Introduction:

The COVID-19 pandemic has deeply impacted how society and institutions function. The Court
too had to respond to the challenges posed by the pandemic and determine the best course of
action. Naturally, the Court suspended normal functioning and worked at reduced capacity on
both administrative and judicial sides. In this two-part term review, we look back at two
aspects: cases that were heard and the court’s reliance on technology to continue its operations. 

 The traditional hearing of cases is changing in these tough times. The courts are hearing
arguments of cases online due to lockdown in the country. Many institutions and companies have
changed their working style due to COVID-19 situation. The courts in India have also changed
their working style due to the present condition. This change occurred due to the prolonged
lockdown in the country. The courts could not be closed for too many days. The cases started
piling up, and urgent matters had to be taken up and addressed. Thus, the courts started
digitalisation of its procedures.

Judges started hearing urgent matters through video conferencing. With hearing cases, filing
procedures also started online. Development of e-filing took place to file cases before High
Courts and District Courts. Advocate filed applications and written arguments online. A copy of
this is given to the opposite advocate online. All courts in the country started adapting to the
digitalisation of court procedures.

Court turns to video-conferencing and e-filing

During the COVID-19 induced lockdown, the Court has turned to technology to continue
operating. On 22nd March, the Court set up a Bench to hear ‘extremely urgent’ matters over
video-conference. To ensure accessibility, it also set up a video conferencing room on its
premises for lawyers and litigants who may not have access to the adequate infrastructure
otherwise. By 26th March, it was strongly urging all advocates to make use of its e-filing system.
Litigants can file all petitions and submissions through the Supreme Court of India’s web-portal. 

 In its latest ‘Standard Operating Procedure’ published on 14th June, it standardized the system
for the listing of cases. Using a combination of the Court’s official website and e-mail, the
Registrar has gone completely digital. 
 In the spirit of keeping hearings open to the public, the Court has allowed a limited number of
journalists to view hearings from its video-conferencing room.  

Hearing of arguments in all the courts is by video conferencing. The advocates connect to the
concerned judges before whom their cases are filed, from their homes and argue cases at the
given time. The opposite advocates also join at the given time to hear the arguments. Thus, the
hearing of cases takes place online.

The courts in India have incorporated e-courts through the Integrated Mission Mode Project (E-
Courts Project) as part of the National eGovernance Plan (NeGP) formulated by the Government
of India. E-courts provide for filing of cases online in all High Courts and District Courts of
India through e-filing option. 

Advocates have to register to ‘E-Courts Services’ website to file cases online by providing their
details. Certified copies of the applications filed by the opposite advocate in a case are got online
through this website. Court fee is paid on this website while filing new cases. The e-filling option
enables the police stations across India to e-file charge sheets and papers relating to criminal
cases.

The Government of India maintains the e-courts services website, which helps courts to digitalise
procedures. While filings take place here, the question of security of data comes up. It has to be
adequately maintained to protect essential data. The government has taken care to protect data by
providing an encrypted password to the user and industry-standard measures to safeguard
information. 

The Court has also come up with a way to mark the appearance of advocates in hearings. The
appearance of advocates is recorded after the Advocates-on-Record certify their appearance, and
send the appearance slip by email through registered email ids by 10.30 am on the day the case is
listed.

The Court has also implemented a new dress code, replacing the traditional black coats and
gowns as a precautionary measure to combat the ongoing spread of the coronavirus. Justice
Bobde, while hearing a PIL, had said “avoid black coats and gowns for the time being because it
makes it easier to catch the virus”.

The advocates have been directed to wear plain white shirt/white-salwar-kameez/white saree,
with a plain white neck band during hearings through video conferencing till the medical
exigency exists. They have also been exempted from wearing any heavy upper body clothing
like gowns, coats, etc which cannot be washed daily.

The top court has also witnessed some instances of advocates appearing in virtual court hearings
without following the dress code. Recently, an advocate appeared for hearing before Justice
Ravindra Bhat of the Supreme Court wearing a T-shirt and lying on his bed. The Court later
accepted his apology but also stressed the importance of advocates appearing before it in a
“presentable” manner and maintaining minimum court etiquette.

The Supreme Court has been following quarantine rules and protocols to contain the spread of
the coronavirus. For example, a Supreme Court judge and his family had self-quarantined
themselves in Delhi as a precautionary measure after their cook tested positive for the
coronavirus.

The apex court has also allowed the litigants to file their petitions and submissions online
through its web portal. On May 15, the e-filing module of the court was unveiled during a
webinar along with the E-Filing User Manual developed by the Court’s E-committee for online
filing of cases.

The chairperson of the Supreme Court E-committee, Justice DY Chandrachud, said during the
webinar that the model of e-filing includes a cost-effective method, with a 24×7 e-filing facility,
online court fee payment, use of digital signature and digitalised scrutiny mechanism for defects
and objections. The Court has, therefore, developed a cost- and time-effective system for filing
of cases to assist advocates, and they can now file cases from the convenience of their homes.

