IMPACT OF COVID-19 ON COURTS WORLD-OVER

Like every institution today, courtrooms all over the world have also been affected by the COVID-19 outbreak. In some parts of the world, court hearings have been adjourned, delayed or relocated. However, as lockdowns are being extended again and again because of the continued spread of COVID-19, court hearings will continue to be delayed. The judiciary in many countries have accepted this difficult situation and have been studying solutions to conduct hearings and continue the process of justice, by using technology.

Let us look at the various measures the judiciary and courts around the world have taken to conduct hearings.

In India, the Supreme Court of India has strongly defended its "virtual courts system,” saying that the institutional requirement was to ensure that the "administration of justice" does not crumble in the face of a pandemic.

The Indian courts have adopted restricted operations. Several Courts across the country have issued notifications to restrict their functioning to only urgent matters, with a limited number of judges presiding. Ordinarily, only matters relating to life/liberty/imminent dispossession or demolition of property are considered urgent. All routine matters are being adjourned to dates beyond May 2020. Most court premises are adopting restricted entry procedures and the visit of private parties or litigants is being discouraged, unless this is unavoidable.The apex court, which is hearing only urgent matters through video link, backed its performance during the lockdown with data, and said it has heard matters on 22 days until May 1. It said that 116 benches assembled during this period, which included 73 benches for adjudicating review petitions.

In the United Kingdom, the recent government announcements have stressed the significance of the continued administration of justice in England and Wales. Although most civil court buildings remain open, hearings of civil cases are now being conducted remotely wherever possible. Physical hearings are taking place only if a remote hearing is not possible and suitable safety arrangements can be made. Civil courts have long permitted remote hearings in appropriate circumstances, but a new “Protocol Regarding Remote Hearings” was issued on March 20, 2020 to provide further guidance, including on the forms of remote technology offered and the use of electronic documentation. The courts’ technological infrastructure is also being rapidly upscaled to support the expanded utilisation of telephone, video and other remote technology (including Skype for Business, Zoom and BT conference call).

On March 24, 2020, the Supreme Court of England conducted its first ever remote hearing. The Supreme Court building has been closed and it will be hearing all cases and delivering judgments through video conferencing until further notice.

In the United States of America, The Coronavirus Aid, Relief, and Economic Security Act, Public Law No: 116-136 (the CARES Act), signed into law on March 27, provided more than just the fiscal stimulus to American institutions and its citizens. The CARES Act allows for the use of videoconferencing in certain judicial matters.

The US Supreme Court has postponed all oral arguments currently scheduled for the March and April sessions and intends to examine the options for rescheduling those cases before the end of the Term.The May session of the US Supreme Court is due to see the virtual hearing of a limited number of previously postponed cases with Justices and counsel participating remotely.

An Advisory has been issued by the US Court of Appeals for the Federal Circuit that it would hold all oral arguments ‘telephonically’ during the court’s May 2020 session. Lower courts, like the United States District Court for the Eastern District of New York, have issued a number of administrative orders regarding the administration of justice.

In France, the French courts, with the exception of essential litigation, have been closed since March 16, 2020, which includes litigation relating to "correctional hearings for pre-trial detention and judicial review measures," "immediate appearances," "appearances before the investigating judge and the liberty and custody judge," and "hearings of the sentence enforcement judge for emergency management." Courts have been instructed to adopt a stringent assessment of emergencies and to hear only “matters where it is certain that a delay in the decision of the judge would harm the parties”. It is made known that commercial courts should be contacted electronically. Hearings will be conducted remotely by video conference.

In Germany, the courts continue to operate with reduced staff. In-person hearings have been postponed for up to six months. The specific handling of these delays is left to the courts. Oral hearings are only taking place for urgent matters. While German civil procedure law makes provision for the use of video conferencing for hearings, this provision has seldom been used. This is in part because the courts are not equipped to do so, and also because this provision is not applicable if the parties or witnesses are located outside of Germany. Criminal justice and public prosecution offices are also affected by the protective measures taken nation-wide to prevent the spread of the COVID-19 pandemic. Germany is "powering down the systems" to deal with the pandemic has implications not only for criminal proceedings that are already underway but also for future proceedings too. At the suggestion of the Federal Ministry of Justice & Consumer Protection, the German government has published a ‘draft law’ to deal with the consequences of the Covid-19 pandemic situation, which also provides for amendments to the Code of Criminal Procedure to ensure that criminal proceedings will not "collapse" due to the corona pandemic.

