Social distancing is leading to much needed judicial reforms

A lockdown cannot result in locking courts altogether. The only method available for holding court hearings is through video conferencing.

Coronavirus—with its official nomenclature Covid-19 by WHO [like all human beings and pet animals such pandemics or tsunamis which create devastation are also christened by us]—has wreaked havoc. It remains unabated and its reach is growing by the day. A virus, which started three/ four months ago, has already engulfed almost all nations with alarming speed. Medical scientists are struggling to find a way out to contain it and eventually eliminate this devil, which resembles “Raktabeeja” and we need “Kali” to come to the aid of “Durga” to combat it. As of now, none of us have the right answers to deal with this menace. Undoubtedly, we will find the remedies and triumph this deadly disease.

But at present, we are in a stage of hit and trial—more in a preventive mode. Almost all the countries where it has assumed alarming propositions, including India, are in a state of lockdown. We are confined to our houses and are maintaining social distancing. Coronavirus has affected lives [people are dying of it], livelihood [it has resulted in mass unemployment] and lifestyle [people are in isolation in New Delhi, are not permitted to go out, whether it is for work or socialising]. It has thrown open physical challenges, economic challenges and psychological challenges of varied kinds. In this grim scenario with dark clouds, positive thinkers can spot silver linings as well and turn that to the advantage of mankind. There is a feeling that in the face of the threat of death, human beings have only begun to reflect seriously; the greedy heart is purified by the virus; the environment is no more polluted; nature has proved that it is mightier than humans; the virus has reminded us that there is an Almighty and humans are just humans.

But here, I do not talk of purification of the soul. As I said earlier, this virus is taking lives (for which medical profession has to find the answer), snatching livelihoods (for which economists have to find a solution) and impacting lifestyles. I am going to concentrate on the changed lifestyle which Covid-19 has brought about and various reforms which are taking place thereby. As Yuval Noah Harari puts it, “Yes, the storm will pass, humankind will survive, most of us will still be alive—but we will inhabit a different world.”

In this period of social distancing, though people are in isolation and confined to their own homes, there is an attempt to bring back economic activities to normal by adopting alternate means through the use of technology. There is a surge in online banking and banking with video conferencing, i.e., web-linking. Likewise, online shopping has taken a big leap. Essential commodities like medicines and groceries are home delivered. Employees are working from home with the use of e-technology. The reason is that even in such a state of affairs “life has to go on” and we are finding ways to do that. Will these changes will last till the demise of the coronavirus? What happens when everybody works from home and communicates only from a distance? What happens when entire schools and universities go online? These short-term measures, which have become inevitable at present, may become a fixture of life.

Let me discuss the above scenario in the context of the Indian legal system. Justice delivery is also an essential service. Wheels of justice cannot be halted because of the lockdown. Hospitals are open—for treating corona patients and also others who need immediate medical attention. Government and medical professionals have made an appeal to those suffering from such ailments where surgeries, etc., can be postponed without any risk to life—to postpone the same.

The same applies to the judiciary. Though the hearing of ordinary cases can be postponed, urgent cases need to be heard immediately. There will always be cases where litigants need emergent and immediate relief. That apart, in the time of lockdown, various kinds of events and happenings pose the situation when the courts matter. Many cases touching the various facets of coronavirus had been brought to the court in the last few days, necessitating the court’s interference. Further, it is the courts which “keep an eye on State forces; review arbitrariness State action; and are the last refuge of the voiceless” (Muhammad Khan and Aishwarya Mohapatra in an article published in a newspaper).

Therefore, a lockdown cannot result in locking the courts altogether. And the only method available for holding court hearings is through video conferencing. And this methodology, this mechanism to run the courts in a state of social distancing has given us an opportunity to bring about judicial reforms.

It is common knowledge that Indian courts are overburdened with cases. More than 30 million cases are pending in courts in India. It takes years in deciding a particular case. At times, justice delayed results in justice denied. In an era of globalisation where commercial matters have cross-border ramifications, inability to enforce the contractual obligations in time is becoming a dampener insofar as India’s ranking in ease of doing business, etc., is concerned. Not that the judiciary or the government is oblivious of this menace of huge arrears. Various measures have been taken from time to time to tackle the case load and some progress is also made in this direction. These steps include increasing the strength of the judges and timely filling up of the vacancies of judges, efficient management of courts and tribunals with proper court management and case management, accelerating alternate dispute resolution mechanisms like mediation and conciliation, etc., to ease the burden of the courts, reducing pendency in government litigation, which is the biggest litigant in this country by having a proper litigation policy and implementation thereof in true spirit. In this whole process of judicial reforms, it is also recognised that technology can play a significant role in bringing judicial reforms. Steps have been taken towards court automation in the form of efiling, e-payment, payment of court fee, etc. and even making court rooms which are e-enabled with the aid of audio and video conferencing facilities. Delhi High Court took the first initiative in establishing e-rooms by making certain court rooms paperless.

However, it had not extended the facility of hearing cases on video conferencing up till now, though video conferencing facilities have been made use of for quite some time now for doing remand cases by the magistrates where the accused persons are not physically brought to the court, but the hearing takes place with the accused persons remaining in jail itself. All these measures of judicial reforms, in normal times, have been at slow pace and did not significantly impact the court’s functioning, which remains slow paced. Maybe, all this is destined to change, as a positive side effect of Covid-19.

The silver lining of the coronavirus pandemic is that it has speeded up the pace of judicial reforms in this particular direction. Seizing this opportunity in adverse times, the Supreme Court recognised the use of technology for hearings of urgent matters. The Court gave series of directions for conducting urgent maters through video conferencing. Many High Courts have followed suit. One positive side of accelerating the process of e-technology is that it is not going to be a shortterm measure which would be used during the period of isolation. A step which has become inevitable at present, has the potential of becoming a fixture in the judicial system and is going to bring a paradigm shift in the manner in which hearings are conducted. As Cyril Amarchand Mangaldas puts it, “In a profession largely preoccupied with precedent, change and innovation have made limited headway with legal institutions in India. Then came Covid-19. Over the last month, we witnessed major leaps in the Indian judicial system to operationalise an ‘online only’ format of functioning. The speed of action has been impressive and is demonstrative of the fact that our courts are wellequipped to act fast and decisively.”

Such an automation of courts is going to bring varied kinds of reforms, and in particular the following:

1) Court hearings will be cost saving as various stakeholders may not have to travel from distances to attend court physically;

2) Would avert unnecessary adjournments because of inability of a particular lawyer or litigant to attend court physically, for any reason;

3) Witnesses could be examined via video conferencing, thereby saving time and money;

4) The adjudicatory process will undergo a major change in a positive direction, as it happens in some other jurisdictions, with the submission of written arguments, followed by limited oral hearing, wherever required;

5) It will result in a winwin situation for litigants, lawyers as well as the courts and bring about total transparency in the court system, apart from remarkable efficiency.

Having stated the positive side, let me put in a word of caution. In order to succeed it is imperative that judges and lawyers alike adopt this system with an open mind. As Justice Madan Lokur rightly remarks: “there’s a need for judges to change their mindset” and Mr Vaidyanathan fears noncooperation of lawyers. Both judges and lawyers should not shirk. There is an opportunity for all the stakeholders to reskill and upskill by embracing technology.

Let us hope that this period of social distancing becomes a new form of “distance socialising” and brings about much desired and awaited reforms in the Indian judicial system.

Justice A.K. Sikri is International Judge, Singapore International Commercial Court and a former judge of the Supreme Court of India. Views expressed are personal.