COVID: Trying Times In Trial Courts

  • Aman Tehlan
  • 06:49 PM, 22 Jan 2021

Coronavirus pandemic has disrupted the functioning and work-flow of all institutions and organisations with Courts being no exception. While most of the information age businesses and services moved to the virtual realm, it was more difficult for legacy institutions, including the judiciary, to make this shift because of their heavy reliance on physical presence and filings.

Considering the pace of implementation of change and reforms in a system like ours, it was most admirable when High Courts and the Supreme Court continued to function at a time when rest of the State machinery was under a national lockdown. Ever since the pandemic started, commentators and legal practitioners have written column after column on functioning of High Court and Supreme Court and the problems faced by them to secure the ends of justice, however, almost all of them have failed to notice the plight of their brethren in trial courts and the inability of trial courts to adapt to the changing circumstances.

In this piece I shall attempt to bring to light personal experiences shared with me by some of the practicing advocates from the District and Sessions Court, Rohtak, Haryana, and through this, I will try to capture what practicing advocates all across the country went through.

With a view to ensure minimal disruptions, Courts across the country have swiftly embraced technology, including mandatory electronic filing, restricting hearings to only critical cases and conducting them through video conferencing. While the Supreme Court of India and High Courts moved on to conduct hearings through "Vidyo" and "Zoom", the trial court did not shift to virtual hearings full fledged. It is also pertinent to note that majority of advocates practice in trial courts and trial courts are the essence of judiciary for a common man.

In face of this unprecedented challenge, it is no surprise that  the trial courts simply did not have the infrastructure to adapt to this shift. As per the directions passed by the Supreme Court on 6th April, 2020, High Courts were asked to make appropriate arrangements for Video Conferencing and also to make appropriate guidelines for District Courts as well.

Following this order, a series of notices and guidelines were issued by the Punjab and Haryana High Court to all subordinate courts prescribing the modalities suitable for partial functioning of District Courts. It was directed that in Punjab and Haryana High Court, only one or two ADJs and CJMs along with minimum support shall take up urgent matters on rotation basis.[1]

Arrangements for mentioning and listing of cases were made vide order dated 15 April, 2020, whereas filing of non-urgent cases began only on 10 June, 2020.[2]

In the meanwhile, it was almost impossible for anyone to approach the court and get their matter heard, unless it was of most urgent. Since tenth of June, the court has been functioning at half capacity on a rotational basis. This raises many issues and problems — for litigants and advocates alike. While the High Court did issues circulars and guidelines to ensure that urgent matters are taken up and the disruption does not cause any apparent injustice, the situation on ground was far different from what the Hon’ble Court was trying to achieve.

To find out more about what transpired in Courts and how advocates were affected, I asked some of them to share their experiences with me. Here is what I found.

Lack of infrastructure

Across the board, the consensus was that the Courts simply could not have shifted to virtual hearings because of non-availability of essential infrastructure. It was pointed out that even if courtrooms are equipped with equipment, which some of them are, it would be unreasonable to assume that most of the practicing advocates and litigants would have access to it. Even though the High Court directed all district courts to make necessary arrangements in this regard, virtual hearings were restricted to most urgent of the cases, specifically matters relating to personal liberty. Therefore, it was not enough to just equip courtrooms with cameras and fast internet connection. Most of the advocates feel that similar arrangements should have been made for the bar as well, especially for advocates who don’t have the resources or the know-how to attend virtual hearings.
Technical know-how and training, required to plead the case in a virtual hearing should have been given to advocates. In their view, it would have made the disruption much more bearable.
Apropos e-filing, the experience of the advocates has not been pleasant. In most cases, e-filing consumes a lot of time and often comes with its own problems. It not only makes the whole system less efficacious but also flies in the face of social distancing measures.

Pendency of cases

After infrastructure, the most prominent and common concern was related to pendency of cases. It should not come as a surprise to anyone that a huge number of cases are pending before Indian judiciary, and COVID-19 is only adding to the menace. As on May 27, 2020, there were approximately 3.7 crore pending cases in India’s subordinate courts[3] and about 56.52 lakh pending cases across High Courts.[4]

Subordinate courts account for almost 80 percent of pending cases in India. This figure, combined with the fact that it is the subordinate courts which ceased to function because of the pandemic, paints a very bleak picture indeed. While urgent cases were taken up for hearing, the number of such hearings in the trial court was remarkably lower than the High Courts. Even when Courts were allowed to function, the same was restricted to only a few courtrooms.

Advocates were quick to point out that  the number of civil disputes decreased due to the national lockdown, with that aspect of litigation almost coming to a standstill. Suits filed before the period of lockdown did not go forward either. A similar decrease did not happen in criminal disputes, even though the court only heard the most urgent matters.

In such a situation, it became extremely difficult for advocates to secure bail for the under trials and ensure that they are produced on time before the magistrate. Physical production of an arrested person to court is not possible through video conference and without this, it is difficult for a magistrate/judge/court to observe if a detainee has experienced some kind of violence in custody.

Although special arrangements were made for the under trials and for production of accused, most of the advocates feel that undertrial prisoners were treated badly. One lawyer recalled that undertrials were made to wait for hours without any hearing and afterwards, they were quarantined for months on end.