In Singapore, before COVID-19, courts had an existing practice in place that enabled lawyers to make applications by video link. The Singapore courts are also already used to parties or witnesses appearing in court by way of video link. Insofar as the Supreme Court is concerned, hearings are continuing. Since the spread of COVID-19, the Singapore Court has implemented a ‘ justice continuity plan’ by dividing the judges of the High Court into two separate teams, Team A and Team B. The High Court has adopted arrangements such that no judge from Team A will be in physical proximity or in close contact with a judge from Team B. As a result, there have been court proceedings with a bench of three judges where one judge attends by video link. For example, in situations when two judges are from Team B and one judge is from Team A, the judge from Team A attends by video link.

In Australia, the High Court in Canberra, has declared that following the adoption of policies restricting travel and meetings and remote workplace arrangements, the High Court of Australia will not be sitting in Canberra or on circuit in the months of April, May and June. The question of future sittings is intended to be reviewed in June. The Court has indicated that it will continue to deliver judgments and will hear any urgent matters that may arise by video link.

At the Supreme Court of Victoria, there are different changes to processes and procedures depending on the type of a matter. Litigants are asked to call or email the Registry to discuss any Court business they may have. Most hearings are being conducted remotely. In Magistrates’ Court – Civil matters, one is not allowed to attend in person unless the Court instructs people to do so. The Magistrates’ Court is managing many matters remotely. The Federal Court of Australia has published a Special Measures Information Note (SMIN-1) which sets out arrangements for the continued operation of the Federal Court during the COVID-19 situation. These include to the extent possible, alternative arrangements such as hearing matters on the papers, by telephone or by other remote access technology.

In the Netherlands, the courts have been closed since March 17, 2020 and were to remain closed up to April 6, 2020. As a result, there were be no court hearings during this period with the exception of urgent cases. The Dutch judicial authorities have stated that a case will only qualify as “urgent” in exceptional circumstances, for instance if the delay of the court decision would have a negative impact on the rights of a suspect or litigant.

Whilst initially the courts were closed for both parties as well as the public, since the 7th of April the courts have changed their approach regarding their closure. In very exceptional cases physical hearings can be allowed. If there is a physical hearing, the parties and a maximum of three journalists are allowed. In these cases the court will also try to arrange a livestream. In Dutch courts, judgments will be rendered only in cases considered to be urgent.

In Canada, courts have limited their operations and access to the court system, in order to help contain the spread of COVID-19 and protect the health and safety of court users and staff. Filing deadlines, limitation periods have also been suspended or modified. Because of the evolving nature of the COVID-19 crisis, the courts have been adding new measures and revising existing ones.

The Court of Appeal in Canada continues to hear appeals, applications and motions, but as of March 23, 2020, these hearings are not in person. The Court’s Pandemic Response Plan is being adapted to meet concerns and challenges of COVID-19 with a view to take care of negative effects on Court operations and the delivery of justice. The court has implemented Emergency Practice Directions (EPDs) which will remain in effect until terminated. All matters set down before a single judge will be heard by telephone conference and all appeals and applications before a three judge panel will be heard electronically, by videoconference or by telephone.

In Japan, following the declaration of a state of emergency issued by the government, some courts have temporarily limited the scope of services they provide. Although these courts still accept new cases and continue to provide some other services, some scheduled dates for court proceedings may have been canceled. Courts in Japan are struggling to hold criminal trials amid COVID-19, as courtrooms are enclosed spaces with poor ventilation and involving close contact, which means courtroom users have a high risk of contracting infection. After the government declared a state of emergency over the pandemic for Tokyo and six other prefectures on April 7, courts in the areas postponed many trials.

