The COVID-19 pandemic has had a significant impact on the legal fraternity of India. Following the imposition of the 21-day Coronavirus lockdown, starting with the Supreme Court, many High Courts and subordinate courts have suspended work for the next three weeks or have notified minimal sitting.
Therefore, under the prevailing circumstances of social-distancing and minimising physical contact, the key consideration is how can the judicial system still operate effectively and ensure timely delivery of justice?
It is universally accepted that independent, timely, and fair delivery of justice in a society is vital to the functioning of democracy as it provides a critical check-and-balance against the function of the executive and the legislatures.
On March 19, the importance of the court systems as an important part of public service was articulated by the Chief Justice of England and Wales, when he stated as follows:
“We have an obligation to continue with the work of the courts as a vital public service, just as others in the public sector and in the private sector are doing...”
The Supreme Court of India has endeavoured to continue hearing cases with limited sittings during the week. Similarly, many high courts have notified special sittings in a limited capacity to attend to urgent matters.
Virtual Courts in India
Interestingly, in a deviation from regular practice, the High Courts of Bombay and Karnataka issued notifications adopting virtual courts using video conferencing facilities on March 17 and 21. These are timely developments, despite having been driven by COVID-19 situation, to utilise the advances in the information and communications technology to deliver justice at a crucial time and under unprecedented circumstances.
The Supreme Court, through its Secretary General Sanjeev Kalgaonkar, on March 23, also notified the use of “Vidyo” app for facilitating hearings via video-conferencing. It is believed that upon request by Senior Advocate Abhishek Manu Singhvi, the Court was willing to extend the video-conferencing facilities even to the offices of counsel.
Virtual Courts in the UK
Many other countries have been using video and audio enabled hearings for the past 15 to 20 years.
In England and Wales, pursuant to The Access to Justice Act 1999 the range of hearings include criminal remand, bail and sentence hearings, family and civil court interim hearings. In addition, more recently, Section 28 of the Criminal Evidence Act 1999 of England and Wales provides for pre-recorded cross-examination to be shown as evidence in trial in cases involving vulnerable or intimidated witnesses. These are part of what are known as “special measures” to enable a victim to give evidence in criminal trials and was subject of detailed guidance by the Court of Appeal in the case of R v PMH [2018].
Pros and Cons
Clearly, having video and audio enabled hearings is beneficial as it saves significant court costs in terms of building, staff, infrastructure, security, transportation costs for all parties to the court proceedings, especially transfer of prisoners from jails.
The use of video and audio enabled hearings have also faced significant legal and practical problems including admissibility and authenticity of the evidence received through the video and/or audio transmissions, the identity of the witness and/or individuals subject of the hearings, the confidentiality of the hearings.
The practical issues have been wide ranging; they include poor quality of internet connection, poor and outdated the audio and video equipment, power cuts, inability to establish connection at the agreed time, inability for multi-party to partake especially involving interpreters and vulnerable witnesses.
So, it is crucial to have good infrastructure for audio-video enabled hearings to be effective and successful. This would involve significant investment in court and IT infrastructure.
It is important to note that the use of Virtual Courts is completely distinct and different from video and audio enabled hearings for specified matters. Critics of Virtual Courts in the United Kingdom have argued that it is contrary to the fundamental tenets and principles of open justice which is part of the common law as well being enshrined under Article 6 of the European Convention on Human Rights, as it may not be possible for the public to participate in the proceedings.
COVID-19 and Beyond
Across the world, we are witnessing lockdown of public and private services in an attempt to deal with the COVID-19 pandemic. However, in such extraordinary circumstances, the role of the judiciary is even more vital to the survival of democracy.
In a letter to his colleagues on March 24, Chief Justice of the Republic of South Africa Mogoeng Mogoeng emphasized that the courts “have to stay open in case members of the public want to bring one challenge or another in relation to the constitutionality or validity of the measures being implemented”.
The United Kingdom is bringing in emergency legislation, The Coronavirus Bill (2020), to expand the use of the video and audio link to variety of different proceedings including allowing the public to participate in court and tribunal proceedings through audio and video, so as to alleviate any concerns surrounding the issues of open and fair justice.
In this context, the notifications issued by the High Court of Karnataka and Supreme Court are welcome and extremely important steps in these unprecedented times.
During the lockdown period, it is crucial for the constitutional courts to be open and accessible in order to nurture confidence among the litigant public. Going forward, it needs to be considered carefully by the Supreme Court of India and the Law Commission of India whether relevant rules and in the High Courts as well as in the lower courts can be amended so that video and audio enabled hearings can be take place for the benefit of the public even beyond the COVID-19 lockdown period.
The authors are advocates and founders of Chennai-based law firm Ganesan and Manuraj Legal LLP.