“We have never before seen a pandemic sparked by a coronavirus. This is the first pandemic caused by a coronavirus. And we have never before seen a pandemic that can be controlled, at the same time—this is not just a public health crisis, it is a crisis that will touch every sector... so every sector and every individual must be involved in the fight...”— WHO Director-General’s opening remarks at the media briefing on COVID-19 (11 March 2020)*
The pandemic has caused widespread devastation in India, both during its first and second waves. The first wave evoked images of migrant workers leaving cities in huge numbers because of the lack of access to basic food, shelter, and employment. In the second wave which took place between March and May of 2021, a common thread was the lack of access to hospital beds, shortage of oxygen cylinders, desperation for medicines, and a peer-to-peer plea for help across social media and other platforms as the State machinery simply did not respond adequately. The pandemic struck and impinged several fundamental rights including the right to health care, in terms of access to medication or protections for frontline workers; right to privacy, in terms of contact tracing apps; right to work and livelihood, in terms of pay; and the right to dignity, in terms of food, shelter, and even in respectful cremations.
In 2020, in the early months of the lockdown, the then Chief Justice of India, Sharad Bobde, asked petitioners in a matte r of ensuring payment to migrant workers “why wages are required whenmeal’s are provided by the government”,2 a statementdemonstrating a lack of understanding of the hardships that ordinary people werefacing in the surge of the pandemicKalpana Kannabiran has argued how the courts., in multiple petitions, whether in terms of examining the necessity to provideaccommodation for migrant workers, the urgency to take over private hospitals toensure capacity, or even inadvising the media to reportaccording to the officialdevelopments of the governmentrather than critically and independently, demonstrated an unwillingnessto take into account the disproportionate impact that the pandemic had on the poor and the suffering that was causedon account of it.
In this chapter, we look at whether the courts took suffering seriously In hisseminal paper in the 1980s on social actionlitigation, Upendra Baxi advances howthe Supreme Court transformedfrom a traditional captive agency with a low social visibility into a liberated agencywith a high sociopolitical visibility is a remarkable development in the career of the Indian appellate judiciary there is little prospect of the Court reverting to itstraditional adjudicatory posture where people”s causes appeared merely as issues, argued arcanely by lawyers, and decided in the mystery and mystique of the inheritedcommonlawlike judicial process people now know that the Court hasconstitutional power of intervention, which ca n be invoked to ameliorate their miseriesarising from repression, governmental lawlessness and administrative deviance.
(Footnote No. 1 contd Vivek Divan. 2022. “COV ID-19 and the Constitution”, International Journal on Human Rights, 31, available online atThis regard for courts as institutions, which is vital to uphold social values andprovide protections to those that are mostvulnerable and without security, needs tobe evaluated in the context of the pandemic In the past year, several commentatorshave written about and evaluated the substantive interventions that the courts in India have made during the pandemic and how they were lacking.
In this chapter, we specifically explore some of the administrative decisions taken by Indian courtsand evaluate the implications of these decisions on the fundamental principles ofequity, transparency, and accessto justice We are interested in focusing on theseadministrative decisions because, as we will demonstrate, these decisions have nottaken place in a vacuum, they become the basis for material impact onpeople”s lives.
For instance, recently, concepts of judicial evasion and judicial abdication havegained currency, where, by virtue of dealing with timesensitive matterswithouturgency, courts end up taking a stance, primarily by benefitting the party in power. We argue thatadministrative decisions are not purely technical decisions, but theyare decisions that exist in a sociopolitical reality7 which in turn affect how peoplehave access tobasic services, how they can enjoy their fundamental rights., andmeaningfully participate in democratic processes. In focusing on the administrative Administering Virtual Justice in Times of SufferingA key aspect of the pandemic response of the Indian courts was their switch toconduct proceedings virtually The State claims that the video conferencing facilitycreated under India”s ambitious eCourts Mission Mode project has played a vital role inmanaging the justice system during the COVID--.19 pandemic.
Following internationalpractice, this was recommended as a measure to contain the spread of the coronaviruswhich was ravaging the country The processof moving the courts to virtual modes wasset out through Standard Operating Procedures (SOPs, which covered the basics— electronic filing of documents, processes for mentioning, listing, and hearing of mattersthrough video or teleconference.
We examine the performance of the judicial systemthrough an assessment of the working of the Supreme Court, select High Courts, andsubordinate courts from March 2020 to February 2021, when courts mandated thatmatters be heard online through video orteleconferencing For the purposes of ourstudy, we looked at decisions ranging from (a the managerial, in terms of determining Standard Operating Procedures for the courts, (b the technical, in terms of determiningwhat kind of technologies to use, and (c the procedural, in determining the nature ofwhat cases or hearings were heard We offer a case study to review the impact of thesedecisions to conduct virtual proceedings and to understand their impact on differentstakeholders In doing so, we examine whether courtsare taking adequate care andscrutiny in arriving at administrative decisions as well as the processes through which thedecisions were arrived at In this chapter, we examine how the sudden shift to a different mode of workinghas impacted the rights guaranteed to every citizen and values protected by the Constitution These include equality, nondiscrimination, dignity, fairness in treatment, and protection for the rule oflaw We seek to explore whether theseprinciples and values were at the centre of the design of this new mode of workingand in the next section, we examine this mode of virtual justice across two rubrics.The first isto examine the implications of the decisions for people, namely, thelitigants and lawyers The secondis the managerial architecture of courts under the eCourts project, examined in terms of the plans and their execution bycourts, as well as in terms of creating systems for listing This is necessary to explore theinterlinkages between the technical and the materialimplications of courts and theiroperationswhich we examine in the third section of this chapter Finally, weconclude by unpacking how in India”s recent experience with digitisation of courtsstrongly influenced by the COVID-19 pandemic, the virtual administration of
The COVID-19 pandemic resulted ina total shift to the online mode which wasmade out of compulsion given the gravit y of the situation in the country, andeveryone—the litigants, lawyers, judges, and court staff—had to quickly adapt to this model, the groundwork of which was laid earlier through the Supreme Court”s eCourts initiative The eCourts Integrated Mission Mode Project (eCourts projectis an electronicgovernance initiative of the State, implemented in the subordinatecourts since 2005. The project aims to provide the required IT infrastructurefacilities to enable courts to deliver services to litigants and lawyers and to monitorand manage their functioning.
It is designed to work in phases, with Phase 1 completed in 2014. Some of the mainfeatures of this phase included thecomputerisation of courts and the trainingof judicial officers in UbuntuLinux OS and the integrated Case Information System (CIS managed by the NIC Litigantshave access to caserelated i nformation on the eCourts websiteand videoconferencing facilities are available for litigants and persons in custody.In Phase 2, the main objectivesinclude enhancing the Information Communication Technology (ICT infrastructure of the subordinate courtsincluding enabling electronic filing and payment and the use ofmobile applicationsfor caserelatedactivities; connecting all courts to the NJ DG for eventual integrationwith the proposed interoperable criminal justice system (ICJS; enabling citizenservice centres at court complexes; computerisation of legal services authorities; enabling the court management system through digitisation., documentmanagement, judicialknowledge managementand learning tools management; installing a cloud network and solar energy resources at courts; facilitating changemanagement and process reengineering, and improving process servicing by courts.
