The Peninsula Foundation

Blog

Lessons from Gaza

The latest round of fighting between Israel and Palestinians within Israel and the Gaza Strip ended on Friday 21 May under an Egypt brokered ceasefire. Already categorised in the media as the Fourth Gaza War[1], the 11-day conflict left 232 Palestinians including 65 children killed and more than 1,900 wounded in aerial bombardments[2]. Israeli authorities put their death toll as 12, with hundreds injured due to rocket attacks while claiming to have killed at least 160 combatants[3]. One Indian civilian caregiver too lost her life in the line of duty.

Patrick Kingsley’s piece in the New York Times provides a view of a series of events from early April that led to the current conflict[4]. Several avoidable actions in Jerusalem, such as cutting off loudspeakers at the Al Aqsa mosque on the first day of Ramadan to prevent Jerusalem Day celebrations at the Western Wall from being disturbed, closing off a popular plaza at the Damascus Gate where the faithful gather after prayers leading to nightly protests, and orders for the evacuation of Palestinian families from their homes as per existing law (an act seen by Palestinians as a precursor to their removal from East Jerusalem, the proposed capital of an independent Palestine) followed by clashes between Jews and Arabs – together provided multiple triggers for the violence, aggravated further by Jewish right-wing groups marching through Jerusalem shouting provocative slogans.

As the demonstrations gathered momentum with more Palestinians rallying in support of the families facing eviction, the order was stayed by Israel’s Supreme Court. The cancellation of elections to the Palestinian National Authority (PNA) by President Mahmoud Abbas added another element of uncertainty to the situation, fuelled by suspicion over his intent. The final straw was another police raid on the Al Aqsa Mosque on the last Friday of Ramadan and sealing off access to the mosque the next day. Sensing a cue, Hamas commenced rocket fire the following Monday from Gaza.

International Crisis Group opines that ‘this occasion is the first since the September 2000 intifada when Palestinians have responded simultaneously and on such a massive scale throughout much of the combined territory of Israel-Palestine to the cumulative impact of military occupation, repression, dispossession and systemic discrimination[5]. It further goes on to explain how the dynamic of this conflict differs from earlier ones. Central to this is the role of Hamas – in terms of military capability through an expanded long-range rocket arsenal which has exponentially enhanced its ability to terrorize Israel’s civilian population, as also its political ambitions in trying to negotiate the future of Jerusalem as leverage for subsequent resolution of the Palestinian issue, instead of confining itself to Gaza. Tellingly, it also named its rocket offensive ‘Sword of Jerusalem’.

The second noteworthy issue is about clashes in cities and townships across Israel and the West Bank, between Israeli Jews, Israeli Arabs and Palestinians leading to loss of life and property, something that had never happened since the Second Intifada. A state of emergency was declared in certain areas[6], and Israeli President Reuven Rivlin was constrained to warn of the danger of civil war[7]. Thirdly, as per United Nations Interim Force in Lebanon (UNIFIL) press releases of 17 and 19 May, rockets were fired on both days from South Lebanon across the Blue Line into Israel. Israeli artillery shelled the launch sites in retaliation. Also, Iranian complicity with Hamas was indicated when Israel downed an armed explosive drone, assessed to have been launched from either Syria or Iraq[8]. This raised the spectre of a wider conflict – the deepest fear of a nation-state surrounded by inimical neighbours, some of whom along with other non-state terrorist organisations refuse to recognize its right to exist.

Strategic and military aspects of this short conflict along with outcomes warrant analysis to provide a glimpse of the way ahead. Though President Biden announced that Israel had agreed to a mutual unconditional ceasefire, it is unclear what Hamas’s final stand on the matter was. More so, since it had set two conditions for a ceasefire: that Israeli forces stop incursions into the Al-Aqsa compound, and desist from evacuating Palestinian residents from East Jerusalem. No guarantees appear to have been received on these.

It appears, therefore, that since Hamas’s strategic aim of positioning itself as the champion of Palestinians through offensive action has been achieved, it could claim victory despite the high human, material and infrastructural cost. Israel has also claimed victory, by ensuring maintenance of the status quo along its borders and ensuring the security of its citizens at minimal cost, though with a perceptible fraying of its internal fabric. However prominent Israelis have criticized their government for lacking strategy and acting in ‘default mode’ in responding to Hamas in the same manner for the last 15 years[9].

Essentially, this was a conflict characterized by tremendous force asymmetry between opposing sides.

It is in the military domain that some interesting conclusions are drawn. This conflict did not witness any hand to hand fighting or launch of physical assaults, though Israel did use tanks and artillery against Hamas targets. Essentially, this was a conflict characterized by tremendous force asymmetry between opposing sides. The main weapon that Hamas used was unguided rockets of various ranges and dimensions. While in earlier days these were received from Iran or other allies across the Egyptian border at Sinai or smuggled in through sea, Hamas has developed sufficient expertise to develop its systems, using primitive technology and materials such as steel tubing and chemicals for making explosives. Israeli estimates suggested that ‘most of Hamas’s arsenal of 5,000 to 6,000 rockets can strike somewhere between the Gaza border communities and 40-55 km. away.’[10] Other estimates posit that Hamas now has rockets with ranges of 200 km or more, some with warheads carrying hundreds of kilograms of TNT and shrapnel. Raw construction material even uses detritus from Israeli missiles, with three rocket manufacturing factories rumoured to be existing inside Gaza[11]. Overall, Hamas fired around 4,360 rockets during the 11-day campaign, including a sizeable number that fell short, inside the Gaza Strip itself[12]. The long-range versions permitted engagement of targets from just outside the Strip to as far North as Jerusalem.

Hamas Qassam rocket ready for launch.    Photo and description: Forbes May 12, 2021

Iron Dome carrying out intercepts – Image Credit: Businessinsider

The Israeli response on the other hand was a combination of air power and ground-based air defence with the firepower of tanks and artillery – all state-of-the-art weapon systems with latest generation cutting edge technology, including Israeli variant F 16s, F 15 Air Defence aircraft and F 35 Stealth fighters. Videos of Israeli strikes are testimony to their effectiveness. Israel too gave its campaign a symbolic name ‘Guardian of the Walls’. The Iron Dome Missile Defence System proved its worth with engineers continuously upgrading its algorithms to improve interception capability against larger rocket salvos. This has enabled Iron Dome to intercept one of the largest barrages fired ever – of around 130 rockets towards Tel Aviv on 11 May. Despite attempts to saturate the system, Iron Dome was able to neutralize the majority, permitting only a handful to get through[13]. However, limitations of Iron Dome are becoming apparent- Israeli security officials estimate that opponents like Hezbollah can fire over 1,000 rockets per day from a stockpile of over 150,000[14], which could overwhelm its capabilities. Also, Israeli IFF (Identification Friend or Foe) techniques were shown to be wanting, as the downing of a Skylark reconnaissance drone by Iron Dome friendly fire indicates[15]

Israeli soldiers fire a 155mm self-propelled howitzer towards the Gaza Strip from their position along the border with the Palestinian enclave on May 16, 2021. Photo: AFP/Jack Guez

asymmetric warfare thrives on a logic of its own, where the intelligent application of limited resources by the weak ensures some degree of military success

The above instance is a singular example of an asymmetry arising from one side’s lack of sophisticated warfighting equipment or access to technology being compensated for by sheer force of numbers, to defeat or stalemate superior enemy systems. Operations Research analysts have worked out a ratio of one Israeli dying for every 206 rockets reaching Israel in the first four days of fighting, with at least 134 rockets hitting populated areas[16]. Israeli military sources put the accuracy of these rockets at around 15 per cent. Though many fell in open areas, their deterrent effect was enough for Israelis to descend into their bomb shelters[17], thereby proving that even today, asymmetric warfare thrives on a logic of its own, where the intelligent application of limited resources by the weak ensures some degree of military success. This, despite a situation where most of the Artificial Intelligence, networked communication, quantum computing and precision standoff capability was on one side – though one could grant some level of technology available to Hamas, through its research laboratories in the Strip and inputs from Iran. Adding another dimension to such asymmetry in the larger context however is the history of injustice perpetrated on Palestinians over the years, providing strong psychological motivation in favour of any opponent of Israel.

Coming to the issue of outcomes, it is apparent that notwithstanding the asymmetry in capability, Hamas’s strategy has paid off. Having realized that the situation during Ramadan (created by Israel mostly through application of a purely law and order cum security template) was tailor-made for exploitation, it made Jerusalem the focus of its campaign, escaping in one go from the confines of Gaza.

With Palestinians rallying to its cause, resultant unrest in Israel and the West Bank and some support from Hezbollah in Lebanon, it was able to create a narrative in its favour. Notwithstanding its designation as a terrorist organization by the US, EU, UK and many other nations, it has garnered huge political capital, enabling it to rival the current Palestinian leadership as reports of Palestinians carrying green Hamas flags in cities on the West Bank, where the PNA traditionally holds sway, indicate[18]. The stark difference in respective casualty figures also helped, once again raising the issue of ‘proportionate vis a vis disproportionate response’, against the backdrop of repeated injustice to Palestinians over the last 70 years.

The IDF on the other hand worked efficiently with their usual precision, taking out as many targets as possible from their prepared lists, including networks of tunnels, headquarters, senior Hamas commanders and research infrastructure in the minimum amount of time. Without a doubt, Israel is a clear winner in military terms.

This conclusion however begs the larger question of whether military victory alone can decide winners and losers in world geopolitics. At the time of writing US Secretary of State, Blinken is on a four-day visit to the region, to interact with leaders of Israel, the PNA, Jordan and Egypt to strengthen foundations for a durable ceasefire. President Biden has signalled that West Asia is back on his agenda: in a hugely symbolic gesture, the US has announced its decision to reopen its Consulate in East Jerusalem and promised $32 million worth of aid to the UN in Gaza. White House spokesperson Jen Psaki has called this part of America’s efforts to rebuild ties with the Palestinians.

Whether this effort will be to purely manage a crisis or look for a permanent solution is unclear. The latter venture will require creative thinking by Israel, Palestinians and their neighbours and a shift from absolute positions which have shackled the region for over 70 years. In that eventuality, a fresh look at the Two-State Solution guaranteeing the right of both nations to exist as sovereign states might yet provide the alternative. Reverting to the status quo of April 2021 will not.

Notes:

[1] ‘Daily Chart. The Israel-Palestine conflict has claimed 14,000 lives since 1987’   The Economist 18 May 2021

[2] ‘Israel-Hamas truce begins after 11 days of fighting, Palestinians celebrate’ Reuters 21 May 2021

[3] Ibid.

[4] ‘After Years of Quiet, Israeli-Palestinian Conflict Exploded. Why Now? ‘ Patrick Kingsley, The New York Times 15 May 2021

[5] ‘The Israel-Palestine Crisis: Causes, Consequences, Portents’   International Crisis Group 14 May 2021

[6] International Crisis Group 14 May 2021

[7] ‘Israeli president warns of civil war as Jews, Arabs clash over Gaza’   Rami Ayyub Reuters 13 May 2021

[8] ‘Netanyahu: Drone shot down earlier this week was Iranian UAV armed with explosives’   Judah Ari Gross The Times of Israel 20 May 2021

[9] Maj Gen Giora Eiland Retired, former head of Israel’s National Security Council in comments to Crisis Group 14 May 2021

[10] ‘What do Hamas and PIJ have in their rocket arsenals? – analysis’ Yonah Jeremy Bob The Jerusalem Post 11 May 2021

[11] ‘Israel’s Gaza challenge: stopping metal tubes turning into rockets’ Arshad Mohammed, Jonathan Saul, John Irish and Parisa Hafezi, Reuters 24 May 2021.