Conclusion: Courts all over the world are holding proceedings with regard to ‘urgent matters’ only and are almost all closed. In most countries, the sudden lockdown has made their court administrations adopt ‘virtual hearings’ to hear matters. It seems that courts world-wide, except countries like Singapore, weren't prepared for ‘virtual hearing’ methods on such a large scale. So even in technologically advanced nations, all is not well when it comes down to conducting court matters using virtual hearing methods and are seen struggling to deliver justice during this difficult times.

COVID-19 & Lessons For Indian Courts:

In an admirably quick and responsible response, Indian courts have responded to the spread of COVID-19 by making the ‘virtual court facility’ available to deliver justice. Upon declaration of emergency situation during COVID-19, Indian courts did not delay and issued notifications regarding the manner in which courts will conduct their business by adopting existing technology like Zoom, CISCO Weber etc., knowing well the limitations of present infrastructure available in Indian courts.

In the Bombay High Court, ‘Zoom’ was first used to conduct proceedings but later it was felt that ‘Zoom’ involved privacy issues, and the courts stopped using it. Later ‘Vidyo’ was used to conduct proceedings -- this also had some issues and was replaced by another software called ‘CISCO Weber’, which is a ‘one way software’ and is presently being used.

In Delhi, according to the Hindustan Times (HT) article published on April 15, the Delhi High Court received several complaints of unavailable infrastructure for the video conferencing (VC) of hearings; thereafter, the Delhi High Court resolved that all the judges should be given online training to hear the matters through VC. The HT report also said, “All the district and sessions judges shall ensure that video conferencing is done through ‘Cisco WebEx.’ Online training about the manner of use of said software be given to all the Judicial officers and court-staff through the Centralized Computer Committee. Such Centralized Computer Committee would, from time to time, seek necessary instructions from the IT Committee of this Court on the aspect of VC hearing and would also ensure that there is complete uniformity amongst all districts in this regard.”

In Chennai, as per a Times of India (TOI) report dated March 30, glitches in the online bail application system have ensured that prisoners whose release was ordered by the judiciary to decongest jails during the lockdown continued to languish in captivity. As soon as the lockdown was announced, the state judiciary permitted release on own bail of hundreds of accused in prison for petty offences. However, people charged with offences carrying up to seven years of imprisonment could not be released. The problem was that the online system did not work in some cases and in others the deputed judicial officers under the supervision of principal district judges did not respond to mails or even to phone calls. These are just a few examples indicating that Indian judiciary, like judiciary all over the world, was unprepared for and did not have the experience to conduct ‘virtual hearings’ of cases.

Despite encountering difficulties, Indian courts are holding ‘virtual hearings’ and this is indeed a great first step. However, cases that are taken up in courts are few and certainly, only cases of an urgent nature are being heard. It is clear that regular Bail Applications are not being treated as urgent matters at all and are being adjourned, indicating that the system which is in place currently is not completely sound, result-oriented and shows a lack of awareness among its users, particularly lawyers. It is possible that this is because our courts, lawyers and litigants have never been prepared for or did not ever imagine the need to use e-court facilities and hence never prepared for this during the current nation-wide lockdown, which may be extended beyond the month of May.

It may be possible for Indian courts to use the ‘virtual hearing’ facilities, since India has been preparing for this leap for over 15 years. The Indian Government established the e-Committee of the Judiciary in December 2004, which has overseen the steady adoption of electronic infrastructure by courts across the country. Conceptualised in 2005, the eCourts project was initiated to computerise India’s subordinate judiciary, automate a wide range of judicial functions to provide designated services, and coordinate web-based interlinking of all courts. Over the years, judicial functioning has seen a tremendous improvement as a result of computerisation. However, the budgeting and allocation for this project, actual disbursement of funds, and budgetary reporting have all been huge causes for concern. It is high time that the Department of Justice must ensure optimum and timely utilisation of funds, compel state governments to release allocated funds to their respective high courts for further disbursement to vendors, and carefully monitor the expenditure of the funds vested directly with high courts. The future of one of the largest justice delivery mechanisms in the world rides on the success of the eCourts project. It certainly cannot be deferred any longer.