The Department of Justice credits these various features as the building blocks of therobust digital infrastructure created during the first two phases of the eCourts Administering Virtual Justice in Times of SufferingHowever, as the Parliamentary Standing Committee of Personnel, Public Grievances, Law and Justice in its 107th report (“Parliamentary Committee Report” notes, “the true potential of this project isyet to be realised as only limited functionslike efiling, epay, case tracking, etcare being operationalised”.
The Parliamentary Committee Report recommendsusing advanced technologies like blockchain andartificial intelligence tosupplement the work of judges and judicial officers,representing a promise to move from digitisation todigitalisation of the Indiancourts.However, in the latest version of this vision of the courts, Phase 3 seeks totransform justice from a sovereign function into a service.
In thisimagination, justice is seento be disaggregated intospecific services rather than being theprerogative of public institutions, which has raised questions about the implicationsthat such a move will have for transparency, accountability, and equity of the lastperson, who requires open, accessible, and affordable justice.There is also the risk -
Tomlinson quotes fromTeubnerwho contends that any design or redesign of an administrative institution that seeks to improve its performance inone of threerespects: efficacy, responsiveness, and coherence, “would almost certainly havenegative effects on at least one of the other two”.
In the context of digitalisation inparticular (of which, as we explained earlier, digitisationis the first step, he suggeststhat the “control of institutional design questions ought not to be yielded to thosewho possess technological expertise because new technologycan be difficult tounderstand, and it comes with its own (often hidden methods and politics whendeployed in institutions”. He argues that “technologists have no special authority tomake claims about institutional design beyond purely technological solutions [it] is a means of advancing the functions of the state nomore thanone toolin the state”s toolbox”..
In June 2021, to “imbue greater transparency, inclusivity and tofosteraccess tojustice”, the Supreme Court”s eCommittee released a draft of the Rules on LiveStreaming and Recording of Court Proceedings for public consultation.Thesecover livestreaming mainly through electronic transmission of court proceedings, conducted within the court premises or remotely Parties may raise objectionstolivestreaming The final decision though., vests entirely with the presiding judge.
The courts can restrictaccess tolive recordings at different stages of the trial.Transcriptions of recordings are availableonly to the advocate or the litigantinperson The Rules envisage dedicated spaces within the court premises for viewingthe live stream., and subject to permissions, litigants and other parties are providedentry into these spaces Moore points out thatdigitisation through livestreamingserves the important political function of addressing the “crisis of public trust” in 21st century liberal democracies by makingpublicfacing institutionsaccessible tocitizens through “pushed out data” and “broadcast streams” 24/7 and achieve the Administering Virtual Justice in Times of Suffering
While it is still early to decide whether these Rulessupport or hinder court users and ordinary litigants, it is important that these Rulesdo not perpetuate the existing crisis of court capacity—of poorly designed publicservices failing to meet user needs Moore warns thatthough premisedon “purevisibility” and aimed at achieving total accessibility and usability, such interactionsbetween the public and the State is a particular form of access., which is “mediatedrather than direct”, “virtual rather thanbased oncopresence” with “those like us” and “not so like us.”.
She agrees with Mulcahy (2008 that livelinked video hearings “signal a creeping dematerialisation of thecourt space, and this threatens the verybasis of the court hearing as a public ritual”.
As Donald Horowitz (2016 emphasises, “while buyin“ from the judiciary iscritical for effective implementation of the [system] principles, consultation with a broad range of stakeholders, includingthose the system is designed to serve, isalsocrucial for a credible and legitimateprocess”.Salyzyn (2016 extends this obligation tolawyers and explainsthat litigatorshave anethical responsibility “to understandthe technologies usedin the courtroom inorder both toidentify potential malfeasanceby others, and to optimally use those sametechnologiesthemselves in order to represent their clients”-..
In its application to India, while the Supreme Court is increasingly adopting a technologyfirst approach, whether it be livestreaming cases or the use of artificialintelligence in the judiciary, as we have argued elsewhere, suchsolutionism requires anengagement with the material realities of the technology This can be imaginedthrough, for instance, the Indian public.”sability to use and access the internet and benot just digitally literate but alsocomfortable with digital tools.India is still intheearly stages ofdigitisationand its past a ttempts at digitalisation, as we explained
In the next section of this chapter, we delve more deeply into the human aspectsof the digitised judiciary to unpack how the story ofvirtual justice plays out fordifferent stakeholders.
In this section, we will briefly account for the experiences of both lawyers andlitigants to demonstrate how justice resided when looked atin a distributive sense, and how it impacted people in different social and economic circumstances.
The lockdowns brought to the fore, systemicinequalities in full display between thebetter resourced urban lawyers and the struggling younger lawyers, particularlyinsmaller towns and tier-2 cities, many of whomlost livelihoods and were forced to lookfor alternative incomesources for sustenance.This was felt particularly by lawyerspractising in subordinate courts The trial courts, district courts, family courts, labourcourts., and industrial tribunals suddenly closed down with a stipulation that hearingswould be restricted to “extremely urgent” matters which were to be conducted viavideo conference and all communications were to be made solely through email.
Thecourtswere constrained to cancel sittings and declined to hear matters thatthey didnot consider “urgent”. Lawyers were discouraged from physical appearances beforecourts and encouraged to practise socialdistancing and electronic filing ofdocumentswas mandated The assumptionwas that all lawyers possessed stable and secureinternet connectivity, highquality electronicinfrastructure, and digital skillsrequiredto navigate these processes as wellas the physicalspace intheir homes to focus on thehearings., while inreality, discussions with lawyers revealed that several advocates, particularly those practising in subordinate courts, lacked even laptops and computer Administering Virtual Justice in Times of SufferingAt the time, it appeared as if the Supreme Court failedtoconsider thepreparedness of the lawyers to be able totransition online There seemed to be noacknowledgment of the need for infrastructure, basic digital literacy, and support tomake requiredbehavioural changes to adapt to the eCourts system The precarioussituation ofadvocates prompted a public litigation actionbefore the Supreme Courtrequiring bar councils to provide ex gratia aid to lawyers.
A study from April 2020 on advocates practising before various High Courts by the Vidhi Centre found that most lawyers were unaware of the provision forfinancial assistance to them under the Advocates Welfare Fund..
The lack offinancial security for lawyers is worrying since most of them practise in courtscompared to a minority working in law firms in a transactional or advisory capacity.Some improvement was noticed during thesecond wave of the pandemic Severalbar councils launched financial assistance schemes to support advocates.
