Access to justice during the Covid-19 pandemic: an Indian perspective
Law Offices of Kumar Vaibhav, Ranchi
We are in unprecedented times. The Covid-19 pandemic has posed a never-imagined challenge to every sector of the economy and every activity of the nation. When it comes to the legal world, that challenge is even graver. It ought to be, as the world of the bar and the bench is a part of the whole system of ‘access to justice’.
It was not long ago that a Constitution Bench of the Honourable Supreme Court of India, in the case of Anita Kushwaha v Pushap Sudan, while holding that access to justice (apart from being a facet of right to life under Article 21 of the Constitution of India), is a part of the guarantee contained in Article 14 as well. The Bench also described the essence of ‘access to justice’ as constituting of the following elements:
- the State must provide an effective adjudicatory mechanism;
- the mechanism provided must be reasonably accessible in terms of distance;
- the process of adjudication must be speedy; and
- the litigant’s access to the adjudicatory process must be affordable.
The pandemic has produced a state of flux as far as these elements are concerned. The very concept of ‘access to justice’ has been subjected to a unique challenge, never faced before. Commendably, the judiciary has responded remarkably by, without hesitation, harnessing technology to ensure that access to the courts is not impeded. It would not be entirely correct if I were to say that access has not been impeded, however, the rapid response of the Bench in adopting technology and devising e-courts and video-conferencing has ensured that the disruption was transitory.
Any new technological intervention in an existing system is bound to cause serious discomfort at the threshold, for it takes us far beyond our comfort zones. However, with time and testing, not only do we adapt to it, but the technological advancement also starts to achieve perfection. The legal system is no stranger to technology and has always kept up-to-date with technological advancements. For instance, the advent of internet and information-technology resulted in enactment of new statute, namely the Information Technology Act, 2000, and amendments to the age-old Indian Evidence Act, 1872. Since history is full of examples of the law adapting to ‘change’, there is no reason why the pandemic should be any different. Indeed, it is not so, as is evident from the dynamism and adaptability demonstrated by our legal system. The Bench and the Bar have wholeheartedly cooperated and collaborated to ensure that the system continues to work: courts are in operation and we can assure benefactors that the system, though brought down by the pandemic’s mayhem, has been revived. The only facet which ‘access to justice’ has adopted during the pandemic is ensuring ‘access’/‘remote access’/‘virtual access’, which is many steps ahead and far more positive than ‘no access’.
Current times echo the words of Benjamin Cardozo: ‘Existing rules and principles can give us our present location, our bearings, our latitude and longitude. The inn that shelters for the night is not the journey’s end. The law, like the traveller, must be ready for the morrow. It must have a principle of growth.’ The circumstances created by the pandemic have demonstrated that India’s legal system, if not ready for tomorrow, has started gearing up for change.
Recent steps towards digitisation by the Bench are complementing the virtual courts and electronic filings. I cite two instances: first, the introduction of e-courts portals/apps, ensuring the availability of soft-copies of court orders and immediate access to case-status. Second, I am reminded of a 2016 direction passed by the Honourable Supreme Court of India in the case of Youth Bar Association of India v Union of India, for uploading copies of first information reports (FIRs) on the websites of the police/ State, which, if properly implemented, could be linked to the e-filing process, to ensure the electronic availability of FIRs to the courts. Also requiring a mention is the Supreme Court’s mobile application, which has improved access to case information.
Nothing new comes without critics. There has been some criticism of and opposition to virtual courts, electronic filings etc. This can be silenced only with time and further perfection of the system. Any new system is bound to be mired in problems. The court video-conferencing applications and systems are no exception. However, it is heartening to see the tremendous amount of hard work and tireless efforts being contributed by support staff in adapting the Bench and the Bar to the new system. Of course, not all are conversant with technology, but current circumstances demand that we become so, or at least that we make efforts in this regard, for the near future will be the time of technology and automation and those who do not keep up with the pace will be superseded.
