The Peninsula Foundation

Tag: Pandemic

  • India and the New Geopolitical Churnings

    India and the New Geopolitical Churnings

    In an interdependent world, India must manage both its internal pressures and external challenges with vision, a sense of balance and determination. The coming years project immense promise for India in diverse fields of human endeavour. Let’s capitalize on our innate strengths and an inclusive vision for all in our great nation and be a beacon for humanity.

    “Ukraine today may be East Asia tomorrow.”

    — Japanese PM Fumio Kishida at the 2022 Shangri La Dialogue

    Historically speaking, there usually remains an uneasy consistency in the geopolitical world order as the strategic interests of nations are not given easy alterability. Nevertheless, the traumatic geopolitical churning witnessed by the world in the last three years has no parallels since the end of World War II in 1945. Even by conservative standards, the overall impact on the world—political, economic, social and diplomatic— has been unmistakably tectonic.

    As all nations, including the major powers, endeavour to absorb the cataclysmic effects of the events of the last three years, the early months of 2023 also display a susceptibility for this adverse impact continuing in relations between nations and severe economic and health challenges remaining to the fore threatening the overall worsening of the established global order. It brooks no elaboration to state that the current and likely continuing geopolitical differences in the world community will drive geo-economic warfare and vastly augment the risk of multi-domain conflicts. By any standards, the future in geopolitical churns across the globe remains steeped in uncertainty!

    Recent Traumatic Events And Geopolitical Churnings

    The end of 2019 witnessed a global catastrophe with the outbreak of Covid19 pandemic also known as the coronavirus pandemic. Originating from the Chinese city of Wuhan, it could not be contained there and quickly spread to other Asian nations and in a few months from early 2020, virtually engulfed the entire globe. Reportedly, till date, this virus has affected 676 million cases causing over 6.88 million deaths. According to the WHO, this virus still exists in many parts of the globe in some form or the other. This Black Swan event affected the global economy, politics, health, ecology and environment besides adversely affecting many other aspects of life as never before. The globe is still reeling under the adverse impact of this virus.

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  • Challenges of the Indian Economy and Banking Under the Sway of Global Capital

    Challenges of the Indian Economy and Banking Under the Sway of Global Capital

    Introduction

    In a modern day capitalist society, finance (vitta) is of crucial importance. It can help the individuals but also marginalize them since finance is not only complex but becoming more so and even educated people barely understand it. So, most people follow the herd mentality and often that leads to mistakes.

    Any analysis of the world of finance in India requires one to understand the nature of the current Indian Economy and its changing philosophical moorings. The problem is compounded by the rapidly changing technology in the world which is hard to keep track of, even for the experts, much less for the common person. Before one has understood the implications of a technology a new one arrives. For instance, in India, the advent of plastic cards has been quickly overtaken by electronic transactions and now the cryptos are threatening banks and even Central Banks.

    Thus, the financial sector itself faces unprecedented challenges with new financial instruments appearing in rapid succession. Since their impact on the financial system is little understood, risk has increased and that is leading to growing instability. To take care of the risks in the system newer instruments have emerged and they add to the instability. For instance, the global financial crisis of 2007-09 was triggered by the sub-prime crisis, growth of shadow banking, Credit Default Swaps, etc.

    So, the issues facing the world of finance today need to be understood in both the global context and historically.

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  • India’s Self-Inflicted Economic Catastrophe

    India’s Self-Inflicted Economic Catastrophe

    Noted economist Jayati Ghosh reviews India’s economic recovery from the impact of the pandemic. She asserts that the major economic problems of unemployment, poverty, and inadequate healthcare are due to poor strategies and policies implemented by the government. In her analysis, COVID-19’s devastating impact on India has been compounded by the BJP government’s disastrous decision to impose nationwide lockdowns without providing any support to workers. Instead, the BJP used the pandemic to consolidate its power and suppress dissent. Even with existing socio-political constraints, she says India can do much better as there is scope for different economic strategies.

