Litigants and the Lockdown – A court perspective
By Kishan Dutt Kalaskar
Kishan Dutt Kalaskar: It is interesting to see the judiciary come up with new solutions to the novel problem of the lockdown, and so far the courts have been doing what they can to ensure that the regular functioning of the courts is not hampered too much by the fact that people are no longer allowed to be present in person.[1] India has tried to embark on the path to digitize the court system, and it took a pandemic and a lockdown to finally realize the object of a fully digitized court system. Although one must beware, it does come with own sew of hiccups and issues the court doesn’t have either the readiness or capacity to address.
Measures taken by the Courts
In the months since the lockdown has been announced, the Supreme Court and many High Courts have made a fit case for moving proceedings online and making filings to the registrar through E-mail. Courts have even passed decorum rules for the presentation of lawyers during these online proceedings. Most importantly, courts have reduced the staffing capacities during the lockdown, and ensured that only essential matters are heard during the lockdown. These measures have had some uneventful consequences, among them the unfortunate interpretation by the Bombay High Court that Bail petitions were not essential litigation, further this as extended to the Supreme Court hearing on matters regarding the government’s handling of migrant workers’ transportation during the lockdown. This paper has only one objective: To understand the plight and status of the average litigant during and after the lockdown through the lens of the effect the multiple orders and guidelines passed by courts have had on the overall functioning of the lower-level judiciary.
Litigation Bottlenecking
The first interesting point is that the majority of litigation happens in the courts of the first instance, this means that the district, sessions, and family courts are the ones that handle a majority of the litigant traffic in the country. They are the worst affected since the implementation of online proceedings, filings and arguments take time and are difficult to trickle down to these courts. Even though the Andhra Pradesh High Court, among others, has passed notifications requiring the lower level judiciary to function online and try to import as much of their regular functioning online, it is not the case in many courts, and in fact, these online proceeding guidelines have been misinterpreted in requiring that counsel arrive in court to present their arguments which will then be broadcast to the judge over the air, thus defeating the entire purpose of moving proceedings online. This is just one example of the first instance of the judiciary being barely prepared to handle the porting over to online applications. Litigants have been left with a choice to make such arguments before the judiciary, which makes a fit case that their matters fall into the narrow definition of essential cases.
The effects of the judiciary pausing or altering its workflow and suffering quantitative setbacks has been seen in both the U.S., South Africa, and the UK, where either the judiciary has shut its doors or is working in a similar fashion to Indian Courts. The main issue is that judiciaries over the world are not prepared to deal with the backlogs in their dockets, much less the onslaught of disputes and matters that will come to the fore specifically during the pandemic.
One interesting example is execution proceedings on time-bound orders passed by the competent court. In the U.S. since the courts in many cities have closed up the execution of decrees has been impossible, and so has the execution of relief, this has especially hurt the housing sector in the country since many tenants are losing their houses due to the stoppage of income during the pandemic. Since there are no courts, these tenants are unable to secure their living conditions and act against illegal evictions. This has been replicated in India but in a slightly more insidious form”: Right after the announcement of the lockdown by the MHA, extensions had been granted on all orders passed by respective High Courts, meaning that all time-bound executions were pushed by a month from March 24th. The only problem is that partial lockdown is still in force, now towards the end of June, and since courts have severely prioritized on case-load, it has become difficult for litigators to seek remedy, or extension or otherwise. This consequence is the sole product of the courts being unable to adapt to the digital conduct of proceedings thus hampering the processing of matters and therefore nullifying all the benefits and advantages rendered to the litigant in the process of granting the extension in the first place. There is again the issue of national-level tribunals extending their shutdown, where originally the NCLT shut down for a few weeks, that had later been extended in a separate notification dated Apr 24, similarly, the NCDRC has also extended its shut down till the initial May 3rd deadline. Not only does this prevent the litigant from accessing these tribunals to exercise his powers of appeal, but it also reduces his chances of timely or at least speedy redressal since this continued shutdown will increase the backlog of cases in these tribunals.
Coupled with the lack of a long term plan of action regarding whether the digital filing system that has been adopted during the pandemic will be continued after, it is unclear how litigation will get back on its feet. It is imperative that the improvement since digitization is preserved because in the aftermath of the pandemic there will be an onslaught of litigants that will need to be serviced and that number will only grow if the courts do not manage to increase their efficiency during the lockdown, and they should be mindful of the small but significant increments that help in creating an impact that is bigger than the sum of its products. The remote service of petitions and video conferencing the proceedings are two main developments that the pandemic has sprouted that have the potential to make the courts more accessible in the long run.It is the continued deployment that will see this accessibility become a reality. It is interesting to note that previously in 2013, the Delhi district courts had been once attempted to be digitized at great expense, the judges were provided with drawing tablets and monitors so that all required documents could be displayed and processed digitally without the need to make any print copies in the entire process. With the Madras HC still requiring physical copies to be filed for proceedings even during the lockdown, one can appreciate how well this scheme of digitization has caught on.