[12] Ibid.

[13] ‘How Israel and Hamas returned to armed conflict’ The Economist 22 May 2021

[14] ‘Is Iron Dome effective against Hamas rockets as originally thought?’ Yonah Jeremy Bob The Jerusalem Post 14 May 2021.

[15] ‘Iron Dome Shot Down an Israeli Drone During Israel-Gaza Fighting’ Yaniv Kubovich Haaretz 25 May 2021.

[16] ‘Gaza’s rocket technology challenges Israeli defenses’ Michael J Armstrong Asia Times 18 May 2021

[17] ‘Israel’s Gaza challenge: stopping metal tubes turning into rockets’ Reuters 24 May 2021.

[18] ‘Israel and Hamas Begin Cease-Fire in Gaza Conflict’ Iyad Abuheweila and Adam Rasgon The New York Times 21 May 2021

Image Credit: Wikipedia

June 2, 2021
Online Justice and the Pandemic: Impact on Procedure
Abstract

The move towards digitization of the judiciary and the adoption of video-conferencing preceded the pandemic. However, the pandemic has necessitated their mainstream adoption. While Indian courts have been prompt in issuing their SOPs, these have been inadequate due to their non-implementation and the inability of traditional legal tools to address unprecedented procedural issues, emerging from the mainstreaming of video conferencing.

Firstly, there are due process concerns, centred around inadequate hosting platforms, sub-standard organizational practices, inefficient ancillary processes, and non-inclusive technical requirements. Secondly, there is a lack of accountability and transparency because of derogation from the rule of open court, without any effective alternative measures. Thirdly, there are privacy concerns as regards unauthorized participation, the secrecy of data exchanged, and commercial exploitation of data.

Adopting a design-based approach not only addresses areas conventional legal tools can’t, but also improves efficiency and automates compliance. To this end, several technological and organizational design changes are suggested that can be made to effectively address emerging procedural issues.

Keywords: online justice, virtual courts, pandemic, design-based approach, digitization, standard operating procedure.

Introduction

The unprecedented COVID-19 pandemic has necessitated social distancing to be the norm. To this end, courts, across the world, have started resolving disputes through virtual conferencing. While limited physical hearings with rigorous rules have commenced,[i] our courts have limited infrastructural capacity to house adequate daily hearings. Additionally, the surge in COVID-19 cases and the wait for a vaccine mean that virtual conferencing is nevertheless here to stay. The pandemic has decreased the average disposal rates of high courts by 50% and subordinate courts by 70%,[ii] with pendency in the Supreme Court increasing by 3,287 cases.[iii]

Therefore, at this point, it is opportune to realize that the revolutionary potential of virtual courts can help improve judicial efficiency. Apart from facilitating remote access to justice, virtual courts are cost-effective and time-effective, reduce carbon footprint and the employment of dilatory tactics by parties.[iv] These benefits are particularly important given that annually one billion people require basic access to justice, but close to 30 per cent of them do not even take action.[v] Moving forward, this access to justice problem has to be solved through Information & Communications Technology (“ICT”), which will render courts to function as a ‘service’ and not a ‘place’.[vi] In cognizance of this, India launched the e-Court Mission Mode Project (“MMP”), to implement ICT in the Indian judiciary in 3 phases over 5 years.[vii]

However, this increasing change in the medium of our court processes will inevitably impact civil procedure in unprecedented ways. A survey found that 44.7% of participants experienced technical difficulty during the hearing, with a majority feeling that remote hearings were overall worse than physical hearings and less effective in terms of facilitating participation.[viii] The skill and digital divide will further compound power imbalances among parties, and thus their access to justice.[ix]

In light of this, it is important to understand the adequacy of the current response plans from the Court and governments. Therefore, in this paper, I will enumerate the legal and policy developments in India on virtual courts, both pre and post COVID-19. Subsequently, I will critically analyse these developments to elucidate implementational failures, and three procedural concerns: impact on due process, accountability and transparency, and privacy. Recognizing the inadequacy of legal tools in addressing these concerns, ultimately, I will utilize a technological and organizational design-based approach to propose solutions.

Tracing Legal and Policy Developments on Virtual Courts

India’s attempts to digitize the judiciary and associated processes predate the pandemic. However, the scale of impact has certainly increased since virtual conferencing has now become the dominant norm. Therefore, in this section, I will analyse how law and policy on virtual courts have evolved. However, before we proceed, it must be noted that virtual courts are broader than just virtual conferencing. Other than virtual conferencing, related processes of digitisation and automation, like e-filing and e-listing, need to be implemented alongside.

Pre-Pandemic: In February 2007, the government approved the Supreme Court E-Committee’s (“E-Committee”) strategic action plan to implement ICT in the Indian judiciary in 3 phases over 5 years.[x] It was co-opted as a ‘Mission Mode Project’ of the National e-Governance Plan,[xi] with the objective of re-engineering processes to enhance judicial productivity, and make the system more affordable, accessible, cost-effective, transparent and accountable. To this end, it launched 4 services: automation of case management, online provision of judicial/administrative services, information gateways between courts and government, and creation of judicial data grids.[xii]

Virtual courts, and associated processes, have found recognition and regulation in jurisprudence too. In State of Maharashtra v Dr Praful Desai, the Supreme Court allowed video conferencing for the recording of evidence.[xiii] It even observed that technological developments have enabled the possibility of virtual courts. This position has found, subsequently, substantial affirmation.[xiv] Courts have allowed video conferencing on conditions of health[xv] and geographical proximity.[xvi] However, under the revised position, parties cannot resolve matrimonial conflict through video conferencing.[xvii]

To safeguard these proceedings, courts have issued numerous guidelines. These include authenticating the identity of the witness and examiner, administration of the oath, acquainting non-party witnesses with the case, recording demeanour of witnesses on-screen, notarization of witness testimony/statement, and bearing of costs.[xviii] When video-conferencing is global, the foreign party must record evidence in the presence of an Indian embassy officer member.[xix]

Post-Pandemic: To comply with social distancing guidelines, the Supreme Court passed an order, under Article 142 of the Constitution, to suspend the physical hearing.[xx] However, recognizing the importance of access to justice, it identified the duty of courts to use ICT like video-conferencing for dispensation of justice, in urgent matters. Accordingly, it issued directions: empowering itself and all high courts to adopt measures for the functioning of video-conferencing, instructing district courts to follow their respective high courts, for providing videoconference facilities and an amicus curia to the deprived, prohibiting recording of hearing without the mutual consent of parties, and requiring prompt reporting of technical glitches during the video call.

Pursuant to this, the apex court issued its standard operating procedure (“SOP”) mentioning the instructions for joining/conduct during virtual hearings and the technical requirements as well as the procedure for listing, mentioning, and e-filing.[xxi] Parties can choose between getting virtual links or availing the facility in the Court’s premises. However, only two appearance links and one viewing link is provided to parties. While the hearings are hosted on the “Vidyo” platform available either as a desktop application or on Android or iOS app store, parties are advised against using mobile phones for connectivity reasons. Communication between the registry and participants happens through private WhatsApp groups, with links being shared 30 minutes prior. Parties are forbidden from sharing these links, engaging in indecorous conduct, and recording the hearings. Furthermore, they are expected to ‘mute’ themselves, except when making submissions or responding to questions from the bench, and must ‘raise hand’ to indicate an intention to speak. The Court has also mandated the use of e-filing even if parties file physically at the registry and reduced the cost of filing by half, thus promoting digitization.[xxii]

Currently, virtual hearings are inaccessible to the public, but limited journalists can attend the Court’s physical video-conferencing room, to report on cases. The Court has now started hearing non-urgent matters too.[xxiii] The E-Committee has also resolved to institutionalize technology even after the pandemic ends.[xxiv]

While high courts can employ their own rules, 11 of them have adopted the model rules developed by the E-Committee.[xxv] Even those with unique rules broadly convey the same instructions,[xxvi] with the only difference being the hosting platform. The most popular is Vidyo, followed by Zoom, Jitsi, and Cisco Webex.[xxvii] However, pursuant to the Union Ministry of Home Affairs’ advisory declaring Zoom as unsafe, most high courts discontinued using it.[xxviii] Remarkably, the Delhi High Court issued comprehensive legislative rules covering not just the aforementioned matters, but also the procedure for service of summons, examination of persons, sharing of documents, and access to legal aid. It statutorily establishes a “remote point coordinator”, entrusted with ensuring seamless functioning and ingenuity of the hearing.[xxix]

However, other than Chandigarh District Court and a few others, district courts have failed to organize virtual hearings, given their infrastructure limitations.[xxx] Most tribunals are following the procedure established by the apex court.[xxxi]

Critically Analyzing Indian Developments on Virtual Courts

The Mission Mode Project

The implementation of Phase-II of the MMP has been sluggish, with only 3477 courtrooms having video-conferencing, and 14443 more courtrooms requiring this facility.[xxxii] 2992 sites are yet to still get WAN connectivity.[xxxiii] Only states like Delhi, Karnataka and Madhya Pradesh have started the digitisation of both disposed and pending case records in the high courts and district courts.[xxxiv] E-filing is currently available only in four high courts,[xxxv] and in the NGT, NCLAT, and ITAT.[xxxvi] Even in these courts, only 50-600 cases were instituted through e-filings, as against the 1.9 lakh cases instituted through regular filings.[xxxvii] Despite listing being digital, the process involves significant human input, rather than the use of algorithms.[xxxviii] The implementation of this project will further stagnate because courts have been instructed to utilize their unused funds from Phase-II for meeting immediate needs.[xxxix]

The failure in technology up-gradation is also at the litigant and advocate’s end. The internet penetration in India is only 40%.[xl] 30% of the population lacks basic literacy, and nearly 90% lack digital literacy.[xli] At least 50% of advocates, mostly at the district and lower levels, do not own relevant devices and lack the requisite skills for virtual proceedings.[xlii] Thus, there is a clear digital, connectivity, and skill divide.

Evaluating SOPs- Emerging Legal Issue
- Due Process
The paradigm shift consequent to virtual hearings has raised numerous unprecedented due process concerns. The smoothness of accessing and using virtual court facilities, along with available facilities, has an inextricable impact on one’s right to properly present their case.