Even after these numerous efforts, the functioning of the apex court has faced some
impediments. Lawyers’ associations like the Supreme Court Advocates-on-Record Association,
the Bar Council of India and the Bar Council of Delhi have written to the CJI requesting
recommencement of physical hearings due to practical difficulties being faced by lawyers. While
some lawyers, who lack the technical know-how or the required hardware, are facing problems
in arguing through virtual courts, others are not comfortable with these hearings as they aren’t
able to present their cases effectively.

Some have also faced the issue of being disconnected mid-hearing and not being able to join
back or hear the order. There have also been problems with the video and audio quality,
restricting them from putting forth their arguments effectively. Many lawyers, specially the old
brigade, are not well-equipped with how to use computers or file cases online. Technical glitches
and poor internet connection are a constant problem.

 The Court has had to adjourn cases because the counsel were still in their hometowns owing to
the lockdown and did not have access to their files. In cases where multiple parties are involved
and many lawyers appear, all of them may not get a chance to be heard as their microphones may
be put on mute by the coordinator. If the microphones aren’t kept on mute mode by any of the
parties, it causes disturbance in the hearings.

Technical issues have not been the only problem in the top court’s functioning. Its registry has
recently faced accusations of giving preference to some law firms and influential advocates
while listing their cases first and discriminating against the rest.

A practising lawyer, Reepak Kansal, had written to the Secretary General of the Supreme Court
stating that discrimination was being made by the Registry during listing of cases. He
highlighted the example of the petition filed by Arnab Goswami, editor-in chief of Republic TV.
He alleged that Goswami had got a hearing within one day of filing his petition.

According to Kansal, Goswami’s case was filed on April 24 at 8 pm and the case was listed for
hearing on the next day, April 25, at 10.30 am and certain other cases were ignored.

 The staggered and limited functioning of the Supreme Court due to the pandemic has also led to
delay in hearing of some crucial cases. One such case that has been delayed is the challenge to
the Citizenship (Amendment) Act, with more than 100 petitions still pending before the Court.
The Court had issued notice to the centre in December and the case was last heard on February
18, when it had given time to the centre to file its response. Another issue that has been delayed
are petitions challenging the abrogation of Article 370 of the Constitution and the special status
of Jammu and Kashmir.

The Supreme Court’s summer vacation, which was scheduled from May 18 to July 6, had to be
rescheduled owing to the pandemic. The Court, however, is hearing urgent matters during the
new summer vacation from June 22 to July 3.

During the first week, two division benches, one court of judges-in-chamber and one Registrar
Court are conducting hearings through the video-conferencing or tele-conferencing mode, while
in the second week, two benches will conduct hearings.

The urgent matters mentioned online for listing before the vacation courts will be placed before
the Court only after approval of the competent authority. The vacation officer and the registrar
are responsible for dealing with extreme urgent matters according to the prevailing guidelines.
The documents will only be filed through e-filing and not through filing counters as they will
remain closed except in situations of extreme urgency.

To conclude, while the Supreme Court has been appreciated for taking up matters through video-
conferencing and constantly issuing guidelines for its use, it has also been criticised for several
reasons like not taking prompt decisions on certain issues. The Court’s journey through the
pandemic has clearly not been a smooth ride but in consideration of the aspect of
unpredictability, it has still managed to sail through.

Is e-filing and video conferencing new? 

The Indian judiciary has been undergoing gradual digitisation since the mid-2000s, primarily as a
result of the National e-Governance Plan. Courts have recognised that going digital could result
in greater efficiency and transparency and therefore have taken steps to modernize administrative
processes through the use of technology. The judiciary's plans to modernize have included
building infrastructure to allow for e-filing and video-conferencing. 
 The Supreme Court cemented the importance of e-filing in 2005 when it published its
first National Policy and Action Plan, which included a section on electronic filing. In
subsequent years, the Supreme Court and various High Courts began introducing procedures for
filing cases online. 

 However, up until the COVID-19 outbreak, very few litigants used e-filing. Consider, for
example, the two High Courts perhaps most known for e-filing – Punjab and Haryana, and Delhi.
In 2019, the SC E-Committee reported that the two courts combined saw fewer than a 1000
matters filed online. By contrast, in just the first six months of 2019, a combined 1.9 lakh cases
were filed in these two High Courts. While the Supreme Court hasn’t publicly reported its pre-
COVID-19 e-filing numbers, they are likely similar. 

 Much like e-filing, video conferencing has been around since the mid-2000s but was
infrequently used till now. It first gained prominence when the Supreme Court held in State of
Maharashtra v. Praful Desai (2003) that courts could record evidence over video-calls. Roughly a
decade later, the E-Committee emphasised the importance of setting up video-conferencing in
lower courts to conduct hearings of under-trial prisoners and record evidence. Beyond that
specific situation, however, the Supreme Court rarely used video-conferencing to hear oral
arguments.

