled “In Re Guidelines for Court Functioning through Video Conferencing During Covid-19 Pandemic”.


Through these guidelines, the Supreme Court has enabled the “temporary transition” to Video Conferencing and has directed the High Courts to not only choose the modality that suits them best, but also devise the same for the District Courts subordinate to it. In addition to Video Conferencing, the apex Court has also facilitated 24*7 e-filing facilities for litigators.


At the outset, the Apex court observed that Video Conferencing is not new to the procedures of law. A further note was taken aboutMaharashtra v Praful Desai and the Hon’ble Supreme Court of India held that “developments in technology have opened up the possibility of virtual courts which are similar to physical courts”and recording of evidence through video conferencing would be considered to be as per ‘procedure established by law.’


Therefore, the apex court, while formulating the guidelines, observed that the call of physical distancing is not merely a matter of discretion, but of duty. The Court recognized that the Supreme Court and various High Courts have already employed video conferencing for the dispensation of justice and therefore, it is necessary for the Supreme Court to issue the following directions for the same, under the jurisdiction conferred by Article 142 of the Constitution:


1. All measures taken, and that shall be taken, by the Supreme Court and the High Courts in

furtherance of the need to reduce physical presence within court premises and to secure functioning of

the Court within the guidelines of social distancing shall be considered lawful;


2. The Supreme Court and all High Courts are authorised to adopt measures to ensure robust

functioning of the judicial system through the use of video conferencing;


3. Every High Court is authorised to determine the modalities which are suitable for the temporary

transition to the use of video conferencing technologies;


4. In case of any complaints, all concerned courts shall maintain a helpline where complaints can be

reported during or immediately after the conclusion of the hearing. Any complaint lodged thereafter shall

not be entertained;


5. Every district court shall adopt the mode of video conferencing prescribed by the respective High

Court;


In addition to the above, the Hon’ble Court stipulated the means of redressal for litigants who do not have the means for or access to video conferencing facilities, guidelines for the recording of evidence through video conferencing and prescribed powers to the presiding officer to ensure that the number of persons in a court room is not many.


In furtherance of these guidelines, the various High Courts in India have drawn up their own set of guidelines and directions for the listing of urgent matters during this lock-down and the conduct of hearings on the same through the mode of video conferencing. The Delhi High Court, which previously had guidelines in place for recording of evidence through video conferencing, has now begun hearings for urgent matters through this process as well.


Need of the Hour

Given the urgency of adoption of video conferencing and e-filing in the wake of COVID-19, the Indian Judiciary did not have the luxury of time to transition into a fully developed\ equipped and uniform platform to enable these measures for Courts at all levels and for people from all sorts of economic and social backgrounds.


Since the first step has been taken towards technological advancement in the Indian Justice System, the Indian Judiciary may, along with the appropriate private or public bodies, consider the option of devising means and detailed procedures to enable all interested and necessary parties in a dispute, their litigators and other personnel, such as police officers, to attend hearings remotely and contribute to the same effectively, either in the form of audio—visual assistance or documentary assistance that is provided to the Court through such platform during the course of the proceedings.


Way Forward - Making this Development Permanent

After bypassing the initial lacunae and kinks in the system, it appears now that e-filing and video conferencing is a time and cost effective method of conducting proceedings. While many argue that this advancement in the procedure of the Judiciary was long overdue, it is noteworthy that the judicial bodies in India were successful in implementing a system to allow justice to prevail, albeit remotely, while the entire world went into a complete shut-down.


It would seem appropriate that this endeavour of the Indian Judiciary continues to be implemented and effective even after the immediate threat of the COVID-19 virus has passed us. That is to say that, while the present health emergency provided the necessary push to implement and adopt a technologically advance system of filing documents and conducting hearings, this time of lockdown and physical distancing will act as trial run for a complete transition to these new procedural developments made by the Judicial system, which would then go on to be put into force in other situations, wherever appropriate.


The following compelling factors may foreseeably play a major role in further modernizing and transitioning to technology of the Indian Judiciary:


1. File Transfers:As the operations of the Courts stand today, the presence of the physical case files

are pertinent to the hearing of the matter. A complete transition to e-courts would reduce the

dependency on physical files, of both, the Courts and other stakeholders in the pending matters.


2. Allocate time for hearings:Switching to video conferencing, along with scheduling of the hearing

time slots for every matter, would not only make the system substantially more efficient and effective,

but may also reduce travel to Court for routine hearings or adjournments.


3. Improved logistics:In furtherance of the aforesaid argument, increased time efficiency, and better

management of resources would improve the logistics involved in scheduling of matters and their

subsequent disposal, thereby substantially reducing the burden faced by the Judiciary.


4. Procedural and Court Registry related logistics:A transition to e-filing and subsequent complete

digitisation of the files of past disputes would reduce the dependency of Indian Courts on man-power for

the purposes of filing and maintaining those files, which in turn would substantially reduce the margin for

error and omission when it comes to the logistics involved in dealing with physical files.


Digitisation and employment of artificial intelligence in issuance of summons and notices, service related

aspects would also streamline the process of justice delivery systems as well as avoid any leakages or

missing timelines. Service of summons through electronic modes such as email, WhatsApp etc. Has

been progressively adopted within the procedures of the court.


5. Backlog of cases: It is no secret that the backlog of cases in India has seen a steady growth despite

multiple measures being taken by Courts to increase the number of judges or fast track the disposal of

pending matters.


In situations like the absence of litigators, litigants, police personnel etc. and in

situations like the current one, the facility of video-conferencing would enable parties, litigators and

officials to attend hearings even when they are unable to come to Court premises, thus reducing the

need for unnecessary adjournments.


