If every adversity presents an opportunity and every cloud has a silver lining, then the COVID-19 pandemic is the time to bring in innovations and new paradigms in the administration of justice. Though what follows is Supreme Court-centric, it can be replicated with appropriate modifications at all levels of the judiciary. What is sadly missing is not talent, capacity or funding but attention to detail and a holistic, uniform protocol at each level of the hierarchy.
First, we cannot have vacation court-like functioning during the pandemic and switch magically to the pre-COVID normal after the lockdown. It would be naive to assume that post lockdown, hordes of lawyers will, or should be, allowed to descend upon the SC, and business will resume as usual. Since pre-COVID normalcy is many months away, we must evolve three protocols, not two — lockdown, post lockdown pre-normal and normal.
Second, during the lockdown, there is no reason why a minimum of two-thirds, indeed all 35, of SC judges should not sit daily. Why is the best equipment, the best technology, not operational over the last month to enable this? Instead, we have two or three benches sitting and dealing with less than 50 matters every week. Indeed, with the state-of the-art technology, judges should not be required to meet and endanger themselves, as is currently happening.
Third, the two largest rooms at the new SC building should be fully equipped to enable a limited number of lawyers, who cannot afford virtual lawyering, to present their arguments from within the court — they should maintain strict social distancing. The lawyers who fall in this category or would want to come to court are, of course, a minuscule number. However, they must be facilitated.
Fourth, the strict test of urgency currently applied must be maintained. False urgency claims are the bane of Indian litigation. They clog the legal pipeline while ordinary and poor litigants have to undergo an eternal wait. COVID and its short-term aftermath is the best time to evolve two tracks of litigations. Judges holding courts that are akin to a vacation bench could deal only with hyper urgent cases — as is currently happening, albeit trebling the current listings. The bulk of the remaining 35 judges can then take up cases that are going on for 10 years or more. Within a few months, all the cruel figures which underline the high pendency rate of the SC will vanish. But this requires a ruthless listing procedure since one party will always be interested in causing delays. The procedure should also involve careful screening by judicial interns, advance invitations of five or seven-page written submissions should be issued and strict time limits, based on such pre-screening, fixed. All five-judge and higher bench references may be excluded from this list for the time being.
Fifth, for the full court to function, we should have had ramped up technology yesterday. It is deplorable that the apex court is not equipped with efficient technology. This would require Rs 100-crore at most — surely the SC deserves this amount. The judiciary should be the least concerned with issues such as seating arrangements for judges, the number of parties and advocates who can be accommodated and the quality of audio and video. All this should be operationalised by technicians working on government directions. We are inexcusably behind on all this.
Seventh, when full normalcy returns (the third phase), we must ensure that these methods are used to conduct a significant proportion, perhaps 33 per cent, of all hearings. The much-criticised orality of the Indian system will diminish, time limits that we have failed to implement for seven decades will become the new normal, and precision, through written submissions, will get a boost. Less crowding, less wastage, less dirt and less transmission of infection can easily become the new normal.
Eighth, as the above paradigms extend to lower court hierarchies, virtual lawyering will allow shift systems for courts and make evening and night courts routine, without egregiously enhanced strains on our infrastructure.
The possibilities are limitless. We have nothing to lose except our chains, habits and comfort zones. Let us start by utilising the full forthcoming SC vacation to virtually function at full strength.
This article first appeared in the print edition on April 25 under the title “A nifty-post COVID justice”. The writer is a Rajya Sabha MP, former chairman Parliamentary Standing Committee on Law, former Additional Solicitor General of India and senior National Spokesperson of the Congress. Views are personal.
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