These areThere have been persistent issues of access faced by lawyers For instance, the Supreme Court AdvocateOnRecord Association wrote to the Chief Justice ofIndia (CJI requesting courts to resume physical court hearings to overcome difficultiesthat lawyers faced in virtual hearings due to technical glitches.
These could affectthe quality of representation that a litigant receivedA recent study, DAKSH foundthat the number of physical filings increased dramatically after 1 June 2020 since thefirst round of lockdowns were eased, indicative perhaps, as the report remarks, ofinconvenient design of the efiling infrastructure or their own discomfort to adapt tonew working practices andresistance to change.
Since then, and until the recent lockdown in some states, High Courts and districtcourts in India have been operating in physical courtswhile online courts continue tooperate via video conference.This complements the vision of futurists like Susskind ofthis space as a “blend” of physical courts, virtual hearings, and online courts., wheredisputes are disaggregated and different portions allocated to the most efficient and justprocess.
In operation though, hybrid hearings bring their own distinct challenges The Supreme Court of India User Guide for Hybrid Physical Hearings (2021requires thatwhen an advocate needs a physical hearing, they must submit a request toappear within 24 hours (or 1 pm of the publication of the weekly matters hearing list.This leaveslittle time for the advocate to prepare effectively for the matter Hearings are restrictedthrough entry passes, for which a person needs to possess a functional mobile numberand email address This has the potential toworsen the digital divide since tracking and Administering Virtual Justice in Times of Suffering
An official estimate shows that the Su preme Court held 43,713 video conferencehearings with 1,998 Supreme Court benche’s hearing matters via video conferencinguntil 31 December. 2020.
However, as press reports suggest,this does not reflectthe actual lack of capacity building, especially among the lower tiers of the judiciary, the district, and sessions courts As Neeraj Mishra points out “...even by August 2020, most district and mofussil courts around the country had barely acquired theknowhow and capacityto deal with virtual court sessions Even today, while courtsand their staff might have become digitally capable, advocates and their clientsareyet to acquire the same proficiency...”. Only in 19.5% of the cases, users receivedsome form of technical assistance sincecourt administration staff were not available to assistIt found thatthis significantlyhampered the effective participation of litigants in hearings.Litigants expressed thehighest levels of dissatisfaction with videoand audio hearings at county courts withoverall low levels of digitisation.
The Supreme Court directive on the operation of courts during lockdownrequired all courts to make video conferencing facilities available for litigants with This is not surprising The United Kingdom has undertaken an expansive court reform programme since 2016. Even after four years, in March 2020, when English courts had to replace physical hearingswith virtual ones, the Bryrom Review discovered several technical problemswith the IT infrastructure used by courts.Litigants are forced to bear this burden They have tocontinue to engage lawyersand pay their fees, despite their matters bein g in limbo for weeks at a stretch Fromearly 2020, when successive state governments began to impose lockdowns, appearing for hearings was difficult for litigants with no effective internet access..
They were forced to rely completelyon their lawyers for updates on matters.
The Supreme Court”s eCommittee believes that so far the video conferencing facilitiescreated under the eCourts project have played animportant role inoperating thejustice system during the COVID-19 induced pandemic.This, as our discussionsofar shows, has not considered the practical challenges faced by litigants.
Remote hearings take time since only a limited number of matters can be listedeach day Remote delivery of justice, then, need not necessarily be better than physicaldelivery.The pandemicaffectedboththe institution of new matters and the disposalof pending cases As the table below shows, at the first stage of the lockdown in April 2020, 1,06,210 cases were filed in India”s courts and 49-.,875 cases were disposed of Comparatively, in April 2 019, on an average, 12,49,546 cases were filed and Administering Virtual Justice in Times of Suffering
314 1,06,8355 cases disposed of While in 2019, the total filings wereat ~1..66 crore anddisposals at ~1.49 crore, this substantially reduced in 2020 to ~1.23 crore filings and ~77 lakh disposals.
These values have improved slightly in 2021 and as seen in early October, filings increased to ~1.27 crore cases and disposals to ~99.6 lakh cases.
Total numberof cases 2019 2020 2021 (until 05.10.21 Filed 1,66,34,866 1,22,79,555 1,27,57,051 Disposed 1,49,15,588 76,79-.,076 99,59-.,071 The Parliamentary Committee Reportalso records thatsince March 2020, while 3,240 court complexes were fully equipped for virtual proceedings, 14,443 were stillto be provided these basic facilities.The Digital FreedomFund observedthat inclusivity is essential in the design ofdigital interfaces and “digital tools should not shift the burden of proving eligibilityor need onto individuals”.
Given the centrality of effective party participation intheir faith in the fairness of litigation., this needs urgent attention Proceduralfairness is of particular concern, since it “...includes an opportunity to tender andchallenge evidence, and to advance arguments in favour of, and respond toarguments against, a party”s interests in issue in a trial”.Procedural fairness isrequired to uphold the rule of law and maintainpublic confidence in the legalsystem.
In a virtual setting, access to goodquality audiovisualequipment isindispensable This means the quality of the process, which includes orientation andEven though India”s internet penetration rate improved from 4 per cent in 2007 to 45 per cent by 2021, more than half ofthese users are between 20…39 years of ageand users over the age of 40 form the lowest share of internet users.
There are alsosignificant gaps in internet usage along ruralurban, gender, and class lines. Thisgap has only worsened during the pandemic.
Attempts to bridge the digital divideare now being discussed in the Indian policy space ElectronicOnce fully in operation, their utility needs to be critically evaluated.Certain matters, like criminal trials, remainunsuitable for virtual hearings Thereis a severe disconnect between the promise and performance of video conferenced.
A growing body of literature internationallyfinds that witnesses are less credible onscreen thaninfacetoface environments, and the manner in which audiovisuallinks are implemented has “a real impacton the court”s service delivery and hence itsjustice outcomes”.In India, the Commonwealt h Human Rights Initiative Administering Virtual Justice in Times of Suffering Sewa Kendras are being piloted in High Courts and a few district courts, to assist litigants and lawyers with caserelated information and electronic filing services.
Parties who are unable to attend or a ccesscourt hearings or have sensitivepersonal information leaked due to a data breach have no real remedy Besidesviolating the cardinal principle of “open justice”,this also means that managers ofvirtual hearing platforms are not really accountable to users Guaranteeing effectiveaccess cannot be the sole responsibilityof the court staff and court managersworking at a reduced capacity.
A working paper by RastogiThis was based on three criteria: (a definition of “urgency” (b determination of “urgent” mattersand (c the switch tovirtual hearings and electronic filing of case materials The study relied onnotifications, circulars and administrative orders passed by the High Courts availableon their respective websites.On the first criterion of defining urgentmatters, the authors find that courtsdetermine regular and anticipatory bail applications, criminal matters affectingpersonal liberty like habeas corpus petition’s, detention terms, and sentencingrelatedet alanalysed the response of 25 High Courts to the pandemic between March and August 2020.
