Editor’s Note: In this post, Roshan Santhalia* writes about the negative and positive implications of the Covid-19 pandemic on advocates in India.
The unprecedented pandemic has affected almost everyone across the World. It would be difficult to find a particular set of people or an industry which has not been severely affected by the pandemic. However, it is well settled by now that some industries/professions have been impacted more than the others. Unfortunately, the profession of advocacy and dispute resolution across the world has been at the receiving end and has definitely been impacted in a very severe manner due to Covid – 19. While most consequences ensued due to the pandemic have had a negative repercussion on the profession of law / advocacy, however, there have been some positive developments as well which without a doubt would go a long way in improving the overall quality of advocacy and the justice system in the long run.
This piece would limit its observations to the impact of Covid – 19 in the Indian context. I will try and highlight the useful and not so useful consequences for the lawyers at the bar which have ensued due to the Covid – 19 crisis.
Negative Consequences: Limited Courtroom Functioning and Loss of Livelihood
The typical court room scene as shown in the Indian movies is not always reflective of what actually happens in the Indian courts. On the basis of the past 8 years of my time spent as a litigating lawyer in the courts at Delhi, I can confidently say that majority of the courts of the city (including the Supreme Court & High Court) are over crowded where social distancing is just not possible. The judges and the court administration cannot be held to be responsible in deciding to not hold any physical courts from 23 March 2020 till date across the country. It is not difficult for any reasonable person to fathom the catastrophic consequences which may ensue due to a court room packed with the litigants and lawyers.
The contagious virus has effectively foreclosed any option of holding physical courts. The most affected have been the lawyers practicing at the District Courts. The Supreme Court, High Court and Tribunals have been able to setup mechanisms of holding Virtual Courts through effective technological infrastructure. However, the District Courts once again have been ignored or left behind in coping up with the consequences of the pandemic due to its poor infrastructure. For instance, all 6 district courts of Delhi located at Tis Hazari, Rohini, Saket, Karkardooma, Dwarka and Patiala House have only been taking up bail matters or matters relating to injunction. Any non urgent matter has simply not been taken up for hearing in the past 4 months. Tentatively, if it can be said that the Supreme Court, High Courts and Tribunals are functioning at 50% of its capacities then it will only be fair to say that the District Courts are not even working at 10% of their capacities due to limitations in technological infrastructure.
Both the litigants and lawyers practicing have been affected severely. The litigants have been affected in a manner in which the already slow pace of trials/appeals disposal has slowed up even further due to the non – hearing of the existing cases from 23 March 2020 till date. The lawyers have been severely affected because their source of livelihood has been taken away from them due to the shutting down of the physical courts. The worst affected again has been the district court lawyers who have had absolutely no work in the last four months. The lawyers who usually used to earn by way of drafting, filing of new cases, appearances in the court etc. have not had any such opportunity in the last 4 months. Various bar associations have come to the rescue of their lawyer friends by raising money from the relatively richer members of the bar and distributing the same amongst the ones in need. However, this has only dealt with the problem in a minuscule manner at best.
A prospective solution to this problem is not going to be simple. The possible use of virtual courts and physical courts in combination with each other could be one of the ways in which this problem could be addressed. The courts can formulate a way in which the limited number of hearings may be taken up in the physical courts on matters relating to advance / final arguments and the rest of matters on notice/misc. stage can be taken up through virtual courts. This way a large number of litigations and appearances can be taken up by the Courts thereby providing livelihood to the lawyers and also expediting the already delayed case files of the litigants. However, a lot of granular level details need to be addressed and looked into before the above – mentioned model can be effectively implemented at the ground level. The Judiciary at all levels of the hierarchy is expected to play a more proactive role than the role which it has been playing in the last 4 months. Unless the judges are sensitized to the loss which is taking place on a daily basis due to the non-functioning of the courts the above-mentioned reforms will not be implemented in a swift manner.
Positive Consequences: Less Adversarial Hearings and Higher Productivity
I have also had the good fortune of appearing and representing my clients through virtual courts before the Supreme Court, Delhi High Court and some other District Courts in Delhi. In my opinion, the start of the virtual courts is definitely a blessing in disguise. There are a lot of positives about virtual courts which need to be noted and mentioned. The virtual court hearing proceedings are less adversarial and smoother than the physical hearings. The arguing lawyer is supposed to unmute him / herself on completion of the arguments of the lawyer of the counter party. This eliminates unnecessary interruption by the opposing lawyer during the course of arguments. Furthermore, rhetorical submissions and frivolous aggression have also been ironed out from the court room due to the inherent nature of the virtual court room proceedings. The distinction between an outstation and local hearing has diluted due to the commencement of virtual hearings. With the advent of virtual courts, I can very well argue a matter before the Patna High Court now even while sitting in New Delhi as the filings and hearings of the virtual courts are mostly done electronically over the internet.
Virtual courts have also helped the lawyers in large cities like Delhi, Mumbai, Chennai, Kolkata etc. as now the lawyers do not have to step out in the traffic congestion anymore and reach physical courts after spending a good amount of time on the roads. I have personally spoken to numerous lawyer friends and colleagues who have confirmed the increase in the productivity and performance on an average work day as they do not have to step out and waste time due to being stuck in road traffic and other ancillary activities.
The “New Normal”: A Mixed Bag for Litigators
The Covid – 19 situation has thrown a mixed bag at the litigators. In the short run, it definitely has impacted the lawyers in a negative and adverse manner. However, it will be interesting to see if some of the positive changes as mentioned above due to adoption of virtual courts is sustained in the long run even beyond the times when hopefully we will have an effective and feasible vaccine against this virus. For those who are not adept at using the technology during the virtual hearings, the only suggestion I have is that technology is only an aid to allow the practicing lawyers to manifest our substantive content. I personally feel that lawyers who have not used technology before have a fear of the unknown. Using online mechanisms to file a case or using virtual means to argue and submit before a court of law involves elementary use of technology which is far from being complicated. The conventional litigators of our country need to shed off the hesitation and just adapt themselves with the changing times. A basic on the job training wherein one uses technology for the first 4 – 5 times should be enough for any lawyer to understand the way digital filings and virtual hearings work. This problem should not be viewed as much bigger than it actually is.
* Roshan Santhalia is Joint Head of Chambers, BlackRobe Chambers and Advocate on Record at the Supreme Court of India. He has completed his BA.LLB. (Hons.) degree from NALSAR University of Law, and his M.Sc. in Criminal Justice from Oxford University, United Kingdom. We would like to thank Roshan Santhalia for contributing to our blog.
