By: Shilpa Roy
With COVID-19 spreading like wildfire across the globe the judiciary must make full use of technology and create its own digital platform in hearing administering justice.
The dispute resolution proceedings whether in national courts or abroad are already experiencing the impact of COVID-19 outbreak. The Indian judiciary has come under immense pressure to innovate proceedings during this pandemic so as to strike a balance between public health and access to justice. It was in September 2018 that a three judge bench of the Supreme Court of India headed by Chief Justice Dipak Misra, Justice AM Khanwilkar and DY Chandrachud in response to a petition filed by senior advocate Indira Jaising under Article 32 of the Constitution of India allowed the live streaming of cases of Constitutional importance that take place in the court of Chief Justice of India. However it did not see actual implementation till the virus forced the courts to embrace the idea of online dispute resolution mechanism.
On April 6, invoking its powers under Article 142 of the Constitution, the Apex Court issued certain directions for the functioning of courts through video conferencing during the lockdown. The court directed the state officials of the National Informatics Centre (NIC) to collaborate with the respective High Courts and formulate a plan for the virtual functioning of courts. In its order, the Supreme Court had also indicated that the district courts would follow the video conferencing rules as formulated by the respective High Courts.
As the crisis hit the UK, the judiciary of England and Wales issued New Court Practice Direction 51Y (Audio Hearings in Civil proceedings) and practice direction 51Z (Stay of possession proceedings and extension of time limits) for COVID-19 period. To reform the judicial system, courts in England and Wales adopted new forms of digital technology and e-filing procedure. E-filing of cases involves software and hardware requirements. For instance, a user must have a personal computer with Windows, OS X or Linux; a web browser such as Mozilla Firefox or Google Chrome; the Adobe Reader 11 software; and a scanner. There are various other procedures including user registration by an advocate, filing and uploading the miscellaneous documents, e-signing the documents and payment of e-court fee. Thus, e-filings involve a certain amount of technical mastery and capability.
However the scenario is somewhat different in India. Most advocates and litigants are unaware, unequipped and unwilling to use technology. The e-filing system was introduced in the Delhi High Court in 2009. Initially it was introduced in 2013 in Company and Tax jurisdiction. In 2015 it was extended to Arbitration. In this process, the petitions and documents are filed electronically. A digital signature of the lawyer/litigant is needed for filing such cases. An e-filing kiosk in the High Court of Delhi to enable the lawyers desirous of acquaintances with the e-filing procedures has been set up. The Delhi High Court as compared to other High Courts in the country is far ahead in terms of technology. About 10 courts in the Delhi High Court function as e-courts. The entire credit for the success of the technology system in the Delhi High Court goes to Mr. Justice Badar Durrez Ahmed of the Delhi High Court, who retired as Chief Justice of Jammu & Kashmir High Court. In the Bombay High Court, e-courts started functioning from 2013. Initially they started with company cases, arbitration and conciliation, income tax appeals and suits. Now even writs, suits and testamentary issues are heard by e-courts. In the Madras High Court, the facility for e-filing of cases, which was initially only for bail applications, was launched on April 22, 2020. Filing of urgent cases through e-mail is also permitted now.
It is true that there is less pressure on the courts due to the pandemic situation but this will change once the lockdown is lifted. The proceedings post-lockdown shall be conducted keeping in mind the social distancing norms as there is no sure solution of the virus yet. The robust functioning of the judicial system post-lockdown will depend on how well-equipped our courts are and how delicate the public health condition is presently. While such tech-friendly facilities are available in the Supreme Court and the Delhi High Court, they are not available in the various other High Courts and district courts. The judiciary must formulate guidelines to reduce the need of physical presence of advocates, clients and judges within court premises to secure the functioning of courts in consonance with social distancing norms.
Today we not only use technology but we live technology. With COVID-19 spreading like wildfire across the globe the judiciary must make full use of technology and create its own digital platform in hearing administering justice. Although Indian judiciary has made much progress through the E-Courts Mission Mode Project, yet all the sectors are not well-equipped. The cooperation of all the concerned stakeholders is required in successful implementation and use of technology in the wake of COVID-19 outbreak. A policy must be formulated in the line of United States’ Bureau of Justice Assistance, 2007 on how courts can combat a pandemic situation. Such a policy would outline framework for systematic functioning of courts virtually as well as physically during COVID-19 crisis keeping in mind the ethos of the Constitution of India to preserve rule of law.