Procedural Differences
Moving court proceedings online also means that there will be a difference in the procedural aspects. The most glaring of which the Supreme Court has addressed in its Suo Motu decision on video conferencing: The Electronic evidence rule, the requirements to prove a document saved in an electronic form re greater, and Sec. 65B and 45 of the Evidence Act will play a greater role now that physical appearance has been limited. Documents for evidence could earlier be submitted in physical form, and marking and admissibility was a simpler process of procurement and submission. With electronic evidence, things are a little more complicated.
It is known that under Sec. 65B electronic evidence can be produced either on paper, or optical drive or otherwise. The real problem is the verification and admission of secondary evidence and the admission of electronic forms of a conventionally physical medium. The procedure for admission of secondary electronic evidence is given in the act itself. But the procedure for admitting a digital copy of a document, when physical counterparts were available or were the norm, is a topic that has not been broached. In Sec. 65, the conditions under which secondary evidence could be produced have been enumerated, and it is a matter of note that courts will find it difficult to admit secondary electronic evidence when primary documents are available and may be produced before the court. The two main decisions governing electronic evidence: State NCT of Delhi v Navjot Sandhu[2005] 11 SCC 600, where the court decided on the instances where secondary evidence could be produced, among other things; it was held and can be inferred that secondary evidence should be produced in those situations where primary versions of the documents were hard, or impossible to find. The other decision being Anwar v P.K. Basheer (2014) 10 SCC 473, here again,the matter of discussion was the admissibility of secondary electronic evidence. Outlining the procedural requirements that are necessary for the submission of secondary electronic evidence. Sec. 63 is the operating section when it comes to the general admission of secondary evidence, while mechanical copies could be admitted as secondary evidence, the specific question is whether this will clash with the requirement in Sec. 65B. The only case that discusses this peculiarity is Darshan Kaur v Amritsar Primary O-operative Agricultural Bank Pvt. Ltd. 2010 (2) PLR 289 here it was held that a photostat of a document while not being primary evidence, was not entirely secondary evidence.
The safer assumption is that such evidence is electronically submitted since the original document is difficult to bring before the court. The only issue is, the original physical documents may be brought before the court only that it will take much longer, should that be allowed as an exemption to producing electronic evidence? This brings us to the best evidence rule, a principle that states that a party who as the burden of proof needs to submit to the court. The Supreme Court discussed the doctrine in Bal Hira Devi v Official Assignee of Bombay 1958 SCR 1384 here the court rad the principle into Sec. 91 of the Evidence Act. The proposition being that a document was the best evidence of the contents of the document, and this rule extended to all secondary evidence. This is the primary concern with the Supreme Court’s mandate to move all proceedings online, while it would have been clarificatory to pass an order deeming all electronically submitted versions of documents the primary evidence of a document for the time being at least, much confusion could have been avoided.
Then there is the issue of cross-examination if the process is happening remotely, would it be as effective as usual, or would the examinations performed remotely be granted the status of examinations under oath and affidavit under O-19 of the Code of Civil Procedure. It is important to note that examination is not just to elicit answers to the questions posed, but also to observe the conduct and demeanor of the witness. For that reason, the question becomes, whether the examination conducted out of court, will need to be sworn on affidavit.
While usually the granting of cross-examination on video-conferencing was the discretion of the court, it was usually used in situations where the witnesses were hard to produce before the court. Thus precedent existed for allowing examination and cross to happen through video conferencing, but it’s used as an exception to the rule is to be noted.
Conclusion
In light of the above observations, it can be concluded that the average litigant has been affected negatively by the pandemic, and will continue to be affected negatively unless the court system takes action and actively attempts to reduce the burden on the judiciary during the pandemic and makes the process a little more accessible in light of the continued lack of access during the lockdown. In short, the following are the consequences for the average litigant:
- The matters that they have submitted before the court may not be addressed for a long time to come.
- If they are addressed, they might not qualify as essential litigation.
- Due to the lack of experience of the courts in the digitization of proceedings, and the in-general reluctance to adapt, all attempts at accessibility are hamstrung at the origin.
- The courts are underprepared to meet the demand of their litigants after the lockdown has been lifted, and excessive demand has been created by either shutdown of the court/ tribunal, or reduced capacity operation (which is again a consequence of underutilization of the digital resource alternatives).
The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practicing advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience, he wants to share this beneficial information for the individuals having any issues with respect to their related matters
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