    This article was published earlier in Project Syndicate. The views expressed are the author’s own.

                                                                                                                                                                          -TPF Editorial Team

    Nearly 80% of the estimated 70 million people around the world who fell into extreme poverty at the onset of COVID-19 in 2020 were from India, a recent World Bank report has revealed. But even this shocking figure could be an underestimate, as the lack of official data makes it difficult to assess the pandemic’s human costs.

    What accounts for this alarming rise in Indian poverty? COVID-19 was undoubtedly India’s worst health calamity in at least a century. But the pandemic’s economic and social consequences go beyond the direct effects on health and mortality. As I argue in my recent book, The Making of a Catastrophe: The Disastrous Economic Fallout of the COVID-19 Pandemic in India, very significant policy failures – owing to government action and inaction – were responsible for widespread and significant damage to Indian livelihoods and for the country’s decline in terms of many basic indicators of economic well-being.

    But the devastating impact of the pandemic on India has been compounded by economic policies that reflected the country’s deeply-embedded inequalities.

    This judgment may seem excessively harsh. After all, India’s government did not cause the pandemic, and many other countries experienced economic setbacks after they failed to control the virus. But the devastating impact of the pandemic on India has been compounded by economic policies that reflected the country’s deeply-embedded inequalities.

    To be sure, the pandemic did not create India’s many economic vulnerabilities. But it did highlight India’s many societal fissures and fault lines. And while the country already suffered from glaring inequalities of income, wealth, and opportunities long before COVID-19, the government’s pandemic response has taken them to unimaginable extremes.

    Even as Indian workers faced poverty, hunger, and ever-greater material insecurity due to the pandemic, money and resources continued to flow from the poor and the middle class to the country’s largest corporations and wealthiest individuals. The intersecting inequalities of caste, gender, religion, and migration status have become increasingly marked and oppressive. The result has been a major setback to social and economic progress.

    At the beginning of the pandemic, the central government imposed a prolonged nationwide lockdown with little notice. It then adopted containment strategies that were clearly unsuited to the Indian context, with immediately devastating effects on employment and livelihoods.

    The grim state of affairs reflects the priorities of the ruling Bharatiya Janata Party (BJP) response. At the beginning of the pandemic, the central government imposed a prolonged nationwide lockdown with little notice. It then adopted containment strategies that were clearly unsuited to the Indian context, with immediately devastating effects on employment and livelihoods.

    Instead of using the breathing space provided by the lockdown to bolster local health systems, the central government left state authorities to manage as best they could with minimal and inadequate resources. And when the resulting economic disaster threatened to spiral out of control, the government eased restrictions to “unlock” the economy even as the number of cases mounted, thereby putting more people at risk.

    At a time when governments worldwide were significantly increasing public spending to fight the pandemic and mitigate its economic impact, the Indian government preferred to control expenditures (after adjusting for inflation) as its revenues declined.

    But at the heart of India’s self-inflicted economic catastrophe is the government’s decision to provide very little compensation or social protection, even as COVID-19 lockdowns deprived hundreds of millions of their livelihoods for several months. At a time when governments worldwide were significantly increasing public spending to fight the pandemic and mitigate its economic impact, the Indian government preferred to control expenditures (after adjusting for inflation) as its revenues declined.

    But in a country where median wages are too low to provide more than the most basic subsistence, losing even a week’s income could lead millions to the brink of starvation. Given that more than 90% of all workers in India are informal – without any legal or social protection – and that around half of those are self-employed, the effect was immediate and devastating.

    The government’s decision not to increase spending aggravated the shock of the lockdown, generating a humanitarian crisis that disproportionately affected women and marginalized groups, including millions of migrant workers who were forced to return home under harrowing conditions.

    But the effects of the official response to the pandemic are only one side of the story. COVID-19 safety measures have been a natural fit for the country’s still-pervasive caste system, which has long relied on forms of social distancing to enforce the socioeconomic order and protect those at the top. It also further entrenched India’s persistent patriarchy.