Exceptionally, some courts like the High Court of Uttarakhand came up withacomprehensive list thatincluded property matters—such as eviction, ejectment, dispossession., demolition, and attachment—petitions where major penalties havebeen levied in departmental hearings, and service matters as “urgent”.
On the second criterion, the authors note that there is widevariance amongcourts on the timing of classifying case’s as urgent, starting from March 2020 insome courts while other courts did this as late as June 2020. They also founddivergence in the progressive widening of the criteria used by the High Courtstodetermine urgency during this period.
On the third criterion, there was a significant variance in practice observed acrossstates Different webbased applicationsand platforms for virtual hearings indifferent forums and at different times for the same forums were experimented with There was no dedicated platform developed to facilitate efficiency and consistency ofpurpose For electronic filing of documents, particularly during the initial days oflockdown, the authors note thatdocuments were sent via email to a specific emailaddress provided or to the email of a staff member on duty Some High Courts, likethe High Court of Bombay, specified email addresses for each court bench for filingnew matters and additional documents.This study is instructive in several ways: it clearly brings out the Administering Virtual Justice in Times of Suffering ad hoc nature of determining urgency among High Courts For instance, similar matters like applicationsfor bail which were classified as “imminently urgent” by most courts, were not considered as urgent by the High Courts of Rajasthan and Bombay In fact, as the study pointsout, the High Court of Bombay decided that “urgency.” is subjective and that the “circumstances in which a bail application is made must be considered.” before determining it as urgent The courts., therefore, seemed to adopt their own subjective approach todetermine urgency in each case with no central guiding principle at play Similarly, the determination of urgency was left to the Chief Justice in some courts., and in other courts, other judges decided whether a case was urgent or not Vagueness in de fining matters that the courts consider “urgent” is a huge concern Several High Courts did not seem to consider the obvious and basic difference between anurgent matter during a pandemic and in normal times For instance, in April 2020, the High Court of Madhya Pradesh issued guidelines for videoconferencing and electronic filing of documents for urgent matters These imposed several requirements on the practising advocates as well as on the litigants, which accentuated the practical difficulties faced by the advocates and their clients Advocates appearing on urgent matters were required toensure that72 Another reporthighlights the disparities in practiceand lack of uniform standards of videoconferencing incriminal trials between different regions in India.
Similar issues were observed at the Su preme Court From March 2020, the Courtbegan to operate at a reduced capacity andimposed restrictionson advocates” entryto the Court premises Similar to the High Courts, only “urgent” matters were takenup and other matters adjourned This wasthen further restricted to “extremelyurgent matters”. The category of “urgent” matterskept onexpanding toinclude shortcategory, death penalty matters and family law disputes and by July 2020, practicallyall matters, regular and miscellaneous were being heard online Adhocism indetermining urgency was apparent since urgency was determined at the solediscretion of the presiding judge of the bench There was a strong push to encouragelawyers to attend hearings via videoconferencing and for parties to use efilingfacilities for documents Cases selected for hearing would be listed online, and onlylater in the evening on the previous day of the hearing, leaving little time for theadvocates to be sufficiently prepared for the proceedingsall pages of case documents were physically signed by the litigating party and the advocate, before the entire case file was scanned into PDF format, to be filed using specifically “designated email addresses of the court registry Following this, every electronically filed petition was required to contain a screenshot of the email showing all soft copies of the supporting case documents attached and an undertaking of the advocate or the party to this effect For the conduct of virtual hearings, detailed requirements were impose d onadvocates, for instance, for making requests for virtual hearings, mentioning urgent matters, appropriate attire for attending hearings, ensuring un restricted internet access on their devices in advance of hearings, and installing requ ired hardware and software, etc.
As the COVID-19 pandemic raged on in June 2020, the extreme hardship facedbylitigants and lawyers invirtual proceedings forced the Supreme Court to resumephysical hearings in compliance with social distancing protocols With rising COVID-19 cases, the Court was forced to operate virtually in July 2020. Onlytowards the end of August 2020, it opened a few courts for physical hearings ofmatters on an experimental basis Finally, hybrid hearings were allowed in the Supreme Court from March 2021 with severe limits on the number of people in a courtroom, which was restricted to 20. The vagueness and adhocism of the previousyear returned in April 2021, with only “urgent” matters being permitted to bementioned as “Listed Mentioning” for the Court”s consideration.
In the previoussections, by analysing the administrationof justice ina crisis in termsof the digital approaches, we sought to demonstrate the way administrative decisionsof the courts have had a material impact on how people have been able to use andaccess courts.
The impact of the decisions of the courts, in our view, isat three levelsThe firstis at the level of exclusions—-.which refer to the manifest ways in which differentgroups were denied full participation in thejustice delivery processes The second isat the level of arbitrariness—which refers to the ways in which administrativedecisions of the courtswere designed without consideration of the implications, thelack of uniformity, and how they hinderedparties in experiencing the justicedelivery system The third level isthat of solutioning—-.which is the way the courtshave come up with modelsfor combating the pandemic without thinking throughthe design of the technological solutions.In terms of exclusions, what becomes apparent when the impact of digitisationisexamined is that courts appear to haveunderestimated the ramificationsof theirdecision to move online interms of how lawyers” livelihoods would be affected by thedigitisation process, litigantswould be excluded both becaus e of lack of digital accessand courtsworking below their capacityand hearing only certain types cases.
Theseexclusions demonstrate that the administrative nature of the decisions has strongsubstantive impact For instance, the right to access information on court proceedings Administering Virtual Justice in Times of SufferingLimits wereimposed on the number of video call link’s at two per litigant, restrictions wereimposed on the recording of court proceedings, and only “urgent” matters were listedwhere the criteria for determining urgency were different at different courts and evenwithin the same court it kept changing constantly All these effectively converted thepublic nature of a trial to a private hearing This also has an impact on people”s entitlement to receive a full and accurate record ofcourt hearingsand easy access tocourt orders This highlights the importance of acknowledging that many of theoffline exclusions were translated intothe online/virtualrealm In doing so-., acknowledging that in thinking about digital rights, and digital access, it wasimportant to keep human rights and values of life, liberty, equality, and autonomy at the core.
Failure to do so would result in new kinds of marginalisations in a newsphere, as was demonstrated To protect agains t such outcomes, it is also imperative tothink about how administrative principlessuch as due process can develop and adaptto the challenges thatemerge with a digitised systemsuchthat principles oftransparency and accountability continue to be guaranteed.