Virtual Hearings– A road which should be continued post-pandemic

In the wake of Coronavirus Pandemic, the Supreme Court (SC) has passed directions for all
courts across the country to extensively use video-conferencing for judicial proceedings. The
Supreme Court exercised its plenary power under Article 142 to direct all high courts to frame a
mechanism for use of technology during the pandemic.

 The SC, is moving towards technological advancement for its functioning and is
conducting hearings through video conferencing since March 25, to maintain social
distancing.

Virtual Courts

 Virtual Courts is a concept aimed at eliminating the presence of litigants or lawyers in

the court and adjudication of the case online.
  An e-court or Electronic Court means a location in which matters of law are adjudicated
upon, in the presence of qualified Judge(s) and which has a well-developed technical
infrastructure.

 The e-courts are different from the computerised courts which have been in place since
the 1990s.

 The working of e-courts requires an Online environment and an Information and

Communication Technology (ICT) enabled infrastructure.

o This would be beneficial for both improving the court processes and rendering
citizen-centric services.

o e-Courts are aimed to make legal processes easier and more user friendly.

o Litigants can view the status of their case online through various channels created
for service delivery.

o Litigants can file the plaint electronically through e-Filing and also pay the Court
Fees or Fine online through.

e-Courts Project

 The e-Courts project was conceptualized on the basis of the “National Policy and Action
Plan for Implementation of Information and Communication Technology (ICT) in the
Indian Judiciary – 2005” submitted by e-Committee, Supreme Court of India with a
vision to transform the Indian Judiciary by ICT enablement of Courts.

 The e-Courts Mission Mode Project, is a pan-India Project, monitored and funded by the
Department of Justice, Ministry of Law and Justice, for the District Courts across the
country.

Objectives of the Project

 To provide efficient & time-bound citizen-centric services delivery as detailed in e-Court

Project Litigant's Charter.
  To develop, install & implement decision support systems in courts.

 To automate the processes to provide transparency and accessibility of information to its

stakeholders.

 To enhance judicial productivity, both qualitatively & quantitatively, to make the justice
delivery system affordable, accessible, cost-effective, predictable, reliable and
transparent.

Advantages

 The expansion of E-courts will ensure easy access to justice at affordable courts to all
sections of society.

 The experience of an e-court will be much more personalised and private as opposed to
theatrics involving public-speech based system.

 The proliferation of e-courts will make litigation faster, given that required logistics are
provided.

o In India, there is a massive backlog of cases in every court. As of April 2018,

there were over three crore cases pending across the Supreme Court, the High
Courts, and the subordinate courts (including district courts).

 The judiciary system in India with the help of e-courts can overcome the challenges
and make the service delivery mechanism transparent and cost-efficient.

 The e-courts will also benefit the judicial system and will provide flexible retrieval of
stored information. This will allow judges to view the proceedings of a previous case or
to retrieve other important documents at the click of a button.

o Data sharing between different courts and various departments will also be made
easy as everything would be available online under the integrated system.

Challenges
In the present circumstances, the virtual courts may seem a necessity, however, it goes without
saying that at present there are a whole lot of glitches and shortcomings in its execution.

 The e-filling process is riddled with endless complications.

 e-Courts will also prove to be cost-intensive as setting up state of the art e-courts will
require the deployment of new-age technology.

 Hacking and cybersecurity: On the top of technology, cyber-security will be a huge

concern too. The government has initiated remedial steps to address this problem and
formulated the Cyber Security Strategy but it is more on the side of prescribed guidelines
alone. The practical and actual implementation of the same remains to be seen.

 Infrastructure: Challenges can erupt due to insufficient infrastructure and non-

availability of electricity and internet connectivity in most of the Talukas/villages.

o Electricity connection is a must along with internet connectivity and computers to

ensure justice reaches every section equally.

 Maintaining e-courts record: The paralegal staff is not well equipped and trained to
effectively handle document or record evidence, and make them readily accessible to the
litigant, to the council as well as to the court.

 Other issues might involve the litigant’s lack of confidence in the process due to lack of
proximity.

Way Forward

 To address the aforementioned challenges, the first and foremost step is to draw up a
policy for encouraging the setting up of e-courts.

o It is critical to draw up a well-defined and pre-decided policy framework as it can

help in laying a concrete roadmap and direction to the e-courts scheme of India.

 Another important step is the need to upgrade the present state of infrastructure. The

government needs to identify and develop the infrastructure that would be required to
support the e-court project.
  One aspect that needs to be focussed on is the deployment of a robust security system that
provides secure access to case information for appropriate parties. The security of e-
courts infrastructure and system is of paramount importance.

 Also, a user-friendly e-courts mechanism, which is simple and easily accessible by the

common public will encourage litigants to use such facilities in India.

 The government must make dedicated efforts in the training of personnel to maintain all
the e-data. These include maintaining proper records of e-file minute entries, notification,
service, summons, warrants, bail orders, order copies, e-filing etc. for ready references.

 Conducting training sessions to familiarise the Judges with the e-courts framework and
procedure can give a huge impetus to the successful running of e-courts.