    Instead of taking appropriate countermeasures, like providing greater support to the population, the BJP used the pandemic to consolidate its power and suppress dissent. This, in turn, limited the central government’s ability to generate the widespread social consensus and public trust needed to contain the virus.

    Even within India’s deep-seated social and political constraints, there is scope for a different economic strategy that would enable a just, sustainable, and more equitable recovery.

    None of this was inevitable. Even within India’s deep-seated social and political constraints, there is scope for a different economic strategy that would enable a just, sustainable, and more equitable recovery. To ensure that most Indians, not just the stock market or large companies, benefit from growth, India’s voters must reject the BJP’s policies, which threaten to impoverish them further.

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  • Search for Alternative Development Path: Relevance of Gandhian Thought

    Search for Alternative Development Path: Relevance of Gandhian Thought

    Frequency of extreme weather events has been increasing. Ferocious cyclones, severe droughts and floods, wild fires, melting glaciers and polar ice caps are reported all too frequently. The world needs to consider an alternative development path and Gandhi can be one starting point.

    Gandhi, tradition and modernity

    Gandhi is a hallowed figure in the world, not just in India. However, Gandhian thought has been increasingly pushed to the margins since his death in 1948. It survives in alternative spaces but is hardly practiced anywhere, including in India.

    This marginalisation is the result of Gandhians’ failure to create a milieu which could make Gandhi’s thoughts widely acceptable, especially to the youth. The dynamism required on their part to rapidly evolve their thought to meet the growing challenges in the world in the last 70 years has been missing. Gandhi himself was dynamic, ever-evolving with the changing social situation. In contrast, after his demise, his followers, wanting to remain true to what he had said, got frozen in the past.

    Gandhi was ahead of his time. During his lifetime he struggled to convince the public to pursue the path he propagated. Even the Indian national movement which he led veered off from the path he wanted India to pursue. In his India of my dreams, he argued that India could give a civilisational alternative to the Western civilization which he rejected as `evil’. He perhaps accepted later on that the Congress party was not willing to follow a different path than the path of western modernity.

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  • “Aapada mein Avasar”: Examining India’s Engagement with the International Community Amidst the Pandemic

    “Aapada mein Avasar”: Examining India’s Engagement with the International Community Amidst the Pandemic

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    Abstract

    Health security has often been considered an issue of “low politics”. However, in the past two years, the global economy has suffered the most since the Great Depression and global supply chains have been hampered. The developed countries were caught off-guard at par with the rest of the world with global resource inequities at display. As the developed world resorted to “medicine nationalism” and “vaccine nationalism,” their credibility as “global leaders” was sharply questioned. Amidst this, the allegations of the pandemic’s origins generated reactions from an emergent China which stopped concealing its geopolitical ambitions and adopted an unapologetically aggressive posture. Moreover, the credibility of a prominent international organization, the World Health Organization, in terms of its inability in notifying and managing the pandemic was heavily criticised. Each of these occurrences having emerged from a global health crisis has unexpectedly altered the prioritization of matters in the international order, and thereby international diplomacy.

    With the developing and least developed countries deprived of critical medical supplies due to hoarding by developed countries – India’s active engagement in medical diplomacy in the initial phase garnered international appreciation. While it cannot be looked at in a transactional sense, it visibly helped India push for its geopolitical interests in the middle of a global crisis – finding the adequate avasar (possibilities) in the ongoing aapada (crisis). Although flaws on the domestic front existed during the first wave, their impact on India’s medical diplomacy was limited. However, a domestic crisis during the second wave turned out to be an eye-opener and prominently impacted foreign policy initiatives. Considering the lessons so learnt and applied in managing the third wave, this paper examines the tremendous domestic potential of India, while also looking at its historical legacy. In doing so, it emphasises the relevance of domestic affairs as a determinant of successful medical diplomacy outreach – thereby impacting the larger foreign policy objectives.

