Open letter to the Chief Justice of India on how the Judicial System can still function as open physical courts despite the Corona virus

Corona Virus and the Constitution: Access to the Justice Delivery System as a fundamental right.

Open letter to the Chief Justice of India on how the Judicial System must still function as open physical courts despite the Corona virus

To the Chief Justice of India,

Video conference hearings are not optimal and will result in denial of justice. Judges “muting” lawyers during a hearing is extremely alarming. The country needs to get back to open physical courts. If Government, flights, trains, hospitals, Police, Army, factories, offices can function there is no reason for Courts to go permanently and completely online. Physical distancing can be ensured in Courts by time slots for cases and by limiting the number of persons physically present and in close proximity for one case.

The shutdown of the justice delivery system is very dangerous. We have under 3000 deaths and the Courts have been shut down. And we are discussing the end of physical courts. I hope our justice system is not so fragile so as to be destroyed by a virus which is almost like the flu.

The biggest issue is that the present infrastructure in Courts is not conducive to social distancing. So, we must address that rather than shut down open courts.

The solution should include time slots. Set out the number of cases that will be heard in one hour. Keep the other people in a separate waiting area.

Make Court rooms larger. Move Court rooms to large halls with separate entry and exit doors where seats can be placed further apart. Halls with good ventilation, fans, windows and no air-conditioning. Use glass partitions if necessary, Use mikes. Temporarily, court rooms can move into other halls used for other purposes. These will be temporary. Use chairs and tables which are plastic and can be wiped clean.

For instance, convert the large lawyer canteens/ cafeterias in the High Court and Supreme Court into temporary courtrooms.Use the large airy lobbies as temporary courtrooms. Use large tents as temporary courtrooms if necessary. Use large tents as waiting spaces if necessary. The Supreme Court has enough lawn area to do this.

Lawyers and clients should be given the option of voluntarily opting for video conference hearings. This will help older lawyers and lawyers with medical conditions and special vulnerabilities to avoid physical hearings. This should be an option for those who want it.

If the Judges want, they can use glass partitions around their seats in these large temporary court rooms to protect themselves. Glass partitions cordoning off spaces occupied by Judges and Court staff inside these large temporary courtrooms are probably a good idea. 

The plastic furniture can be quickly sanitized after each set of persons finishes by cleaning staff present on the spot.

Imagine a large hall where everyone can maintain a distance of 3 or 5 or more feet. Where everyone wears masks. The use of fans and open windows/ doors will reduce risk. Movement into/ out of/ and within these large temporary court rooms must be planned in advance with protocols for social distancing. Staff should be present to enforce these protocols. Use barriers to guide movement protocols within and outside these courtrooms. Provide for separate entry and exit doors and movement corridors. It can be easily ensured that no two people come into close or physical contact. A specialized design team can be engaged to devise and execute the best infrastructure design for these temporary courtrooms.Mikes and speakers can be used because of the large space.

Papers need not be handed over. But can be scanned on the spot by staff and shown to the Judges/ Court on large video screens.

Lawyers should be discouraged from moving physically from courtroom to courtroom. Those lawyers with multiple cases say more than 5 per day should be asked to use video-conferencing. Lawyers with 2 or 3 cases in one day who want physical hearing should be allocated time slots at different times of the day.

There are risks in the video conference system. On the “muting” option written about by Justice Pratibha Singh. I have a question. Does the Judge inform a lawyer/ Party that he or she was “muted” by the Judge and for what duration?How does a “muted” lawyer interject if such interjection is necessary say if the other lawyer is misleading the Court or if the Judge is stating an incorrect fact or proposition of law. Such “muting” violates the principles of natural justice.

Seema Sapra
Advocate