 Creating awareness around e-courts through talks and seminars can help bring to light the
facilities and the ease that e-courts can facilitate.

As technology is here to stay, therefore, finding mechanisms to make it better will be the step in
the right direction.

Until now, the Government has issued guidelines for Lockdown 5.0 and Unlock 4.0. As a
breather, the opening of various sectors is now forthcoming. These lockdowns make a short
phrase ‘time teaches’ suit best to the present situation. And these teachings are interestingly
manifold. The lockdowns have given us a panoramic view of multiple things. For example, the
lockdowns revitalized the concern for a clean environment. Similarly, the lockdowns have
brought forth optimum utilization of technology on multiple fronts. For example, the technology
is used for contact tracing to e-meetings of clients, e-filing of cases, and e-hearings in the courts.

In the present article, the authors seek to discuss the adaptation of the courts to e-hearings so as
to keep the doors to justice always open for the people. The authors make a case that e-hearings
during this difficult time have highlighted multiple benefits and thus it can be regulated and
continued even after the pandemic wades away.

Before discussing this, it would be relevant to briefly note that on a declaration of the first
lockdown in March 2020, the Hon’ble Supreme Court was first to switch to e-hearings for urgent
matters in India. On March 23, 2020, itself the Hon’ble Court had issued Standard of
Procedure for the presence of advocates and litigants in court for urgent matters through video
conferencing. Since then, different High Courts, tribunals, and district courts have adapted to
hearing of cases through video conferencing. Now, with the easing of lockdowns and
adaptability to e-hearings, the restriction of number and kind of matters to be heard through
video conferencing has also been widened.

As far as numbers are concerned, recently, the Hon’ble Supreme Court in 

The Law Commission of India back in 1988, noted the misery of costs in litigation as “back-
breaking” in para 2.11 of its 128th Report titled ‘Cost of Litigation’. The observations made
therein still hold true as witnesses often wish to recuse themselves from being called as witnesses
due to delayed litigation and cost in terms of time and money. Similarly, witnesses (including
expert-witnesses) travel for rendering evidence in different courts across the country whose costs
are either borne by the parties or the government. Order 16 Rule 2 of the Code of Civil
Procedure, 1908  and Section 312 of the Code of Criminal Procedure, 1973 are examples where
expenses to be incurred on summoning of witnesses put burden on the finances of a party or
government. Given the costs involved and such tendencies of witnesses, video-conferencing of
court proceedings offers an edge-cutting solution to these long-involved issues.

To the contrary, contentions are raised that lack of openness and infrastructure facilities shows
non-viability of e-hearings vis-à-vis physical hearing. It is argued that e-hearings have restricted
access of courts to the public, in particular journalist and like groups.

Admittedly, open Courts are essential for citizens to repose faith in the judicial system. Article
145(4) of the Constitution of India mandates delivery of judgments by Supreme Court in open
Court. Similarly, Section 327 of the CrPC and Section 153B of CPC calls for access of the
public to the courts.

However, virtual hearings are by no means inherently opaque or in violation of the statutory
provisions. Instead, it is the right opposite of it. The Supreme Court in its press release in the first
week of May observed that
Thus, the virtual courts instead hold an unbounded potential towards giving actual meaning to
the terms ‘open court’ and transparency. It has been time and again observed that that “justice
should be speedy, affordable, and accessible”. The adaptation of the courts to e-hearings will
only further add to the trust of the people in the judicial system and will also water the aims of
the above-said adage. The courts can evolve mechanism to record court proceedings and retain it
in their archives and can provide copies. This can help courts attaining the constitutional and
statutory mandate of open courts in true spirit.

Another contention raised by opponents of virtual court hearings is the low quality of internet
access to the people of India and lack of infrastructure facilities in courts for e-hearings. It is said
that online proceedings require a minimum speed of 2mbps/sec and upward which is available
only with 4G users. Further, the Mobile Broadband India Traffic (MBiT) Index formulated by
Nokia shows that though 4G constituted 96% of the total data traffic consumed across the
country, yet the broadband penetration still stays at a low of 47%. However, to pertinently note,
the broadband penetration has hiked from 27% in 2017. This exponential growth in reach of
technology shows that this should not be a problem in the times to come. Further, to combat
infrastructural limitations, with the co-operation of government, courts and respective bar
councils/associations at different levels i.e. District, State, Centre, multiple e-booths can be set
up across the country for the needy litigants and advocates. This will ensure affordability and
accessibility to justice.

However, given the present circumstances, it would also be correct to state that e-courts cannot
be a complete substitute for physical courts at least for the present and would be a virtual un-
reality. This is neither desirable nor possible as physical hearings do hold advantages on certain
aspects.