    Introduction

    While health security has often been relegated as a low-priority issue in the geopolitical landscape, the last two years have unprecedentedly changed everything. A majority of developed nations have appeared helpless in managing the human catastrophe thereby resorting to vaccine and medicine protectionism. To put this on record, over six million people worldwide have lost their lives (COVID Live – Coronavirus Statistics, 2022) during these two years – with the maximum number of lives lost in the United States of America. The global economy has suffered the most since the Great Depression as a fallout of extended total lockdowns that hampered global supply chains. Moreover, an unexpected, unrealised over-dependency of global supply chains on a single country’s economy – China – caught the international community unprepared. Gradually, newer possibilities and threats have emerged through a changing character of the global economy, society, as well as politics and warfare – each of these shifting to the virtual domain.

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  • Responsible Decision-making in the Face of Corona – A Need for a Metric

    Responsible Decision-making in the Face of Corona – A Need for a Metric

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    Abstract

    The asymmetry of the human mind in treating the information that is currently available and the information we do not have is remarkable. During the Covid-19 pandemic, many people have been conscious to take precautions to prevent contracting the virus oneself or their family members. However, the consequences of a person infecting another are not consciously considered by everyone while going on about their ‘new normal’ life making daily transactions that involve the labour of a multitude of people. Nobody pauses to wonder whether anyone in the supply chain of the product or service consumed by an individual has contracted the virus or died due to the virus in the process of its production. This is because that information is unavailable to us in a tangible form for our minds to perceive and hence it chooses to ignore it. Although the number of cases increases with every wave, people have started accepting it or rather have become desensitised to the number of lives lost to Covid-19, mainly because these deaths are unseen. This article explores whether such a pondering – number of people infected and consequently lives compromised – would be a consideration in the decision-making in the production and consumption of products and services. If so, is there a need to develop a metric to inform us of this number? Would it be feasible to have such a metric? This article attempts to quantify these unseen deaths, so as to sensitise people to the consequences of a person getting infected.

    Introduction:

    Now, two years after the onset of the Covid-19 pandemic, most people reading this would have lost one or more relatives, friends, colleagues or an acquaintance due to the infection. I am no exception. But the trigger for this article is the death of a couple, Razia and Nasir (names changed) that happened in the summer of 2021. Their small fruits and vegetable outlet, by a synergic arrangement, was situated within the spacious premises of another outlet – a cold storage that dispenses meat, poultry and fish for the upwardly mobile residents living in a posh locality of Bangalore. 

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  • International Migration in Pandemic Times: Disrupted Links, Remittances and Migrantophobia

    International Migration in Pandemic Times: Disrupted Links, Remittances and Migrantophobia

    The COVID-19 pandemic has severely limited international migration due to border closures and has forced millions of people to return home. According to expert estimates, the pandemic reduced the number of international migrants by the middle of 2020 by about 2 million people: to 281 million people instead of the expected 283 million people.

    In 2020, immigration to the countries of the Organisation for Economic Cooperation and Development (OECD) was half what it had been in 2019; in Canada the number of immigrants decreased by 45%, and in Australia – by 70%.

    To compensate the negative impact on its economy, Canada launched a recruitment programme to bring in 400,000 immigrants in 2021, 2022 and 2023. The number of migrants who came to Saudi Arabia decreased by 90%.

    The pandemic partly realised a hypothetical situation long idealised among migrantophobes: “how much better it would be if the migrants went back where they came from.” Although some, rather than all migrants returned to their homelands, the host countries were able to really feel what it was like to do without them.

    COVID-19 has greatly affected territorial mobility both between countries and regions, and within specifi c states. As a result, migration fl ows and remittances declined, accompanied by a rise in migrantophobia and xenophobia in the main destination countries. These crises overlapped with the fact that migration has been a major political issue in North America and Europe over the past years.


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  • Online Justice and the Pandemic: Impact on Procedure

    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.