The guidelines passed by the Supreme court to make arrangements to hear matters via videoconferencing seem to be a temporary measure and unlikely to be continued once the lockdown is lifted. I believe that the Supreme Court must consider the possibility of conducting regular proceedings via videoconferencing even after lockdown is lifted. This will ensure the use of technology on a regular basis to conduct court proceedings. In fact, the Supreme Court and various High Courts must consider having many more ‘virtual courts’ on a regular basis, thereby assigning certain types of matters to be heard by these courts only. The Supreme Court and the Government could then consider the possibility of increasing the sanctioned strength of High Courts by almost 1/2 of their present strength, which is not possible at present since there is no adequate infrastructure available.

A review of the virtual hearings that have become possible in Indian courts shows that a clear and immediate migration to online court proceedings can become a new normal hearing practice for the regular functioning of the courts in time to come. If we are thinking of virtual hearings on a regular basis, then courts also should consider ‘a virtual remote hearing room’, so that courtrooms could be kept less crowded. Also, migration to online hearing will lead to cost-cutting which will benefit the litigant, since a lawyer sitting in Bangalore, Mumbai, Ahmedabad, Bhubaneshwar or Kolkata could address the Supreme Court bench, and similarly a lawyer sitting in a District Court could address a bench in any High Court in India.

The Supreme Court and all High Courts must consider implementing the following measures so as to make virtual hearings in courts a permanent fixture after the lockdown is lifted :

• Courts must develop state-of-the art courtrooms with the best technology available, where the virtual hearing of court proceedings could be conducted on a regular basis even after the lifting of the lockdown.Of course, this should be in addition to courtrooms where hearings in-person could take place.
• Courts can mandate compulsory electronic filings and registering of pleadings/ applications with synopsis of arguments and the law relied upon. In the ordinary course, matters could be decided based on the pleadings, synopsis and written submissions.
• Courts should ensure that witnesses should be examined via videoconferencing so that it will save time as well as money.
• Lawyers may be asked to submit written submissions, and arguments could be held via videoconferencing.
• The Supreme Court and High Courts must consider a facility of ‘remote virtual hearing room’ so as to enable the administration to ensure that courtrooms are not crowded and ‘social distancing’ is maintained even after lockdown is lifted.
• Judiciary and the Bar Councils will have to implement a mandatory programme to educate and train the judges and lawyers to use the technology in online court proceedings.Today, nearly 80% of lawyers are unfamiliar with ‘virtual hearing’ technology.

The duration of time that COVID-19 may linger is uncertain. It would be irresponsible to believe that this deadly virus will be controlled and dissipate immediately after the lockdown is lifted. News reports clearly indicate that even in Wuhan in China and other cities around the world, a second wave of COVID-19 has resurfaced. Assuming that the COVID-19 Pandemic continues for a long time, courts in India can still resume full functionality through remote working formats outlined in this article, and deliver justice while maintaining the health advisory mandated social distancing and avoiding crowded court rooms.

On a concluding note, I must add that as the President of a High Court Bar association for two terms (2013-2015 and 2015-2018), I had the opportunity to observe the Mumbai High Court’s administration at close quarters. From my experience, I would like to mention to the Chief Justice of India and the administrative judges of the Supreme Court as well as all High Courts that at present the Registrar General tends to function as the virtual CEO of the Supreme Court and all High Courts. Since this individual has a judicial background he is competent to handle judicial responsibilities, but has little or no administrative experience and knowledge regarding the running of an administration and the implementation of various projects such as the e-court project, etc., the administration and projects undertaken by the judiciary suffer enormously.

The judiciary must change this structure once and for all. It must take a practical decision to appoint a highly professional and competent person, who does not hail from the judiciary, as an administrative ‘CEO’ to run the administration of the Supreme Court and High Courts. This will go a long way towards resolving the administrative issues that the judiciary often face and will ensure the result-oriented implementation of projects without delays. It is high time that Indian judiciary takes some innovative decisions in this regard without worrying about the loss of control over the judicial apparatus which has always been and will continue to be firmly under its control.