Not being a critic, rather a supporter, in my view the system requires some fine-tuning, which of course is underway. However, some words which show of me, having been part of a few video-conferencing court hearings are: simplification of the system and, at the same time, ensuring that the sanctity of the courts/ judicial process is not undermined. The greatest step in this regard would be simplification of filing process, procedures and formalities. At this juncture, I am reminded of the golden words of the Honourable Justice Verma:
‘Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. Construction of a rule of procedure which promotes justice and prevents its miscarriage by enabling the court to do justice in myriad situations, all of which cannot be envisaged, acting within the limits of the permissible construction, must be preferred to that which is rigid and negatives the cause of justice. The reason is obvious. Procedure is meant to sub-serve and not rule the cause of justice. Where the outcome and fairness of the procedure adopted is not doubted and the essentials of the prescribed procedure have been followed, there is no reason to discard the result simply because certain details which have bit prejudicially affected the result have been inadvertently omitted in a particular case. In our view, this appears to be the pragmatic approach which needs to be adopted while construing a purely procedural provision. Otherwise, rules of procedure will become the mistress instead of remaining the handmaid of justice, contrary to the rile attributed to it in our legal system.’
I may refer to the process of e-filing of appeals before the Commissioner of Income Tax, Appeals, which is now done electronically. A similar system could be introduced for various other filings, which would save time and resources in scanning page after page of petitions and annexures. Filing portals can be generated, which could be linked to the e-courts portal and to police websites, to ensure the e-availability of impugned orders, FIRs etc. An alternate to the traditional oath/affidavit system needs to be developed of course, without losing sight of the sanctity and majesty of a court of law. Here again, I may refer to the system followed in office of Registrar/Sub-Registrars under Registration Act, 1908, of biometrics/retina scan, etc. This could be coupled with the introduction of the electronic payment of court fees. Again, what might be explored is the use of digital signatures for filings, as happens with tax filings.
The other area, which poses a greater challenge, is the conduct of mediation proceedings. Often, court-ordered mediation proceedings are conducted through the legal services authorities. It is yet to be seen how the mediation proceedings would adapt to virtualisation, for the essence of mediation is the presence of contesting parties before the mediator, attempting to settle the matter with the intervention/counselling of the mediator. Litigants, vis-à-vis the Bench and the Bar, cannot be expected to have the same level of adaptability for virtual/electronic proceedings. Therefore, what will be required is using traditional systems only, albeit with modifications to ensure social-distancing and safety. The oft-lightly taken mediation proceedings, as compared to court proceedings, would be far more challenging when attempting to keep up with the latest circumstances and technology. Similar challenges would apply to legal aid. To reiterate, the difficulty would be in making the litigants/clients to adapt to the change. However, hopefully the same would withstand the test of time, for the post-Covid-19 world will be a different place all together, with entirely different norms.
To make the new norms, a part of the system, even after normality is restored, would be the need of the hour. For instance, introducing mandatory virtual courts/e-courts for certain matters, a day of the week/an hour of the court day, for e-courts through video-conferencing and only e-courts through video-conferencing, may be considered for vacation courts, etc. Gradual changes hurt less and invite positive support and, accordingly, our system will start to adapt. Although the Covid-19 lockdown is not permanent, the new norms it necessitates have permeated our system and these are here to stay.
Of course, the foremost necessity would be proactive support from the legislature and executive to the judiciary, to ensure that ‘access to justice’ is reinforced in these testing times. A recent quote I read aptly describes the current times (light-heartedly): ‘You cannot do today’s job with yesterday’s methods and be in business tomorrow.’
 (2016) 8 SCC 509.
 Ibid. at paragraphs 32 and 33.
 Benjamin Cardozo, The Growth of the Law, Indian Economy Reprint 2006, Universal Law Publishing Co, p 19.
 (2016) 9 SCC 473.
 Owners and Parties interested in M V, ‘Vali Perro’ v Fernandeo Lopez & Ors, (1989) 4 SCC 671, paragraph 18.