In light of this, the authors suggest a hybrid combination with continuation of e-hearings for
some category of cases and physical hearings for the others in the whole hierarchy of courts in
India. The cases where miscellaneous or short submissions/arguments are to be made can be
fixed for e-hearing. Depending on the facts and circumstances of a case, these matters can relate
to issue of summoning of parties, applications for joinder of parties, applications for amendment
of pleadings, for corrections in judgment or decree, for permission to file/extend time for filing
reply/re-joinder etc. These matters can also be classified depending on the nature of the cases,
i.e. summons case, warrants case, quasi-criminal cases and civil cases. Accordingly, courts can
divide their time in physical hearings and e-hearings.

To record evidences through video-conferencing due regard should be given to the safeguards
enlisted in the different decisions like Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal. 11, para,
10; Sujay Mitra v. State of West Bengal (2015) 16 SCC 615, para 4; and Twentieth Century
Fox Film v. Nri Film Production Associates AIR 2003 Kant. 148, para 10. Moreover, to give
due regard to the background of an advocate, availing for e-courts can be subjected to the
consent of both the advocates.

A wholesome effect of these steps can lead to achieving an efficient, speedier, accessible, and
affordable judicial system. These issues have been chronic issues of the Indian judicial system.

Here, it would be apposite to quote the words of Justice Bhagwati from National Textile

Workers’ Union v. P.R. Ramakrishnan, (1983) 1 SCC 228 

The words of Supreme Court in the matter of Swapnil Tripathi v. Supreme Court of India, AIR
2018 SC 4806, in the context of Live-streaming of court proceedings are very apt

The authors suggest that the path of e-hearing of cases taken by the courts due to present
unavoidable circumstances should be continued in a regulated manner even after the pandemic.
The proverb ‘opportunities lie in the adversity’ should be remembered and reform in terms of the
continuation of certain judicial proceedings for e-hearings should be fully inculcated by the
Indian judicial system.

The epidemic and ensuring safety in courts

In a letter addressed to the Chief Justice of India, the Bar Council of India has opposed the
continuation of virtual hearings once the lockdown is lifted, on the grounds that 90% of the
advocates and judges are “unaware of technology and its nuances”. The COVID-19 crisis is far
from over. Once the lockdown is lifted, unless the number of advocates/litigants is restricted in
open court proceedings, the possibility of the virus spreading is high.

On April 6, invoking its powers under Article 142 of the Constitution, the Supreme Court issued
certain directions for the functioning of courts through video conferencing during the lockdown.
The Court directed the State officials of the National Informatics Centre (NIC) to liaison with the
respective High Courts and formulate a plan for the virtual functioning of courts. A virtual court
hearing is one where there is no physical court room. All the participants take part in proceedings
using telephone or video conferencing facilities. It was made clear that the guidelines for this
would be formulated by the NIC and sent to the respective courts and lawyers. But the NIC has
not yet notified the guidelines. In its order, the Supreme Court had also indicated that the district
courts would follow the video conferencing rules as formulated by the respective High Courts.

E-filing system

In India, most advocates and litigants are unaware of and unwilling to use these services. The e-
filing system was introduced in the Delhi High Court in 2009. Initially in 2013 it was introduced
in Company and Tax jurisdiction. In 2015 it was extended to Arbitration jurisdiction. In this
process, the pleadings and documents are filed electronically at the e-filing centres. A digital
signature of the lawyer/litigant is needed for filing such cases. An e-filing kiosk in the High
Court of Delhi to enable the lawyers desirous of acquaintances with the e-filing procedures has
been set up. Compared to the other High Courts in the country, the Delhi High Court is far ahead
in terms of technology. About 10 courts in the Delhi High Court function as e-courts. The entire
credit for the success of the tech-friendly system in the Delhi High Court goes to Mr. Justice
Badar Durrez Ahmed of the Delhi High Court, who subsequently retired as Chief Justice of
Jammu & Kashmir High Court. In the Delhi High Court about 10 Courts are functioning as e-
Courts. In e-courts, the case files are digitised as searchable PDF format and PDF files are
bookmarked according to the index-sheets and thereafter converted into portfolios containing
different folders as per the records of the case file i.e., pleadings, orders, office noting etc. The
portfolios of case files are linked with the e-Cause List of the Court. The Judge(s) presiding over
the e-Courts have been provided with a “Wacom 24” or “Wacom 27” high resolution monitor
with interactive ‘Stylus’ connected with high end CPU, which responds to the slightest nuance of
the touch and with ability to work directly on screen enabling the Judge(s) to navigate
conveniently through the portfolios of cases as well as write down personal notes. In case of
Division Bench, two complete set of systems have been provided for both the Judges. Besides,
an additional 46” LCD Monitor has also been installed inside the Court Room for the Judge(s) to
project any screen for viewing by the lawyers/litigants. The lawyers can argue their cases
through the portable digital devices i.e., laptops, tablets etc., and if need be the lawyers can also
plug into the system to display the screens of their laptops/tablets on the LCD Monitor for
viewing by the Judge(s), lawyers and other parties.Moreover, there are 13 e-courts functioning in
the district courts attached to the Delhi High Court. Another 11 e-courts will soon be functional.
Installation of requisite hardware, setting up video-recording system, installation of document
and evidence management system, establishing connectivity, setting up web-enabled video
conferencing system for data archiving, providing scanners in the court for scanning of
documents filed in the case, in existing e-courts, are complete. In district courts, the following
hardware has been installed in the e-Courts:· 21.5” Wacom Touch Screen; · Wireless Keyboard
and Mouse; VGA Splitters, VGA Switcher with cables; scanjet scanner; and storage device.