During a crisis, it is understandable that courts had to make several decisionswithout recourse to the benefit oftime for deliberations However, inadministering justice, there is also an expectation that decisions should not have a disproportionate impact onpeople and that they cannot be seen should not beunreasonable.There was a severe lack of uniformity inmodes used by courts foronline hearings High Courts used different software platforms and even within a single High Court several platforms were used bydifferent benches In fact, High Courts moved between several software applications during the months studied.
These included Zoom, Webex, Bluejeans, Vidyo, Microsoft Teams, Jitsi, and even Whatsapp RastogiFrom this analysis, it becomesobvious that even after a year of operating virtually, courts have not adopted a transparent and uniform method, putting litigants, advocates, and the public at the mercy of administrative arbitrariness at a critical time, when the nation hasbeen in the throes of multiple rounds of lockdown and court administrations arestretched to capacity While one may argue that the court had to respond indynamic circumstances and therefore should be given the benefit of doubt whileoperating in emergency situations, what emerges through an insight into even thechoices of technical devices is that there was a clear lack of communication acrossdifferent institutions on the merits, challenges, and implications of using certaintechnologies This indicates that some platforms were chosen for safeguardingprivacy more robustlywhile others appeared tobe those which were mostconveniently available These arguments are also on account of a lack ofengagement with the technology, seeing it more as a fix, and an enabler, instead ofinvestigating the impact of its introduction.
The third level of discussion is at the level of solutioning through technology.
Through the pandemic, there has been a surge in interest and developmentsaroundthe digitisation of the judiciary As discussed earlier in this essay, withthe Supreme Court arguing for a new vision for eCourts through making it a service, as we argueelsewhere, such a vision will result in the commodification of justice We haveargued that the “technologyworshippingvision” that tends to predominate thisdebate has led to “a celebration of technology inand of itself and a constantpostponement of measuring whether the technology has actuallybeeneffective”.There is a danger of prioritising technology for efficiency without addressingfundamental values like procedural compliance, inviolability of rights, and Administering Virtual Justice in Times of Suffering et al point out that this became cumbersome and inefficient for all stakeholders, particularly., litigants and lawyers who had to constantly adapt tothese different formats, often at short notice Lawyers had to keep up with the constantly varying processes for virtual a ppearance before courts (depending on the online platforms used and electronicfiling of documents In many states, this spurred growth of a parallel industry of litigation assistants: shopkeepers who charged lawyers and clients for assisting them in preparing and consolidating case materials in PDF format, which could be filed before the courts electronically, raising huge privacy and affordability concerns.
As Sen points out, virtual court technology should adhere tofundamental design needs: minimal asymmetry of information, uniformity inoperation, interoperability., ease of use, a ccessibility, automation of key processes, intelligent tools, and transparency.
An evaluation of theeffectiveness of virtualjustice delivered by Indiancourts during the pandemic should be based onfundamental justice values of equal access, independence, accountability, impartiality, transparency, privacy, and legal validity.
This chapter has sought to examine the nature of the response of the Indian courtsin terms of the ways in which they responded to suffering during the pandemic We focus on administrative decisions of courts and have considered the case of thedigitisationof the judiciary as thiswas seen as a primary response of the courts to thepandemic to ensure thatcourts remained open, and functioning.In our discussions in thischapter, we have adduced how, in its response, thedigitisation of the judiciary had bothmanagerial as well as human impacts.
Digitalisation has the tendency to substitute human discretion with rigid rules andperformance metrics This can exclude severa l from the process, and it is these kindsof challenges that thischapter has sought to unpack.We stand between two seemingly opposingpositions—of a steadfast rejection of the move towards greater digitalisation of justice and strong support for technocentric courts As we have attempted to point out, the debate is far more nuanced.
There isincreasing recognition of the needto build a supportive ecosystem, enabledby technology However, technology must not be seen as means to an end The COVID-19 pandemic forced several rapid changes in the manner of working ofcourts, and the Indiancourtsquickly adaptedbut we ask whether, as they adapted, ifthey took people along with them.* All facts, references and descriptions of legal developments in this chapter are updated until and verified as on 27 March 2022.
1. The authors through their work at Justice Adda, have also worked on the CHELP | Centre for Health Equity Policy Law and, “CHELP COVID-19 and the Constitution: A Timeline”, available online at https://justiceadda.org (accessed on 23 November 2021).
2. The Telegraph Online. 2020. “If meals are given: Supreme Court”s query”, The Telegraph Online, 7 April, available online at (accessed on 31 August 2021.
3. Kalpana Kannabiran. 2020. “Justice and Rights In Viral Contexts In India”, The India Forum, 28 April, available online at (accessed on 4 June 2021.
4. Upendra Baxi. 1985. “Taking Suffering Seriousl y: Social Action Litigati on in the Supreme Court of India”-., Third World Legal Studies, 4, available online at (accessed on 15 December 2022.5. Amal Sethi. 2021. “Judging Under Extreme Cond itions: A Court”s Role During a National Crisis”, Social Science Research Network, SSRN Scholarly Paper ID 3838579, available online at (accessed on 7 December 2021; Kalpana Kannabiran, “Justice and Rights In Viral Cont exts In India”; Prachi Bhardwaj. 2020. “SC says system of Video Conferencing has been extrem ely successful”””, 27 October; SCC Blog; Ajit Prakash Shah. 2020. “Failing to Perform as a Constitutional Court”, The Hindu, 25 May, online available online at (accessed on 31 Augu st 2021; Apoorva Anand. 2021. “COVID Has Exposed the Supreme Court”s Utter Disregard for the Plight of Ordinary Citizens”, The Wire, 24 April, available online at (acce ssed on 31 August 2021; CHRI. 2021. “Disconnected: Video Conferencing & Fair Trial Rights”, CHRI, 13 May, available online at (accessed on 15 December 2022; Up endra Baxi. 2020. “Exodu’s Constitutionalism”, The India Forum, 11 June, available online at -. (access ed on 31 August 2021.
6. Gautam Bhatia. 2017. “““O Brave New World" “: The Supreme Court”s Evolving Doctrine of Constitutional Evasion”, Indian Constitutional Law and Philosophy, 6 January, available online at (accessed on 23 October 2019.
7. Usha Ramanathan. 2011. “The Myth of the Technology Fix”, Seminar Magazine, 617, available online at (accessed on 1 September 2021; Siddharth Peter de Souza. 2019. “Towards a UserCentered Engagement with Law”, SüdasienChronikSouth Asia Chronicle, 283.8. See generally Sofia Ranchordas. 2021. “E mpathy in the Digital Ad ministrative State”, Social Science Research Network, SSRN Scholarly Paper ID-. 3946487, available online at (accessed on 7 December 2021. decisions of the courts-., thischapter seeks to examine the inextricable linkbetweenthese organisational aspects and the suffering that they can cause.
9. Rajya Sabha. 2021. Report No. 107. Demand for Grants of the Ministry of Law and Justice Government of India, pp. 55-56, para 5.39.
