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Health Rule of Law

Is Justice Delivery not an Essential Commodity?

Courts are functioning at minimum capacity, taking up only extremely urgent matters; how does this affect litigants, lawyers and the justice system?

Sanchita Kadam 17 Apr 2020

judiciary

COVID19 has forced the courts to shut down, bringing justice delivery almost at a standstill. Here’s a look at how the justice system is trying to cope and what will be the aftermath of this lockdown.

Working days

The lockdown has also limited the number of days and hours the courts are functioning. The Bombay High Court Chief Justice Dharmadhikari issued a circular detailing that hearings will take place on only 5 days up to May 5 i.e. April 20, 23, 27, 30 and May 5 and the assignment has also been made to few judges. The reduction in number of working days as well as the limited hours of hearing is seriously jeopardizing the justice delivery system as a whole.

The instant action of the courts to shift to video conferencing as soon as the COVID19 epidemic became a serious issue is appreciated. The courtroom draws enough audience to become a matter of worry for social distancing norms. The problem lies with the prolongation of this status quo. While the instant reaction is warranted, the continuance of the same is not desirable. Neither for the litigants who wait for months for their matters to come up before the court nor for the justice system which is already struggling with ginormous case pendency.

The question remains, if the courts are functioning smoothly over VC, why are they only functioning for 2 hours and for such limited number of days? And if VC is not feasible option for daily functioning why can’t courts function within court rooms with limited hearings and restricted entry only for lawyers? Examination of witnesses comes at a later stage of hearing, hence at least cases can move up to that stage until this lockdown can come to an end. This will not only lessen the burden of the courts post lockdown but will also reduce the load on other court employees when it comes to procedural matters.

Delhi High Court has, however decided to increase the number of benches hearing urgent matters through VC. On the other hand, all pending matters (cases already assigned dates) from April 16 to May 2 have been adjourned to June and July. The District and Sessions courts are not all working from home. they are permitted to conduct hearings in court rooms while keeping social distancing norms in mind.

One wonders why the same cannot be emulated in high courts as well. Courts can allow lawyers to mention matters a day in advance through email and those who get a hearing the next date can visit court. That way the court’s time is also well utilised and only those cases get a hearing where the lawyers are in a position to present the case or follow the procedural requirements for that particular stage of hearing; considerably reducing court’s burden in the post lockdown period. This will avoid the paralysis of justice that is currently underway in India.

Digitization

With the lockdown in place, where lawyers were used to do their filings in the court premises have been compelled to learn how to do e-filings and make payments for court fees online. The younger generation of lawyers have managed to catch up with the e-filing system but the older generation is finding it difficult to get abreast with the same. In fact, the Delhi Bar Council appealed the Chief Justice of Delhi High Court to evolve a new system of hearing for advocates who are not computer savvy or technically sound.

Whether a particular matter will get a hearing or not depends upon the urgency of the matter and the discretion of the judge. If the matter manages to get a hearing, there are certain Standard operating procedures that are to be followed since the hearing will be on Video Conference, even to the lowest rung of courts. This includes having a more than 2 mbps internet speed or a 4G data connection, as per the Supreme Court’s SOPs. For any video conferencing to run smoothly, it is required that each participant in the VC has a fast internet speed so that the hearing goes smoothly. If that’s not the case, the hearing could get disrupted easily leading the court to give a next date, for directions or any other purpose, hence delaying the matter.

The digitization is not just an issue for the lawyers and litigants but for judges as well. VC hearings do not always go smoothly and it becomes difficult to maintain decorum. It is also faced with technical snags, delay in audio, which elongates the hearings or even frustrates the purpose of the hearing altogether. In one such instance in Rajasthan High Court, the judge was unable to hear the counsels clearly as they all spoke simultaneously and he adjourned 5 bail applications, as the process was not feasible for a hearing.

A lawyer practicing in the Delhi High Court said, “The court staff and registry is being extremely cooperative in helping us do filings of cases but it is difficult to get a hearing. I myself am struggling to get a hearing for my cases 3-4 days now but due to the “extremely urgent cases” norm, it is difficult.”

