Forget it. The world is in doldrums. Nations are wobbly. It is a crisis like no other. First and Second World Wars, seem like sports carnivals, compared to the present Global Health Emergency. It has morphed from an outbreak to epidemic to a Pandemic, in no time. Social Distancing and Contract Tracing are the current lingo, as Lockdowns and Shutdowns, swamp us all. It has not left unimpacted, any one, in any part of the world. In such a deadly scenario, can Judiciary be far behind?
It is a humongous struggle to keep the doors of judiciary open. ‘They’ say, we are into Videoconferencing. Emergent cases are being offered space. There are scanty, scanty reports in print and electronic media on proceedings, before the courts. In the not so distant past, just a few weeks ago, newspapers were full of reports on the proceedings before Courts. Reams and Reams, were devoted to cover the happenings in courts, in real time. Our drawing rooms were also noisy with the ideological food fights, founded on court judgments, on the idiot box. Now it is close to zilch.
Reports are now seeping out that Madras High Court has ‘cancelled’ the summer vacations from 1st May, 2020 to 31st May, 2020 and there could/would be near ‘regular’ sittings. One feels like going to one’s roof top to shout Wow, sound the conches and bang the Thalis, with all one’s might. Sorry, even as one is made privy to the proposed near regular sittings, one is updated on the devilish dance of this menacing virus, which ‘they’ (a different they this) say is spreading faster than the fastest virus, which has come visiting this planet. Medical professionals, health experts and scientists, who are now the flavour of the season, are truly bewildered, when Donald J Trump wants ‘normalcy to return’- and as such you can club regular Court sittings, to this genre. The US virologists and epidemiologists have now opined that ‘the world will be revisited by this virus in mutated form in the winter months and that could be worse’.
Come on, the scientific community is telling us- Harvard, Johns Hopkins, Indian Council for Medical Research- in unison, that we are nowhere near sighting ‘normalcy’. Even ignoring the stellar configurations and prognostications that it may be end of July etc, to see a genuine ‘flattening of the curve’, the health experts from World Health Organisation have warned, “Covid-19 is not going anywhere anytime soon. It is here to stay with humans as the ‘host and carrier’, until there is a vaccine in place. And the timeline for a vaccine is a 12/18 month affair, if history of such discoveries, are anything to go by.”
Put two and two together, the irrefutable inference is that Judiciary is not placed anywhere near immunisation, from the influence of this invisible enemy. It does not merely appear so, but too evident and clear that May, 2021 looks more like it, and not May, 2020, for normalcy to return. WHO experts say that the ‘flattening of the curve’ may suggest euphoria, but it would be too short lived, if the 1918-20 Spanish flu experience, is a reference point. The virus will survive all the shutdowns and lockdowns, in Homo sapiens, as unwilling hosts of mutating aliens, and efforts to return to ‘normality’, would be an invitation to hellholes, ‘they’ (those who know) say.
What of Judiciary? The world over, Law is last in embracing digital platforms. Silicon Valley is busy with their Artificial Intelligence (AI), Machine Learning and more, in any and every field of human activity, other than Judiciary. Yes, Yes, Yes, before someone somewhere pounces, that our E-Court initiatives have come a long way, and that is conceded. But the long way is still a long, long way, from having effective and organised sittings of courts. That is the nub of the issue.
What is the alternative? Yes, urgent matters require emergent attention. Human rights issues are sacrosanct. The legal fraternity is used to filing cases, following it up through the corridors, getting them passed, numbered, uploaded and then listed for the ‘regular hearings’. All physical. Those in the know of things, would be aware of what is the logistics involved in this sequence. It can be infuriating at times to the litigants. But that is the reality.
In such difficult times, the Judiciary may be well advised to introduce the precept and practice of Written Submissions, (which is now part of the dispensation under Consumer Protection Act, 1986). In the western hemisphere, it is a matter of course that written submissions are de riguer. In the British tradition, which we have adopted as a legacy left behind, oral submissions are many a time dispensed with as well, and timelines borrowed from United States, are getting introduced, as it is found inevitable.
As for the US Supreme Court (SCOTUS) or even the Federal or State Supreme Courts and lower Divisions, written submissions are mandatory, and a matter of course. These submissions are supported by oral submissions, within a strict time frame and even where the Judges and lawyers are not in the same city or State, they get together on an online platform, and even on phone. Oral Submissions may also been dispensed with, for good and valid reasons. SCOTUS is about to embark on its maiden venture, to have live streaming of 11 seminal causes, on audio, via mobile, of oral arguments of the counsel , in these Pandemic times.
What do we do? Let us take it that the present impasse is here to stay, for some time. Assembling lawyers (not the most disciplined community, when they are under one roof, to practice social distancing) and the clerical community, in Court halls, may be a disaster waiting to happen. How one wishes it were not so? Realistically, May, 2020 re opening can well be ruled out, as the statistical model, built from international experience, indicates that 2nd week of May,2020, may be India’s day and destiny, for the peak of the cliff of this viral spread.
The ideal situation in the present scenario may be for the High Court to list those causes which are ripe for final hearing. There is no dearth of it. The Registry can help with the compilation. The advocate community can also provide their lists. All the while practising social distancing. Written Submissions could be received via E mail and cases decided by Judges in their Chambers. And judgments pronounced and uploaded as well. Surely, there are thousands and thousands of cases of this genre, crying for closure. As a puisne Judge mailed, “Let us be clear. Very rarely the oral submissions make the difference. More often than not the papers tell us the story and the result. In fact, many a time, I have ‘decided’ the case contemporaneous to my reading it in my chamber, and more often than not, the oral hearings affirm my conformed conviction”.
It is a glorious opportunity for the learned judges to read the papers, in the silence of their chambers, without the avoidable ‘cacophony from counsel’ (as the legendary Sir C P Ramasamy Aiyar put it) and decide in leisure. Why not? Why not? That is the way to go, for now. Experienced practitioners, except the confirmed naysayers, would readily agree, as extraordinary circumstances call for extraordinary remedies.
There are many, many appeals and cases which come within the ambit of possibility of such a closure, even if it may seem akin to a guillotine. We are in a crisis situation. The Courts cannot afford to open and open up the possibility of a viral spread- with each asymptomatic and symptomatic entity is capable of infecting 406 others- as per ICMR study. It seems so risky at this point of time, no matter, how anguished we may feel, by the forced shutting of the doors of the Blind Lady Justice. Truth is, we have so badly harmed her sister, Lady Nature, for the Blind Lady of Justice, it would be a family in distress. Alongside seeking disposal of cases, ripe for final hearing, upon receipt of written submissions, by most judges, a few judges may suffice to handle emergent cases, as there is nothing more emergent than the health of the nation in these Pandemic times.
Video conferencing may not be necessary. A conference call on mobile devices may suffice. Orders can be dictated to personal assistants sitting miles away and digital signatures affixed and orders uploaded. Waiting for normalcy to return for all cases, under various portfolios to be listed and heard, is elusive on date. Instead, cherry picking cases that could be disposed of in this manner, may be the practical and pragmatic way to go. One hopes and trusts that the Madras High Court and even the Supreme Court and other High Courts, pivot to this digital route and exploit the time available to dispose of causes of that genre, which offer huge scope for such closure, than seeking the normalcy route.
(Narasimhan Vijayaraghavan-Author is practising advocate in the Madras High Court)