Indian courts virtually evolving

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Historically, pandemics have forced societies to break away from the past and adopt new measures that redefine their future, and the outbreak of COVID-19 is no different. Indian courts have scaled down conventional operations within court precincts, and are allowing the judicial system to function through video-conferencing technologies. The aim is to ensure continual delivery of, and access to, justice. This move enables courts to enhance their speed, transparency, accessibility and accountability in dispensing justice in diverse settings and situations, without compromising the core legal principles of adjudication.

The use of such technology received judicial recognition in the case of State of Maharashtra v Praful Desai (2003), where the Supreme Court held that the term “evidence” included electronic evidence and video-conferencing that may be used to record evidence. The court further held that recording of such evidence would be as per “procedure established by law”.

The Supreme Court on 16 May issued the standard operating procedure (SOP) for advocates and petitioners for e-filing, mentioning, listing and hearings of matters through video-conferencing. The Chief Justice of India directed court benches to hear cases from 18 May to 19 June 2020 through video-conferencing only. The SOP also provides step-by-step instructions for communicating with the courts through video-conferencing on the VIDYO platform, hosted on the servers of the National Data Centre of the National Informatics Centre.

On 6 April 2020, the Supreme Court, in exercising inherent powers conferred by article 142 of the Constitution, had held that all measures that are, and will be, taken by it and all the high courts to reduce the need for the physical presence within court premises, and ensuring social distancing guidelines, will be deemed lawful.

If virtual courts prove to be successful, it has the potential to significantly improve issues of access to justice, and can be a solution for reducing the huge backlog of cases in India. While laying down guidelines for court functioning through virtual conferencing, the Supreme Court authorized the respective high courts and itself to adopt measures and rules for the proliferation of virtual conferencing technologies, depending on the unique peculiarities of each of the states, and the dynamically evolving public health situation. Directions have been made to the district courts of every state to adopt the specific modalities as will be prescribed by the concerned high courts.

Until the high courts frame specific rules, the adoption of virtual conferencing technology will be the primary method for hearing arguments, whether at the trial or the appellate stage. However, virtual conferencing cannot be used to record evidence unless the parties have mutually consented. If the recording of evidence is necessary, and parties haven’t agreed to use virtual conferencing, they may access the courtroom.

The Supreme Court and the high courts have also issued notifications on the procedure to be followed during a virtual hearing, which include: (1) simplifying the filing procedure, such as temporarily suspending the requirement to file affidavits in support of the case brief; (2) explaining the features of the software used to conduct the

video-conferencing; (3) the manner in which the arguments are to be presented; and (4) guidelines on how written submissions are to be presented. Mostly COVID-19-related cases were taken up initially, but the courts are now accepting commercial cases, such as the invocation of bank guarantees, where extreme urgency can be demonstrated.

The courts are also slowly increasing the capacity of the virtual courtrooms so that more cases can be heard. Besides setting up virtual courtrooms, the Supreme Court on 23 March also extended the limitation for filing cases so that the litigants are not prejudiced amid the lockdown. Although further clarity is needed from the Supreme Court, the period of lockdown is likely to be exempted from the calculation of limitation.

Additionally, interim orders that had been granted earlier have been extended by the courts. If any litigant is unduly prejudiced due to the extension of such an order, they have been given the opportunity to approach the court to seek a vacation of that order. These steps have ensured that litigants who do not qualify in the category of “exceptionally urgent cases” are not prejudiced.

The business law digest is compiled by Nishith Desai Associates, a research-based international law firm with offices in Mumbai, New Delhi, Bengaluru, Singapore, Silicon Valley, Munich and New York. The firm specializes in strategic legal, regulatory and tax advice coupled with industry expertise in an integrated manner.