Technical Issues with the Platform:                       The most popular platform, Vidyo has received an extremely negative response. Reportedly, the platform frequently crashes,[xliii] and participants struggle to log in or are automatically logged out during court proceedings due to bandwidth issues with the platform. There were also difficulties in re-joining the hearing, once logged out.[xliv]

The screen sharing feature on Vidyo is ineffective, and thus advocates are precluded from even presenting documents before the bench.[xlv] There is also no means for the attorney and client to engage in private discussion during the hearings.[xlvi] The Control Room is tasked with managing the entire process flow. In several cases, advocates have complained of not being unmuted, despite raising their hands, or their chat messages going unread, thus affecting their opportunity to present arguments. This is especially the case in matters involving a large number of parties.[xlvii]

This adverse impact is compounded since there is no clarity on who to contact for technical issues.[xlviii] The authorities provided in the SOP are extremely unresponsive. Moreover, links for hearings are shared last minute, with communications on WhatsApp being inefficiently followed.[xlix]

The Court has been ignorant of these technical inefficiencies, passing adverse orders against at least 19 advocates who were unable to attend/connect due to technical issues.[l]

Issues with Associated Digital Process:      The processes of e-listing and e-filing are not user-friendly and unnecessarily verbose.[li] Under the current e-listing mechanism, there is uncertainty over acknowledgement of their filings, because the diary numbers are not immediately generated. Even the procedure for curing defects is inefficient, voluminous, and confusing. There is also a delay in the listing of matters, despite pleas of urgency in petitions.[lii] Support from the Registry in this regard is inadequate. There is also a need for improving coordination between sections of the Registry, with procedures being more consistent and transparent.[liii]

Furthermore, court records are not fully digitized, and when so, they cannot be remotely accessed in a centralized server.[liv]

Technical Requirements as Impediments:             The minimum technical requirements determine who can even access the platform, and therefore, determine who even has the opportunity to present their case, to begin with. Presently, the SOP of all Indian courts require a minimum of 2 MBPS broadband connection or 4G connections, and the onus is on the participant to ensure seamless connectivity. Given that 20% of the internet users in India are still dependent on 2G and 3G,[lv] this directly leads to their exclusion. Even digitally advanced nations like Singapore have stipulated 3G as the minimum requirement.[lvi] Moreover, even the 4G connections in India are relatively slow, with no service provider crossing the 70% LTE threshold.[lvii]

Even in data-intensive platforms like Skype, the minimum download speed requirement for a high-quality video call is only 400 KBPS, with group calls of up to 3 people supported at 512 KBPs, and 5 people at 2 MBPS.[lviii]

Additionally, all video-conferencing platforms have only been made available as desktop apps, or on Android or iOS app stores. The over 55 million users with KaiOS, operating mostly on Jio Phones,[lix] are denied access to videoconferencing, despite their phones supporting video calls.

(Dis)Comfort with Virtual Testimony and Demeanour Assessment:      The process of testimony, along with cross-examination, are in themselves strenuous for witnesses. The unfamiliar nature of virtual conferences can cause severe anxiety among witnesses while appearing, especially if they’re children, foreigners, or persons with disabilities.[lx]

During video conferencing, courts are allowed to assess the credibility of parties through their demeanour.[lxi] This is problematic because in a virtual setting it is extremely difficult for the judge to accurately understand the body language and emotions of the witness.[lxii] Studies find that one’s social and economic background has a heavy correlation with one’s perception, which plays out in the form of subtle choices like lighting and camera angles.[lxiii] Given these inaccurate and disproportionate adverse impacts, demeanour assessment during virtual hearings must be disallowed.
- Transparency and Accountability
The Supreme Court has repeatedly recognized the importance of the rule of ‘open court’ in preserving and promoting accountability and transparency, and thus guaranteeing a fair trial.[lxiv] Presently, virtual hearings are not recorded, except for witness testimony in some cases,[lxv] even by the court. While theoretically limited journalists are allowed to attend these hearing, this is severely inadequate because this facility is accessible only to reporters who can make it to the Supreme Court’s video-conferencing chamber. Moreover, no such facility has been provided in most high courts. Therefore, there is no effective means of ensuring even a shadow of public pressure, which would bind the judge’s actions. This is contrary to jurisdictions like the UK, Australia, and Singapore where public participation has been allowed through live links or even live streaming.[lxvi]

Virtual conferencing presents an opportunity to eliminate the practical physical, informational, and temporal barriers to open courts. If hearings are online and broadcasted, then a large number of people can access them. For instance, over 3,500 people viewed a YouTube live stream of oral arguments taking place in the Kansas Supreme Court over Zoom. The digital landscape can even house much more people than the court logistically can.[lxvii]

However, we must be mindful that live streaming for virtual hearings is distinct from the cameras in the courtroom context.[lxviii] In the latter, even if live streaming is not allowed, the public and media can anyway access the trial. However, if there is no public access to virtual hearings, which entirely supplant in-person proceedings, only then participants to the proceedings have knowledge of events.

Livestreaming virtual proceedings do raise some legitimate privacy concerns because there is a loss of ‘practical obscurity’. This concept recognizes that there is a privacy interest in the information that is not secret but is otherwise difficult to obtain.[lxix] Public online hearings could make access to personal data easier because the process of transferring information from physical documents to a digital format will not have to be done.
- Privacy;
There are serious concerns regarding video-conferencing platforms, which are apps owned by foreign companies. The terms of use of these apps mandate cross-border transfer, and the business model of most of these companies involves selling their consumer’s data.[lxx] Therefore, there is the risk of commercial exploitation of data, either for general profiling of the individual or blackmailing them.[lxxi] This is indicated by the Globe24h.com incident, wherein a Romanian man downloaded judgements in bulk and indexed them so they would be optimized on Google results. Then, he charged people for removing embarrassing personal information from this website.

The biggest privacy challenges stem from authentication of the participants to the video conference and security of the data exchanged over the platform.[lxxii] Furthermore, the weak data security features of Vidyo and Zoom render them susceptible to unauthorized third-party access.[lxxiii] Inadequate training among Control Room members has also resulted in them engaging in risky practices, like using non-updated versions of the software, thus compromising privacy.[lxxiv]Such weaknesses may allow parties to illicitly obtain information to the detriment of their opponents, which they wouldn’t have gotten under civil discovery.

There is a petition before the Supreme Court that argues that transfer of such judicial and government data prima facie impacts national security, and violates laws such as the Public Records Act, 1993, and the Official Secrets Act, 1923.[lxxv]

Utilizing a Design-based Approach

The courts have so far used conventional legal tools to address the concerns of due process, accountability, and data security. There are inherent limitations to these tools, in that the scope of control is merely through prescriptions, which may not necessarily be followed.[lxxvi] The shift to video-conferencing leads to the emergence of unprecedented issues, which the law itself cannot redress.[lxxvii] On the other hand, using design as a policy tool not only expands the scope of control over the participants but ensures mandatory compliance due to technological automation.[lxxviii] Moreover, as an interdisciplinary and innovative approach, design-based approaches allow anticipation of risks and baking of countermeasures into the systems and operations, throughout the entire lifecycle of the product/service.[lxxix] Notably, this approach extends to only technological operation, but to organizational practices too.[lxxx]

Therefore, in this section, I will propose design-based changes that need to be implemented to address the aforementioned challenges to civil justice.

·      Due Process

The Platform:                        To address the aforementioned technical issues, there is a need for designing certain features onto the video-conferencing platform. Alike UK, USA, Australia, and Singapore, there must be designated and accessible icons for a private waiting room and a private pop-up chatbox.[lxxxi] During such private communication, the court proceedings must be paused, and no ex-parte discussion must occur. A more nuanced and effective screen sharing option must be introduced, wherein on clicking a designated button, the documents are first shared with the judge(s). Once approved, then this must be shared with other parties. Once any button has been clicked,[lxxxii] there should be a real-time notification that pops up in the centre of the court staff and/or judge’s screens. When participants are kept in the waiting room before the commencement of the hearing, real-time updates should be provided via the chat option. This is similar to the practice in Singapore, where constant updates are provided during the pre-hearing stage.[lxxxiii]

Given the extent of concerns from Vidyo, courts must move towards adopting a different platform altogether. In the medium-term, they can use Cisco Webex,[lxxxiv] or Microsoft teams given that most of these features exist herein. However, if the court intends to mainstream video-conferencing, it must indigenously develop its platform that consolidates best practices. Thankfully, the Supreme Court has started moving in this direction by inviting tenders for “a comprehensive plan for video conference hearings including hardware and support”.[lxxxv]

Organisational Practice;                      The video-conferencing screen must contain a help button, which opens a pop-up window that shows a user guide with relevant features available to a participant at their access level. If a participant finds this inadequate, there must be a support button, which allows them to connect to a helpline number. Most importantly, there should be designated officers assigned to each court who uninterruptedly serve as single points of contact.[lxxxvi]Before the platform is re-designed, the coordinators/members of the Control Room must be trained to be more proactive and responsive to the process flow. Anyhow, given peculiar circumstances, courts must largely refrain from passing adverse orders against litigants/advocates claiming to miss hearing due to technical issues.

Associated Digital Processes:                       Unlike the current system which relies on the physical generation and sharing of links, courts can publish the links for different virtual courts along with the cause list or send automated e-mails to advocates in advance. This will improve efficiency, and reduce anxiety for advocates.[lxxxvii]

As for e-filing, the Delhi High Court’s model should be adopted nationally.[lxxxviii] The only substantial information that required manual entry is the details of the parties. Thereafter, the entire case file can be uploaded as a single PDF. Even the diary numbers are immediately generated. For curing of defects, advocates are only be required to submit the entire final PDF file, as against separately uploading each page on which defect is secured.

Technical Requirements;     The video-conferencing platforms must also be available for KaiOS users. Additionally, the bandwidth requirement can be lowered to 512 KBPS or 1 MBPS. To provide access to litigants with lower speeds, the court can always reduce the number of participants on an ad-hoc basis, when required. Even in the worst case, to ensure wider inclusivity, courts can adopt the practice that one bench of the Delhi High Court did. Parties can be asked to submit a 15-minute-long video clip of their arguments within a week of the order. Thereafter, within a week, they must be asked to submit an additional brief note along with a 10-minute-long video clip in rebuttal.[lxxxix]

·      Transparency and Accountability

All virtual hearings should be recorded and stored using cryptography by the courts for a limited period. Additionally, voice-to-text transmission tools can be used for text records of hearings. To preserve privacy, automated redaction software can be used, which automatically redacts sensitive data fields. This is similar to the approach of certain courts like Florida, Pennsylvania, and Michigan.[xc]

While live streaming promotes greater accountability, there are privacy concerns, as outlined earlier. These concerns can be balanced using the following three-fold approach: (1) Where the case does not involve sensitive information or witnesses, then these can be live-streamed;[xci] (2) When this cannot be done, limited broadcasting can be followed in two ways. While live-streaming is permitted, subsequent dissemination of the hearing, especially by media, is prohibited.[xcii] While public broadcasting may be forbidden, a screen at the courthouse can be provided where these proceedings are broadcasted for people at the court to view;[xciii] and (3) Providing a separate viewing room were advocates, journalists, and CSOs can observe and report on court proceedings, without participating in them.

Lastly, to promote public awareness the digital portals of court websites must be regularly updated with weekly operational summaries of the working of the court and relevant policy updates, like in the UK.[xciv]

·      Privacy

Technological Design;          The platform must generate unique meeting IDs, which expire after a limited time. The entry to the hearing must be verified using two-factor authentication. This entails OTP verification in addition to entering the unique ID and password of the meeting. The host must have the option of “locking” the meeting once all participants have joined, to ensure unauthorized entry does not subsequently take place.[xcv] All communication on the platform must be end-to-end encrypted using SSL/TLS, which will obfuscate the message and prevent third parties from accessing personal data. Even the entire video session must be encrypted. The servers storing the data must be secure to prevent any end-point vulnerabilities. To this end, advanced threat protection features can be used to protect against sophisticated malware or hacking attempts.[xcvi] Developing an indigenous government-backed platform will also mitigate concerns of data commercialization.