There is also sufficient technical manpower in the Delhi High Court (70) and district courts (30).
In the Delhi High Court, e-filing is mandatory for company, taxation and arbitration
jurisdictions. The facility for e-filing of cases pertaining to the Delhi High Court was also made
available from April 7, 2020, at all the court complexes of the Delhi district courts.

Realising that the lockdown may continue for a while, the Delhi High Court formed a panel to
create a graded plan for courts functioning after the lockdown. The committee, headed by Justice
Hima Kohli, was formed with the expectation that there will be a deluge of new cases after the
lockdown is lifted. The letter addressed by the Registrar General to the district judges attached to
the Delhi High Court clearly mentions that it may not be possible to predict a definite cut-off
date for the resumption of normal functioning of the court system as there is no certainty about
when the COVID-19 threat will end. One of the issues refers to ensuring availability of
proportionate court infrastructure till normalcy is completely restored. The Delhi High Court has
sought suggestions from the district courts for the effective functioning of e-courts.

In the Bombay High Court, e-courts started functioning from 2013. Initially they started taking
up company matters, arbitration and conciliation matters, income tax appeals and suits. Now
even writs, suits and testamentary matters are heard by e-courts. In the Madras High Court, the
facility for e-filing of cases, which was initially only for bail applications, was launched on April
22, 2020. Filing of urgent cases through e-mail is also permitted now.
While it is true that there is less pressure on the courts now, this will change once the lockdown
is lifted. It is in this context that suitable safety measures must be put in place for conducting
proceedings after the lockdown is lifted. The method of hearing post lockdown will depend on
the facilities available at the court concerned. While such facilities are largely available in the
Supreme Court and the Delhi High Court, they are not available in the various other High Courts
and subordinate courts. The judiciary must be allotted sufficient funds for self-administration and
timely delivery of justice. Today, technology dictates our lifestyle, but because of lack of
allocation of sufficient funds to improve and strengthen technical support for the judiciary, we in
India are unable to make full use of technology.

Advantages of e-filing:

 Convenience- Filing is open for 24*7.

 Court Fees can also be paid from the comfort of one’s office/party’s home using credit
card/ internet banking.
 Immediate Access– An e-filing system which is properly designed to provide online
access to files will permit attorneys representing parties to have immediate access to the
filings as soon as they are up on site.
 No more waiting for two or three days for a copy of the brief to come in mail

Process& steps for e-filing

1. The “E-FILING” portal is now available on the top-most tabs on the Supreme Court’s website
and can be accessed through the portal. The portal also has e-filing Manual,
instructions/guidelines, for Special Leave Petition and Writ Petitions etc.

2. The matters in the Supreme Court of India can only be filed by an Advocate-On-Record of the
Supreme Court of India, with an exception for the filing by the petitioner-in-person. Even on the
e-filing portal only these two sections can file the case online using the service.

3. The first-time users of E-filing have to register themselves through the “New Registration”
option provided on the portal and to do the same the e-filing manual may be referred as it
provides a step-by-step process for registration. The registered users may directly Login in the
portal and proceed with the filing.

4. Once the registration on the E-filing Portal is complete and the Login-Id and password has
been retrieved by the user, then the following steps are required:

a. Filing
b. Lower Court.
c. Indexing
d. Additional Party and Additional Advocate
e. Subject Category
f. Limitation
g. Generate ID.
Reports
a) Report b) History c) Cases

Implementing guidelines

As much of the Supreme Court and many High Courts will remain closed for the summer, the
High Courts can consider constituting committees, as the Delhi High Court did, to create graded
plans for the courts functioning after the lockdown. They can formulate plans based on the
availability of infrastructure to conduct virtual hearings or actual hearings, or by running courts
in shifts. In case any of the courts are inclined to conduct open court hearings, they may have to
implement some guidelines. One, only those lawyers/litigants whose cases are listed for the
day’s hearing should be allowed to enter court halls. Two, the lawyers must enter in batches
according to the serial number in the list. Three, thermal image cameras must be installed at the
entrance of every court building, to identify risk persons. Four, every person entering the court
premises must install the Aarogya Setu app on their phones. Five, The Central Industrial Security
Force Security personnel may be directed to use the App e-office specially designed to check the
papers and other objects carried by the lawyers/clerks/litigants without touching the said
papers/objects. At the entrance of every court complex, an automatic hand wash faucet should be
installed. This equipment is operated with a foot tap, which has liquid soap dispensers. Six, there
should be regulations on the manner of functioning and running of public utility services,
canteens, etc., within the court premises with all necessary precautions. Seven, masks, gloves
and sanitisers should be made available. Importantly, as junior lawyers have been seriously
impacted by the lockdown, they should receive financial assistance (even in the form of a loan
from a nationalised bank) from the Central government.