10. Refer to the list at Appendix 1. justice presents a cautionarytale in terms of the impact of decisions taken by thecourts without thinking through the design of the technological solutions, which hasperpetuated the already existing exclusions., arbitrariness, and solutionism bycourts.
11. eCommittee, Supreme Court of India. 2005. “N ational Policy and Action Plan Document Phase I”, 1 August; eCommittee, Supreme Court of In dia. 2014. “Policy and Action Plan Document Phase II of the Ecourts Project”, 8 January, available online at (a ccessed on 5 April 2021.
12. The eCourts website contains case related information from the Supreme Court, High Courts and district courts in India Availa ble online at (accessed on 4 October 2021. project,13 which have ensured the smooth transition of the Indian courts from thephysical mode to virtual delivery of justice.
13. Rajya Sabha. 2021. Report No. 107. Demand for Grants of the Ministry of Law and Justice Government of India, p. 55, pa ra 5.37, available online at , (accessed on 15 June 2021.
14. Rajya Sabha Demand for Grants of the Ministry of Law and Justice, para 5.40, p. 55.
15. Rajya Sabha Demand for Grants of the Ministry of Law and Justice, paras 5.405.41, p. 56.
16. We use these terms as explained by ChapcoWade (2018. Digitisation is the conversion of analog to digital, through internal o ptimisation of processes, whic h results in cost reductions Digitalisation is the use of digi tal technologies and di gitised data to impact how work gets done, transform how customers and compa nies engage and interact, and create new (digital revenue streams Digitalisation is a stra tegy or process that goes beyond the implementation of technology to imply a deeper, core change to the entire business model and the evolution of work Colleen ChapcoWade. 2018. “Digitisation, Digitalisati on, and Digital Transformation: What”s the Difference?”, Medium, 21 October, available online at (accessed on 15 December 2022; See also Peter CVerhoef et al. 2021. “Digital transformation: A multidisci plinary reflection and research agenda”, Journal of Business Research, 122: 889-901, available online at -. (accessed on 15-. December 2022.17. The Supreme Court”s eCommittee released draf t Vision Document provides that “Given the large, diverse and constantly evolving needs of different users and the constant evolution of technology, administration of just ice must not just remain as a so vereign function, but evolve as a service: to mitigate, contain and resolve disputes by the courts and a range of public-., private and citizen sector actors”, p. 5.
18. Siddharth Peter de Souza, Varsha Aithala and Srishti John. 2021. “The Supreme Court of India”s Vision for eCourts: The Need to Retain Justice as a Public Service”, The Hindu Centre For Politics and Public Policy, Policy Watch No. 14, 10 Ju ly, available online at (accessed on 15 December 2022. of pushing, prematurely, the idea of “government asa platform”19 —a unified digitalsystem that is imagined to evolve seamlessly according to its use without adequatethought to the impact on citizens of the State “retreating into the virtual realm”.19. Tim O”Reilly. 2010. “Government as a Platform”, Innovations, 6: 1, available online at (accessed on 15 December 2022.
20. Gunther Teubner. 1987. “Juridifi cation: Concepts, aspects, limits, solutions” in Gunther Teubner (ed., Juridification of Social Spheres: A Comparati ve Analysis in the Areas of Labor, Corporate, Antitrust, and Social Welfare Law, pp. 3-48. Walter de Gruyter.
21. Joe Tomlinson. 2019. Justice in the Digital State Policy Press, p. 15.22. Idat pp. 16-17. He cites Deirdre Mulliga n and Kenneth Bamberger. 2018. “Saving governancebydesign”, California Law Review, 106 (3.
23. eCommittee, Supreme Court of India. 2021. “R ules on LiveStreaming and Recording of Court Proceedings”, available online at (accessed on 11 June 2021. cherished value of transparency.24. Sarah Moore. 2019. “Digital government, pu blic participation and service transformation: the impact of virtual courts”, Policy and Politics, 47: 3, pp. 495-509, available online at (accessed on 15 December 2022.
25. Bonnie Honig. 2017. Public Things: Democracy in Disrepair, Thinking Out Loud The Sydney Lectures in Philosophy and Societ y, Fordham University Press.
26. Bonnie Honig-., Public Things: Democracy in Di srepair, Thinking Out Loud, p. 504 quoting Linda Mulcahy. 2008. “The Unbearable Lightness of Being? Shifts Towards the Virtual Trial”, Journal of Law and Society, 35: 4. pp-.. 464-489, available onli ne at (accessed on 15 December 2022.27. Donald J Horowitz. 2016. “ATJ Technology Principles: Access to and Delivery of Justice” and Jacquelyn Burkell. 2016. “Troubling the Tech nological Imperative: Views on Responsible Implementation of Court Technologies” in Karim Benyekhlef, Jane Bailey, Jacquelyn Burkell and Fabien Gélinas (eds., eAccess to Justice, pp. 158, 163. University of Ottawa Press.
28. Amy Salyzyn. 2016. “The Case for Courtroom Technology Competence as an Ethical Duty for Litigators” in Karim Benyekhlef, Jane Bailey, Jacquelyn Burkell and Fa bien Gélinas (eds., eAccess to Justice, at pp. 159, 222.29. Sarah Moore, “Digital government, public part icipation and service transf ormation: the impact of virtual courts”, pp. 504-505. earlier, have remained concerning There is a need, therefore, to ensure that there isadequate preparation and channeling to constructively use technology for courts suchthat the public”s “claim to see” translates to “serve[-ing] as wouldbe, potential viewers, their presence felt in as much as they ca n dip in and out of the mediated courtroom”.
30. Sarah Moore, “Digital government, public part icipation and service transf ormation: the impact of virtual courts”, p. 503.
31. Bhadra Sinha and Apoorva Ma ndhaniI. 2020. “Virtual courts system is pathetic: justice not being done”, The Print, 9 June, available online at (a ccessed on 15 June 2021.
32. For instance, the High Court of Karnataka noti fied closure of all lower courts from 15 April to 3 May 2020, through a notification dated April 16, 2020, available online at (accessed on 27 May 2021. facilities.33. Sobhana KNair. 2020. “Law Ministry panel bats for more virtual courts”, The Hindu, 11 September, available online at (accessed on 15 June 2021.
34. Akshita Saxena. 2020. “Ple a In SC To Draw Up A Uniform Policy For Giving Financial Assistance To Lawyers In Times Of Emergencies”, LiveLaw, 27 April, available online at (accessed on 16 December 2022. In WP. (Civ il Nosand 39/2021, the Supreme Court, by order dated 30-. June 2021, directed the Nation al Disaster Management Authority (NDMA to frame guidelines for disbursement of compensation to the kin of those who died owing to the COVID-19 pandemic The NDMA recommended Rs. 50,000 as minimum exgratia payment to the next of kin of the deceased This amount is in addition to any other amount paid under any other such benevolent schemes by the gov ernment Referring to these cases, in Pradeep Kumar Yadav vUnion of India., WP. (Civil No. /021, (Supreme Court of India decided on September 2021, the Supreme Court dismi ssed a petition seeking Rs 50 lakh exgratia from the Union of India for families of lawyers who died before 60 year’s of age due to sickness, and additional monetary compensation if the lawy ers died due to COVID-19 induced sickness The Court ordered the petitioner to pay costs for ab using the process and acting irresponsibly.