Organisational Design:        Human errors still contribute to data leaks, despite advanced security designs.[xcvii] Thus, a safe user policy needs to be developed. Participants must be instructed to not connect through unsecured WiFi, or use weak password codes. The video-conferencing software must be routinely updated to ensure only the latest version is used. The coordinators/members of the Control Room must be trained on the necessary steps and contingency plans they must adopt to secure privacy.

Conclusion

The move towards digitization of the judiciary and the adoption of video-conferencing preceded the pandemic. However, the pandemic has necessitated their mainstream adoption. Indian courts have been prompt in issuing their SOPs, but these have been inadequate due to non-implementation and the inability of traditional legal tools to address unprecedented procedural issues, emerging from the mainstreaming of video conferencing.

Firstly, there are due process concerns, centred around inadequate hosting platforms, sub-standard organizational practices, inefficient ancillary processes, and non-inclusive technical requirements. Secondly, there is a lack of accountability and transparency because of derogation from the rule of open court, without any effective alternative measures. Thirdly, there are privacy concerns as regards unauthorized participation, the secrecy of data exchanged, and commercial exploitation of data.

Adopting a design-based approach not only addresses areas conventional legal tools can’t, but also improves efficiency and automates compliance. To this end, several technological and organizational design changes, as suggested, can be made to effectively address emerging procedural issues.

End Notes:

[i] PTI, ‘Supreme Court to begin physical hearing of cases in limited manner, releases SOP’ (The Print, 31 August 2020` <https://theprint.in/judiciary/supreme-court-to-begin-physical-hearing-of-cases-in-limited-manner-releases-sop/492699/> accessed 14 January 2021.

[ii] Sruthisagar Yamunan, ‘Covid impact: Cases disposed of by High Courts drop by half, district courts by 70%’ (Scroll, 4 September 2020) <https://scroll.in/article/971860/covid-impact-cases-disposed-by-high-courts-drop-by-half-district-courts-by-70> accessed 14 January 2021.

[iii] ‘Court Data: Quantifying the Effect of COVID-19’ (Supreme Court Observer, 29 April 2020) <https://www.scobserver.in/court-by-numbers?court_by_number_id=quantifying-the-effect-of-covid-19> accessed 14 January 2021; Given that the National Judicial Data Grid does not provide statistics on pendency for the Supreme Court, calculating impact on pendency due to COVID-19 is tricky. One metric that can be used is number of judgements delivered, which was 88 in March 2020, the same as March 2018, i.e., when the swine flu outbreak paralyzed the court. While this doesn’t accurately account for situational peculiarities, it provides an indication that the court has managed to fair well, by its own past metric. This discussion is notwithstanding the general impact the pandemic will have on case institution and disposal in the apex court.

[iv] Nikitha, ‘Impact of Video Conferencing on Court Proceedings with Respect to Litigants and Lawyers’ (BnB Legal, 14 August 2020) <https://bnblegal.com/article/impact-of-video-conferencing-on-court-proceedings-with-respect-to-litigants-and-lawyers/> accessed 14 January 2021.

[v] Richard Susskind, Online Courts and the Future of Justice (OUP 2019) 27.

[vi] Anuradha Mukherjee, Amita Katragadda, Ayushi Singhal, & Shubhankar Jain, ‘From the Gavel to the Click: COVID 19 poised to be the inflection point for Online Courts in India’ <https://corporate.cyrilamarchandblogs.com/2020/04/gavel-to-click-covid-19-online-courts-in-india/> accessed 14 January 2021.

[vii] Ibid; ‘Indian Courts and e-Governance initiative’ (Vikaspedia) <https://vikaspedia.in/e-governance/online-legal-services/how-do-i-do> accessed 14 January 2021.

[viii] Dr Natalie Byrom, Sarah Beardon, & Dr Abby Kendrick, ‘The impact of COVID-19 measures on the civil justice system’ (2020) Civil Justice Council, 9 <https://www.judiciary.uk/wp-content/uploads/2020/06/CJC-Rapid-Review-Final-Report-f.pdf> accessed 14 January 2021.

[ix] ‘Standing Committee Report Summary’ (PRS Legislative Research, September 2020) <https://www.prsindia.org/report-summaries/functioning-virtual-courts> accessed 14 January 2021.

[x] Shalini Seetharam & Sumathi Chandrashekaran, ‘E-Courts in India: From Policy Formulation to Implementation’ (2016) Vidhi Center for Legal Policy, 6-8 <https://vidhilegalpolicy.in/wp-content/uploads/2019/05/eCourtsinIndia_Vidhi.pdf> accessed 14 January 2021; Vikaspedia (n 7).

[xi] Seetharam (n 10) 8-9.

[xii] Phase-II of the project already contemplates video-conferencing and recording facility for courts and jails. So far, as many as 3,388 court complexes and 16,755 court rooms across India have been computerised, with video-conferencing equipment available in 3,240 court complexes and 1,272 jails, see: Mukherjee (n 6).

[xiii] (2003) 4 SCC 601.

[xiv] Twentieth Century Fox Film v NRI Film Production Associates AIR (2003) Kar 148; Amitabh Bagchi v Ena Bhagchi AIR (2005) Cal 11; Sujay Mitra v State of West Bengal (2015) SCC Online Cal 1191.

[xv] Alcatel India Limited v Koshika Telecom Ltd (2004) SCC Online Del 705.

[xvi] Bodala Murali Krishna v Smt Badola Prathim AIR (2007) AP 43; Dr. Kunal Saha v Dr. Sukumar Mukhurjee (2006) SCC Online NCDRC 35.

[xvii] Santini v Vijaya Venketesh (2018) 1 SCC 62.

[xviii] Bagchi (n 14).

[xix] Desai (n 13).

[xx] Suo Motu Writ Petition (Civil) No. 5/2020; Jai Brunner & Balu Nair, ‘Switching to Video’ (Supreme Court Observer, 6 April 2020) <https://www.scobserver.in/the-desk/switching-to-video> accessed 14 January 2021.

[xxi] ‘Standard Operating Procedure for Ld. Advocate/Party-in-person for e-Filing, Mentioning, Listing and Video Conferencing Hearing’ (Supreme Court of India, 4 July 2020) <http://scobserver-production.s3.amazonaws.com/uploads/ckeditor/attachments/477/SOP_04072020.pdf> accessed 14 January 2021.

[xxii] SCO Editorial Team, ‘COVID Coverage: Court’s Functioning’ (Supreme Court Observer, 28 July 2020) <https://www.scobserver.in/the-desk/covid-coverage-court-s-functioning> accessed 14 January 2021.

[xxiii] Ibid.

[xxiv] ‘Use of technology must be institutionalised even after Lockdown: Justice Chandrachud in video conference with HC judges manning E-committees’ (Bar and Bench, 4 April 2020) <https://www.barandbench.com/news/use-of-technology-must-be-institutionalised-even-after-lockdown-justice-chandrachud-in-video-conference-with-hc-judges-manning-e-committees> accessed 14 January 2021.

[xxv] Debayan Roy, ‘Supreme Court allows High Courts to frame own rules for virtual hearings, says media access “should only be for output and not input”’ (Bar and Bench, 26 October 2020) <https://www.barandbench.com/news/litigation/supreme-court-allows-high-courts-to-frame-own-rules-for-virtual-hearings> accessed 14 January 2021.

[xxvi] The main changes involve differing instructions for differing e-filing and e-listing. Others are minor additions in instructions relating to conduct during the hearing, and differing steps, for differing platforms, for joining a video-conference using the virtual link.

[xxvii] Amulya Ashwathappa, Arunav Kaul, Chockalingam Muthian, et al, ‘Video Conferencing in Indian Courts: A Pathway to the Justice Platform’ (2020) Daksh Whitepaper Series on Next Generation Justice Platform Paper 4, 62-67 <https://dakshindia.org/wp-content/uploads/2020/06/Paper-4-_Video-Conferencing-in-Indian-Courts.pdf> accessed 14 January 2021.

[xxviii] ‘Impact of COVID19 on functioning of the Indian Judiciary – Weekly Update on Virtual Courts’ (Khaitan & Co, 4 May 2020) <https://www.khaitanco.com/thought-leaderships/Impact-of-COVID19-on-functioning-of-the-Indian-Judiciary-Weekly-Update-on-Virtual-Courts-1242020_2042020> accessed 14 January 2021.

[xxix] Notification No. 325/Rules/DHC dated 1 June 2020.

[xxx] Gautam Kagalwala, ‘Just Virtually’ (India Business Law Journal, 19 August 2020) <https://law.asia/video-conferencing-lockdown/> accessed 14 January 2021.

[xxxi] PTI, ‘NCLAT issues standard operating procedure for virtual hearings from June 1’ (Financial Express, 30 May 2020) <https://www.financialexpress.com/industry/nclat-issues-standard-operating-procedure-for-virtual-hearings-from-june-1/1976249/> accessed 14 January 2021; For ITAT and NGT, see: Nikitha (n 4).

[xxxii] Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Functioning of Virtual Courts(Rajya Sabha 2020, 103) 15.

[xxxiii] Ibid.

[xxxiv] Amulya Ashwathappa, ‘The Parliamentary Standing Committee On Virtual Courts In India’ (Daksh, 16 September 2020) <https://dakshindia.org/the-parliamentary-standing-committee-on-virtual-courts-in-india/> accessed 14 January 2021.

[xxxv] These are the High Courts in Delhi, Bombay, Punjab and Haryana, and Madhya Pradesh.

[xxxvi] Ashwathappa (n 27) 17.

[xxxvii] Deepika Kinhal, Ameen Jauhar, Tarika Jain, et al, ‘Virtual Courts in India’ (2020) Vidhi Center for Legal Policy Strategy Paper, 20 <https://vidhilegalpolicy.in/wp-content/uploads/2020/05/20200501__Strategy-Paper-for-Virtual-Courts-in-India_Vidhi-1.pdf> accessed 14 January 2021.

[xxxviii] Ashwathappa (n 27) 18.

[xxxix] Bar and Bench (n 24).

[xl] Digbijay Mishra & Madhav Chanchani, ‘For the first time, India has more rural net users than urban’ (The Times of India, 6 May 2020) <https://timesofindia.indiatimes.com/business/india-business/for-the-first-time-india-has-more-rural-net-users-than-urban/articleshow/75566025.cms> accessed 14 January 2021.

[xli] Ashwathappa (n 27) 20.

[xlii] Murali Krishnan & Smriti Kak Ramachandran, ‘House panel backs e-courts’ (Hindustan Times, 12 September 2020) <https://www.hindustantimes.com/india-news/house-panel-backs-e-courts/story-F5GNGVNcYT3dTHHdx4uMHJ.html> accessed 14 January 2021.

[xliii] Dipak Mondal, ‘Coronavirus lockdown: Fear of data security over video-conference apps Indian courts use’ (Business Today, 7 May 2020) <https://www.businesstoday.in/current/economy-politics/coronavirus-lockdown-fear-of-data-security-over-video-conference-apps-indian-courts-use/story/403154.html> accessed 14 January 2021.