However, one hopes that restoration of time tested open court hearings would be back in future,
since open court hearings are based on the concept of open justice.

Digitization of judicial process gets big push amid pandemic

The Supreme Court (SC) has made filing cases online simple and affordable amid restrictions
over maintain social distancing. According to the SC registry, 640 cases were registered online
between 22 March and 8 July.

“The e-filing process in the Supreme Court has made it easy to file cases. During
the lockdown period, 640 advocates on record have registered for e-filing cases in (the) Supreme
Court. This is a move towards digitization of the judicial process," said law and information
technology minister Ravi Shankar Prasad.

While the covid-19 outbreak and the subsequent nationwide lockdown prompted the apex court
to adopt e-filing of cases for urgent petitions, it is now slowly opening it for regular matters. In
May, the court had allowed e-filing of petitions by advocates on record (AoR), amid the
lockdown.

An AoR is an advocate who has cleared a qualifying examination and is allowed to file petitions
in the SC. Besides, the apex court on 10 July held that summons and notices will be allowed to
be served through the digital medium, including email, fax and instant messaging mobile
applications. The decision was taken in view of the difficulties to visit a post office due to
limited mobility.

“A 24x7 e-filing facility, incorporation of online court fee payment, use of digital signature and
digitalized scrutiny mechanism for defects and objections in the petitions are some of the key
features envisaged through the introduction of e-filing," said justice D.Y. Chandrachud, the
chairperson of the e-committee.
In May, the chief justice of India S.A. Bobde had said that while the transition to digitization was
not easy, it was here to stay, as it was the only way forward for judicial bodies across the
country.

Digitization was taken up in other courts, too. Delhi high court, for instance, introduced the e-
filing of cases even before the outbreak of covid-19. However, it was limited to commercial
matters, such as arbitration cases, and was also dependent on the judge hearing the case. Post-
implementation of the lockdown, e-filing was introduced for all urgent matters, irrespective of
what the case was about.

Similarly, a majority of National Company Law Tribunals across the country had introduced
digital means of filing cases before the coronavirus outbreak, but the tribunals had also made it
mandatory to submit a physical copy. The number of physical copies was reduced from three to
two. Since the lockdown, tribunals had been taking up only urgent matters through e-filing.

The Pros And Cons Of Digitalisation

The digitalisation provides for a new way of the working of courts. The traditional system was
followed for a long time without making use of present technology in the courts until now. With
the arrival of COVID-19 and lockdown, courts and advocates had to shift to technological ways
and bring change in the working of courts. Due to digitalisation, advocates need not travel long
distances to courts. It helps in saving time for the advocates and litigants.

As time is fixed for hearing cases, the litigants and the advocates can connect at that time without
coming and waiting the whole day at court premises. It helps in reducing the crowds in the
courts. There is a reduction in the use of a lot of papers, as e-filing is facilitated. Huge documents
in the case files are prevented as these documents are stored digitally in data form. 

While digitalising court procedures has a lot of pros, it doesn’t come without cons. There are
interruptions during video conferencing due to internet connectivity. Courts have to maintain
proper servers and high-speed internet to facilitate video calls. Similarly, advocates should have
correct connectivity. There is a problem for fixing time for calls as it has to match the schedule
of judges, advocates and litigants. Since every document and information is uploaded online,
there is a need for high protection of data. Security of data should be rigorous. Website
maintenance is essential. The status of applications and cases filed should be updated regularly. 

The digitalisation of courts is slowly picking up the pace in the country. While many are
supporting for digitalisation to continue after COVID-19 times, many still doubt its working. The
e-courts project is in Stage II, and Stage III is yet to take place. The pandemic situation has
brought technology to the court environment. Digitalisation is a profound change, and there is
much to be developed for efficient and proper implementation. 

Amitabh Bagchi v Ena Bagchi 

Video conferencing is one such facility. It is to be remembered that by virtue of an amendment

and insertion of Sections 65A and 65B of the Evidence Act a special provision as to evidence
relating to electronic record and admissibility of electronic records has been introduced with
effect from 17th October, 2000

Decision : Court held that ‘presence’ does not necessarily mean actual physical presence in the
court

Bodala Murali Krishna Vs. Smt. Bodala Prathima

The petitioner is the husband of the respondent. Their marriage took place in the year 1977 and
were blessed with a child. The petitioner is a resident of U.S.A. He filed I.A.No. 340 of 2006
seeking permission of the trial Court for recording his evidence through the video conferencing.
The respondent opposed the application. Through its order, dated 1562006, the trial Court
dismissed the I.A. Hence, this C.R.P.

