Access to Justice in India amid COVID-19
The author of this blog is Shaurya Shukla First Year student of Chanakya National Law University, Patna.
Novel Coronavirus a.k.a COVID-19 is a deadly
virus that had been captivating the life of many people across the world and it
was originated in Wuhan, China. This virus was declared a pandemic by the WHO.
WHO named it as COVID-19 to protect the virus from getting stigmatized for any
place or country? [1]
The novel coronavirus has
affected more than 70 lakh people across the globe and it has caused more than
4 Lakh global deaths. [2]This virus affects the respiratory system of a human
being and its symptoms include coughs, fever, and breathing difficulties. Many
Scientists researching to make a vaccine for this virus have tried to treat
this virus with antiviral drugs used against flu but they didn’t get any
positive response. Various nations, including India, had imposed a nationwide
lockdown to control the spread of the deadly virus, though the nationwide
lockdown has now been lifted in containment zones, the lockdown is continued.
So, in this situation, how the justice delivery system of India is supposed to
work?
Importance of Justice
Dispensing justice is a very salient
feature of the Indian judicial system, which comprises a hierarchical system of
courts i.e. Supreme Court as the apex court, High courts of the respective
states, and district court in each district of a state respectively. It is the
responsibility of the government to take all measures which are necessary to be
taken for dispensing justice at different levels because justice makes sure
that the laws are rational and prudent.
Mechanism Adopted by the
Courts in India
Due to nationwide lockdown,
the physical courts were not able to function. So, the chairman of e- committee
of the Supreme Court i.e. Justice DY Chandrachud proposed some guidelines for
the functioning of e-courts. The Supreme Court and high courts resorted to
virtual hearings because the physical hearing was not possible. Advocates have
to appear on virtual screens for pleading. [3]The supreme court is using email for
filing of the matter and conducting business. Supreme Court in its 7- page
direction expounded the reason for going online and it further directed the
high courts and the district courts to maintain the appropriate modal standards
necessary for the functioning of the virtual courts. Supreme Court reasoned for
such directions that, these steps should be taken to continue the proper
functioning of the vigorous judicial system of India.
Virtual Courts in Other
Countries
Various other countries
like New Zealand, South Africa, USA, Germany, etc. have also followed the
system of virtual courts for dispensing justice. All these countries are using
a different platform and ways for virtual hearings, for example, Germany is
using Microsoft teams whereas South Africa is using Zoom. The supreme court of
USA hears oral arguments by way of telephone and on the other hand criminal courts
of Norway read-only written submissions before passing an order in a rape case,
they have not heard any side before passing an order.
Challenges faced by the
Virtual Court System
So is it so? Is the problem
of dispensing justice amid COVID-19 is solved with this mechanism?. Well,
according to the author the answer to the above questions is “NO” because there
are many challenges that this mechanism is going to face. One of the major
challenges that this mechanism is going to face is that the lawyers and
litigants in India are not techno-savvy. This decision of the Supreme Court has
made the inefficiency of Delhi trial courts candid in front of the world.[4] There are six complexes of Delhi
trial court and all of these complexes are operating virtually only in urgent
matters such as bail. Litigants are complaining that they are unable to
participate.
The problems with this
system are:
·
Firstly the major proportion of the practicing lawyers in India is
technologically handicapped and they don’t know how to use the technology
required for virtual hearings.
·
Secondly, many litigants who reside in remote or rural areas would not
have a good internet connection. So, they will face difficulty in joining the
hearing.
·
Last but not least, however
nowadays everyone has a smartphone, but still many people are not able to
afford one. So this can become a clog in their way to justice.
The practice of the virtual
hearings have been carried out in a good way at high courts and the same must be
extended to the district courts as well.
Advantages Of Virtual
Courts Over Physical Courts And What Reforms Can Be Made?
The fastest made vaccine
for any virus was made in 4 years. According to this information, if we expect
the best possible scenario, then also it will take about 3 years to make a
vaccine for COVID-19. Until and unless there is no vaccine for this lethal
virus and the graph of the cases is on a spike, physical courts cannot be
resumed.
So the questions
which arise here are:
·
As we have no better option than the virtual courts in this situation,
do they have any advantages over physical courts?
·
can the virtual courts take place
of the physical courts when the situation gets back to normal?.
These questions will
be answered by the author as we proceed further.