[xliv] Murali Krishnan, ‘Supreme Court should migrate from Vidyo app: Survey’ (Hindustan Times, 23 September 2020) <https://www.hindustantimes.com/india-news/supreme-court-should-migrate-from-vidyo-app-survey/story-S5mMZD3K29bYTfoUvZUi2J.html> accessed 14 January 2021.

[xlv] Bhabna Das, D. Abhinav Rao, Harsh Parashar, et al, ‘Survey Report on the Virtual Systems Adopted by the Hon’ble Supreme Court’ (29 August 2020) <https://images.assettype.com/barandbench/2020-09/05eb71ca-d07f-4ef1-9e6c-9d49ae0f64eb/Survey_Report_on_Virtual_Courts_System_adopted_by_SC.pdf> accessed 14 January 2021.

[xlvi] Krishnan (n 44).

[xlvii] Das (n 45).

[xlviii] Krishnan (n 44).

[xlix] Das (n 45).

[l] Ibid

[li] Ibid

[lii] Krishnan (n 44).

[liii] Das (n 45).

[liv] Kagalwala (n 30).

[lv] Sandhya Keelrey, ‘Internet access across India in 2019, by type of mobile network’ (Statista, 16 October 2020) <https://www.statista.com/statistics/1115260/india-internet-connection-by-type-of-network-mobile/> accessed 14 January 2021.

[lvi] Neeraj Arora, ‘Serving Justice in COVID-19 Pandemic, only option is Virtual Court: an Indian Prospective’ (2020) Cyber Research and Innovation Society, 34 <https://cyberpandit.org/wp-content/uploads/2020/04/Virtual-Court-Room_HandBook.pdf> accessed 14 January 2021.

[lvii] ‘State of Mobile Networks: India’ (Open Signal, April 2018) <https://www.opensignal.com/reports/2018/04/india/state-of-the-mobile-network> accessed 14 January 2021.

[lviii] ‘How much bandwidth does Skype need?’ (Skype) <https://support.skype.com/en/faq/FA1417/how-much-bandwidth-does-skype-need> accessed 14 January 2021.

[lix] Simon Sharwood, ‘India’s contact-tracing app unleashes KaiOS on feature phones’ (The Register, 17 May 2020) <https://www.theregister.com/2020/05/17/contact_tracing_on_feature_phones/#:~:text=Aarogya%20Setu%20App%20is%20now,join%20the%20fight%20against%20COVID19.&text=Jio%20currently%20offers%20two%20phones,Blackberry-like%20%2440%20model%202> accessed 14 January 2021.

[lx] Arunav Kaul, ‘Examining The Use Of Video Conferencing In Indian Courts’ (Daksh, 30 April 2020) <https://dakshindia.org/examining-the-use-of-video-conferencing-in-indian-courts/> accessed 14 January 2021.

[lxi] Paragraph 8.6, Notification No. 325/Rules/DHC dated 1 June 2020.

[lxii] Nikitha (n 4).

[lxiii] Meredith Rossner & David Tait, ‘Courts are moving to video during coronavirus, but research shows it’s hard to get a fair trial remotely’ (The Conversation, 8 April 2020) <https://theconversation.com/courts-are-moving-to-video-during-coronavirus-but-research-shows-its-hard-to-get-a-fair-trial-remotely-134386> accessed 14 January 2021.

[lxiv] Naresh Shridhar v State of Maharashtra (1966) 3 SCR 744 [The primary dispute arose out of a civil defamation case filed against the petitioner, who was a journalist, by the Thackerys. The petitioner challenged the lower courts decision on the ground of its in-camera nature. The Court affirmed the importance of open courts in ensuring objective and fair administration of justice as well as preservation and growth of our democracy. Subsequently, it examined the cases where exceptions can be made, such as in rape trials or matrimonial disputes.]; Swapnil Tripathi v Supreme Court of India (2018) 10 SCC 639 [The petitioners, as public-spirited persons, petitioned the Court to direct that cases of national and constitutional importance must be live streamed in a manner accessible to the public. The Court recognized the importance of open justice in ensuring accountability, transparency, and freedom of speech. As an extension of this principle, it noted that live streaming should be allowed. It then amended its own rules, and provided detailed guidelines on live streaming.]

[lxv] Paragraph 8.9, Notification No. 325/Rules/DHC dated 1 June 2020.

[lxvi] Mukherjee (n 6).

[lxvii] Amy Salyzyn, ‘“Trial by Zoom”: What Virtual Hearings Might Mean for Open Courts, Participant Privacy and the Integrity of Court Proceedings’ (Slaw, 17 April 2020) <http://www.slaw.ca/2020/04/17/trial-by-zoom-what-virtual-hearings-might-mean-for-open-courts-participant-privacy-and-the-integrity-of-court-proceedings/> accessed 14 January 2021; While the Supreme Court has expressed support for limited livestreaming matters of constitutional/national importance in Swapnil Tripathi v Supreme Court of India (n 63), nothing has ever come of this, see: Parliamentary Standing Committee Report (n 32) 7-10.

[lxviii] Salyzyn (n 67).

[lxix] Jane Bailey & Jacquelyn Burkell, ‘Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information’ (2017) 48(1) Ottawa LR 147, 167-178.

[lxx] Arora (n 56) 44.

[lxxi] Graeme Hamilton, ‘How a now-defunct Romanian website exposed tension between privacy and openness in Canadian courts’ (National Post, 6 April 2017) <https://nationalpost.com/news/canada/how-a-now-defunct-romanian-website-exposed-tension-between-privacy-and-openness-in-canadian-courts> accessed 14 January 2021.

[lxxii] Arora (n 56) 23.

[lxxiii] Arora (n 56) 23-24.

[lxxiv] Ibid.

[lxxv] Mondal (n 43).

[lxxvi] Woodrow Hartzog, Privacy’s Blueprint: The Battle to Control Design of New Technologies (HUP 2018) 7-11.

[lxxvii] Ibid.

[lxxviii] Ibid.

[lxxix] Ann Cavoukian, ‘Privacy by Design: The 7 Foundational Principles, Implementation and Mapping of Fair Information Practices’ (Information and Privacy Commissioner, 2011) <https://iapp.org/media/pdf/resource_center/pbd_implement_7found_principles.pdf> accessed 14 January 2021.

[lxxx] Ibid.

[lxxxi] Ashwathappa (n 27) 28.

[lxxxii] This could include the ‘raise hand’ or ‘screen share’ or ‘text in chat box or ‘request to move to private breakout room’.

[lxxxiii] Arora (n 56) 34-36.

[lxxxiv] In a survey, this emerged as the most popular choice among advocates of the Supreme Court.

[lxxxv] Krishnan (n 44).

[lxxxvi] Das (n 45).

[lxxxvii] Ibid.

[lxxxviii] Practice Direction for Electronic Filing in the High Court of Delhi, accessible at http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_LC0S0PP0.PDF.

[lxxxix] Ashish Prasad & Rohit Sharma, ‘Delhi HC’s VC Hearing Rules – Taking the Virtual Courts System Forward’ (Law Street India, 5 June 2020) <http://www.lawstreetindia.com/experts/column?sid=398> accessed 14 January 2021.

[xc] Ashwathappa (n 27) 46.

[xci] Colette Allen, ‘Open justice and remote court hearings under the UK’s Coronavirus Act’ (International Bar Association 2020).

[xcii] This is similar to the position taken up by the Canadian Supreme Court in Canadian Broadcasting Corporation v Attorney General of Canada[2011] 1 SCR 19 [In this case, Stephen Dufour was charged with aiding suicide, and at his trial a video, containing a statement by him, was admitted as evidence. Journalists were permitted to view the film. But the Canadian Broadcasting Corporation petitioned the Court requesting that it should be allowed to broadcast this video. It denied this request but held that this is not a blanket rule. In granting this request, factors such as “the serenity of the hearing, trial fairness, and the fair administration of justice” should be considered. Most importantly, it noted that there is a difference in having to testify in open court and having said testimony telecasted into the houses of Canadians.].

[xciii] This is similar to what the New York City Court has done, see: Jamiles Lartey, ‘The Judge Will See You On Zoom, But The Public Is Mostly Left Out’ (The Marshall Project, 13 April 2020) <https://www.themarshallproject.org/2020/04/13/the-judge-will-see-you-on-zoom-but-the-public-is-mostly-left-out> accessed 14 January 2021.

[xciv] Jeff Galway & Dr. Urs Hoffmann-Nowotny, ‘Impact of COVID-19 on Court Operations & Litigation Practice’ (International Bar Association Litigation Committee 2020) 33.

[xcv] Arora (n 56) 23-24.

[xcvi] Nate Lord, ‘What is Advanced Threat Protection (ATP)?’ (Digital Guardian, 17 July 2020) <https://digitalguardian.com/blog/what-advanced-threat-protection-atp> accessed 14 January 2021.

[xcvii] Arora (n 56) 31-33.
May 19, 2021
Retrofit Winglets for Wind Turbines

Retrofit Winglets for Wind Turbines

Vijay Matheswaran1 and L Scott Miller2

Wichita State University, Wichita, KS 67260

Patrick J Moriarty3

National Renewable Energy Laboratory, Golden, CO 80401

The benefits of using winglets on wind turbines has been well documented. However, adding winglets to wind turbine blades leads to significant increases in blade root bending moments, requiring expensive structural reinforcement with cost and weight drawbacks. A unique design philosophy for retrofitting winglets on existing wind turbines is presented. These retrofit winglets offer an increase in power produced without the need for structural reinforcement. Predicted performance and cost benefits are illustrated via a study using the NREL 5MW reference wind turbine. The addition of winglets resulted in a 2.45% increase in Coefficient of Power (Cp) and 1.69% increase in Annual Energy Production (AEP).

Nomenclature

Cp = coefficient of power

V¥ = freestream velocity

𝑟i = blade section radius

𝜃t = blade section twist

𝐼$ = Initial Cost per year

𝑀$ = Annual Operating Expense

Et = Annual Energy Output

I. Introduction

The idea of winglets on wind turbines is one that has been periodically explored in the past few decades. The earliest studies incorporating blade tip devices on wind turbines were done by Gyatt and Lissamann1. Drawing from advanced tip shapes that were being applied to fixed wing aircraft to reduce drag, the authors tested four tip designs on a 25kW Carter Wind Turbine in San Gorgonio Pass, California. Further studies were carried out in subsequent decades. Van Bussel2 developed a simple momentum theory for blade winglet configurations. Imamura et al.3 analyzed the effects on winglets on wind turbines using a free-wake vortex lattice method. Guanna and Johansen4 developed a free wake lifting line model to compute the effects of winglets, comparing it with CFD results obtained using EllipSys3D. Johansen and Sorenson5 did further studies on increasing power coefficient with the use of winglets, showing that adding winglets definitely changes the downwash distribution, leading to an increase in the power produced by a wind turbine.

