There is a famous saying – “When the wind of change blows, some people build walls, others build windmills!”
In a time zone when working from home takes shape of the ordinary, when one fears to physically greet their own loved ones, when the Governments all over the world encourages staying at home rather than getting out of the house and when health and safety of all the individuals in a country takes utmost priority, it is evident that a tsunami has hit the human kind in the worst possible way.
The cause of this tsunami, Covid-19 or popularly referred to as the Corona virus has literally steered its way throughout the world and has been recognised as a pandemic by the World Health Organization, and is also visible all across the globe. The Virus has infected more than 2,397,216 people worldwide and caused 162,956 deaths. India too, like most of the other nations has fallen prey to the virus and all systems have come to a standstill.
The initial hit of the pandemic has been taken by the Legislature which has been burdened with the medical and economic welfare of 1.3 billion population of the country. The Executive didn’t lag far behind in ensuring that the legislative decisions were being put in action and precious lives are being secured and saved. With the spread of the pandemic, harsh measures have had to be taken to control and circumvent as far as possible the spread of the Virus. Many lives at present, are in the middle of the pandemic war field surrendering their own self to ensure that not one single person is infected by the dreaded Virus and those who are, can be treated and sent back to the comfort of their loved ones.
However, it is well understood that in our Federal structure of scheme that arises out of the Constitution of India, the people of India, are governed and secured by three main pillars i.e., The Legislature, The Executive and The Judiciary, the functioning of these organs cannot take place in isolation, they are all inter dependent on each other for maintaining equilibrium and the socio economic fabric of our country.
What assumes importance in the given scenario is that how best the third organ, i.e., The Judiciary can function to bring about a synergy in the efforts of the Legislature and the Executive.
The Judiciary, at present, has been consigned to a position where the scales of justice are struggling to balance the discomfort that this Virus has caused in its functioning. As a measure to combat the inertia, the Hon’ble Supreme Court accepted the winds of change and choose to build windmills. With the introduction of e-functioning of courts, there has been a paradigm shift for the legal fraternity, from the active bustling corridors of courts to the quiet and solitude of the sitting in front of a machine and addressing our Hon’ble Judges. Video Conferencing seems to be the saviour of the Judiciary and the legal fraternity.
But the question that arises, is it enough?
If the temples, where justice is dispensed, are put under the scope of strictly measured boundaries, we may be leading to a phenomenon that may be christened as “Legal Emergency”,
And Is our Judicial system equipped to handle the present or future legal emergency that may arise as a consequence of the “Social Emergency” caused by the Virus, which our country is presently going through.
Is it possible to bring the vast realm of legal functioning into a restricted mode of the “digital new normal”?
The response has to be affirmative because there is no other choice but what would be of extreme importance is to comfort the class of litigants, independent lawyers, small/ mid-tier law firms and chamber practitioners, which constitute a major part of our legal community and are largely reliant on fee paid by individual clients, small and mid -size business owners.
But one can’t be oblivious to the struggles faced by lawyers and litigants today in adjusting to the “digital new normal”. While most lawyers may not have access to elaborate software systems which help in storing their entire legal data on a server online, the lockdown situation makes it worst as one doesn’t have physical access to files and papers either. With the unavailability of support staff, it is a challenge in gaining familiarity with e-filing, a system, which was not in place as yet for majority of the Courts prior to the Pandemic. With the gaps in e-filing rules and practical hindrances in getting access to documentation stored in files at their offices or chambers, the task of now e-filing urgent applications/petitions in matters which were previously filed in hard copy, is also getting tougher and more difficult with each passing day.
The answer thus lies in not only making available user-friendly technology with access to both lawyers and litigants but also laying out a strategic revival plan for staggered movement of lawyers. Further, instead of throwing the spotlight on digitalisation to meet universal standards, the focus should move to online systems which are easy to adapt to by all litigants.
The concept of digitalising Judiciary is not new and has its genesis as far back as in 2004, a project named the “National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary-2005” had been conceptualised by the e Committee of the Supreme Court of India. The plan came with a three phased strategy to digitalise the Judicial System in India. As per the “Objectives Accomplishment Report” filed by the e Committee of the Supreme Court of India in the year 2019, the aforementioned plan has successfully completed most part of Phase II with a special mention with regard to e-filing and videoconferencing with for all the Courts with the Jails. 
Prime Minister Narendra Modi while addressing the Golden Jubilee celebrations of Bar Council of India, at Mahatma Mandir in Gandhinagar in March’2014, stated that;
“Convergence of technology and the judicial system is the need-of-the-hour. We need to go digital and adopt online analysis of legal cases. Dissemination of legal knowledge to the common man will also go a long way in improving the law and order situation in the country.”
Optimistically speaking, the advent of technology in the Legal system while at a developing stage can provide an intermediate solution in the current backdrop, but to believe that there can be complete dependence and that phase III would bring in miraculous changes may not be advisable.
