Every crisis brings some opportunities to enhance and boost your skill. The novel pandemic has affected the world drastically. From business to education every sector of the economy has been disturbed. Access to justice is very important which is only possible when the judicial system will function properly and courts will uphold the justice and rule of law.
Due to the pandemic, courts are not functioning but access to justice, as is one’s fundamental right guaranteed under Article 32 of the Indian Constitution, needs to be ensured. During the course of the pandemic, virtual courts are the most convenient medium to provide justice. The pendency on Indian courts has increased drastically as several business units have been closed due to non-performance of contracts, a disruption in the supply chain and issues of migrant workers are adding up to the existing massive pendency of cases in courts. Thus, a productive approach is required to carry on the legal system.
Cases primarily increase due to government public safety interventions to mitigate the disruption caused by the pandemic. The government has imposed several restrictions and has infringed individual liberties such as work from home, limited time to operate businesses, restrictions on travel, closing all mediums for travelling, sealing international borders, quarantining people with a travel history abroad, etc. to reduce contagion.
For the courts are unable to facilitate e-filings during lockdown, there will likely be a large spike in filings once the barrier to do so is removed. The traditional method of courts cannot be continued and this is a great time for the Indian courts to practice the e-court system, i.e., conducting the proceedings online. In the past few months, several important cases were solved via video conferencing in the Supreme Court and several High Courts. Physical courts can become a medium for spreading the virus rather than spreading justice. Some practices essential to the functioning of physical courts includes staggered scheduling for courts shared by multiple judges, social distancing precautions for in-person hearings, hygienic and sanitary practices, health screenings at court entrances, etc. None of these methods, however, can eliminate the virus completely whereas virtual hearing has the potential to do so.
Virtual courts are now the most suitable platform for dispensing justice and have the potential to greatly reduce case backlogs. COVID-19 has drastically accelerated the process of making courts less physically dependent on personal appearances and more receptive to online and remote options. As more people in the world now have internet access, access to justice shifting from the traditional court system to e-courts will bring a paradigm shift in the court system. Online dispute resolution (ODR) and Alternative dispute resolution (ADR) are some of the solutions for speedy justice during the lockdown. Arbitrators and meditators may facilitate the judiciary in dispensing justice.
As the business cycle is disturbed several parties will seek a way out of contracts. It is important for the Supreme Court to revisit the Doctrine of Frustration of Contracts/force majeure, and lay down conditions for the applicability of the doctrine, especially when the Indian Contract Act is largely silent on the issue.
Virtual hearing is not as regular a practice in Indian courts as compared to the US. There are many challenges associated with hosting trials online – cyberattacks, data and privacy breaches, unwanted disruptions, reduced transparency and accountability of the courts are some of these. Incomplete digitization of case files and a less willing bar also seem to have reduced India’s success in implementing a virtual court system.
The problem of digitalizing files and evidence is also a reason behind the implementation of E- courts. Indian trial courts are slow to use technology for holding trials. Connectivity is another impediment to the adoption of virtual courts in India. Some amendments in laws need to be made to facilitate the online working and Indian Contract Act, the Indian Evidence Act, Intellectual Property Rights, labour laws, Disaster Management Act, and Epidemics Act should be reviewed. The cybersecurity and IT departments should be improved and strengthened.
The outbreak of COVID-19 is affecting litigation in multiple ways and has also crippled the courts across the country as judges, advocates and litigants are trying to achieve justice under the law while balancing public safety. During a pandemic and thereafter, teleconferencing judicial proceedings offers many benefits for the judiciary, the litigants, and the public. E-courts will save time and money and will reduce the paperwork and will solve the problem of overburden if judiciary. Discipline in the court system will increase due to limited and allocated time. But problems like cybersecurity, connectivity issue, the role of court watcher, data privacy, etc. may hamper the functioning of virtual courts. Virtual courts are essential to stability during a pandemic and presently available option to continue to increase disposal rates even during normal times. Even though the courts have been shut down, the Hon’ble Supreme Court of India has decided to take up urgent matters via virtual techniques which is commendable.