On the issue faced by lawyers coping up with the shift to such digitization, he said, “It is especially difficult for lawyers practicing only in subordinate courts as they are not technically savvy and find it difficult to do filings online, neither do they have strong broadband connection to facilitate a Video Conference hearing, if they manage to get a date. For lawyers who do not have this kind of resources, it is very difficult and they are ending up losing out on cases to other lawyers who have such resources.”

 

Impact on Litigants

Due to the courts only taking up limited number of cases, it is natural that a lot of litigants who had their cases set for these dates have lost out on their hearings and they remain adjourned till June/July in most cases. In India, it takes years for a case to get finally decided and this lockdown situation has only made matters worse. While some litigants understand that there is little the courts can do about it, some have voiced their concerns to their lawyers. The lawyer of Delhi High Court said, “Of course, they (clients) understand the situation and some of them are being patient but there are many who are frustrated that already their cases have been running for years and now this situation is making things worse.”

Impact on justice delivery

There are no second thoughts on what kind of impact this lockdown will have on the case pendency in courts. It also affects continuity in cases in the sense that if the case was in the midst of Examination in chief or cross examination of witnesses, which was to continue at the next nearest date, it has effectively come to a halt which has a probable adverse effect on witness testimony and breaks the flow of the case. This is just one small aspect of how a case could get affected, there are many such factors one can fathom. Ultimately, this lockdown is proving to be a big hurdle in justice delivery, not only because of the delayed justice but also because of its adverse impact on the case proceedings and a litigant who has been wronged, continues to be in that position for a longer time.

The Corrective measures

Interim orders

After this lockdown began, most courts issued orders declaring all interim orders in all matters to continue so as to not create any confusion. In a recent order, the Bombay High Court has declared all its interim orders as well as those of subordinate will remain in operation until June 15. This will avoid rush of lawyers and litigants to court as soon as the lockdown gets over since continuation of interim order leaves less scope for need of approaching the court until the date of operation ends.

Suspending vacations

Many High Courts as well as quasi judicial bodies, including tribunals have decided to suspend their vacations and work through them to make up for this gap. The National Green Tribunal, National Consumer Dispute Redressal Commission have decided to cancel their summer vacations to cope with the increasing load.

The lockdown aftermath

Post this lockdown, of course the court Registrars are going to be over burdened with new filings as well as submission of hard copies of cases registered through e-filings, which would then mean removing of objections, assigning registration numbers, assigning hearing dates and so on. Court rooms will be filled with lawyers trying to mention matters for urgent hearing, considering the long gap.

Allahabad High Court had already issued directions for the post lockdown period (which was stipulated to end by April 15) as follows:

·Complete sanitization and cleaning of court campuses, entry of public at large to be restricted

·Only those cases which are at the stage of disposal, order, final hearing, remand, bails will be taken up

·Presiding Officer/judge shall have power to restrict entry of persons in the courtroom. Lawyers as well as the clerks in the court room will follow social distancing norms and everyone entering the courtroom will wear masks

·Presiding Officer will decide at least two cases per day and advocate shall file written arguments. Only those cases where parties agree for hearing without appearance will be finally heard and decided.

·District judges will adopt mode of video conferencing , if possible, for disposal of cases

·There will be gap of 10 minutes between each case.

 

As per the National Judicial Data Grid, around 4.8 million cases are pending in high courts across India, as of March 2020. The number goes as high as 32 million cases pending in district courts all over the country. Additionally, new filings are still going on courts across the country through the online method.

Admittedly this is going be a tough year for all judicial bodies since there is still uncertainty on how they will resume work and when; whether social distancing will become a norm and will be needed to be followed for a few months; on the extra set of rules that will be needed to be followed  thus increasing load on the already burdened employees.

 

Related:

Covid-19: Does the Aarogya Setu app violate privacy?