The cracks have evidently shown up in executing the same, where while on one hand the Supreme Court has directed and urged all the High Courts and District Courts to adopt video conferencing for robust functioning of the judicial system yet on the other hand the proceedings have been restricted to only “Urgent Matters”.
This provokes the Lawyer and the Litigant to think if access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India, then why can an arrangement not be brought about which does not distinguish between urgent and non-urgent matters. This is particularly important to highlight since the category of ‘urgent’ matters can never be made exhaustive or streamlined and in the absence of any guidelines to this effect, there is huge discretionary burden on the Registry and the Hon’ble Judges for culling out matters that fall within the purview of “Urgent” which again leaves the legal fraternity fumbling for their economic survival and for the Litigants for their prayers to get justice from the Courts.
In light of the above, the author is hereby offering suggestions which may be considered to ensure the smooth flow of the pending cases and fresh cases by utilising the existing technologies or otherwise to maximum potential, during or after the effect of COVID 19;
For the sake of clarity, they are divided into two parts
I. SOS measures to be adopted during the Lockdown and;
II. Measures for revival of judicial system Post lockdown.
I. SOS MEASURES THAT MAY BE ADOPTED DURING THE LOCKDOWN
A. Partial working of the Law Offices
The Ministry of Home Affairs vide an order dated 15.04.2020 has allowed the partial upliftment of the lockdown in certain sectors, including private and commercial establishments of even non-essential items from the 20th of April 2020, subject to certain restrictions. It is suggested that lawyers should be allowed access to their offices or Chambers for collection of files and other related administrative work subject to the social distancing norms and whilst maintaining the required protocol.
Further, the State Governments may invoke the provisions of the Essential Service Maintenance Act (ESMA) whilst drawing from the central legislation, and thereafter coordinate with the Parliament or the Union to declare the working of the “Legal System” as an essential service by way of a Gazetted notification, in order to ensure that peace and harmony is maintained, especially during such turbulent times.
B. Video conferencing for fresh and pending matters
As has been stated above that the Hon’ble Supreme Court has permitted the use of video Conferencing for the Urgent Matters, however, the same system may also be utilised to hear fresh and pending matters to ensure that a backlog does not get created.
Further, client conferences and evidences can be held and recorded via video conferencing. Apart from hearing urgent matters, the courts could also hear matter which are just listed for final hearing and the pleadings stand completed. In fact, even in matters where the main counsel is located in a different state, video conferencing can be used as a medium to conduct the proceeding.
Leading by example, Delhi High Court Judges, Justice Hima Kohli and Justice Subramonium Prasad on 21.04.2020, held a virtual court with Hon’ble Justice Kohli in Delhi and Hon’ble Justice Prasad in Chennai, exemplifying that hearings across state borders can also take place with ease.
UK has enacted the Coronavirus Act 2020 which inter alia provides for expansion of availability of live links in criminal proceedings, use of live links in legal proceedings: Northern Ireland, Public participation in proceedings conducted by video or audio, etc.
C. The nucleus of the Justice system could be Written Pleadings
Focus should be placed on written pleadings. Brief summary of arguments, written submissions may be used to plead to the court instead of oral arguments. [ Similar system exists in UK, where the parties even make draft order which subsequently receive the consent of the Judge]
D. Timelines to be decided for the conduct of proceedings online
It is often the case that Advocates in certain matters argue indefinitely for long stretches, thereby taking away the time from the court to hear large number of cases. The consequence of the same takes shape of an adjournment in the regular course, wherein due to paucity of time, the matter gets adjourned. However, this practice can be regulated and depending on the nature of the matter/ role of the party/stage, certain specific time-limits could be allocated to each of the Advocates arguing through video conferencing. This would ensure more productivity during the course of a working day.
E. Free Access to Virtual libraries
More often than not, the budding lawyers need access to the libraries in the courts for research. Keeping in mind the norms of social distancing, virtual libraries could give free access to lawyers having maximum experience of 5 years to enable them to continue with their work without the pressure of having to pay in these turbulent times.
F. Permission to file Appeals:
Taking a cue from other Common Law jurisdictions, the lower courts including the High courts should be empowered to also decide upon issuing permission to appeal against its judgement or orders to higher Appellate courts without which no party can file an appeal as a matter of right. That would further reduce or at least limit the increasing burden of appellate courts.
II. MEASURES POST LOCKDOWN.
APART FROM VIDEO CONFERENCING THESE MEASURES CAN ALSO BE TAKEN BY COURT TO STOP OVER CROWDING IN THE COURT PREMISES AND TO MAINTAIN EFFECTIVE SOCIAL DISTANCE:
A. E- Service of notice by Registry
In order to mitigate any speculation from the opposite side and to avoid physical service, service to be done via the Registry through online portals.
