research article

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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.

Way Forward

"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".

Conclusion

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.