Written by Pooja Lakshmi and Naman Jain of Bennett University, Greater Noida
John F Kennedy pointed out that “the Chinese use two brush strokes to write the word ‘crisis’. One brush stroke stands for danger: the other for opportunity. In a crisis, be aware of the danger–but recognize the opportunity.”
Covid-19 has carried nearly the whole world to a close stop. India’s justice delivery system, which is so rare to be known for its speed even in the best of times — is the same with no difference in any work. Official information shows that while the institution of new cases, both in the higher legal executive and subordinate legal executive, has descended since the national lockdown on 25 March. The removal rate has severely influenced the constrained closure of courts. The legal executive has gone under enormous strain to develop innovatively during this pandemic to offset and balance general well-being. These include health care facilities to basic requirements and concerns with access to justice. “In the midst of every crisis lies a great opportunity”, said Albert Einstein. This article endeavors to demystify the legal issues and future of the legal sector to help practitioners and researchers. This study examines the various legal professions, evaluate the extent of its impact on legal employment, and assess the legal sector’s tasks during the pandemic.
The COVID-19 pandemic has disrupted the justice delivery system like never seen before. The compulsions related to ‘social distancing’ combined with lockdown directives have led courts and tribunals to shut their premises to the society. Simultaneously, recognizing that a total shut-down of the justice-delivery system is undesirable, judicial administrators have turned to technological innovation to address the challenges presented by the pandemic. Different legal and semi-legal bodies, led by the supreme court, have been conducting the hearings online or web portals.
Covid-19 has affected all the three state bodies, the legislature, the executive, and the judiciary. It has disrupted supply chains, prompting the conclusion of a few manufacturing facilities around the world. This, in turn, has led to the breakdown of worldwide stock markets, leading to the loss of billions of dollars that had cleared out in days, which can be considered a fast period. A combination of these causes prompted a fall in the total level of global economic activities leading to a push in the world economy into a potential recession. Need to boost and uplift the justice delivery system in India has failed to fulfill for a couple of years. This absence to fulfill the need had led to obscene inclination to disregard the law and culture of impunity. However, the COVID-19 crisis helped switch to paperless courts leading to fast-track administrative reforms in the institution, as said by justice Chelameswar in the NJAC judgement. Lack of transparency, under trials of the accused, corruption, lack of information, and interaction among people and courts, and the pendency of cases were considered the significant issues that the system faces. However, due to coronavirus, the scale of the Indian judiciary burden reduced the disposal rate. COVID-19 has impacted the process of appointment of the judiciary. Legal practice needs strong problem-solving skills and emotional intelligence. Machines cannot directly replace skills like these, so even though virtual courts can be set up, the cases should be handled by humans.
The COVID crises have been modifying countless aspects of our lives and pressuring us to innovate or adopt the novel changes that are occurring. The judiciary or Indian law is not resistant to this change. This situation is the best opportunity and the right time for the popularization of online court. However, several attempts have already been taken to adopt technology in the functioning of courts even before the pandemic. Time has now come to approve these technological frameworks comprehensively.
The alternatives like the online courts where the judge is physically present within the courtroom and the lawyer or litigant at times are not present are currently being used. The computer is making decisions based on the litigant’s inputs and restricting the entry of casual visitors with per day sanitation at 6 pm. Once normalcy returns, it is clear that the current processes will not be applicable. Nevertheless, videoconferencing and e-filing have taken the way to build a receivable impact. The securities appellate tribunal has changed its work timings to 11:30 am to 4:30 pm and has asked the staff to come by 11:30 am instead of the usual 9:30 am, to avoid rush-hour traffic. Single benches are required to hear transfer petitions, bail matters with a considerably slowed hearings pace. To get a grip on such a situation with the accumulation of work, it may take an extended period.
Common standards for hearings by video conferencing need to be developed, and this can reduce courtroom crowding. Bar council needs to reinvent regulations themselves to permit advocates and law firm’s more extraordinary professionals freedom including
- the power to have proper websites and professionally develop practices,
- charge contingency fees, particularly for commercial matters,
- enter into partnerships with foreign lawyers, other professional service providers, expand practices overseas, and become international law firms.
COVID-19 crisis is being used to change courtroom functioning and restore the common man’s faith within the system. Advocates should obtain continuous training and updating – like within the US. The virtual court system cannot be said to negate the principles of fairness.
Due to hearings not being conducted in courts, the criminals and offenders breaking the law have got an advantage on the pretext of the pandemic to go and move around scot-free, leading to a remark in the quote “justice denied is justice quarantined.” Not all District Courts and Advocates are well equipped and knowledgeable enough to use such a system without glitches, leading to delays in accumulation of the process.
Digitalization will decrease the enormous number of pending cases before the courts and will prove to be an effective remedy for delayed justice.
As there is no substitute for open court hearings, switching to video conferencing for conducting hearings was both a prompt and an effective technique to make progress and deliver justice to all sections of the society and in the long term, there lies a great opportunity and a solution. The pandemic is testing people’s trust in state institutions. Many governments have struggled to respond effectively to the crisis. Across the globe, healthy demand in social change could be seen post-COVID-19. More inclusive and responsive governance structures, including specific long-term crime prevention mechanisms, should focus on delivering more people-centered justice services. An essential lesson for law enforcement agencies has to be provided during the current crisis.