35. This fund was set up under the Advocates Welfare Fund Act, 2001. Ch itrakshi Jain, Shreya Tripathy and Reshma Sekhar. 2020. “A Survey of Advocates Practicing Be fore the High Courts”, Vidhi Centre for Law & Policy, available online at (accessed on 21 June 2021.36. See for instance, the Supreme Court CO VID-19 Financial Assistance and Grant Scheme, 2020, available online at (accessed on 16-. December 2022; Karnataka State Bar Council. 2020. “Guideli nes for grant of financ ial assistance under KAWF for COVID-19”, available online at (accessed on 16 December 2022; Bar Council of Delhi in Ritesh Tanwar vUnion of India and the discussion in Aneesha Mathur. 2021. “Bar Council of Delh i gives over Rs 3.59 crore as fi nancial aid to Covidaffected lawyers”, India Today, 20 May, available online at (accessed on 21-. June 2021. in addition to existing insurance policies for advocates37 and arranged for payoutsfrom the council”s advocate welfare funds towards medical treatment in the event anadvocate gets infected with the COVID-19 virus.
37. Nyaya Kavacha: Group Insurance Scheme, available online at (accessed on 15-. June 2021.
38. Karnataka State Bar Council, “Guidelines for grant of financial assi stance under KAWF for COVID-19”.
39. Bhadra Sinha. 2020. “Lawyers ” body urges CJI to resume physical hearings from July, says virtual courts not working”, The Print, 2 June, available online at (accessed on 15 June 2021.40. Leah Verghese, Shruthi Na ik, Siddharth Mandrekar Rao, Sa ndhya PR, and Amulya Ashwatappa. 2020. Lawyers” Experiences During the COVID-19 Pandemic, available online at (accessed on 16 December 2022.
41. Rajya Sabha. 2021. Report No. 107. “Demand for Grants of the Ministry of Law and Justice”, Annexure V “Current status of virtual he aring in courts as on January 28, 2021”.42. Richard Susskind. 2019. Online Courts and The Future of Justice, p. 63.
43. Available online at (accessed on 10 May 2021.44. Supreme Court of India. 2021. “Hybri d Physical Hearing”, available online at (accessed on 3 May 2021. complying withthese processes substantiallyincreases the workload of the lawyers asseparate entry passes need tobe generatedfor each matterA coherent, rational, andconsistent approach to court hearings followeduniformly across courts at different levelsis critical to empower practitioners.
45. Supreme Court of India. 2021. “Supreme Court of India Observes 71st Anniversary: Doors of Justice Remained Open Despite the Pandemic”, Public Relations Office, 28 January.
46. See for example, Sobhana Nair. 2020. “Law Ministry panel bats for more virtual courts”, The Hindu, 11 September; Yash Agarwal. 2020. “Challenges in setting up virtual and online courts in India”, The Leaflet, 23 October.
47. Neeraj Mishra. 2021. “Forced to go “virtual”, Indian courts had a trying time during the pandemic in 2020“, National Herald, 18 January, available online at (a ccessed on 16-. December 2022.48. Dr NBryom et al. 2020. “The impact of COVID-19 measures on the civil justice system”, CJC, LEF, available online at (accessed on 19 May 2021.
49. Dr NBryom et al., “The impact of COVID-19 measures on the civil justice system”.50. In Re: Guidelines for Court Functioning Throug h Video Conferencing During COVID-19 pandemic, Suo Motu Writ (Civil No. /0, Supr eme Court, available online at-. (accessed on 11 June 2021. no means or access to video conferencing facilities during this period In practice, however, since hearings were limited to the most “urgent” matters like bail hearings,51 other matters were adjourned This has severe implications for the promise of therule of law Asthe former Chief Justice of the High Court of Australia, Sir Gerard Brennan observed, [courts] are bound to hear and determine cases brought within their jurisdiction If they were constrained to cancel sittings orto decline to hear the cases they are boundto entertain, the rule of law would be immediately imperiled This would not bemerely a problem of increasing the backlog; it would be failing to provide the disputeresolving mechanism that is the precondition of the rule of law....
51. For instance, the Standard Operating Proc edure (SOP of Karnataka High Court on video conferencing rules restricted the nu mberof virtual hearings to 20 in a day This is in contrast to daily cause lists with more than 100 matters listed daily on a regular basis in most subordinate courts.
52. The Honourable Sir Gerard Bren nan, AC KBE, Chief Justice of Austra lia, “The State of the Judicature“ at 30th Ausralian Legal Convention Melbourne (19 September 1997, available online at the (accessed on 3 July 2021.
53. Even for litigants with acce ss, the number of video links provid ed is highly restricted, available online at (accessed on 15 June 2021.54. Rajya Sabha. 2021. Report No. 107. Demand for Grants of the Ministry of Law and Justice, pp. 55- 56, para 5.39.
55. John Sorabji. 2021. “Initial Reflections on the Potential Effects of the COVID-19 Pandemic on Courts and Judiciary of England and Wales”, lnternational Journal for Court Administration, 12(2: 6, available online at (accessed on 18 May 2021.56. “Institution v/s Dispos al: National Judicial Data Grid”, available online at (accessed on 6 September 2021; also see, Maneesh Chhibber. 2020. “How lock down has hit judiciary, in numbers — April cases fall to 82-.k from 14 lakh avg in 2019”, The Print, 4 May, available online at (acce ssed on 15 June 2021.
57. Rajya Sabha. 2021. Report No. 107. Demand for Grants of the Ministry of Law and Justice, p. 55, para 5.36, available online at (accessed on 16 December 2022.
58. Jonathan McCully. 2020. “Toward a Litigati on Strategy on the Digital Welfare State“, Digital Freedom Fund, 23-. April” available online at (accessed on 16 December 2022.59. Michael Legg and Anthony Song. 2021. “The Courts, The Remote Hearing And The Pandemic: From Action To Reflection”, UNSW Law Journal, 44(1:, p. 137.
60. Michael Legg and Anthony Song, “The Court’s, The Remote Hearing And The Pandemic: From Action To Reflection”, quoting Chief Justice Robert French. 2010. “Procedural Fairness: Indispensable to Justice?”, Sir Anthony Mason Le cture, at University of Melbourne Law School, 7 October, p. 137. support with the technology, and the quality of the environment, namely thetechnology and “remote space comfort”61 could determine the output.61. David Tait and Vincent Tay. 2019. “Virtual Court Study: Report of a Pilot Test 2018”, Research Report, Western Sydney University, 16 October, pp. 29-30.
