The Times, They Are Changing As An Impact of COVID 19

The outbreak of COVID-19 has unleashed a devastating impact on individuals and infrastructure worldwide and all efforts have been rendered inadequate due to its unrelenting spread. To combat this virulent enemy, the Central Government was compelled to impose a national lockdown. This has not only put the Indian economy into free fall but has also pushed the already overburdened Indian justice delivery system reeling into a multitude of added difficulties.

As of August 2019, there were over 3.5 crore cases pending across the Supreme Court, the High Courts, and the subordinate courts.1 Pertinently, the Union Budget 2020-21 has reduced the funding allocated to the infrastructure concerning various aspects of the Indian legal system.2 In the backdrop of incumbent pressures of limited infrastructure and funding, the Indian courts now have to deal with a virus that is sparing no one.

With the declaration of lockdown by the Central Government on 24 March 2020, the courts were compelled to shut down their premises and hurriedly find solutions to keep the judicial system running. In the following week, the Supreme Court issued circulars directing hearing of matters involving ‘extreme urgency’ through video conferencing.3 Later, on 06 April 2020, the Supreme Court issued an order directing all courts in the country to adopt a video- conferencing model for hearing arguments both at trial and appellate stage.4

To ensure that court premises do not contribute to the spread of the virus, coupled with the limitation in infrastructure, virtual hearings are being conducted only for matters that are of ‘extreme urgency’. However, the question as to what nature of cases encompasses ‘extreme urgency’, remains unanswered. This is a big conundrum for litigants, as the courts have also imposed costs on parties seeking a listing of cases, which in the court’s opinion, were not urgent.

There have also been some peculiar instances of differential behaviour that have invited the ire of practitioners across the spectrum. Many commentators described the overnight listing of Mr. Arnab Goswami’s petition seeking quashing of FIRs against him as an exhibition of the inherent bias in the system. This is in stark contrast with a petition concerning migrant workers’ return to their native places, which was only listed ten days after filing. While Mr. Arnab Goswami and migrant workers are equal in the eyes of the law, one may argue, in these unprecedented times, that the plight of the migrant workers was more onerous than that of Mr. Goswami’s. Such instances cast a big question as to what constitutes extreme urgency for the courts.

Before much water runs under the bridge, the courts should bring in guidelines, basis which, a matter may be classified as extremely urgent. Guidance may be drawn from Singapore, where the urgency of a matter is decided by considering, inter alia, (i) whether determination of outcome of the matter is time-sensitive, and (ii) whether there is any legal requirement for the matter to be heard within a timeframe.

These unprecedented times also beg the question as to how long the courts could restrict themselves to hearing only extremely urgent matters. Though the stringent lockdown measures are by and large being relaxed with time, given the requirement of social distancing and work-from-home advisories, it is unlikely that the courts will be able to function at full capacity in the near future.

To bring some method to the madness abound, the Supreme Court has notified a standard operating procedure (SoP) on 16 May 2020, for e-filing, mentioning, listing and video conferencing hearing before virtual courts.6 This also includes provisions for listing of fresh matters which could not get listed earlier due to the outbreak of the pandemic.7 The SoP also describes the procedure for mentioning and e-filing of matters involving urgency without prescribing what constitutes urgency. Also, within three days of the issuance of this SoP, the Supreme Court issued a notice8 on 19 May 2020, informing about the technical glitches rendering the official email id of the Supreme Court, used for mentioning matters, as inaccessible. Further, even some of the High Courts like that of Delhi, Punjab & Haryana and Bombay have expanded the category of matters to be heard virtually.9 By and large, the functioning of other high courts remains restricted to urgent matters only.

Another major challenge lies in the functioning of district and subordinate courts, which account for over 87% of the pending cases. Unlike the subordinate courts in United Kingdom and the United States of America, which have the requisite infrastructure to conduct virtual hearings, most of the district and subordinate courts in India have little to no support system in this regard in place. These courts are dependent on instructions of the High Courts, and if judicial proceedings are not proactively attuned to the technological advancement, the constitutional commitment to ensure delivery of and access to justice, to those who seek it, would be an uphill task.

The eCourts project being implemented by the National Informatics Centre under the National e-Governance Plan (NeGP) is aimed at enhancing judicial functioning through information and communications technology enablement. However, efforts in this regard have been far and a few.

Undoubtedly, scaling up of infrastructure and a well-defined standard operating procedure for handling of matters across all levels of judicial hierarchy, is the need of the hour. This will be beneficial to all the stakeholders of the Indian legal system – the courts, the practitioners and most importantly, the litigants. Bob Dylan’s timeless song The Times, They Are A-Changin’ written in 1964, resonates the need of the hour brought about by the advent of COVID-19.