  • Freedom of Speech and Right to Information amidst the Covid-19 Pandemic

    Freedom of Speech and Right to Information amidst the Covid-19 Pandemic

    The global pandemic hit India in March 2020 and Prime Minister Modi announced a 21 day lockdown beginning on 25th March 2020. Since then the lockdown has been extended multiple times as the country grapples with a major public health crisis. Media houses have been on their feet, both literally and metaphorically, as they cover new stories, cases and most importantly, the state response towards the pandemic. The citizenry relies on news reportage to learn more about their government’s approach towards handling this unconventional situation. Media is often regarded as the fourth pillar of democracy meaning it is a supporting figure for democracy to persist and flourish. The pandemic has exposed some paramount inadequacies in the government’s handling of the situation such as lack of a robust public health infrastructure and other issues. The reportage on such instances has often faced backlash from the government resulting in legal notices against the journalists and media houses. India also dropped two places in the World Press Freedom Index making it 142nd in position citing the curfew in Jammu and Kashmir. The watchdog has also issued a warning about the implications of the pandemic, “the looming health crisis could serve as an excuse for governments to take advantage of the fact that politics are on hold, the public is stunned and protests are out of the question, in order to impose measures that would be impossible in normal times” (Scroll Staff, 2020).

    Media is often regarded as the fourth pillar of democracy meaning it is a supporting figure for democracy to persist and flourish.

     Two patterns can be observed with regards to media freedom in India during a time like this; furthering a certain narrative through misinformation and misrepresentation and carrying out state-sponsored propaganda. In this lockdown, the state wants a narrative which eulogizes their efforts during the lockdown and overall handling the situation. However, there are major loopholes in the measures taken by the government which has led to the system failing its most vulnerable class of individuals; the marginalized and the poor. The state has also taken this time to strike upon certain civil liberties and advance their propaganda by curbing dissent.

     Misinformation and misrepresentation of certain communities has been rampant during this time. Nabeela Khan, in an article called Trends in Covid19 misinformation in India for Health Analytics Asia categorizes the spread of misinformation in four waves. First, misinformation about the origin of the virus, this has been debated not just in India but worldwide where they have accused China of producing this virus in a lab and spreading it to use to its advantage. There have also been multiple other theories available online related to consumption of certain meats in China. Second circulation of old images and videos to create fear, in this case the Tablighi Jamaat incident was highlighted immensely and videos from before the pandemic were used to show that ‘Muslims’ in India spread the virus. Third, on ‘cures’ and prevention techniques which is particularly famous on several WhatsApp groups where home-made remedies of lemon, honey, turmeric or any other ‘Ayurvedic’ cures are posted every day. And fourth, on lockdowns in India, where the news of lockdown being extended were spread even before the official announcements were made. Increasingly, there has been excess confusion over the surging numbers in India and whether or not governments give out the exact figures. Additionally, there is no clarity about government aid and funding towards the poor such as the internal migrants in the country.

    Kaye makes an important point as he says that the governments are using the pandemic as a smokescreen to carry forward their agenda and take actions that they have wanted to take for a long time.

    The UN Special Rapporteur David Kaye, talks to The Lawfare Podcast about his latest UN report Disease, pandemics and the freedom of opinion and expression. Kaye makes an important point as he says that the governments are using the pandemic as a smokescreen to carry forward their agenda and take actions that they have wanted to take for a long time. He gives an example from Hungary where the Press is under strict scrutiny of the government. Since the coronavirus is a recent occurrence, there is not a very large body of information available on it. The information keeps changing as cases increase or decrease, as there are multiple waves of it so the orders issued by the government are subject to change. He also particularly criticizes India for its treatment of Jammu and Kashmir since August 2019 and calls it “a real misuse of the situation”.

     Journalists and activists across the world have been arrested during this lockdown and India is no exception to this trend of suppressing free speech. Siddharth Varadarajan, Gautam Navlakha, Anand Teltumbde, Safoora Zargar, Umar Khalid, Dhaval Patel, Supriya Sharma among many others have either been arrested or served notice by the government during the lockdown. These journalists have either been arrested on the grounds of their reportage of the pandemic, during the pandemic or incidents that took place before the pandemic.

