The epidemic and ensuring safety in courts

The epidemic and ensuring safety in courts

By, K. Subramanian is Senior Advocate and former Advocate General of Tamil Nadu. E-mail: rks_lawyer@yahoo.com

Introduction

In a letter addressed to the Chief Justice of India, the Bar Council of India has opposed the continuation of virtual hearings once the lockdown is lifted, on the grounds that 90% of the advocates and judges are “unaware of technology and its nuances”.

On April 6, invoking its powers under Article 142 of the Constitution, the Supreme Court issued certain directions for the functioning of courts through video conferencing during the lockdown.

The Court directed the State officials of the National Informatics Centre (NIC) to liaison with the respective High Courts and formulate a plan for the virtual functioning of courts.

What is a virtual court ?

A virtual court hearing is one where there is no physical court room. All the participants take part in proceedings using telephone or video conferencing facilities. It was made clear that the guidelines for this would be formulated by the NIC and sent to the respective courts and lawyers.

Issue

But the NIC has not yet notified the guidelines. In its order, the Supreme Court had also indicated that the district courts would follow the video conferencing rules as formulated by the respective High Courts.

E-filing system

Once the crisis hit the U.K., the Judiciary of England and Wales issued New Court Practice Direction 51Y (Audio Hearings in Civil proceedings) and practice direction 51Z (Stay of possession proceedings and extension of time limits) for the duration of the COVID-19 period.

Practice Direction 51Y, which (a) (a) clarifies the manner in which the court may exercise its discretion to conduct hearings remotely in private; and (b) (b) details what steps the Court may take make to ensure access by the public to remote hearings that have been held in private.

Where face-to-face hearings are essential, HM Courts and Tribunals Service has taken steps to consolidate the work of courts and tribunals into a small number of ‘priority’ buildings.

A daily update of which court buildings are open is available online.

In a similar vein, the Court of Appeal has published a document which sets out how it the Court of Appeal is currently operating – including prioritising only urgent applications in the Civil Appeals Office.

As part of a £one billion programme of reforming judicial system Courts in England and Wales have adopted new forms of digital technology and e-filing procedure.

e-filing of cases involves software and hardware requirements.e-filings involve a certain amount of technical knowledge and capability.

E-filing system in India

In India, most advocates and litigants are unaware of and unwilling to use these services. The e-filing system was introduced in the Delhi High Court in 2009.

Initially in 2013 it was introduced in Company and Tax jurisdiction. In 2015 it was extended to Arbitration jurisdiction.

In this process, the pleadings and documents are filed electronically at the e-filing centres. A digital signature of the lawyer/litigant is needed for filing such cases.

An e-filing kiosk in the High Court of Delhi to enable the lawyers desirous of acquaintances with the e-filing procedures has been set up. Compared to the other High Courts in the country, the Delhi High Court is far ahead in terms of technology.

About 10 courts in the Delhi High Court function as e-courts.

In e-courts, the case files are digitised as searchable PDF format and PDF files are bookmarked according to the index-sheets and thereafter converted into portfolios containing different folders as per the records of the case file i.e., pleadings, orders, office noting etc. The portfolios of case files are linked with the e-Cause List of the Court.

The Judge(s) presiding over the e-Courts have been provided with a “Wacom 24” or “Wacom 27” high resolution monitor with interactive ‘Stylus’ connected with high end CPU.

There is also sufficient technical manpower in the Delhi High Court (70) and district courts (30). In the Delhi High Court, e-filing is mandatory for company, taxation and arbitration jurisdictions.

The facility for e-filing of cases pertaining to the Delhi High Court was also made available from April 7, 2020, at all the court complexes of the Delhi district courts.

Realising that the lockdown may continue for a while, the Delhi High Court formed a panel to create a graded plan for courts functioning after the lockdown. The committee, headed by Justice Hima Kohli, was formed with the expectation that there will be a deluge of new cases after the lockdown is lifted.

Ensuring availability of proportionate court infrastructure till normalcy is completely restored. The Delhi High Court has sought suggestions from the district courts for the effective functioning of e-courts.

Bombay High Court

In the Bombay High Court, e-courts started functioning from 2013. Initially they started taking up company matters, arbitration and conciliation matters, income tax appeals and suits.

Now even writs, suits and testamentary matters are heard by e-courts.

Madras High Court

In the Madras High Court, the facility for e-filing of cases, which was initially only for bail applications, was launched on April 22, 2020. Filing of urgent cases through e-mail is also permitted now.

Post lockdown

While it is true that there is less pressure on the courts now, this will change once the lockdown is lifted. It is in this context that suitable safety measures must be put in place for conducting proceedings after the lockdown is lifted. The method of hearing post lockdown will depend on the facilities available at the court concerned.

While such facilities are largely available in the Supreme Court and the Delhi High Court, they are not available in the various other High Courts and subordinate courts.

Implementing guidelines

As much of the Supreme Court and many High Courts will remain closed for the summer, the High Courts can consider constituting committees, as the Delhi High Court did, to create graded plans for the courts functioning after the lockdown.

They can formulate plans based on the availability of infrastructure to conduct virtual hearings or actual hearings, or by running courts in shifts. In case any of the courts are inclined to conduct open court hearings, they may have to implement some guidelines.

1. One, only those lawyers/litigants whose cases are listed for the day’s hearing should be allowed to enter court halls.

2. Two, the lawyers must enter in batches according to the serial number in the list.

3. Three, thermal image cameras must be installed at the entrance of every court building, to identify risk persons.

4. Four, every person entering the court premises must install the Aarogya Setu app on their phones.

5.  Five, The Central Industrial Security Force Security personnel may be directed to use the App e-office specially designed to check the papers and other objects carried by the lawyers/clerks/litigants without touching the said papers/objects.

At the entrance of every court complex, an automatic hand wash faucet should be installed.

Way ahead

The judiciary must be allotted sufficient funds for self-administration and timely delivery of justice.

Today, technology dictates our lifestyle, but because of lack of allocation of sufficient funds to improve and strengthen technical support for the judiciary, we in India are unable to make full use of technology.