Covid-19 deaths: Ash to ash, dust to dust

In defence of a Muslim security guard, who tested negative for Coronavirus

Is Justice Delivery not an Essential Commodity?

Courts are functioning at minimum capacity, taking up only extremely urgent matters; how does this affect litigants, lawyers and the justice system?

judiciary

COVID19 has forced the courts to shut down, bringing justice delivery almost at a standstill. Here’s a look at how the justice system is trying to cope and what will be the aftermath of this lockdown.

Working days

The lockdown has also limited the number of days and hours the courts are functioning. The Bombay High Court Chief Justice Dharmadhikari issued a circular detailing that hearings will take place on only 5 days up to May 5 i.e. April 20, 23, 27, 30 and May 5 and the assignment has also been made to few judges. The reduction in number of working days as well as the limited hours of hearing is seriously jeopardizing the justice delivery system as a whole.

The instant action of the courts to shift to video conferencing as soon as the COVID19 epidemic became a serious issue is appreciated. The courtroom draws enough audience to become a matter of worry for social distancing norms. The problem lies with the prolongation of this status quo. While the instant reaction is warranted, the continuance of the same is not desirable. Neither for the litigants who wait for months for their matters to come up before the court nor for the justice system which is already struggling with ginormous case pendency.

The question remains, if the courts are functioning smoothly over VC, why are they only functioning for 2 hours and for such limited number of days? And if VC is not feasible option for daily functioning why can’t courts function within court rooms with limited hearings and restricted entry only for lawyers? Examination of witnesses comes at a later stage of hearing, hence at least cases can move up to that stage until this lockdown can come to an end. This will not only lessen the burden of the courts post lockdown but will also reduce the load on other court employees when it comes to procedural matters.

Delhi High Court has, however decided to increase the number of benches hearing urgent matters through VC. On the other hand, all pending matters (cases already assigned dates) from April 16 to May 2 have been adjourned to June and July. The District and Sessions courts are not all working from home. they are permitted to conduct hearings in court rooms while keeping social distancing norms in mind.

One wonders why the same cannot be emulated in high courts as well. Courts can allow lawyers to mention matters a day in advance through email and those who get a hearing the next date can visit court. That way the court’s time is also well utilised and only those cases get a hearing where the lawyers are in a position to present the case or follow the procedural requirements for that particular stage of hearing; considerably reducing court’s burden in the post lockdown period. This will avoid the paralysis of justice that is currently underway in India.

Digitization

With the lockdown in place, where lawyers were used to do their filings in the court premises have been compelled to learn how to do e-filings and make payments for court fees online. The younger generation of lawyers have managed to catch up with the e-filing system but the older generation is finding it difficult to get abreast with the same. In fact, the Delhi Bar Council appealed the Chief Justice of Delhi High Court to evolve a new system of hearing for advocates who are not computer savvy or technically sound.

Whether a particular matter will get a hearing or not depends upon the urgency of the matter and the discretion of the judge. If the matter manages to get a hearing, there are certain Standard operating procedures that are to be followed since the hearing will be on Video Conference, even to the lowest rung of courts. This includes having a more than 2 mbps internet speed or a 4G data connection, as per the Supreme Court’s SOPs. For any video conferencing to run smoothly, it is required that each participant in the VC has a fast internet speed so that the hearing goes smoothly. If that’s not the case, the hearing could get disrupted easily leading the court to give a next date, for directions or any other purpose, hence delaying the matter.

The digitization is not just an issue for the lawyers and litigants but for judges as well. VC hearings do not always go smoothly and it becomes difficult to maintain decorum. It is also faced with technical snags, delay in audio, which elongates the hearings or even frustrates the purpose of the hearing altogether. In one such instance in Rajasthan High Court, the judge was unable to hear the counsels clearly as they all spoke simultaneously and he adjourned 5 bail applications, as the process was not feasible for a hearing.

A lawyer practicing in the Delhi High Court said, “The court staff and registry is being extremely cooperative in helping us do filings of cases but it is difficult to get a hearing. I myself am struggling to get a hearing for my cases 3-4 days now but due to the “extremely urgent cases” norm, it is difficult.”

