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09-Apr-2020

The COVID-19 pandemic has disrupted the justice delivery system like never before. The compulsions associated with ‘social distancing’ coupled with lockdown directives have led courts and tribunals to shut their premises to the public. At the same time, recognizing that a complete shut-down of the justice-delivery system is undesirable, judicial administrators have turned to technology to meet the challenges posed by the pandemic. Various judicial and quasi-judicial bodies, led by the Supreme Court, have been conducting hearings online.

However, while these measures are commendable, they are not sufficient. This is because of the following reasons:

Ø  The virtual system of functioning has not been adopted by all judicial and quasi-judicial institutions across the country.

Ø  Institutions which have adopted this system have only been employing it for select matters i.e. to hear and dispose of urgent/extremely urgent matters.

Ø  The current situation is unpredictable. It is impossible to say for how long ‘social distancing’ directives and restrictions on movement will remain in force. It is likely that these preventive measures will be continued for some time even after the present threat has subsided.

In the present circumstances, it is essential that the judicial and quasi-judicial machinery takes steps not only to remain operational but to achieve maximum functionality (as far as may be) at the earliest. The virtual courts system can be of great assistance in achieving this goal.

In this backdrop, the directions passed by the Supreme Court, on 6 April 2020, for the conduct of court proceedings across the country via video conferencing (VC), during the period of the outbreak of the COVID-19 pandemic[1] are a welcome step. Broadly, the Supreme Court has directed as under:

Ø  All High Courts shall ensure functioning of the judicial system through use of VC technologies and to this end, shall decide the modalities for use of VC technologies after considering relevant factors (such as peculiarities of the judicial system in every state as well as the dynamically developing public health situation).

Ø  District Courts in every state shall adopt VC technologies prescribed by the appropriate High Court.

Ø  Courts shall make VC facilities available for those litigants who do not have access to these facilities, including by appointment of advocates as “amicus curiae” and making VC facilities available to such advocates (if necessary).

Ø  Till such time as the High Courts frame rules in this regard, VC technologies shall primarily be used for hearing arguments, both, at the trial as well as appellate stages. However, evidence shall not be recorded using VC facilities except with the parties’ mutual consent.

Ø  The directions shall remain in force till such time as further orders are passed by the Supreme Court.

On 7 April 2020, the High Court of Telangana passed directions for conduct of hearings via video-conferencing in the state during the period of COVID-19 lockdown[2]. It is expected that other High Courts as well as tribunals will adopt similar measures in the coming days.

Separately, on 8 April 2020, the Bombay High Court issued special directions in connection with live-streaming of matters listed for hearing on 9 April 2020 before His Lordship the Hon’ble Mr Justice G S Patel[3]. Previously, the Kerala High Court had live-streamed its hearings for the general public via Zoom App.

The decision to make proceedings being conducted in the time of COVID-19 accessible to all via live-streaming is a welcome move. In doing so, our courts have sustained a primary principle of the justice system, namely, justice must not only be done but seen to be done.

We will update this section as and when fresh directions/guidelines are issued by judicial and quasi-judicial bodies regarding conduct of court proceedings virtually.

-       Kingshuk Banerjee (Partner) and Preeti Sahai (Associate)

For any queries please contact: editors@khaitanco.com


[1] See: Decision passed on 6 April 2020 in Suo Motu Writ (Civil) No 5 of 2020 available at

https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf

 

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