Access to Justice in Times of COVID-19 Crisis
By: Harsh Rai* & Samridhi Seth^ |
The world has faced many health emergencies caused by dangerous diseases. This virus crisis is also not new. The Director of the World Health Organization (WHO) on 30th January this year determined that COVID-19 constitutes a ‘public health emergency’ of international concern (PHEIC) and issued immediate guidelines for quarantine of individuals.[i]
Quarantine has been considered the oldest mechanism to reduce the rapid spread of bacterial infections and viral onslaughts. It has been legally sanctioned by a majority of jurisdictions in the world for the maintenance of public health and to control the transmission of diseases. In India, the reason assigned by the Bombay High Court (1990)[ii] to uphold the quarantine of an HIV infected individual was that even if there was a conflict between the right of an individual and public interest, the former must yield to the latter. Likewise, the dreadful consequences of the coronavirus, and the possibility of its spreading at an alarming rate, made the forcible isolation, travel and transport bans, rational and reasonable.
In India, the Epidemic Diseases Act, 1897,[iii] a law of colonial vintage, empowers the State to take special measures, including inspection of passengers, segregation of people and other special steps for the better prevention of the spread of dangerous diseases. It was amended in 1956 to impose some restrictions on the Central Government and increased the scope of powers of the state governments- leading the Central government to take a different course of action to deal with the COVID-19 crisis.
State action was initiated on 24th March, when the central government invoked the National Disaster Management Act.[iv] The invocation of this law is questionable, as it was enacted in the wake of a natural disaster, and was originally not intended to deal with public health emergencies or pandemics. This is evident from its provisions, which state that specific areas of the country may be declared as disaster-hit, for the Act to apply. Nonetheless, that is the statute that the government has chosen to use to declare COVID-19 to be a “disaster”. This centralized the sphere of operations, giving federal government overriding powers of enforcement, despite the fact that under the Indian Constitution, public health is a topic normally dealt with at the level of state governments.
The “nationwide lockdown” was imposed through these binding executive directions, issued under Section 10 of the NDMA. The first set of Guidelines that were issued, provided for the closure of establishments, restrictions upon transport, bans on gatherings, and essentials of social distancing. After 24th March, these Guidelines were amended repeatedly. Certain exceptions were carved out (for example, for tea plantation workers), catalogues of “essential services” were created and modified, and so on. Only after the creation of zones in accordance with the intensity of the spread of disease in each state, were the state governments given some control over the situation.
Challenges faced by the Judiciary
The coronavirus pandemic has especially posed arduous challenges for those who work in the judicial system. With the Courts closed due to lockdown orders, Supreme Court recognizing the predicament of the judiciary reaching a standstill situation, held in the case of Swapnil Tripathi vs. Supreme Court of India (2018) 10 SCC 639[v], that the entire judiciary – starting with the Supreme Court itself – should move towards live-streaming of proceedings.
Encouraging all the High Courts to adopt the Video Conferencing (VC) technology under Article 142, Supreme Court in a suo motu case titled "In Re Guidelines for Court Functioning through Video Conferencing during COVID-19 pandemic" on 6th April 2020 issued guidelines for hearing of cases through VC.[vi] Some of the pertinent ones are as follows:
All Courts are authorised to adopt measures which enable the use of VC technologies and secure their functioning in adherence to social distancing guidelines.
All High Courts have the discretion to determine modalities for VC as per their state's public health situation.
A helpline to address grievances in between and after proceedings will be maintained.
The District Courts in each State shall adopt the mode of VC as prescribed by the concerned High Court.
Those without means to access VC facilities shall be provided with the same by the Centre. Where necessary, an Amicus Curiae may help with the same.
VC can be used for evidence taking, provided that the parties mutually consent to the same.
Powers and Responsibilities of the Judiciary
The Indian judiciary is the most essential organ of the government from a citizen’s perspective. It has been bestowed with the instrumental power of giving people the opportunity of grievance redressal. Establishment of virtual courts is one of the illustrations of the judiciary passing laws and directions,[vii] through which the extent of powers of the judiciary can be realized. As we know, with great powers, come greater responsibilities; these include:-
1. Protection of Rights
Judiciary plays a vital role in ensuring the protection of the rights of fellow citizens and non- citizens in accordance with our Constitution. If there is any violation of the constitutional rights, the judiciary protects them by safeguarding their interest and awarding compensation in the form of monetary and time serving sentences.