There are stories of prison authorities charging exorbitant amounts of money for basic requirements such as warm clothes and shoes from undertrials prisoners under quarantine. They were also not allowed to talk or meet their family members.

Even though, these issues go beyond the confines of courtrooms, the smooth and normal functioning of courts would have ensured proper oversight.

Unfortunately, the issue of pendency is not just limited to disputes arising within the period of lockdown. Nearly all the matters listed for hearing during those months were adjourned, and with filing of non-urgent cases resuming only on 10th of June, a lot of advocates feel that they face an avalanche of hearings now that the court has resumed (somewhat) normal function. Filings and listing of matters has resumed and while they are hopeful that things will certainly go back to normal in some time, the issues created by this disruption will be felt for another year or so.

Income and livelihood of Advocates

Daily appearances in court are the main source of income for most advocates, and cash flow has come to a drip, if not completely dried up.

In the month of April, 82,725 cases were filed in India’s courts as compared to 8,80,000 cases in March. This steep decline in cases filed has consequently resulted in a significant dip in court fee, besides lawyers’ income. The impact of dip in income is faced by both junior as well as senior advocates.

The junior advocates suffered because civil litigations and new filings came to a standstill; the seniors suffered because they were unable to ask for fees from already economically suffering clientele. The present clients also refused to pay any advance fees as there were hardly any hearings taking place. Without a doubt, junior lawyers with no family background in law, and the ones who have just started their practice have suffered the most.

It is also unfortunate that most of them belong to marginalised communities, who had to brave the glass ceiling to able to practice law in the first place. A study done by Vidhi found that almost 80 percent of advocates from Delhi High Court earn somewhere between Rs. 5,000 to Rs. 20,000 per month.[5] The study restricted itself to High Court, however, it is a good indicator of the state of junior advocates across the country when the earning potential in High Courts is so low. Advocates were also disappointed that unlike the Bar Councils of Tamil Nadu and Karnataka, no provisions for compensation were made in case an advocate dies due to Covid infection.

The situation is so bad that many of the young lawyers and beginners are starting to look for employment opportunities in other fields. To them, the system will take some time to get back to normalcy even if Covid protocols are rolled back tomorrow.

Issues with roaster and mentioning of cases

A few of the advocates pointed out that the problem of listing is not limited to new filings. The rotational system adopted by the Court authorities has only gone on to increase the confusion and complexity of the situation. While the hearing of non-urgent matters resumed on 10 June, 2020, the Court functioned on half its strength for the following months, with half of the courtrooms functional during one week, and the other half functional in the next. Due to this arrangement matters kept shifting from one court to the other, making an already dire situation even worse. According to the advocates, this was a mistake because not only did it pose a risk of infection by increasing the number of people in one courtroom, but it also exacerbated the very problem it was trying to solve. Lack of clear direction from the administrative side coupled with the confusion and paranoia made for a very chaotic period in advocates’ lives.

Closing remarks

It is true that the list of problems faced by the lawyers’ is as long as the day is long, however, we cannot forget that it is not just the litigants and advocates who are dependent on courts for their lives and livelihood. Symbiotically, courts are also dependent on a variety of non-advocate personnel for their smooth functioning. This includes stenographers, photocopiers, notaries, canteen workers and munshi's (Court Clerks). All of them have suffered on account of courts not functioning or functioning at a reduced capacity. Majority of trial court lawyers are dependent on stenographers to type and prepare drafts for any new filing. Typists, on the other hand, are dependent on courts and new filings for their income.

This give and take relationship suffered on account of courts being deserted. Similarly, advocates found it difficult to pay their munshis when their own income had suffered. Other ancillary professionals including the photocopiers and canteen staff  have also faced similar problems.

Notaries are badly hit because along with courts, majority of government offices were also under a lockdown. It is admirable that numerous petitions have been filed in Supreme Court and various High Courts to take cognizance of advocates’ plight;  and Bar Councils have been asked to provide easy loans to advocates, however, the fact that an entire set of professionals have been left out from the aid and relief efforts does not bode well for the reputation of the Indian legal system.

In spite of all the problems faced by advocates and litigants, there is an aura of optimism in lawyers’ chambers as things are beginning to go back to normal.

While it is true that it will take some time to get this massive machinery back on track, and that the Court still looks somewhat deserted, one can take some solace in the fact that advocates—both senior and junior—are very eager to step back in the courtrooms and earn their living. New filings are beginning to go back to their previous numbers, with many of the junior advocates also coming back to the courtroom. Social distancing measures and mask etiquettes are properly followed as no one wants the courts to shut down again.

[1] https://highcourtchd.gov.in/?trs=cov, orders dated 13.04.2020, 22.03.2020 30.03.2020.

[2] https://highcourtchd.gov.in/?trs=cov, order dated 10.06.2020.

[3] https://njdg.ecourts.gov.in/njdgnew/index.php

[4] https://njdg.ecourts.gov.in/hcnjdgnew/

[5] https://vidhilegalpolicy.in/research/a-survey-of-advocates-practicing-before-the-high-courts/

- Author is a Lawyer. He graduated from National Law University, Jodhpur in 2019.