6. Ease of Access:While the facilities and infrastructure to support video conferencing has been present

for a considerable period of time now, the option of availing this opportunity had not been explored

extensively and was merely used as a measure of last resort.


However, if adopted regularly, these

modernised facilities for conducting of proceedings would considerably reduce the hassle faced by

litigants and witnesses in travelling across the country, sometimes the world, to attend hearings and

consequently disrupting their day to day life.


7. Environmentally Sustainable: The transition of all courts into E-courts and the availability of 24*7 e-

filing would reduce the carbon footprint of the Indian judiciary which is estimated to be using 11

billion sheets of paper per year. In addition to this, doing away with the need to physically be

present in Court for a hearing would lower the carbon emissions that result from litigators and parties

travelling from one court to another, sometimes multiple times a day.


8. Economically Feasible: Needless to mention, in the absence of compulsory travel to and from Courts,

filing of physical copies of pleadings and documents, in addition to the service of these pleadings and

documents to every party of a lawsuit or dispute, the economic strain felt due to court proceedings

would be significantly reduced.


9. Open Courts: India has the system of Open Court Proceedings to enable transparency and

accountability which is essential for the healthy, objective and fair administration of justice. Enabling

video conferencing, along with the option to live stream proceedings would make the same much more

effective as it would enable the citizens of India to literally have justice on their fingertips.


It would, of course, be unreasonable to expect a system that is as vast and extensive as the Indian Judiciary to completely switch to a new logistical system overnight. However, it seems that after the urgency of the COVID-19 virus has passed, a phase wise adoption of these new procedures may be adopted, starting with matters which require this transition the most in the interest of prevailing justice.


In fact, in the interest of the recently celebrated World Intellectual Property Day, it would be apt if an innovative and technologically enhanced platform is devised by the Judiciary to develop a time and cost efficient mechanism of filing and hearing disputes, while simultaneously furthering the cause of environmental sustainability.


As per the current state of affairs, the nationwide lockdown that had been imposed in India on March 24, 2020 has been extended to May 03, 2020. While it is still unclear as to whether the lock-down would be lifted on the said date, it is rather important to note the necessity of resuming normalcy in our Courts in a step wise fashion. This need has been recognized by the Delhi High Court Bar Association, which has given the following suggestions regarding “Phased/Graded Restoration of Normalcy Plan for the Courts at Delhi”:


a. In a phased manner, physical Court hearings have to be commenced with meticulous and scrupulous

compliance of social distancing norms, wearing of masks, etc.;


b. Courts have to be operational beyond providing just urgent relief, so the scope of matters that may be

listed should be enlarged to encapsulate injunctive reliefs, suspension of sentences, objections to

arbitration awards, execution petitions, criminal appeals, etc.;


c. To avoid rush of filings when Courts re-open, e-filing/online filing maybe allowed. Further, petition

boxes may be set up with a system in place to acknowledge the filings made therein;


d. Access to the Chamber Block be given to lawyers to prepare for cases and access files, computers

and other resources. Further, client conferences be permitted only after Court hours;


e. Shops and kiosks inside the Court premises should remain shut, with the exception of the cafeteria,

which would permit only ‘take away’ options; and


f. Only one entry point per court room building to be allowed, and entrants may be subjected to thermal

temperature scanning;


In addition to this, the DHCBA has also recommended that Public conveniences must be maintained with the highest level of sanitation, and DLSA and the Mediation centre may not be made functional till normalcy is restored. However, since Arbitration proceedings can be conducted without the presence of the litigant, Arbitration Centre may be made functional.  


It would, of course, fall onto the authorities to determine which matters would be of pressing importance once the lock-down is lifted. However, it is imperative that a mechanism be devised to ensure that even after regular work resumes, physical distancing is maintained, and person-to-person contact is reduced to the minimum in court premises to ensure that the pandemic does not return or exaggerate itself beyond control.  

The Indian Judiciary and Coronavirus


Written by Tusha Malhotra & Pankhuri Malik

Anand and Anand  

 REGIONS WE COVER

 Middle East and North Africa

 North America

 Asia-Pacific

 Western Europe

 Central and Eastern Europe

Pankhuri Malik is an Associate at Anand and Anand. A graduate from Symbiosis Law School, Pune, Ms Malik joined the firm in June of 2017. Assisting Pravin Anand and Ms Malhotra, she is engaged extensively in Trademark and Patent infringement disputes.  

Tusha Malhotra is a team member representing Novartis in Novartis v. UOI, first case on interpretation of Section 3(d), Patents Act before the Supreme Court of India. Ms Malhotra also represents Merck, in Merck v. Glenmark, first patent case decreed in favour of the plaintiff in a highly contested suit under the Patents Act, 1970. Ms Malhotra is also:


Ms Malhotra is actively involved in public engagement. Most notably, she participated in an initiative by CIPAM which organised a massive effort to reach out to school students across Rajasthan in 43 KendriyaVidyalayas at once.

Biographies

Top

Home

Pankhuri Malik

In 2018, in the case of Swapnil Tripathi v Supreme Court of India, the Supreme Court of India had advised that it was time the judicial bodies in India considered modernizing their systems and advancing towards conducting of court proceedings through video conferencing. While the Supreme Court and various High Courts and District Courts in India were equipped with the infrastructure of conducting evidence and other court proceedings through video conferencing, the need to step into the modernised way of conducting hearings had not arisen until March of 2020, when the need for advancement in procedures became pressing due to nationwide lockdowns imposed by the Central Government.

Tusha Malhotra

 Featured Articles

 Firm Profiles

 Firm Rankings

 Order a Copy

 Enhance Your Profile

INDIA