"It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. …It is in the Nation's confidence in the judge as an impartial guardian of the rule of law."
― John Paul Stevens, former judge of the Supreme Court of United States
EMPHASISING THE CASE BEING MADE OUT
Before I commence the debate I would like to emphasise that I am making out a case for an alternate dispute resolution mechanism which is in fact being followed by some countries like the United Kingdom, Singapore and China. It is clear that in the present situation the current system of lawyers, litigants and judges congregating in limited spaces will have to give way to the technological innovations available.
Is it appropriate for the court to shut the courts completely? .
Closing the courts to the citizens and noncitizens will unhinge the Constitution and the many statutes protecting them. The courts implement the rule of law and society has no other protective recourse. Any situation which denies the access of justice to the citizenry will have serious repercussions on the rule of law itself.
There are several aspects to the problem in these trying times..
ONE. RULE OF LAW. Access to justice is a very important and determinative factor before any of the options are considered. People may wrongfully be under incarceration deserving bail, some will need protection from eviction/dispossession of their properties, aggravated actions of the executive and the wings of government will have to be restrained which effects their rights of life and also their right to property and other fundamental rights, protection from arbitrary actions of the instrumentality is of the state, people seeking protection from land mafia and other antisocial elements, avaricious financial institutions grabbing valuable market and hypothecated assets women and children seeking maintenance in matrimonial courts, women and children of foreign nationalities to travel to their home in this hour of crisis,. The list is endless.
To say that the courts will shut down is an invitation to anarchy, gangsterism, breakdown of law and order and a road to naked authoritarianism.
SECOND. EXACERBATING BACKLOG. Closing down courts will magnify the problem by many folds the backlog of cases. It would also be a serious infringement of the right of the parties to a constitutional guaranteed fair and speedy trial.
THIRDLY. SHUTDOWN WILL BE SELF-SERVING. It is important that social distancing demanded by the scientists and doctors requires to be followed. But the fear of the pandemic to completely shut down the courts and thereby deprive access to justice is a move which can only be perceived as the right exercised by an entitled group. People are manning the healthcare centers, hospitals, essential services like electricity, water, sanitation, transportation of food and materials into the areas of human habitation across the country, policing not to mention the Armed Forces. To claim complete protection for ourselves at the cost of millions of litigants would be viewed and perceived as self-serving.
FOURTHLY, ADHERING TO SOCIAL DISTANCING. Scientists and doctors are unanimous in concluding that the flat in the curve of the spreading pandemic is social distancing. There can be no two opinions about it. The courts being centers where lawyers and litigants congregate, the parameters of social distancing will be difficult to enforce. But in this age of technology we are not helpless. Matters can be decided by the courts with all the technological innovations at our disposal.
WHAT CAN BE DONE
It has been the experience of advocates on record and filing advocates that there cannot be a greater nightmare in the present system than that of E-filing. It consumes very often the whole day for one matter to be filed. This makes the entire system counter-productive and the so-called desirable social distancing becomes meaningless. Therefore the system of paper filing ought to continue till user-friendly e-filings are made possible.
There may be situations where the courts may require a response on certain specific issues. On such occasions are limited oral hearing or even queries can be emailed to the lawyers/clients. And a response to that can be elicited again on an email.
Importance of oral arguments cannot be denied. Justice William Rehnquist most aptly put it. "Oral arguments offers a direct interchange between court and Counsel… Probably the most important catalyst for generating further thought.. Justices of the United States Supreme Court have almost unanimously agreed that effective oral advocacy is one of the most powerful tools of the professions". Antonin G. Scalia, a known sceptic of oral argument having derided as a "dog and pony show", ultimately after several years in the Supreme Court did a turnaround of his views "things can be put in perspective during oral arguments in a way they can't in a written brief".
It is not a tall order to address the courts through Skype conferencing to substitute for oral arguments in court. Of course, this will be confined to the urban areas which has the requisite infrastructure as well as the Internet speeds required for this methodology. There are no doubt challenges of timing, of allocation of matters, connectivity and reaching out to the judges to the Skype facilities. But with the technical expertise which we have in this country these can certainly be met with.
9. Lord Justice Adrian Bruce Fulford has stated that it was impossible to continue "in the twenty-first century to continue working in that way". He added: "In an era in which many people conduct a large part of their lives using some kind of an electronic device — whether it's a smartphone or an iPad or some kind of tablet or computer — the judiciary has got to enable the ways in which we conduct cases to match the expectations of the public."