     An FIR was lodged against Siddharth Varadarajan, one of the founding editors of The Wire, an acclaimed media house, on the grounds of making unverifiable claims. Varadarajan tweeted on March 31st saying that UP Chief Minister Yogi Adityanath had given a go-ahead for the Ram Navami festival to be held from March 25th to April 2nd, in the middle of the lockdown and Yogi also said that “Lord Rama would protect the devotees from coronavirus”. As a matter of fact, it was Acharya Paramhans who gave out this statement and not CM Adityanath and Varadarajan tweeted a clarification the following day. On April 10, police from Ayodhya showed up at his doorstep in Delhi to serve him notice and his wife Nandini Sundar explained this instance elaborately in her tweets. However, this act only suggests the government’s misuse of power and tactics to pursue a culture of intimidation. It could be argued that the journalist was peddling unverified claims but CM Adityanath in fact supported the decision to have a Ram Navami mela. The Wire has published an elaborate FAQs list on this matter explaining every detail of it. It has also been condemned by the Editors’ Guild of India who have called this episode “an overreaction and an act of intimidation”.

     Journalists and activists such as Gautam Navlakha, Anand Teltumbde, Safoora Zargar, Umar Khalid, Sharjeel Imam etc. have been booked under the UAPA, Unlawful Activities Prevention Act. This Act was formulated as a law in 1967 to prevent any ‘unlawful’ activities or any measures which threatened the integrity and sovereignty of India. In 2004, the UPA government expanded on it further to target terrorist outfits or any organizations harming the state but not individuals. The 2019 Amendment of the Act has entrusted the government with identifying individuals who might be harming the integrity of the state, the definition of which the government decides. The contemporary term used for such people on social media and other platforms is ‘urban naxals’. Student activists and journalists have been booked under this act for protesting against oppressive government laws which promotes a narrative that dissent is by its very nature, ‘anti national’. There have also been cases where activists have been arrested, then granted bail and arrested again based on some other complaint. Safoora Zargar’s case is a particularly complex one in this regard where she was arrested after she was granted bail and was granted bail again recently on humanitarian grounds. Zargar is five months pregnant which was the basis of her bail but the discourse around this has been to release her not because of her pregnancy because dissent is a fundamental right.

    The moment we no longer have a free press, anything can happen. What makes it possible for a totalitarian or any other dictatorship to rule is that people are not informed; how can you have an opinion if you are not informed? If everybody always lies to you, the consequence is not that you believe the lies, but rather that nobody believes anything any longer. This is because lies, by their very nature, have to be changed, and a lying government has constantly to rewrite its own history – Hannah Arendt

     Praveen Swami makes a compelling argument in a FirstPost article about hate speech and freedom of speech. He opines that the response to hate speech is not censorship but plurality where opinions are allowed to coexist. In India, a large part of the Press is controlled and supported by the government leading them to produce streamlined biased news. According to him, alternatives need to come up for hate speech where the dominant narrative does not remain unchallenged.

     To conclude, Hannah Arendt’s cautioning words on freedom of press and misinformation are very relevant today and sounds the alarm bells:

    “The moment we no longer have a free press, anything can happen. What makes it possible for a totalitarian or any other dictatorship to rule is that people are not informed; how can you have an opinion if you are not informed? If everybody always lies to you, the consequence is not that you believe the lies, but rather that nobody believes anything any longer. This is because lies, by their very nature, have to be changed, and a lying government has constantly to rewrite its own history”

     

    Reference

    Bakshi, Asmita (2020, May 31) From Pinjra Tod to Kashmiri Journalists: What’s the Deal with UAPA?. Livemint. Retrieved from https://www.livemint.com/mint-lounge/features/from-pinjra-tod-to-kashmiri-journalists-what-s-the-deal-with-uapa-11590915249625.html

     