62. Simon Kemp. 2021. “Digital 2021: India”, DataReportal, 11 February, available online at (accessed on 16-. December 2022.
63. Simon Kemp, “Digital 2021: India”.64. On the gender divide, see Mi tali Nikore and Ishita Uppadhayay. 2021. “India”s gendered digital divide: How the absence of digital access is leaving women behind”, Observer Research Foundation, 22 August, available online at (accessed on 16 December 2022; On the urbanrural access gap, see India Today. 2021. “More than 50% of Indian students in rural and urban areas don”t have access to internet: Survey”, India Today, 18 February, available online at (accessed on 16 December 2022.
65. Ecommittee, Supreme Court of India, “eSewa Kendra”, available online at-. (accessed on 16 December 2022.66. Sahana Manjesh. 2020. Disconnected: Videoconferencing and Fair Trial Rights Commonwealth Human Rights Initiative.
67. See for instance, David Tait and Vincent Tay. 2019. “Virtual Court Study: Report of a Pilot Test 2018”, Western Sydney University,16. October, pp. 29-30; David Tait. 2017. “Towards a Distributed Courtroom”, Western SydneyUniversity, 15 July as quoted in Michael Legg and Anthony Song. 2021. “The Courts, The Remote Hearing and the Pandemic: From Action to Reflection”, UNSW Law Journal, 44(1: 126, p. 139.
68. Emma Rowden, Anne Wallace, David Tait, Mark Hanson and Diane Jones. 2013. “Gateways to Justice: Design and Operational Guidelines for Remote Participation in Court Proceedings“, The Court of the Future Network, 20 March, p. 10, available online at (accessed on 16 December 2022. conducted a rapid review of criminal lawyers and judges between August and December-. 2020 and found that such hearingsinfringe the right of the accused to a fair trial Thisincludes rights against arbitrary arrest and detention, meaningfulparticipation in court proceedings, accessto effective legal counsel, protection of confidentiality, and openness of hearings It also covers due process safeguards, suchas protection from bias and presumption ofinnocence, guaranteed by national andinternational law Jaya Jaitly opines on the unjust nature of virtual courts, particularly onimportant matters thataccording to her, need direct humaninteraction since it. “shortchanges” wisdom-., compassion., and leniency from decisionmaking, “...-.Rushing into new protocols without understanding uses and applicationswill disempower the poor evenfurther, especiallyundertrials who cannot affordlawyers”.69. Jaya Jaitly. 2020. “Virtual courts cannot fu lly replace a process that demands direct human interaction“, The Indian Express, 22-. October, available online at (accessed on 16 December 2022.
70. Thomas de la Mare QC. 2020. “Cor onavirus and Public Civil Hearings“, Blackstone Chambers, 30 March, available online at (accessed on 16 December 2022.
71. Anubha Rastogi, Tanima Kishore, Surabhi Singh and Shre ya Kanauj. 2021. “Analysis Of Accessing High Court During COVID Lockdown”, Live Law, 1 April, available online at (accessed on 16 December 2022. cases as “urgent”. Some courtslike the High Court of Delhi adopted a wider criterionand included domestic violence and matrimonial matters., eviction cases, andaccident matters involving death and disability within the “urgent matters.” list.72. Other High Courts issued si milar orders/notifications: High Court of Madhya Pradesh, “Standard Operating Procedure (SO.PFor Hybrid System of Physical / Virtual Hearing of the Cases”, available online at (accessed on 16 December 2022; The High Court of Orissa, “The Orissa High Court Vi deo Conferencing for Courts Rules, 2020, available online at (accessed on 16 December 2022; The High Court of Judicature at Allahaba d, “Instructions for Taking Up Urgent Matters in Allahabad Hi gh Court During COVID-19 Pandemic/Lockdown”, available online at (accessed on 16 December 2022; The High Court of Rajasthan, “Standard Operating Procedure for participating in the court proceedings through Video Conferencing”, available online at (accessed on 16 December 2022; The High Court of Karnataka, “Rules of Video Conf erencing for Courts”, available online at (accessed on 16 December 2022.
73. Sahana Manjesh. 2020. Disconnected: Videoconferencing and Fair Trial Rights Commonwealth Human Rights Initiative.
74. The impact of a technology first approach that does not consider the implications on people has been seen in the work on Aadhaar Reetika Khera. “UID: From Inclusion to Exclusion”, Seminar Magazine, 672, available online at (accessed on 16 December 2022. is an important aspect of the constitutionally guaranteed freedom ofexpression Thecourt is a public space, and this fundamental nature of court hearings was called intoquestion at several instances during the COVID-19-induced lockdowns.
75. Siddharth Peter de Souza, Varsha Aithala and Srishti John. “The Suprem e Court of India”.s Vision for eCourts: The Need to Retain Justice as a Public Service”.
76. Digital Freedom Fund. 2020. “Digital Rights Are Human Rights”, Digital Freedom Fund, 10 December, available online at (accessed on 16 December 2022; Linnet Taylor. 2017. “What Is Data Justice? The Case for Connecting Digital Rights and Freedoms Globally”, Big Data & Society, 4:1.
77. See generally Danielle Keats Ci tron. 2008. “Technological Due Process”, Washington University Law Review, 85(6: 1249.78. See generally for discussion’s on arbitrariness, Tarunabh Kha itan. 2015. “Equality: Legislative Review Under Article 14”, Social Science Research Network, SSRN Scholarly Paper ID 2605395, available online at (accessed on 18 June 2021.
79. See for instance, circulars from the High Court of Bombay requiring users to use Zoom for online hearings and two days later, banning the use of Zoom and mandating exclusive use of Vidyo software and a similar order fr om the High Court of Orissa. 2020. “Notification”, 17 April, available online at (accessed on 16 December 2022.80. Anubha Rastogi et al., “An Analysis Of Accessing High Courts During COVID Lockdown”.
81. Renaud Beauchard. 2016. “Cyberjustice and International Development: Reducing the Gap between Promises and Accomplishments” in, Kari m Benyekhlef, Jane Bailey, Jacquelyn Burkell and Fabien Gélinas (eds.., eAccess to Justice University of Ottawa Press. protections for liberty.
82. Siddharth Peter de Souza and Varsha Aithala. 2018. “Can Technology Finally Deliver on India”s Legal Aid Promise?”, Stanford Social Innovation Review, 27 July, available online at (accessed on 16 December 2022.
83. Prashanto Chandra Sen. 2020. “COVID 19 and the Courts”, The Daily Guardian, 15 August, available online at (accessed on 15 May 2021.
84. Giampiero Lupo, Ibid.