The I.A., shall stand allowed, subject to the conditions that:

 it shall be the obligation of the petitioner to arrange the necessary equipment for
recording the evidence through video conferencing, duly satisfying the trial Court as to
the accuracy of the equipment and identity of the witness;

 the petitioner shall be under obligation to display the passport and its individual pages as
may be demanded, on behalf of respondent, and he shall abide by the directions of the
Court, issued during the course of recording;
  the petitioner shall make necessary arrangements for undertaking this exercise within
one month from today, in default, the trial Court shall proceed with the other steps.

present revision petition Held, recording of evidence through video conferencing was
permissible in law, provided that necessary precautions must betaken, both as to the identity of
the witnesses and accuracy of the equipment used for the purpose

Swapnil Tripathi v. Supreme Court of India, [(2018) 10 SCC 628

In 2017, various individuals and groups filed petition(s) before the Supreme Court of India under
Article 32 of the Constitution. The Petition was seeking a declaration that “Supreme Court case
proceedings of constitutional importance having an impact on the public at large or a large
number of people should be live streamed in a manner that is easily accessible for public
viewing”. In addition, the Petition also sought guidelines from the Court to enable the future
determination of cases that would qualify for live streaming.

The Petitioners relied on the Supreme Court case namely Naresh Shridhar Mirjkar v. State of
Maharashtra [(1966) 3 S.C.R 744] (‘Mirjkar’) wherein it was held that Article 19 of the
Constitution included the right of journalists to publish reports of court proceedings. In that case
the Court had emphasized “the efficacy of open trials for upholding the legitimacy, effectiveness
of the Courts and for enhancement of public confidence and support”

The Court held that the ability to view live broadcasts of the Supreme Court proceedings flowed
from the right of access to justice in the Constitution. The Court said that this right should not be
absolute. It provided a set of Model Guidelines which should govern the courts’ discretion on
when such broadcast should be used.

 State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601,

A leading case wherein the Court held that witnesses can give evidence through video-
conferencing. While pressing on the importance of law and its need to adapt with development in
technology Justice Bhagwati observed as follows:

The above-observation though calls for the law to adapt to the changing society yet it befits the
present situation of the pandemic as well. The traditional system of open courts should also adapt
to the changing technology-driven society. Laws must evolve and practices must upgrade if the
societies are to progress. This becomes more compelling when the objective is to render justice
more speedy, affordable and accessible and thereby strengthen the principle of Rule of
law. Article 39A of the Constitution of India puts State under an obligation ‘to secure that
operation of the legal system promotes justice’ and ‘to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities’. E-hearings
ensure that even citizen living in remote areas are not deprived of their right to contest their court
cases on account of their limited financial resources.

Prashant Bhushan & Anr., 2020 SCC OnLine SC 646

At para 67 noted that “the total number of sittings that the various benches had from 23.3.2020
till 4.8.2020 is 879. During this period, the Court has heard 12748 matters. In the said period,
this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India”.
The Supreme Court has, on August 31, 2020, issued Standard of Procedure for resumption of
physical hearings for limited number of courts and advocates. Apart from the Apex Court, the
various High Courts, District Courts and Tribunals have also taken up and disposed of a
considerable number of cases through video-conferencing. This adaptation of the Courts to
hearings through video conferencing has brought forth several advantages in terms of time, cost,
and energy-saving of both, the litigants (including witnesses) and the lawyers.

Often the advocates, litigants and other stake-holders travel distances for hearings in their
matters in different courts in the hierarchy of courts. This is more palpable while talking of
Supreme Court as it is located only in New Delhi. Similar is the case with Tribunals and
Appellate Tribunals. The parties appealing and the counsels arguing often travel to and fro to
long distances across the country. This burdens the stakeholders in terms of time and money. E-
hearings can help reducing financial burden and save on account of money and time spent on
travels.

Conclusion:

The Indian judiciary, like other institutions, is facing an unprecedented challenge and trying hard
to devise means to keep the wheels of justice moving. The main avenue is by adjudicating urgent
matters through video-conferencing and issuing several directions. According to Chief Justice of
India SA Bobde, the Supreme Court was amongst the first institutions in India to respond to the
threat posed by Covid-19 and the decision to make a transition to video-conferencing was done
to reduce the footfall in court premises. “We have to change according to the needs of the times,
there is a need for change of mindset. Now, there is no going back,” he had said.

Since March 22, the apex court has decided to restrict its functioning to extremely urgent matters
and a bench was set up to hear the same over video-conferencing and e-filing. The Court set up
a room on its premises with video-conferencing facilities available to ensure accessibility to all
those lawyers and advocates who may not have the required infrastructure available otherwise. A
limited number of journalists were also allowed to view hearings from a video-conferencing
room, in the spirit of keeping hearings open to the public.

During virtual court hearings, the parties access the link of the hearing provided to them and join
other concerned parties in a virtual waiting room, before being connected to the virtual
courtroom for their hearing. Once in the virtual courtroom, the counsels introduce themselves to
the judges, and on being asked, may make submissions. The parties are required to keep their
“microphones” on mute mode at all times and “unmute” it only when asked to make more
submissions. They have to stay online till the judges conclude the hearing of the matter, and need
to ensure that they don’t record or broadcast the hearing.