    Chakma, Suhas (2020, June 22) FIR Against Supriya Sharma is Emblematic of how the Law is Abused to Throttle Press Freedom. The Wire. Retrieved from https://thewire.in/media/supriya-sharma-fir-abuse-law-press-freedom

     

    Goldsmith, J (Host) (2016, May 16). The Lawfare Podcast: David Kaye on Free Speech During a Pandemic. (Audio podcast episode). In Lawfare. Retrieved from https://www.lawfareblog.com/lawfare-podcast-david-kaye-free-speech-during-pandemic

     Khan, Nabeela (2020, June 12) Trends in Covid19 misinformation in India. Health Asia Analytics. Retrieved from https://www.ha-asia.com/trends-in-covid-19-misinformation-in-india/

     Scroll Staff (2020, April 21) Covid-19: India drops 2 places on World Press Freedom Index, as watchdog warns of pandemic impact. Scroll.in. Retrieved from https://scroll.in/latest/959816/covid-19-india-drops-2-places-on-world-press-freedom-index-as-watchdog-warns-of-pandemics-impact

     Scroll Staff (2017, December 4) Top ten things that Hannah Arendt said that are eerily relevant in today’s times. Scroll.in. Retrieved from https://scroll.in/article/856549/ten-things-hannah-arendt-said-that-are-eerily-relevant-in-todays-political-times

     Swami, Praveen (2020, April 27) Hate speech in the time of a pandemic: Answer to malevolent incendiary language is plurality, not censorship. Firstpost. Retrieved from https://www.firstpost.com/india/hate-speech-in-the-time-of-a-pandemic-answer-to-malevolent-incendiary-language-is-plurality-not-censorship-8295271.html

     The Wire Analysis (2020, April 19) FAQ: What are the UP Police FIRs Against The Wire Actually about? The Wire. Retrieved from https://thewire.in/media/faq-up-police-fir-siddharth-varadarajan

     

    The views expressed are the author’s own.

    Image Credit: Rhy Design and medium.com

     

  • Need to Redefine MGNREGS: Response for a post pandemic Economy

    Need to Redefine MGNREGS: Response for a post pandemic Economy

    The Union budget 2020 was heavily criticized for allocating only INR 60,000 crore on the UPA flagship program, Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGA). Discontent continues even after the relief package mentioned INR 200 per person will be paid for the next three months. With 7.6 crore workers registered under MGNREGA program – around one trillion (INR) would be required to fulfill the promise. The pandemic has disrupted almost every physical activity, thereby disrupting the physical labour economy. The unfolding crisis across the country and  the poor health infrastructure especially in rural areas poses a major challenge to combat the spread of the virus .  According to the National Health Report, India’s government hospitals average a low figure of one bed per 1844 patients.  The magnitude of the health crisis becomes apparent with the inadequacy in health infrastructure in rural India. The ongoing COVID-19 crisis is reshaping the entire global economy and is expected to be a stress test for government institutions. Even after the crisis, policy making and social programs will remain the key areas in which continuous revision must happen – to build a resilient economy in the long run. As the pandemic influenced financial crisis looms large, it is opportune to discuss public employment programs in bridging infrastructure gaps and financial losses. 