A WAY FORWARD
In the case of State of Maharashtra V. Dr. Praful Desai, the Hon’ble Supreme Court of India stated in light of section 273 of CrPC, the term ‘presence’ cannot be interpreted to only mean the actual presence of a person in any court.
Temporary changes to registration processes are seen substantially during the crisis, like additional verification may be needed in the future. India needs to grab the opportune moment to set an example. Judges, clerks, lawyers, and clients are to be trained on the procedure and technology. E-Filing, e-Hearing, e-Trials, uniform structure of judgments is the only solution to keep the essential services of the courts running. Matters can be filed online and examined based on written submissions that include documents. Delay in the resolution of disputes because of the traditional infrastructure of courts is still a dilemma. New platforms such as ODR has led to a faster and cost-effective, efficient ADR machinery.
COVID-19 may make the citizens of countries that have prioritized online privacy and data protections willing to sacrifice civil liberties for health protection.
The Supreme Court has accomplished what it could not accomplish for years. PDF files instead of physical files ensuring accountability of lawyers and judges as well can be practiced in the new process. To allow the legal system to continue, the Indian Supreme Court has allowed proceedings commencement through video conferencing. Police departments in several states have begun scaling back arrests for lower-level offenses to limit exposure to the virus as tasked with more virus generated risky work. Even the courts reconsidered the pre-trial custody and disincentivized custodial sanctions. Cities have experienced an overall drop in property crime and burglaries as a result.
Lawyers’ productivity will increase substantially, as visits to courts and long waiting hours will be more an exception than a rule. If this practice is extended to other civil cases, efficiency will drastically increase in judicial functioning. Accessibility may be a core function of justice delivery. The standard of adjudication within the courtroom shall not be of utility if people cannot access justice within the first place. Hence, the present crisis would be an excellent opportunity for the digitalization of Indian Courts. It can also help reduce a large backlog of cases before the courts.
Moving around is becoming extinct due to COVID restrictions that have reduced the social interaction. The courts that used to be flooded with people and voices are now comparatively silent and spacious. Bail should be refused or opposed only if there is a chance of fight or accused tampering with the evidence. The world is trying to decongest prisons, whereas courts are denying undertrials’ bail pleas. Unnecessarily prolonged custody does not provide any societal purpose but adversely results in the psyche of the individual and his family by virtually criminalizing the person before trial. “Bail, not jail,” should not be narrowed to a slogan. Groups like Prayas try to help prisoners and their families by taking them home and providing them with rations and some direct cash transfers.
The thing about prisons is that people never know what is happening inside the jail because outsiders are not allowed inside. The only way is to picturise based on anecdotal data. Several complaints about the inadequate quality of healthcare in prisons have been raised. Proper medical treatment, testing, and a communication channel for an incarcerated person are required for the cause. No one is safe until everyone is safe, including those who are incarcerated.
Our justice system has taken steps of making private hospital fees minimal by putting forward questions. The court asked the Centre why private hospitals that had been given land free of cost cannot treat Covid-19 patients free of cost. Further, the court ordered the Centre to identify hospitals or healthcare institutions where Covid-19 patients can be medicated free of cost or at minimal costs. Avishek Goenka contended that private hospitals were charging exorbitant amounts to treat COVID-19 patients.
Consultations are a significant problem: Lawyers occasionally need to consult their client or the instructing advocate; judges also need to consult each other during a hearing. The picture or voice sometimes breaks or gets frozen, and cracks do occur.The online court is one of the justice modernization needs. It may cost several billion and look a massive sum to commit at a time of rigor, but it will save several more billions if it succeeds. The judiciary has got an opportunity to envision a justice delivery system that could function unhindered at all levels during any crisis.
NLSIU (National Law School of India University), Bengaluru, has taken an initiative to promote ODR by starting a platform called ODRways. The platform will enable small civil claim disputes to get resolved through online mediation techniques. Another promising company in the ODR landscape is Presolv360. It has a unique business model with a peculiar way of charging fees in the form of annual membership plans.
With the above examples, it is evident that India has wholeheartedly accepted the ODR system amidst this pandemic. The news of judges around the country delivering justice through video conferencing brings renewed confidence in making the ODR a success in the legal system. Judiciary with the help of Govt. should formulate a policy framework to enable the ODR process under the guidance of Courts through mediation, negotiation, and arbitration for the post-pandemic disputes. This will prevent the entire legal system from getting overburdened due to the sheer volume of cases being filed after the lockdown. In contra, failing to make necessary arrangements would lead to a judicial crisis on an already suffering nation.
With the above, India can be envisioned as a country of our dreams, where courts dispense justice, governments govern, businesses thrive, and the citizens enjoy a fulfilling life.
“SAY YES TO RESOLVE FROM HOME”
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Image courtesy: The Financial Express