Welcome to Raisina House!
Court hearings & trials in the covid scenario had to face a worsening situation with the courts closed, period of limitation of filing court proceedings extended and irregularities ensuing at every nook and corner with the so called operating of the courts online. The question that arises is that should the judiciary be quarantined?
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a (SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC) and to secure to all its citizens: JUSTICE, social, economic and political;
Access to justice is one of the major objectives of the Indian Constitution and notably, in the Preamble, “Justice” is placed above "Liberty", "Equality" and "Fraternity".
Withholding justice on the ground of an ongoing pandemic is an onslaught of the
principles and philosophy of the Constitution. People look up to the judiciary as the
judiciary withinside the pursuit of justice. The Supreme Court and the High Courts are
the custodians and watchdogs of the fundamental rights as per the Constitution. But in
today's scenario, Article 14 and Article 21 stand violated. While Article 14 states “The
State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India" Article 21 states "No person shall be deprived of his life or personal liberty except according to the procedure established by law" . Article 21 also includes the right to speedy trial and the right to access justice. The right to approach the Supreme court against such violation is itself a Fundamental right which also stands violated.
In Hussainara Khatoon v. Home Secretary, State of Bihar, the Supreme Court held that a speedy trial is a fundamental right under Article 21 of the Constitution and any accused who is denied this right is entitled to appeal in Supreme Court under Article 32 for enforcement of any such right and the Supreme Court in the discharge of its
constitutional obligation has the power to give necessary directions to the State.
Simultaneously, timely dispensation of justice is a constitutional obligation of the Indian
State under the Directive Principle of State Policy articulated in Article 38 (1), Article
39, and Article 39A. The Fundamental Rights were only suspended during the Emergency
proclamations declared under Indira Gandhi's regime. The emergency of 1975 was acondemnation of civil liberties and fundamental rights. In 1978, Morarji Desai's
Government clarified in Article 359 that Article 21 and Article 20 cannot be suspended
even during an Emergency and it also mandated that the President cannot suspend the
right to move to the court for the enforcement of fundamental rights guaranteed by
Article 20 and Article 21.
In this mise en scene, the current pandemic needs to be contemplated. According to the
National Judicial Data Grid (NJDG), India has 46,45,851 cases across the High Courts and 3,39,06,305 cases in the district and subordinate courts. The Pandemic has added more to the number. When a country like India faces such a pandemic, the courts become even more important. On March 23, 2020, a three-judge bench encompassing Chief Justice S A Bobde, Justice L. Nageswara Rao and Justice Surya Kant, had exercised its power given under Article 142 read with Article 141 of the Constitution of India and extended the period of limitation for filing appeals, petitions, suits and all other proceedings in Courts and Tribunals across the country because of the serious outbreak of the novel coronavirus.
On 18th March 2020, Allahabad High Court was closed till March 21, 2020, and
subsequently, through another notification, it was closed till March 25th, 2020. On
March 26th, 2020, The Allahabad High Court, in exercise of its powers granted by
Article 226 and 227 of the Constitution, gave directions to extend all interim orders
passed by all benches of the High Court till April 26th, 2020, extending the validity of all
the bails for one month which were to expire likely to expire in one month from 26th
March 2020. Later, the Allahabad High Court took several initiatives to ease judicial proceedings through video conferencing. Uttar Pradesh became the first such state with a software-based in-house facility of virtual courts allowing the courts to conduct multiple court proceedings through virtual courts within the court premises without any internet connectivity. Allahabad High Court also allowed e-filling of urgent cases but no
recommendations have been furnished as to which instances might be taken into
consideration as ‘urgent cases’. Also, parties/advocates didn't have any means to
approach the Bench if the registry declines to list a case for urgent hearing. Though, in
the previous month the Allahabad High Court had permitted both physical and virtual
hearings amid the Covid- 19 pandemic but the Court functions irregularly. Change of
Bench every week leads to further delay of hearings. The non - appearance of the lawyers and at times non-availability of the judges add to the delay. For justice to be meaningful it must be delivered timely. Martin Luther King Jr. used the phrase - "Justice too long delayed is justice denied".
Timely disposal of cases is mandatory for the efficient functioning of the Judiciary
and timely dispensation of justice is also a constitutional obligation of the Indian
state in the light of the Directive Principles of State Policy segmented in A38(1),
A39, and A39A. Above all, access to timely justice is a fundamental right for both
citizens and non-citizens.
"Let a hundred guilty be acquitted but one innocent should not be convicted".
Why, like all other public services, the courts are not working regularly with all
precautionary measures as per the prescribed guidelines? This current pandemic
situation provides a historic opportunity for India to fundamentally change its
functioning. Video conferencing and live streaming of cases of proceedings should
be made compulsory in some cases. The cost and delays that occur can be
drastically reduced by the usage of virtual hearings. Virtual hearings will lead to more transparency in the functioning of the judiciary making the judges and the
lawyers accountable for their actions and course of decision.
Lakhs of Indians still cannot access the judiciary as legal costs are high and most of them find legal procedures complicated. Virtual courts will have no courtroom docket hall, no timing of a selected nature, however, may have a surrounding of lawyers, judges, events, and witnesses having assembly and change of files through utilizing the ability of video conference, change of files through Electronic Documents interchange, use of virtual signatures. It will also lead to an increase in the productivity of lawyers and a decrease in substantial legal costs.
Systematic change to institutionalization and digitalization of the functioning at all
levels of the judiciary is required along with well encrypted applications. The
National Information Centre under the Ministry of Electronics and Information
Technology can advance a software entirely for operations of Judicial Proceedings
and statistics banks. The number of planned holidays needs to be reduced along with
addressing the administrative void in the judiciary.
The government should ensure the infrastructure needs of all levels of courts and
ensure that the courts are not handicapped in any structural way. Regular Internet and
network are more important in having the technology to function properly and also in a
rural setup. Proper policy is required to set guidelines for the functioning of courts in a
pandemic situation. There has to be a uniform approach to the judicial functioning
framework. The long time desires encompass standardization of taxonomy i.e the right
labeling and naming of files. For justice to be delivered, the court at all levels needs to
function regularly and conduct hearings. Sharad Arvind Bobde, the Chief Justice of
India, said "there is no looking back" and the way forward will be a combination of
virtual courts and physical courts, "the new and the old".
The major question that arises is that does the Indian Judiciary stand by its
constitutional duties during the Covid - 19 Pandemic? The international world
is evolving to live in another way all through the Covid - 19 era. Judicial
Proceedings cannot continue to be a slave to vintage conducts and luxuries.
Legal issues resolve slowly due to the existing system which is too complex or
overburdened or because of the issue or party in question that lacks political
favor. What is at stake here is not judges, the judiciary, arbitrators, or the
Government but the very lives of accused & victims, their families or on a
wider scale, economic and human development, and India's commitment to
achieving Millennium Development Goals through sustainable development.
All that we need at this point of time is a practical approach and realistic
moves to ensure timely justice.