Courts In Times Of The Corona Virus: Why Courts Cannot Shutdown

― John Paul Stevens, former judge of the Supreme Court of United States

The Nine: Inside the Secret World of the Supreme Court

The Covid 19 is not the first and certainly will not be the last of the pandemics. Throughout history, Bacilli, microbes and viruses have attacked human societies. Humans in turn have organised defences against the invading hordes of micro-organisms. The earliest recorded pandemic is the Plague of Athens 429–426 BC. Since then century after century plagues and other pandemic infections have ravaged every continent on this planet in almost every century. Smallpox cholera, yellow fever, influenza, typhoid the bubonic plague, measles, the Nipah virus, HIV AIDS have taken millions of lives. At the forefront of this battle has been scientists and doctors at great personal risk carried on and conquered and contained each one of these microorganisms.

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

1. E-FILING/PAPER BOOK FILING WITH WRITTEN SUBMISSIONS. Matters can be filed which require urgent attention and written submissions can be given along with it. Most of the matters in the Supreme Court are by and large read by judges and with fair amount of precision orders are passed. Often a prodding of oral arguments it is necessary is for admission matters.
2. NIGHTMARE OF E-FILING

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.

3. EMAIL QUERIES AN D EMAIL RESPONSES TO QUERIES FROM BENCH

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.

4. SKYPE CONFERENCES REPLACING ARGUMENTS IN COURTS.

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.

5. THE ETERNAL PROBLEM OF SERVICE. A visit to any court across India will demonstrate the most time-consuming efforts are effecting service. Remarkable ways and methodologies adopted by unscrupulous litigants. In this age of technology, the litigant in the primary original court ought to give an email ID to the court for the effecting service. That email ID should be the primary address for effecting service and should carry on in any proceedings in any of the courts be it in appeal or otherwise. The email ID becomes a distinctive No. for the litigant. It goes without saying that most of the masses in this country would not have an email ID. But this can certainly be a methodology for all commercial courts and matters involving higher pecuniary jurisdiction.
6. PART HEARD MATTERS DERAILED BY THE ROSTER CHANGES There are several hundreds of part heard matters which get derailed in the courts and in the tribunals simply because of the routine changes in the roster. Many of these matters are almost on the verge of completion when benches change. In the present scenario where time is a serious constraint, roster changes should not affect part heard matters . It is not only a criminal waste of the courts time to reargue matters before another bench, but also entails the undesirable and wholly unnecessary cluttering of the courts once again by the same set of lawyers and litigants.

7. E-FILING AND ONLINE COURTS NOT A NOVELTY. Recently the the Supreme Court of China a country which was most affected by the pandemic has adapted to the changing environment .The country's top court, ordered courts at all levels to guide litigants to file cases or mediate disputes online, encouraging judges to make full use of online systems for litigation, including those for case filing and ruling delivery, to ensure litigants and their lawyers get better legal services and protection.

8. ONLINE COURTS NOW A REGULAR FEATURE OF CHINA, SINGAPORE AND UNITED KINGDOM'S JUDICIAL REDRESS SYSTEM. The courts in China have begun for quite some time online courts to resolve both civil and criminal matters. This is indeed a pioneering development which has been extensively discussed upon and deliberated in Richard Susskind's Online Courts and the Future of Justice (OUP, 2019). Similar patterns are being adopted both in Singapore and the United Kingdom.

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."

1. MATTERS OF MAINTENANCE OF WOMEN AND CHILDREN, WORKERS WAGES. In this age of pandemic it is women and children who are most vulnerable and require the protection of financial security. Matters of maintenance of women and children ought to be decided without the interminable fanfare which is the bane of our matrimonial courts. Any cursory visit to the matrimonial court is a Dickensian nightmare for women and children seeking maintenance. On the records of these courts, despite the many mandatory orders passed by the Supreme Court interim maintenance have not been awarded for years together.

1. LIBERALITY OF THE COURTS. It is important that the courts are liberal. This is not a tall order to ask. People who approach the courts spend a lot of their life's time and energy and money. The courts are invariably the last resort of the people after all other instrumentalities of the state have failed them. It is in many ways imperative to take a broader and liberal view of the difficulties faced by the scores of litigants.
2. WRITTEN ARGUMENTS WHERE TECHNOLOGICAL INNOVATIONS ARE IMPOSSIBLE TO OPERATE. Of course there are several courts in many parts of the country which are not facilitated with adequate Internet speeds or the or the requisite telecommunications facilities. There are challenges in as much as many of the lawyers and judges may not be conversant with the present-day technological innovations. The transition may be slower in some parts of the country than others. Written arguments can substitute technological innovations till they become implementable.

In this age of Covid 19, time has come to make fundamental changes in how we continue to work and ensure that that the justice delivery system will carry on relentlessly and ensure the rule of law.