A number of petitions have been filed before the Supreme Court with respect to violations of rights of migrant labourers who are unable to travel back to their homes because of the travel ban. In the Supreme Court hearing that took place, however, the Court’s response has been uncertain: it expressed satisfaction with the central government’s steps, and then appeared to blame the prevalent migrant distress on ‘fake news’. Hence, this duty has conceivably not been fulfilled to its full extent.[viii]
2. Providing Justice to the People
The prime objective of the judicial system is to provide justice to people- by protecting people’s rights and providing punishment to the punitive who acts against the state or any individual.
Due to the nationwide lockdown, many women are locked down in unavoidable situations- as a result of which, an unprecedented increase in complaints of domestic violence has been reported by the National Commission for Women.[ix] The Judiciary does not have the power to act upon these cases in the current status quo, and hence they continue to suffer.
3. Power of Judicial Review
The Judiciary has the authority to question the actions of the executive and legislature. It may also order the executive to perform some duties concerning public welfare. When the govt. recently asked private labs to make testing free for COVID-19, the executive did not agree. Following that, the Judiciary amended its decision and made it free only for the Economically Weaker Sections of the population.[x]
This follows a recent pattern where the Supreme Court is inclined towards being highly deferential towards the State- taking its claims at face value, rather than subjecting them to judicial scrutiny; not exercising their powers when necessary and hence neglecting their prime responsibility.
Limitations of the Judiciary
First and foremost, access to the internet itself is a major barrier in the successful implementation of virtual hearings. According to Internet and Mobile Association of India’s 2019 report, India had 451 million active internet users- approximately 43% of India’s total population.[xi] In some instances, judges and lawyers themselves have admitted that they are unaware of the usage of technology for conducting these virtual proceedings.
Justice AP Shah expressed his discontent with the functioning of the Courts as well,[xii] and pointed out that only a few judges are working from home.
Even though the Supreme Court has issued guidelines for the functioning of courts through video conferencing during the COVID-19 pandemic, what constitutes an “extremely urgent” matter has been left open to interpretation.[xiii]
The Supreme Court on 11th May 2020 did not allow for the restoration of internet services in Kashmir– nor did it engage with the arguments of the parties in its order.[xiv] According to the petitioners, the restriction on 4G internet in the times of COVID-19 restricts the right to business, information, education, health (makes it impossible for patients to have video consultations and prevents the doctors there from gaining access to the latest studies and treatments of COVID-19), and speech and expression of the people of J&K. On the other hand, the urgent hearing given to Republic TV Editor-in-Chief Arnab Goswami by the Supreme Court on 25th April created a controversy with a lawyer alleging that his petition was given a preferential listing by the court’s Registry as it was filed on the previous day itself.[xv] Hence, it is rather amusing- the rationale behind the prioritization of the cases. This also highlights the lack of accountability of our judicial system.
It also becomes clear that the pendency of the cases has increased as only a few of the cases are having virtual proceedings hearings in other matters have been inevitably deferred, if not permanently terminated. Moreover, disappointingly – a few of the High Courts have also decided that bail cases shall not be heard during the lockdown period. This effectively amounts to a suspension of the right to personal liberty, which cannot even be done by the State during an Emergency.
It must be clearly recognized that across all countries, the efforts to slow the spread of the COVID-19 pandemic have immensely depreciated the functioning of the justice system. However, the solution offered by the Apex Court of India can ease the state of affairs if used efficaciously. An adoption of VC technology for Courts can result in cost reduction and lesser infrastructural requirements in the short term and increased productivity and reduced pendency in the long term. This can only be made possible with the solemnization of all the three branches of the government in order to make virtual hearings a successful endeavour.
