The trial of technology in litigation: COVID and beyond

The COVID-19 pandemic and the current national lockdown has made it vital that the justice delivery system continues functioning and most importantly, without disturbing the practice of social distancing.

The Indian Judiciary has found itself in dire need of an alternative method to conduct court proceedings without the physical presence of advocates or litigants.

The courts have risen to the challenge and reposed their trust in technology for conduct of proceedings via video conferencing. The question, however, is that while the Supreme Court and several High Courts across the country are slowly trying to embrace technology, is the Indian legal system and infrastructure ready for sustained use and perhaps greater long-term reliance on technology?

Indian courts during the COVID-19 pandemic

To make the shift towards technology, the Supreme Court’s circular dated March 23, 2020 mandated that an application seeking a hearing via video conference be sent to a dedicated email ID and if the application was allowed, a bench would be constituted to hear the matter.

Accordingly, the Supreme Court has been hearing several PILs as well as bail matters. However, there have been several reports that the practical experience of such hearings has not been as smooth as hoped.

The Delhi High Court vide office orders dated March 23 and April 4 allow mentioning a matter before the Registrar/Joint Registrar telephonically, and in case of rejection, allows for resubmission of the request via an online link. In addition to the Delhi High Court, which has been hearing matters of urgency via video conference, even the Bombay High Court has moved towards video conferencing.

It is interesting to note that the Supreme Court had earlier permitted live broadcasting of proceedings, for cases of constitutional importance.

If the same is utilised along with video conferencing, it will ensure the continuity of open access and a transparent judicial system. In fact, the High Courts of Bombay and Kerala have already taken steps to try the same.

Guidelines for court functioning through video conferencing during COVID-19 pandemic

The Supreme Court, in view of the increasing gravity of the situation, took it upon itself to emphasise the need to increase the use of video conferencing for conduct of hearings during the COVID-19 pandemic. In view thereof, it issued a slew of directions, in exercise of its powers under Section 142 of the Constitution of India.

While recognising the need for balance, it declared that all measures taken thus far, including future measures undertaken in view of social distancing guidelines and best public health practices, shall be deemed to be lawful.

Further, it authorised High Courts to adopt necessary measures that are consistent with the peculiarities of the judicial system in every state and the developing public health situation. It appears that the Supreme Court is taking all steps to ensure that the courts are equipped with the necessary support to deal with the current crisis.

It may be noted that while the Supreme Court has taken a firm step forward, presently video conferencing is being used for hearing arguments only. Detailed rules are required to be brought out by each High Court for the purpose of recording evidence.

The Supreme Court, vide the aforesaid order, showed that it is alive to ground realities that in certain cases, if not most, the use of technology may not be immediately workable. Therefore, it clarified that in such cases, the presiding officer is to ensure social distancing guidelines and may restrict entry of persons into the court room or the points from which the arguments are addressed.

These guidelines present numerous challenges which are ironically reflected in the order itself. Firstly, these are temporary measures and therefore may not have long term goals in mind. Secondly, there is a clear absence of rules for enabling the consistent use of technology. Thirdly, there is a real and unfortunate lack of infrastructure and budget available to ensure efficient usage of technology.

While the Supreme Court and certain High Courts may have the bare minimal infrastructure and IT support, this is not the case across other states and districts. In such a scenario, it may be presumed that most district courts will remain closed, indefinitely, and utilise the aforesaid order of the Supreme Court to adjourn matters.

Foreign courts during the COVID-19 pandemic

While the entire world is facing the impact of the COVID-19 pandemic, legal systems have responded differently, yet uniformly in taking a step towards technology.

United States of America

Certain courts in the USA have issued circulars or press releases notifying that court proceedings are being conducted through audio or video conferencing, where possible. Each state/district seems to have its own policies. For example, New York is, inter alia conducting pre-trial/settlement conferences, etc. via video and teleconferencing, detainees in new arrests are appearing via video conference and most bankruptcy courts are conducting hearings via tele conferencing. Further, while the courts in New York have not imposed any restriction on juries, the State of California has stopped trial juries from convening.

United Kingdom

The newly enacted Coronavirus Act, 2020 contains the emergency measures required to allow participation in court proceedings through live ‘audio’ or ‘video’ links. Courts in the UK have already started utilising technology to hold court proceedings remotely. For instance, the Court of Appeals recently decided a matter pertaining to patents via video conferencing. It may be noted that in the said proceedings, a member of the media was allowed to access the video conferencing link to ensure fulfilment of the object of public access to hearings.

Singapore

Singapore has introduced the COVID-19 (Temporary Measures) Bill, which provides for conduct of court proceedings using remote communication technology, enabling accused persons and witnesses to give evidence via live video link and television link. It was recently announced that the Supreme Court, State Courts and Family Justice Court will only take up essential and urgent matters, as specified in a circular, through electronic means.

What lies ahead

There can be no question that, especially during the present uncertain state of affairs, there is a necessity of an efficient justice delivery system. Today, technology has already developed to an extent that it is possible to set up video conferencing equipment in courts and offices, which can ensure seamless conduct of proceedings. This is the future of litigation that everyone had spoken of and anticipated, but it appears that no one was prepared for it.

It was recently highlighted that perhaps the Constitutional courts itself do not have the requisite infrastructure for adopting technology on a large scale. If questions are being raised at the highest courts, then the plight of the litigants in the district courts across India cannot be forgotten; district courts see maximum case filings and highest pendency.

In this regard, the Supreme Court must be appreciated for passing express directions that states ensure adequate facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities.

To effectively find solutions and implement the use of technology, we may consider the issue in three stages.

First, during the lockdown, where the challenge is to ensure that courts, though restricted in their functioning, remain easily available to intervene and ensure justice when required, while ensuring safety of all concerned by maintaining the practice of social distancing.

However, there are still various hiccups being faced such as functionality/uniformity of software and more importantly, equal access to the software by lawyers and litigants.

Second, post the lifting of the lockdown, while the restrictions may ease to an extent, we cannot risk abandoning social distancing guidelines in the face of the increasingly grave pandemic.

It may be noted, therefore, that due to the continued restricted functioning, the pendency of cases will multiply exponentially. Therefore, the courts may need to consider increasing the scope of the matters it is presently hearing.

As a potential test, it may be beneficial to implement technology in a staggered manner, i.e. start with a certain category of cases - bail matters, matrimonial matters, employment matters and certain commercial matters - where urgent injunctions are necessary. Essentially, we may need to tide through a brief period of trial-and-error by the courts to ensure that the wheels of justice continue to move forward on the shoulders of technology.

Third, the post-pandemic period, when normalcy returns to the legal system. It is expected that in the aftermath of the COVID-19 pandemic, we will see a rise in cases including force majeure claims, adding to the overburdened legal system. There is general consensus that the use of video conferencing should not be forgotten once normalcy returns, as utilising technology can help expedite disposal of cases and potentially rid our legal system of one of its oldest and most stubborn problems.

It is believed that the use of technology will not only reduce the need of physical space such as court rooms or circuit benches, but also solve the issue of overcrowding of courts which has also been an age old menace. Without the need for extensive physical courts, technology will allow the justice delivery system to permeate the most remote parts of the country.

The Supreme Court has already taken firm steps forward, which are expected to continue in the long term as well, such as e-filing and mentioning via electronic means. Technology has the capacity to revolutionise our legal system; it is time our courts fully embraced it.

The authors are lawyers at IndusLaw.