Coming to answer on the
first question there are some advantages of virtual courts over the physical
courts. As we all know that we have to live in the new normal till we don’t
have any vaccine. In new normal virtual courts are the safest alternatives
available for dispensing justice.
Some advantages of the
virtual courts are:
·
It can save us a lot of time and travel costs because no one will have
to travel to the court for the hearing.
·
Paper[5]
filings will be eliminated, which will save lakhs of pages.
·
There will be no mess regarding dates available because the only the infrastructure required for the virtual courts will be a virtual device with a
decent internet connection, that is why the trails will be speedy because it
will cost less time to dispense justice in a system of virtual courts as
compared to the physical courts.
Coming to the second the question, it was made clear by Justice DY Chandrachud in some of the recent
addresses when he said that Virtual hearings won’t substitute physical hearings
but tech has potential. In some recent addresses like the webinar organized by
students of NALSAR University of law and his address in the e-inauguration the ceremony of the virtual courts in Tamil Nadu he said [6] “An open court hearing is the “spine”
of the justice delivery system and cannot be substituted by virtual courts” but
he also made it clear that technology has the potential to become the future of
justice. Justice Chandrachud also discussed some proposed reforms that if made,
will improve the functioning of the virtual courts.
The reforms proposed by
justice Chandrachud are as under:-
·
Not every lawyer is e-enabled so they should be provided with training
to make such lawyers adept with technology and Justice Chandrachud also
proposed the appointment of entry officers for such lawyers till they have not
become well versed in data feeding work.
·
E- Seva Kendras will be opened to facilitate hearings of virtual courts.
·
A platform will be created to provide a dashboard to the judges where
both digital files and e- files will be synchronized.[7]
· The privacy of the cases will be taken care of adequately.
·
E-Courts will be made friendly for the visually impaired and
disabled.
[8]Justice Chandrachud stated about
making sure that influential people will be given no upper hand in virtual
hearings. Justice Chandrachud also showed his concern about less number of
techno-savvy lawyers in India; he said that technology can become an incentive
for the students of premier law schools to enter into litigation instead of
joining law firms.
Conclusion
At last, the writer wants
to conclude by saying that yes, the virtual courts are the best possible option
of dispensing justice in the current scenario but, looking at their status quo,
they cannot take the place of the physical courts, but if some reforms are made
in the existing system of virtual courts they can become the normal court's post
COVID-19. If any other pandemic arises after COVID-19 the courts should be
prepared. Many scientists across the globe are saying that even if this
pandemic disappears, the countries will have to take all necessary safety
measures to be prepared for any unforeseen future pandemic. So, some serious
reforms as proposed by Justice Chandrachud and a decent internet connection
must be provided in every part of the country to make the robust judicial
system of our country prepared for any unexpected pandemic.
[1] Covid-19 Tracker, available
at https://bing.com/covid/local/india(last visited on 8 June 2020)
[2] What is COVID-19, https://www.theguardian.com/world/2020/feb/27/what-is-covid-19(last visited on 7 June 2020)
[3] Courts Today: virtual hearings,
written submissions, arguments over phone, https://indianexpress.com/article/explained/virtual-courts-robes-laywers-covid-lockdown-6412041/(last visited on 7 June 2020)
[4] Virtual hearings a real
challenge for the trial courts, https://timesofindia.indiatimes.com/city/delhi/virtual-hearings-a-real-challenge-for-trial-courts/articleshow/75795245.cms(last visited on 7 June 2020)
[5] Arbitration During And Post
COVID-19: A Perspective, https://www.livelaw.in/law-firms/articles/arbitration-during-and-post-covid-19-a-perspective-157553?infinitescroll=1(last visited on 8 June 2020)
[6] We are Conscious that every
lawyer may not be E-enabled: Justice DY Chandrachud during E-Inauguration of
virtual courts for Tamil Nadu, https://www.barandbench.com/news/we-are-conscious-that-every-lawyer-may-not-be-e-enabled-justice-dy-chandrachud-during-e-inauguration-of-virtual-courts-for-tamil-nadu(last visited on 8 June 2020)
[7] Id.
[8] Virtual courts won’t displace
open hearings, but tech has potential: Justice Chandrachud, https://theprint.in/judiciary/virtual-courts-wont-displace-open-hearings-but-tech-has-potential-justice-chandrachud/428575/ (last visited on 8 June 2020)
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