While the benefit of adding winglets has been well documented, there are drawbacks to adopting the traditional method of doing so. The addition of large, heavy winglets to maximize aerodynamic benefit leads to significant increases in root bending moments. Imamura et al.6 analyzed the effects of winglets on wind turbine blades using a free-wake vortex lattice method. Their study showed that a winglet at an 80°cant angle and height of 10% of the rotor radius resulted in a 10% increase in the blade root flapwise bending moment. This situation may require blade structural reinforcement, making winglets an expensive and often infeasible proposition. In order to address this, a novel design philosophy has been developed, allowing the use of retrofit winglets that offer an increase in power produced, but without the need to structurally reinforce the blade. This paper outlines the design philosophy, tools

used and results from initial simulations.

II. Design Philosophy for Retrofit Winglets

The key differentiator between this study and prio winglet studies is the design philosophy: designing a lightweight winglet at minimum cost that, while providing an improvement in the turbine’s Coefficient of Power (Cp), does not require blade structural reinforcement. Such a winglet does not seek to maximize Cp, but rather minimize blade bending moments with an acceptable increase in Cp. This is accomplished by balancing the centrifugal force and aerodynamic normal force generated by the winglet. Balancing forces minimizes increases in blade root bending moment, negating the need for an exceptionally strong winglet and allowing it to be light, and requiring noreinforcement of the main blade. Savings in weight are strongly related to cost, so a lighter winglet implies a cheaper, more cost effective one. Accordingly, the best winglet is not one that offers the maximum increase in Cp, but rather offers an increase in Cp while ensuring forces are balanced within a threshold. Figure 1 presents a freebody diagram of the retrofit winglet. A qualitative plot highlighting the design philosophy and the optimal design space is presented in Figure 2. To be able to guage the effects of winglets developed using the mentioned design philosophy, it was decided to use the NREL 5MW wind turbine7 as a reference turbine, and implement a vortex lattice method and cost function to evaluate aerodynamic efficacy and feasibility. The NREL 5MW reference wind turbine is a conceptual three-bladed upwind turbine that was primarily designed to support concept studies. It is heavily based on the Repower 5MW wind turbine; however, in cases where detailed information is not available, data from publicly available conceptual studies is used.

1 PhD Candidate, Department of Aerospace Engineering, AIAA Student Member

2Professor and Chair, Department of Aerospace Engineering, AIAA Associate Fellow

3Team Lead, Wind Plant Aerodynamics, AIAA Member

Click here for access to the Paper

May 9, 2021
Liquid globalization and inter-civilizational Dialogue

The Western world is not only in relative decline, but also faces the inevitable ‘rise of the rest’ (Zakaria), as well as an increasing level of instability and unruliness in many parts of the world. Although there has already been a lot of research in post-colonial studies and intercultural communication, the binary code between the imaginary West and the multiplicity of non-Western approaches was yet to be resolved. Given the relative decline of the West, the dissolution of identities throughout the world, and the rise of the newly industrialized nations, there is an imminent urgency to address and overcome this binary code because it is not only situated in discourses but also manifested itself in all our living environment and within ourselves.

This approach is based on the assumption that the West, as well as the non-Western world, have their shares of dark sides in history. When it comes to the Western world, we cannot deny brutal colonialism, the religious wars, the two world wars, Auschwitz, and the sheer luck of averted atomic world war, which would have destroyed all living being. On the other side, there is often an unbearable degree of intra-societal violence in the Non-Western World. – peoples in a lot of countries face a living hell. For them, hell is not an afterlife. They experience it already in their own life.

As we are all living on one planet featuring more connectivity, we become more and more aware that there cannot be any more islands of prosperity, peace and well-being within a sea of violence, hatred, extreme poverty, and the dissolution of the fabric of societies. In some parts of the world, they experience something very close to the Hobbesian war of all against all, or Carl Schmitt’s never-ending civil wars between communities.

In order to cope with these developments, a dialogue about the civilization foundations of our world society is needed. I explicitly use the concept of civilization in the footsteps of Karl Jaspers, Shmuel Eisenstadt and Peter J. Katzenstein, because civilizations are much more inclusive than religions. This is particularly clear with civilizations that descended from religions. In my view, the contrast is based on that of the Western billiard game model versus the model of concentric circles. Of course, we can easily differentiate these models. For example, when the balls in the billiard game attract each other, we are in the theoretical domain of idealism and cooperation; if they push off each other we are in the realm of competition, conflict and war. And, of course, if the balls cooperate, we are in the realm of all kinds of institutionalism. But the main concept in this model is the importance of rule and methods. The model of concentric circles on the other side can be distinguished by the relation of centre, semi-centre, semi-periphery and periphery (by slight modification of proximity and distance to the centre). In case that we have a transfer of goods, people, ideas, raw materials from the periphery to the centre we label this imperialism, the other way round, from the centre to the periphery I’m tempted to judge this as a form of civilization.

Traditional forms of societies can be explained by overlapping circles of politics, societal relations, economy, economy and the environment:

In such a traditional society there is a great correspondence and overlapping of the different spheres – identity is based on an ostensible core and seems to be related to culturally determined values that were handed over from generation to generation.

A “modern” society (first modernity, Ulrich Beck) to the contrary can be characterized by the assumption that the different circles are much lesser overlapping, they are forming different spheres which have their laws and logics – we may label this a kind of functional differentiation (Niklas Luhmann) and it could either be characterized by the interaction and different functions of the organs of a body or the Olympic Rings.

The spheres in which these rings are overlapping are the institutions in modern societies like the state, the political system, law and the judicial system, the church as an institution, labour unions and civil society.

In liquid globalization and as a result of military interventions, civil wars, these rings of political, social, economic, and cultural and security spheres are separated from one another and could no longer be held together by a core identity.

Within this model, there is a sphere that remains blank and could be characterized as a kind of emptiness. In such an understanding the social fabric is increasingly dissolved and especially the young generation is set free from all social norms. This concept is able to overcome the binary alternative which characterizes the discussion about the causes of terrorism, whether these actions are either related to an aggressive ideology or the social disintegration in societies and failed states, as in the ring of fire around Europe, mainly in the Arab-Islamic states, but also in Africa as a whole. It also explains why identity and recognition count so much in a lot of conflicts throughout the world.

Based on this concept it becomes obvious that this emptiness can be filled with different content, for example with radical ideologies, private enrichments, drug, weapons and human trafficking, but also with the recourse to ethnic and even tribal identities, masculinity and patriarchy and finally violence itself which gives the excluded, superfluous (population growth) and uprooted young generation in these countries and regions the feeling not to be absolute powerless but all-powerful.

The rise of the others in a globalized world is inevitable (Zakaria) – our task is to develop forms of recognition that centre on the civilizational foundations of Islam, Buddhism/Taoism, Confucianism, Christianity and Hinduism and African kinds of solidarity.

The alternative to such a violent filling of the emptiness caused by liquid globalization is the mutual recognition of the civilizations of the earth. The rise of the others in a globalized world is inevitable (Zakaria) – our task is to develop forms of recognition that centre on the civilizational foundations of Islam, Buddhism/Taoism, Confucianism, Christianity and Hinduism and African kinds of solidarity. Only by recognizing their civilizational achievements, the uprooted, excluded and superfluous people of the world, which are the vast majority of mankind, can build an identity by their own in fluid globalization.

Assuming that we all are already living in such spheres which are not overlapping, producing a kind of emptiness, the two different solutions might be to solve this problem by constructing a core as identity, which leads to thinking in categories of we against the rest of the far-right, whereas a different attempt would be to develop a discourse in which identity is constructed as a kind of floating (Clausewitz) and progressing (Hegel) balance or harmony (Confucius), understood as unity with difference and difference with unity.

May 8, 2021
Bengal’s thinking is clear: will rest of India follow?

The second wave of Covid-19 began on February 10 when India reported 11,000 new cases. In the next 50 days, the daily average was 22,000 cases. In the following 10 days the daily average touched 89,800. We are now adding over 400,000 a day. India has never been engulfed by a crisis of this order.

We are woefully short of hospital beds, oxygen, Remdesivir and Tocli-zumab, vaccines, ambulances and sadly even space in our crematoria. The growth and spread are expected to scale to almost a million a day. In two months, India has become the world’s basket case. Yet, on January 28 this year, speaking to the World Economic Forum in Davos, Prime Minister Narendra Modi showed a blissful and disturbing ignorance of the perfect storm looming. The committee of scientists monitoring the virus warned the PMO of the gathering storm. He was not interested. He was crowing about his perceived “achievement” of beating back the much-mutated “Chinese virus”. He was so wrong, and the country is paying a huge price. There is no Modi image of competence left.

Prime Minister Modi’s inability to defend India against the second Covid-19 wave, and his inability to cajole the Chinese from withdrawing from areas they occupied in Ladakh now make him an easy target.

The elections to the four states and Puducherry, which he was so focused on, have been his undoing. He began campaigning on February 5 and 7 in Assam and West Bengal. After that he addressed 20 more rallies in West Bengal and six more in Assam. He also addressed 10 rallies in Tamil Nadu, three in Kerala and one in Puducherry, in all around 40 giant rallies criss-crossing across in IAF Boeings. I wouldn’t even hazard the true cost to the exchequer, but I have heard it said the PM himself is liable to a charge of Rs 6 per air km. Other costs are borne by the PMO. But the cost is not important. The time spent on huckstering is important. He lost almost a month campaigning, instead of managing the engulfing crisis. I always had a low opinion of his intellect, but even he could have surmised the risks posed to the nation by the renewed pandemic. Clearly, he factored winning West Bengal was more important and worth the cost. Mr Modi himself cheerfully paraphrased what Gopal Krishna Gokhale said almost 100 years ago: “What Bengal thinks today, India thinks tomorrow”!

West Bengal has unambiguously expressed what it is thinking. It has rejected Mr Modi and his message and campaign-style, lock, stock and barrel. A subservient Election Commission helpfully broke up West Bengal’s polls into eight phases starting March 27 and closing April 29. During this period the daily Covid-19 cases rose in West Bengal from 812 to 17,403. Breaking it into eight phases didn’t help the BJP either. It lost in every phase and got double digits only in four. West Bengal has a sizable Muslim electorate and Mr Modi didn’t mince words in targeting them by making it appear they were Mamata Banerjee’s personal votebank. He didn’t bother to even conceal what he thought of them. His electoral style touched a new low, even by his standards and most certainly by the standards expected of a PM, when he jibed her by catcalling “Didi-O-Didi”. Urban Bengal responded to this by defeating the BJP soundly in all urban constituencies. There is a message here. All over the country the BJP and RSS have strong urban bases, but urban and urbane Bengal administered a resounding slap to gutter politics. With no record to show, Mr Modi’s politics are nothing but that now.

There was no surprise in Assam. The BJP was returned by almost the same margin as in 2016, getting a majority with the AGP’s nine seats. The Congress lacked a visible local leadership who could match wits with the BJP’s Hemanta Biswa Sarma. Tamil Nadu was as expected. The two so-called national parties were clinging to crumbs thrown by the two so-called Dravidian parties. In Kerala, Pinrayi Vijayan showed why he’s India’s topmost and only surviving commissar. The DMK’s Stalin made no bones about what he thinks of Mr Modi’s Hindu and Hindi-centric politics. The Modi government used every means, including ED raids, to slow down Stalin. The ED even raided Stalin’s daughter.