On the issue faced by lawyers coping up with the shift to such digitization, he said, “It is especially difficult for lawyers practicing only in subordinate courts as they are not technically savvy and find it difficult to do filings online, neither do they have strong broadband connection to facilitate a Video Conference hearing, if they manage to get a date. For lawyers who do not have this kind of resources, it is very difficult and they are ending up losing out on cases to other lawyers who have such resources.”

 

Impact on Litigants

Due to the courts only taking up limited number of cases, it is natural that a lot of litigants who had their cases set for these dates have lost out on their hearings and they remain adjourned till June/July in most cases. In India, it takes years for a case to get finally decided and this lockdown situation has only made matters worse. While some litigants understand that there is little the courts can do about it, some have voiced their concerns to their lawyers. The lawyer of Delhi High Court said, “Of course, they (clients) understand the situation and some of them are being patient but there are many who are frustrated that already their cases have been running for years and now this situation is making things worse.”

Impact on justice delivery

There are no second thoughts on what kind of impact this lockdown will have on the case pendency in courts. It also affects continuity in cases in the sense that if the case was in the midst of Examination in chief or cross examination of witnesses, which was to continue at the next nearest date, it has effectively come to a halt which has a probable adverse effect on witness testimony and breaks the flow of the case. This is just one small aspect of how a case could get affected, there are many such factors one can fathom. Ultimately, this lockdown is proving to be a big hurdle in justice delivery, not only because of the delayed justice but also because of its adverse impact on the case proceedings and a litigant who has been wronged, continues to be in that position for a longer time.

The Corrective measures

Interim orders

After this lockdown began, most courts issued orders declaring all interim orders in all matters to continue so as to not create any confusion. In a recent order, the Bombay High Court has declared all its interim orders as well as those of subordinate will remain in operation until June 15. This will avoid rush of lawyers and litigants to court as soon as the lockdown gets over since continuation of interim order leaves less scope for need of approaching the court until the date of operation ends.

Suspending vacations

Many High Courts as well as quasi judicial bodies, including tribunals have decided to suspend their vacations and work through them to make up for this gap. The National Green Tribunal, National Consumer Dispute Redressal Commission have decided to cancel their summer vacations to cope with the increasing load.

The lockdown aftermath

Post this lockdown, of course the court Registrars are going to be over burdened with new filings as well as submission of hard copies of cases registered through e-filings, which would then mean removing of objections, assigning registration numbers, assigning hearing dates and so on. Court rooms will be filled with lawyers trying to mention matters for urgent hearing, considering the long gap.

Allahabad High Court had already issued directions for the post lockdown period (which was stipulated to end by April 15) as follows:

·Complete sanitization and cleaning of court campuses, entry of public at large to be restricted

·Only those cases which are at the stage of disposal, order, final hearing, remand, bails will be taken up

·Presiding Officer/judge shall have power to restrict entry of persons in the courtroom. Lawyers as well as the clerks in the court room will follow social distancing norms and everyone entering the courtroom will wear masks

·Presiding Officer will decide at least two cases per day and advocate shall file written arguments. Only those cases where parties agree for hearing without appearance will be finally heard and decided.

·District judges will adopt mode of video conferencing , if possible, for disposal of cases

·There will be gap of 10 minutes between each case.

 

As per the National Judicial Data Grid, around 4.8 million cases are pending in high courts across India, as of March 2020. The number goes as high as 32 million cases pending in district courts all over the country. Additionally, new filings are still going on courts across the country through the online method.

Admittedly this is going be a tough year for all judicial bodies since there is still uncertainty on how they will resume work and when; whether social distancing will become a norm and will be needed to be followed for a few months; on the extra set of rules that will be needed to be followed  thus increasing load on the already burdened employees.

 

Related:

Covid-19: Does the Aarogya Setu app violate privacy?

Covid-19 deaths: Ash to ash, dust to dust

In defence of a Muslim security guard, who tested negative for Coronavirus

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