     Demand driven workfare programs intend to provide 100 days of employment for rural households. This scheme was launched with an objective to alleviate poverty and create public assets.   Recognising the vagaries of the agriculture sector to provide stable employment, the program sought to guarantee minimum income for subsistence level labourers and also internalized short term shocks in the rural economy. In principle, the ‘right to work’ element offered a legitimate progress in public-policy discourse by empowering women and marginalized communities to work. The laudable results of the employment program have more or less achieved its social objectives by increasing individual asset creation and enhancing savings rate. Almost 50 percent of the population dependent on agriculture fall back to government employment schemes in times of labour market failure. Low productivity, inadequate modern technology, high dependence on rainfall and bottlenecks to reach the market are primary sources of such failures. Execution of public employment in India is  plagued by rampant corruption and efforts to effectively implement the scheme faces hurdles and results in marginal progress. In the wake of economic slump with falling consumption in rural India and high unemployment rates, infusing cash in the hands of people is always the priority. However, marginal increase in budget allocation for public work programs has invited criticism from the economists – expecting the rural economy to struggle with slow recovery. With acute shortage of skilled labourers and an education system failing to impart quality skill education, a public employment program can be more dynamic in resolving the socio-economic and food security problems. The primary objective is to offset short term economic disturbance and smoothen consumption expenditure, but the development of the program in responding to the needs of the community is also important.  Successful implementation of an employment program must factor-in convergence with other departments, quality of assets created and skill levels imparted under the program. .The three-week lockdown due to covid-19, further extended by two weeks, has exposed the inadequacy of public health infrastructure, more so in rural areas and for informal labour groups, to address their health and the resulting financial hardship. Converging the needs of villages to enhance better response during a crisis with the employment program would result in bringing accountability and creating assets.

    India has experimented with a plethora of universal public programs such as Public Distribution System and Integrated Child Development Scheme (ICDS). In a similar vein, MGNREGS has been an important public work programme with the aim of reducing poverty and enhancing income levels. At this juncture, revising and reviewing MGNREGA scheme with the objective to reduce leakage in the system is a priority. A clear balance between the twin objective of providing employment and creating infrastructure has been missing in the literature. The gap between theoretical policy and reality has raised  concern and the need to review the current approach . The obvious gap in infrastructure requirements identified during the time of crisis must converge with public programs. Such carefully designed schemes with tangible objectives will provide economic security in the short run and improve rural infrastructure in the long run. 

    Work completion rate can be used as a proxy for productivity because individual labour productivity is hard to ascertain with heterogeneous work projects. Although the official MGNREGA website suggests an average of 90 percent of work completion, open government data shows a decline in work completion rate from 43.8 percent in 2008-09 to 28.4  percent in 2015-16. Financial support through employment should account for both quality of assets created and the process of such creation. This would internally check and balance the operation of the scheme and intuitively bring in accountability. At present, the scheme contains the above mentioned elements but has not been used to evaluate the execution of the program. Convergence between departments to create assets and the work completion rate might explain the effectiveness of a program in physical terms. 

    An efficient model should enhance the skill levels of rural youth and is more than necessary to counter the loss of jobs already happening due to coronavirus lockdown. Unskilled and semi-skilled labourers will face lay-offs as industries with the recent norm on social distancing adjust to capital intensive businesses. The percentage of rural population in the age group of 15-59 receiving vocational training has reduced from 1.6 percent in 2011 to 1.5 percent in 2015-16. Unemployment rate among rural youth (15 to 29) has increased from 5 percent in 2011 to 17.4 percent in 2017-18. Although the highest unemployment rate is observed among rural females, the employability of rural youth reduces as education increases. The paradox of educated unemployment is not complex to decode, but a significant skill gap is the fundamental problem from the labour supply side. The Expanded Public Works Program (EPWP) introduced in South Africa to address the skill gap among the youth has succeeded in reducing poverty and unemployment rates. The program has been designed to create labour intensive projects not limited to infrastructure but extends to social, cultural and economic activities. The percentage of young workers under this scheme witnessed a rise from 7.73 % in 2017-18 to 10.06 % in 2019-20 in reference to the low levels of employment. This would mean the nature of the guarantee program has shifted from giving opportunities for seasonal unemployed to educated unemployed. The change is indicative of the deeper crisis faced in the rural economy and calls for a sustainable plan to use public programs as a tool to also impart skill training for the rural youth. State’s increasing dependence on work programmes to create employment needs to be revised based on community requirements. While enhancing rural employment is the immediate concern, the process of achieving it suffers from various executive problems such as corruption among government staff and individual’s lack of willingness to work. Amidst the lockdown situation due to COVID-19, unemployment will increase sharply. A well-devised strategy to address economic losses on priority and emphasis on health infrastructure through public employment must resonate in policy-making after the impact of the coronavirus crisis subsides.