So where does our politics go from here? One clear conclusion is that both the BJP and Congress were dealt severe blows. It’s interesting the BJP’s campaigns were entirely shouldered by Narendra Modi and Amit Shah. None of the other top BJP leaders even bothered to show up anywhere. What shouldn’t be missed is that the Raksha Mantri, a former BJP president, was the first from the party to congratulate Mamata Banerjee. In Assam, Mr Sarma’s supporters have gone public crediting the victory to their leader. Mr Sarma has already fired a shot across Sarbananda Sonowal’s bow, saying he was no longer interested in being just a minister in someone’s Cabinet. The numbers might work for him, as he needs just a dozen MLAs to cross over and give Assam a new government. Mr Sarma was a Congress satrap till Rahul Gandhi insulted him by playing with his dog rather than listening to him. Rahul will be all ears now.

Mamata Banerjee’s stunning victory puts her squarely on the centre stage of Opposition politics. Joining her there will be Lalu Prasad Yadav, released on bail by the Supreme Court despite the government’s strenuous objections. Tejashwi Yadav has shown he’s capable of leading a party when the RJD came so close to upstaging the BJP-JDU alliance in Bihar. Rajasthan’s Ashok Gehlot and Punjab’s Amarinder Singh have emerged as fairly independent Congress satraps. Uddhav Thackeray has shrugged off the Shiv Sena’s pariah status by providing Maharashtra with good leadership and a penchant for making politics the art of the possible. In Telangana, KCR has put the BJP in its place by a resounding win in Nagarjunasagar after its surprise showing in the Dubbaka and GHMC polls. YSRC scored a resounding win in Tirupati with the BJP candidate, a retired chief secretary, losing her deposit. The anti-BJP lineup now has seven chief ministers, excluding Naveen Patnaik. Seven CMs will mean the election and propaganda machines can be kept well-greased and the powder kegs dry and replenished. Prime Minister Modi’s inability to defend India against the second Covid-19 wave, and his inability to cajole the Chinese from withdrawing from areas they occupied in Ladakh now make him an easy target. The Gujarat model has been long exposed as bogus. There is light seen at the end of the tunnel.

Image Credit: Patrika.com

May 5, 2021
Economic prospect of Vietnam under new leadership

The International Monetary Fund (IMF) has projected a positive outlook for the post-pandemic global economic recovery for 2021. This is notwithstanding the uncertainty associated with numerous mutations of the Coronavirus emerging in different parts of the world and successes with the vaccine which is now into full-fledged production to meet global demands. Furthermore, according to the IMF, the world economy could grow by 6% in 2021, up from the 5.5% forecast in January 2021. Another significant development in the post-pandemic economic recovery would be a “generational shift towards higher government spending” with projections of over US$ 10 trillion being allocated by the governments across the world to absorb the “shock of the COVID pandemic”. In this context, the Vietnamese government can be expected to make significant post-Pandemic investments.

Prime Minister Chinh who was an earlier member of the national steering committee for anti-corruption also announced that the government would “drastically and persistently push for anti-corruption.”

Earlier this month, the Vietnamese National Assembly elected Pham Minh Chinh as the new Prime Minister of the country. In his inaugural speech, Prime Minister Pham Minh Chinh said that his administration’s economic policies would continue as hitherto i.e. “socialism with a market orientation” and will centre on “economic reforms, developing digital economy and focusing on solving difficulties for industries and businesses.” Prime Minister Chinh who was an earlier member of the national steering committee for anti-corruption also announced that the government would “drastically and persistently push for anti-corruption.”

There is a strong element of continuity in the Vietnamese government policies concerning economic reforms, investments, and addressing the bottlenecks in economic growth since the last five-year plan. The projections for economic growth during 2021-2025 are high and pegged at 6.5%-7%. This compares well with the last five-year plan which witnessed 5.9% growth. The per capita GDP is also projected to improve from US$ 2,750 at the end of 2020 to $4,700-$5,000 by 2025.

While these are indeed very promising economic indicators, according to risk consultancy Eurasia Group, Prime Minister Chinh will also have to deal with additional challenges such as reforms required for “new trade deals” necessitating additional infrastructure, respond to existing bottlenecks impacting on the manufacturing sector as also sustained and reliable energy requirements.

Prime Minister Chinh would have to skillfully manoeuvre Vietnam’s relations with the US and China who are among its top trading partners.

At another level, Prime Minister Chinh would have to skillfully manoeuvre Vietnam’s relations with the US and China who are among its top trading partners. As far as the US is concerned, US imports from Vietnam increased to $64.8 billion in the first 10 months of 2020, and the trade deficit increased to $56.6 billion in 2020. Hanoi has now won over the US in the context of being labelled as a “currency manipulator”. The Biden Administration’s first foreign-exchange policy report has removed Vietnam from the list of countries that are known to prevent “effective balance of payments adjustments or gaining unfair competitive advantage in international trade”. This suggests that the US is not taking a confrontationist approach.

Similarly, Vietnam’s trade with China is an inescapable part of its economic growth. China is its top trading partner and the bilateral trade in 2020 was US$ 133 billion. The future projections for Vietnam –China bilateral trade are quite promising given that China would continue to be the strongest economy in the coming years which will have numerous spinoffs for Vietnam. Perhaps it merits attention that China is the seventh-largest foreign investor in Vietnam.

By all counts, Prime Minister Chinh would continue to pursue the national mantra of “socialism with a market orientation” and engage and promote pragmatic economic policies, open the national economy to global markets and importantly balancing relations with China and the US. The US-China trade war has been a trigger for a large number of countries particularly Japan shifting businesses into Vietnam. This has led to Vietnam being labelled as a “mini-China” and is best represented by the fact that Vietnam’s “factory-heavy growth model, sizable population, low labour and land costs, rapid gross domestic product and geographical placement” make it the preferred destination for setting up a business and attracting investments.

While that may be so, Vietnam would have to diversify from manufacturing cheap goods for exports to investing in its service industry as also in innovation and tech startups. Vietnam is likely to witness a surge in the digital economy and this segment could expand to US$52 billion by 2025. In particular, e-commerce and digital banking are significant growth sub-sectors.

it is not unthinkable to anticipate Chinese companies too making a beeline and moving production to Vietnam to lessen the risks of the US-China trade war which has now taken a very strong geopolitical and geostrategic turn.

Today, Vietnam can boast of three comprehensive strategic partnerships, fourteen strategic partnerships, and 13 comprehensive partnerships with different countries. Besides, the conditions are ripe for Vietnam to attract investors beyond Asia and the EU-Vietnam FTA is an important trigger for encouraging European firms to explore investment opportunities in Vietnam. Also, it is not unthinkable to anticipate Chinese companies too making a beeline and moving production to Vietnam to lessen the risks of the US-China trade war which has now taken a very strong geopolitical and geostrategic turn. Under the circumstances, Vietnam would have to diversify its strategic relations and not be left hostage to one partner.

Featured Image: Hanoi to Ho Chi Minh

April 27, 2021
Enjoy Enjaami | Did the message make the song go viral?

Why and how do songs go viral on the social media? There are no clear or categorical answers, particularly because the languages in which the songs are originally sung touch and appeal to sections of populations across cultures and linguistic boundariesIt is pertinent to raise the issue of comprehensibility of the lyrics of the song.

What seems to have made the song a humongous success is the stunning natural outdoors, constructed sets, and the fabulous costumes including the jewellery. But the intention of the production team in terms of the messages to be conveyed stand far from the visuals and remain embedded in the lyrics. That is where seems to be the rub

While for Mahatma Gandhi the pronouncement of Krishna from the Bhagavat Gita: ‘Do your work, don’t expect the fruits of your labour’ would seem to be apposite, BR Ambedkar would certainly take up cudgels against such dictums, which can be propounded only by the elitist and advantaged sections of the society; sections that have just no perception or insight of what goes into manual labour. Hence, the stanza from the lyrics of Enjoy Enjaami.

I planted five trees
Nurtured a beautiful garden
My garden is flourishing

Yet my throat remains dry

is not just profoundly revealing, but is also quite disturbing at one level.

Click here

April 25, 2021
Let’s do away with marks, grades, and this façade of examination

The Central Board of Secondary Education (CBSE) has cancelled examinations for Class 10 and postponed the one for Class 12. This adds to the uncertainty that had gripped the education sector ever since the pandemic broke out. Add to that the cascading effect it will have on entrance examinations and graduate courses.

Currently, stakeholders, namely, the higher educational institutions such as colleges and universities, state governments, high courts, students and their parents, and the University Grants Commission (UGC), are also embroiled in the exams dilemma. This has to do with whether exams are to be held or not; and if yes, then in what way? Virtually or physically?

The Examination Train

The manifest justification for holding examinations are to test the pupils, award them marks/grades, rank them in an order of ‘merit’, or segregate them as per mediocrity. Away from the rather narrow confines of academics, who cares for marks/grades in the world outside? Hardly an organisation/institution gives any credence to marks awarded by colleges and universities. Public sector and private sector organisations, including the banks, the Union Public Service Commission (UPSC), and what have you, conduct their own examinations/tests to recruit personnel.

If nobody outside of the academic realm cares for marks/grades and recruiting organisations devise their own way of assessing graduates, why do we go through the examination rigmarole?

The only thing they look for is the minimum qualification. Generally, graduation, at the most. Also, they have their own in-house training, orientation/refresher courses or workshops. Significantly, the UPSC has prescribed just graduation as the minimum qualification for the highly-desired and coveted civil services, to recruit personnel for the foreign, administrative and police, and other allied central services.

Even ardent followers of Mahatma Gandhi who have passionately and zealously travelled in the ‘Third Class’ all through their academic careers, are eligible to appear at the prelims or the CSAT (Civil Services Aptitude Test) that the UPSC conducts. These Gandhians as well as those who have a second class, qualify in large numbers, and are in no way inferior to the self-styled first class passengers of/on our examination trains.

Cracks and Fissure

There appears to be hardly any correlation between the marks/grades/class awarded by our colleges and universities and those who get through the CSAT and make it to the civil services. Are there, going by what is obtained above, any chinks in the system that is so highly-skewed in favour of rote-learning, examination-based structure of our educational set-up? Of course, there appear to be multiple cracks and fissures, to say the least.

Just look at the countless students awarded A+ or O (outstanding) grades, lots having secured 90 to 95 percent at the Master’s level (MA/MSc/MCom) struggling, if not failing, to get through the National Eligibility Test (NET) to become eligible for an assistant professor’s job.

The UGC, the overarching Big Brother that avidly extends its leash over the state and central universities (also the deemed ones), itself has very little faith in marks/grades awarded by its various constituents. There is ample empirical evidence to uphold the misgivings of the UGC on this count. Just look at the countless students awarded A+ or O (outstanding) grades, lots having secured 90 to 95 percent at the Master’s level (MA/MSc/MCom) struggling, if not failing, to get through the National Eligibility Test (NET) to become eligible for an assistant professor’s job.

It is another matter that many state governments contrived their own ways to dilute the stronghold of the UGC’s NET by devising alternative routes called SET (State Eligibility Test) and SLET (State Level Eligibility Test), and have succeeded in browbeating the UGC as regards recruitment to teaching posts in state/central universities.

The Merit Myth

Years back, the UGC wrote to various universities that those with really high marks at the postgraduate examinations performed abysmally in the NET. Moral of the story is that in spite of the UGC lurking in the background and looking over the shoulder, its affiliated constituents have been happy in dispensing the largesse of grades/marks over-generously. Unfortunately, this is perceived as merit.