B. Specialised Cause lists and E-Filing of matters
Cause lists to be prepared in accordance with utmost priority given to fresh urgent filings. Otherwise too, all filings to take place electronically. The cause list could entail only those matters for physical proceedings which cannot be taken up via video conferencing, eg., matters where evidence of accused needs to be recorded, unless the jail has provision for video conferencing.
C. Restriction on Advocates/offices of Law firms/Individual Chambers
As per current medical evidence, the virus has severe side-effects on those individuals who have an underlying disease, as well as those who are aged above a certain age limit. Keeping in mind these precautions, movement inside courts could be allowed in the following manner;
- Temperature check to be organised at each entrance. Only Advocates to be allowed entry to the court premises, not the clients.
- Advocates above 60 years of age and those with an underlying health disease may be exempted from physical presence in courts and may be allowed to appear within the comfort of their homes or offices through video conferencing to ensure their safety.
- To avoid crowding, the practice of hiring multiple Senior Counsels by one client to be discouraged.
- Senior Counsels to be encouraged to be assisted inside court premises by only the Advocate on Record or briefing Counsel.
- Entry of Interns to be temporarily restricted in all courts.
- Functioning of canteens and libraries shall be barred.
- Similarly, Clients may not be permitted to be entertained in Consultation rooms.
- The younger bar members may be permitted within the court premises only to attend to their respective matter.
- Senior Counsels must encourage the younger bar members to make themselves available over video conferencing for the purpose of briefings.
- No physical client meetings in the office or chambers of the Advocates, only through Video conferencing.
- Emails from the Client granting authority to the Advocate may be permitted to be used in place of a Vakalatnama.
- Most importantly, entry of only those Advocates be allowed who have matters listed on a particular day. The same could be regularised by generation of an e-pass based on the unique identity of the Advocate appearing before the court.
- Use of chambers may also be restricted only for purpose of collecting files and documents.
- Offices of Law firms and chambers may be advised to work with half the work force changing alternatively, including one staff and registered Court Clerk only, with proper social distancing.
Further, for violations of any of the abovementioned directives, the courts may impose penalties and hold the respective parties in contempt of its orders. Special penalties for Advocates filing frivolous litigation.
D. Prevention of overcrowding of the Courts
In order to prevent overcrowding of the Court premises, it may not be out of place to suggest that as has been done on various occasions earlier, in times of emergency, proceedings have taken place even at the early hours of the morning from the residence of the Judges, this may be adopted in some situations keeping the current scenario. Further, functions of a Civil Judge, having a low pecuniary jurisdiction could remain suspended, rather, the matters pending before them could be referred to an ADJ.
The suggestions are not an exhaustive list but may be put to practical use so as to resurrect the legal system and get the legal fraternity in motion which currently is the need of the hour. It is no doubt that the aforesaid suggestions require smooth coordination between the respective bar councils of the States and the respective officers of the Court along with the Hon’ble Judges of various Courts all across the nation. On a positive note, the Judiciary and the legal fraternity can lead by example to ensure that the justice can be delivered at all times to come from any place at any given time and such pandemics cannot be a stumbling block in the dispensation of justice.
Richard Susskind, in his book titled “Online Courts and the Future of Justice” while addressing the importance of digitalisation and modernisation of the Court Structure stated;
“Online courts provide ‘online judging’ – the determination of cases by human judges but not in physical courtrooms. These ‘extended courts’ provide tools to help users understand relevant law and available options, and to formulate arguments and assemble evidence. They offer non-judicial settlements such as negotiation and early neutral evaluation, not as an alternative to the public court system but as part of it.”
On this note, let’s infuse a gradual positive shift towards digitalizing the legal system while providing a cushion so the windmills of change don’t blow us away.
AUTHORS: Ms. Ridhima Verma (Associate), Ms. Ruchi Kohli (Partner), Mr. Yash Mishra (Partner) Mr. Sonam Sharma (Partner) and Team of Alliance Law Group, New Delhi.
 Globally, as of 2:00am CEST, 21 April 2020 reported to WHO.
 E-Courts Projects, Phase-II, Objectives Accomplishment Report as per Policy Action Plan, Supreme Court of India, (https://ecourts.gov.in/ecourts_home/static/manuals/Objective%20Accomplishment%20Report-2019.pdf), last visited on 22.04.2020 at 9:00 pm.
 Circular issued by Supreme Court of India, dated 23rd March, 2020, (https://main.sci.gov.in/pdf/cir/23032020_153213.pdf), last visited on 22.04.2020 at 9:00 pm.
 Order issued by Ministry of Home Affairs, dated 15th April, 2020, bearing no. 40-3/2020-DM-I(A), (https://www.mha.gov.in/sites/default/files/MHA%20order%20dt%2015.04.2020%2C%20with%20Revised%20Consolidated%20Guidelines_compressed%20%283%29.pdf);last visited on 22.04.2020 at 9:00 pm.
 Coronavirus Act, 2020 (http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted); last visited on 22.04.2020 at 9:00 pm.Disclaimer: The views or opinions expressed are solely of the author.