The challenges of setting up virtual courts can be owed to the lack of comprehensive guidelines on the use of VC technology (responsibility of the National Informatics Centre), the lack of awareness of lawyers and judges regarding the E-filing system, and the absence of a proper procedure and infrastructure for E-Courts. Furthermore, there is a need for the allocation of sufficient funds to strengthen technical support for the judiciary.
In times when technology is rapidly penetrating our daily lives, it is pertinent that judiciary also adapts to these changes at the earliest- and that can only be done by overcoming the aforementioned limitations. This will not only help us in dealing with the COVID-19 crisis, but also benefit the judicial system in the longer run. After all, it is only when the fishermen cannot go to the sea- they repair nets, and those nets facilitate their fishing forever.
* The author is a student at Hidayatullah National Law University, Raipur.
^ The author is a student at Army Institute of Law, Mohali.
[i] World Health Organization, Novel Coronavirus (2019-nCoV), Situation Report – 11 (Jan. 31, 2020, 10:00 AM), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200131-sitrep-11-ncov.pdf?sfvrsn=de7c0f7_4. [ii] Lucy R.D’Souza etc. v. State of Goa and Ors. A.I.R. 1990 Bombay 355 (India). [iii] The Epidemic Diseases Act, 1897, No. 3, Acts of Parliament, 1897 (India). [iv] The Disaster Management Act, 2005, No. 53, Acts of Parliament, 2005 (India). [v] Swapnil Tripathi v. Supreme Court of India, (2018) 10 S.C.C. 639 (India). [vi] Prachi Bhardwaj, COVID-19| Supreme Court issues guidelines on functioning of courts through video conferencing, The SCC Online Blog, (Apr. 6, 2020), https://www.scconline.com/blog/post/2020/04/06/COVID-19-supreme-court-issues-guidelines-on-functioning-of-courts-through-video-conferencing/. [vii] Anvita Chaturvedi, Parliament and the Judiciary, PRS, (Nov. 29, 2016) https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/Parliament%20and%20Judiciary.pdf. [viii] Harsh Mander, For India’s migrant workers, the prospect of life with dignity has become more remote, Scroll.in, (May 05, 2020, 06:30 AM), https://scroll.in/article/961030/harsh-mander-for-indias-migrant-workers-the-prospect-of-life-with-dignity-has-become-more-remote. [ix] Rukmani S, Locked down with abusers: India sees surge in domestic violence, ALJAZEERA, (Apr. 18, 2020), https://www.aljazeera.com/news/2020/04/locked-abusers-india-domestic-violence-surge-200415092014621.html. [x] Krishnadas Rajagopal, Coronavirus | Supreme Court urged to modify order on free COVID-19 testing by private labs, THE HINDU (Apr. 12, 2020, 01:19 IST) https://www.thehindu.com/news/national/coronavirus-supreme-court-urged-to-modify-order-on-free-COVID-19-testing-by-private-labs/article31316430.ece. [xi] India Internet 2019, Internet And Mobile Association Of India, Nielsen Holdings plc, (2019), https://cms.iamai.in/Content/ResearchPapers/d3654bcc-002f-4fc7-ab39-e1fbeb00005d.pdf. [xii] Karan Thapar, Watch | 'Supreme Court Has Let Down Migrant Workers, Vulnerable,' Says Justice A.P. Shah, THE WIRE, (May 05, 2020), https://thewire.in/law/watch-karan-thapar-interview-justice-ap-shah. [xiii] Shweta Sahu & Moazzam khan, Tapping into the "extremely urgent" hearings during the COVID-19 lockdown, Bar and Bench, (Apr. 19, 2020, 10:02 AM IST), https://www.barandbench.com/columns/tapping-into-the-extremely-urgent-hearings-during-the-COVID-19-lockdown. [xiv] MANU/SC/0440/2020. [xv] Sanya Talwar, Urgent Listing Of Arnab's Case: Lawyer Expresses Discontent Over SC's Registry, Alleges Discrimination & Preferential Treatment, Live Law.in, (Apr. 24, 2020, 02:46 PM), https://www.livelaw.in/top-stories/urgent-listing-of-arnabs-case-lawyer-expresses-discontent-over-scs-registry-alleges-discrimination-preferential-treatment-155712.