The facade of examinations that has taken generations of students, parents, and society in general, for a ride needs a serious revisit.

The facade of examinations that has taken generations of students, parents, and society in general, for a ride needs a serious revisit. If nobody, virtually nobody, in the real world outside of the academic realm cares for the marks/grades and classes dished out by our universities, and each recruiting organisation assiduously tests and devises its own way of assessing our graduates and postgraduates (and doctorates too), why do we go through the examination rigmarole?

Marks to what avail?

Why not just handover certificates, listing courses/papers taught/learnt and assignments completed. At the end of the required term just make them qualify for the degree sought by them sans the drama staged pertaining to examinations. Some educational institutions, such as the Ducere Global Business School, in Melbourne, Australia, award graduate and postgraduate degrees without exams. It has been pointed out that “assessment is articulated through solution finding, improvisation, interrogation, interaction, integration and imagination — all of which shape change”.

The agencies interested in employing these candidates have their own manner of assessing them through written, oral and associated tests. That they have been doing, anyway, for years, even to those students who have obtained grade sheets and marks cards testifying that they have been placed in A+, or had 90 to 95 percent and have been rank holders, or have obtained a first class.

Are we ready and willing to deliberate and debate examinations and allied issues at different levels? For a start we could wake up the UGC to shed its lethargy and set it on an examination reform and course correction path.

This article was published earlier in www.moneycontrol.com

Featured Image: thewire.in

April 25, 2021
Tamil Civilisation and the Lost Land of Lemuria/Kumari Kandam

Lemuria came to be identified as Kumari Kandam, the ancestral homeland of the Tamils, lost to the ravaging ocean in the distant past, due to what is called “Kadal Kol” in Tamil.

The concept of the lost land of Lemuria hitherto a talking point in the west finds a new focus and interest in the study of the origins of Tamil Civilisation at the beginning of the 20th century. This was a direct result of the new consciousness of the ethnic and linguistic identity that emerged in Tamil speaking regions of South India. By the Tamil enthuse Lemuria came to be recast as the birthplace of the Tamil civilization. It came to be identified as Kumari Kandam, the ancestral homeland of the Tamils, lost to the ravaging ocean in the distant past, due to what is called “Kadal Kol” in Tamil.

Tamil Nadu Government, during January 1981 at the Fifth International Conference of Tamil Studies held in Madurai, screened a documentary named “Kumari Kandam” both in Tamil and English. The documentary, produced with the financial support of the Tamil Nadu Government, traced the roots of Tamil, its literature and culture, to the very beginning of time in Lemuria otherwise known as Kumari Kandam in Tamil. In this documentary, the Paleo history of the world is anchored around Tamil land and language. Thus Sclater’s[1] lost land of Lemuria was re-established in the timeless collective consciousness as a catastrophic loss of prelapsarian Tamil past. Even earlier to this, in 1879 Geological Survey of India brought out in the manual of GRGl, a discussion on the Mesozoic land bridge between Southern India and Africa. Dr.D.N. Wadia, a famed Professor of Geology, mentioned in 1990 “The evidence from which the above conclusion regarding an Indo-African land connection is drawn, is so strong and so many-sided that the differences of opinion that exist among geologists appertain to the main conclusion being accepted as one of the settled facts in the geography of this part of the world.[2]

E.M. Forster in his famed novel ” A Passage to India “ (1984) begins his stunning stanza line “The Ganges, though flowing from the foot of Vishnu through, Siva’s hair, is not an ancient stream. Geology, looking further than religion, knows of a time when neither the river nor the Himalayas that nourished it existed, and an ocean flowed over the holy places of Hindustan. The mountains rose, their debris silted up the ocean, the gods took their seats on them and contrived the river, and the India we call immemorial came into being. But India is far older than anything in the world”.[3]

In the ethnology chapter of the Manual, Maclean brought the findings of Ernest Haeckel about Lemuria as a primeval home of man. Maclean also draws a further conclusion from the German Biologist’s theory of the origin of various traces of mankind on the submerged Lemuria continent and reiterated that it was the primaeval home of the ancestors of India and Ceylon.

Thus the fabled Kumari Kandam, which was based on Tamil Literary tradition, so far can receive immediate credibility through western studies. The foundation for this claim was laid by Charles D. Maclean Book “The Manual of the Administration of the Madras Presidency” published in 1835” Mr Maclean was an Officer of Indian Civil Services. In the ethnology chapter of the Manual, Maclean brought the findings of Ernest Haeckel about Lemuria as a primeval home of man. Maclean also draws a further conclusion from the German Biologist’s theory of the origin of various traces of mankind on the submerged Lemuria continent and reiterated that it was the primaeval home of the ancestors of India and Ceylon.[4] He suggested that Southern India was once the passage ground by which the ancient progenitors of northern and Mediterranean races proceeded to the parts of the globe which they now inhabit from Lemuria.[5]

However, there is a distinct difference in perception of the Lemuria inhabitants from the point of view of Western Scholars and the Tamil enthuse. According to Western Scholars, the primitive inhabitants of Lemuria are barely human and do not represent the trace of civilization. However, the Tamil scholars hold Lemuria or Kumari Kantam as the birthplace of the Tamil Language and cradle of Tamil Civilisation. The antiquity of the Tamil language got a boost with the publication of Campbell’s Book “The competitive grammar of Dravidian Langauge”. J. Nellai swami Pillai wrote in the journal “The Light of Truth” or “Siddantha Deepika” that if you can believe in the tradition of there having been a vast continent south of Cape Comorin, all humanity and civilization flowed east and west and north, then there can be nothing strange in our regarding the Tamilians as the remnants of a pre-diluvian race. Even the existing works in Tamil speak of three separate floods which completely swamped the extreme southern shores and carried off with them all its literary treasures of ages.[6]

Nella Swami Pillai gives a cautious conclusion that his theory stands on no serious historical or scientific evidence. The same was enthusiastically taken up fully by a well-known Tamil scholar Maraimalai Adigal.

Though the name Lemuria came into the Tamil world only in 1903, it started gaining significance among the Tamil populous. Shri V.G.Suryanarayana Sastri started using the name Kumarinadu in his book “Tamilmoliyin varalaru. Thiru T.V.Kalyanasundaram the famous Congress Nationlist, and a noted Tamil scholar wrote emphatically that the Lemuria of “Western Scholars” like Ernst Haeckel and Scott Elliot was none other than the Kumarinadu of Tamil literature”.[7]

The very name Kumari is suggestive of the pristine chastity and everlasting youth of the Tamil land. Later the legends linked the Devi Temple at Kanyakumari to Kumari Kantam or Kumar Nadu. The Kumari Kantam as mentioned in the old Tamil classics, has no reference to the Mesozoic continent of the Indian ocean. There is no reference to the old boundaries of Asiatic tablelands. The Tamil literature speaks of them as the original inhabitants of the great territory opened by two seas on the East and West, by Venkata hills and submerged rivers Pakruli and Kumari on the South.[8] Scholars like Somasundara Bharathi and others also invented hackers’ concept of Lemuria being the cradle of mankind, which implies that the ancient Tamil region is the birthplace of human beings and the Tamils were the first humans.

Kumari Kantam was having a breadth of 700 kavatam south of Cape Cameron containing 49 principalities, 2 rivers called Pakruli and Kumari flowed there and it also had a hill called Kumari Koodu. The major cities in Kumari Kantam were Thenmadurai and Kapatapuram.

The features of Kumari Kantam were referred to by Adiyarku Nallar, the commenter of Silapathikaram. Kumari Kantam was having a breadth of 700 kavatam south of Cape Cameron containing 49 principalities, 2 rivers called Pakruli and Kumari flowed there and it also had a hill called Kumari Koodu. The major cities in Kumari Kantam were Thenmadurai and Kapatapuram. This is also referred to in Tholkappia Orrai of Ilam Pooranar Nachinarkku Iniyan Perasiriyar.

The Tamil Scholars, V.G. Suryanaryana Sastri and Abraham Pandithar lament the loss of works such as Mudunarai, Mudukurugu, etc, which had been swallowed by the ocean. These are derived from the fact that several poems in the Sangam anthology of later age refer to oceanic threat and consequent loss of lands and lives.

The Tamil Scholar K.Anna Poorni delineates the extent of Kumari Kantam as she concludes in Tamilagham “ Today, the Tamilnadu that we inhabit consists of 12 districts within its limits. A few centuries ago. Cranach and a part of the Telugu land were part of Tamilnadu. Some thousands of years ago, the northern limit of Tamilnadu extended to the Vindhya mountain and the southern limit extended 700 Kavatam to the south of Cape Kumari which included regions such as Panainatu, mountains such as Kumari Kotu and Mani Malai, cities such as Muttur and Kapatapuram and rivers such as Pahruli. All these were seized by the ocean, so say scholars. That today’s the Indian Ocean was once upon a time a vast landmass and that that is where the man first appears has been stated by several scholars such as Ernst Haeckel and Scott Elliot in their books, History of Creation and Lost Lemuria. The landmass called Lemuria is what Tamilians call Kumarinadu. That which is remaining after this ancient landmass was seized by the ocean is the Tamil Motherland in which we reside today with pride.

References

[1] Philip Lutley Sclater was a zoologist and naturalist who studied extensively the presence of fauna and other species in different regions. He found that more than 30 species of Lemur monkeys inhabited Madagascar while they were hardly to be found in Africa but were seen in lesser number of species in India. Explaining the anomalies of the Mammal fauna of Madagascar, Sclater propounded that the Lemurs must have inhabited a lost continent in the Indian Ocean. Termed ‘Lemuria, this continent must have extended across the Indian Ocean and the Indian Peninsula to the further side of the Bay of Bengal and over the great islands of the Indian Archipelago. David Bressan, ‘A Geologists’ Dream: The lost continent of Lemuria’ in www.blogs.thescientificamerican.com

[2] Wadia D.N. 1919, Geology of India for students, London: Macmillan – 1939, Geology of India, 2nd ed. London: Macmillan.

[3] E.M.Forster, “A passage to India”: Harcourt Brace, New York 1984, pp 135-136.

[4] Maclean Charles. D. “The Manual of the Administration of the Madras Presidency”, Vol.I, Asian Educational Publication, pp-33-43.

[5] Ibid 111.

[6] Nella Swami Pillai. J, “Ancient Tamil Civilisation in the light of truth” or Siddhanta Deepika. No. 5, pp 109-113.

[7] T.V.Kalyanasundaram, “Indiyavum viduthalaiyum”, Charu Printing Press, Madras, P 106.

[8] Sesha Iyengar K.G. Chera King of the Sangam Period, 1937, pp 658.

March 26, 2021
Calling Putin a ‘killer’ with ‘no soul’ is not exactly diplomatic finesse

Category: External Article – ‘Responsible Statecraft’

Title: Calling Putin “a killer” is not exactly diplomatic finesse

Author: Anatol Lieven

The Biden administration has created an completely unnecessary confrontation with Russia at a time when reasonable working relations with Moscow are extremely important for achieving two immediate and key administration goals: rejoining the nuclear agreement with Iran, and a peace settlement in Afghanistan facilitating U.S. military withdrawal from that country and an end to America’s longest war.

Read More

March 25, 2021