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HEALTH EMERGENCY: DAWN OF A NEW ERA FOR THE JUDICIARY

By: Padmavathy Nehru & Siddhart Behera* |





Since the beginning of March 2020, India has witnessed the dire impact of a global pandemic that has disrupted daily life and forced the Central Government to impose a nationwide lockdown in the wake of the COVID-19 disease to prevent the mass spread of the virus and protect lives. The entire country seems to be at a complete stand-still and the Indian judiciary is also bearing the brunt of this calamity. The Supreme Court of India and the various High Courts have adopted drastic measures to reduce the physical presence of legal and para-legal personnel, litigants, court staff etc., while at the same time ensuring that justice does not suffer at the hands of a health emergency. In order to fulfil the Centre’s mandate of social distancing, the Supreme Court judges on March 15th, 2020 collectively ordered for the partial shutdown of courts across the country during the lockdown period. The operation of the judiciary has not been formally suspended entirely but it has been largely limited.




Special Powers & Limitations of Courts during lockdown:


The Apex Court on April 6th, 2020 suo moto issued the “Guidelines for Court Functioning through Video Conferencing during COVID-19 Pandemic” under Article 142 of the Indian Constitution that confers certain powers, responsibilities and limitations upon the functioning of all courts during the lockdown period. The guidelines can be summarized as follows:


  • Every High Court shall have the discretion to determine and formulate its own rules for video conferencing hearings. The Delhi, Allahabad, Madras, and Andhra Pradesh High Courts were one of the first to have released their own guidelines.

  • The District Courts in each state shall be bound by the guidelines prescribed by the concerned High Courts.

  • All courts shall mandatorily maintain a helpline for grievances regarding quality or audibility of the feed during and post the hearing.

  • Courts shall make necessary arrangements for those litigants who are unable to access video conferencing facilities.

  • The evidence will not be recorded digitally unless mutual consent is given by the parties. If necessary, it has to be done in accordance with the norms of social distancing within the courtrooms which are functional.

  • The Presiding Officer shall have the power to restrict the entry of persons into the courtrooms, and if the crowd is unmanageable, then the Presiding Officer possesses the power to adjourn the hearing.

  • In case any advocate or client is not present for the digital hearing, no adverse order shall be passed owing to their absence.



Revised Functioning:


In order to supplement the above-mentioned guidelines, the Court has also passed orders to ensure the smooth functioning of the revised system. The issue of the extinction of limitation period for several cases could have become extremely cumbersome and would have further added to the multiplicity of proceedings in various courts, if not adequately addressed. However, the Supreme Court having foreseen this problem vide an order dated 23rd March 2020, extended the period of limitation under all general and special laws for proceedings pending before all the courts and tribunals in the country with effect from 15th March 2020. The courts have therefore taken a commendable step towards rendering justice even during this crisis by resorting to digital means.


The courts at present are dealing with only “urgent matters” largely pertaining to the protection of human rights by the State during the lockdown. For instance, the Supreme Court asked the government not to resort to any coercive action against private companies who have not paid their workers full wages during the lockdown since they themselves are on the brink of insolvency. They have also heard petitions on the migrant labour crisis and have resolved them promptly. In one such decision, the Supreme Court put a stay on the judgement of the Odisha High Court which barred the entry of Shramik Special Trains into the state. Further, while hearing a petition pertaining to the welfare of migrant labourers, the Apex Court expressed satisfaction upon the efforts of the Central Government and reprimanded the general public for their distrust on the government and the media houses for their propagation of false news. Subsequently, they also directed all the states to transport all the stranded workers within 15 days starting from 9th June 2020. By doing so, the judiciary has therefore maintained its stance both in support of government’s continuous efforts as well as the protection of rights of citizens.




Statistical Analysis of Efficiency:


Now, the question as to whether the benchmark of efficiency has been achieved by the judiciary during the lockdown can be understood from the number of cases that have been heard digitally by the courts. In April 2020, a total of 82,725 cases were filed in courts all over India and 35,169 cases were disposed off. This number is in stark comparison to the average number of cases filed in 2019 which was around 14 lakhs and the disposal rate was 13.25 lakhs per month. As on May 1st 2020, 116 benches of the Supreme Court have heard 835 matters during 22 days of the lockdown. These matters include interim reliefs, special leave petitions, writ petitions, etc. CJI Bobde himself expressed his concern over the fact that in January there were approximately 4,108 filings per month whereas in April the total number of filings had dropped down to 305 per month. However, since the new method adopted by the judiciary is in its nascent stage, these numbers indicate a considerably significant start.




The Downside of the Revised System:


On the flip side, the gradual shift towards digital proceedings has created several hurdles as well, since the Indian judiciary is not yet well-equipped to deal with situations such as technical glitches and lack of internet facilities. Further, there are several procedures that require physical interaction in the form of execution of documents, signing of parties and attestation of affidavits which cannot be done online within the prescribed time limit. The rates of the institution of new cases as well as disposal have both fallen drastically. Moreover, it is upon the discretion of the court to decide which matters fall under the “extremely urgent” category as there is no clear definition of the same. The major limitation of this health emergency’s impact on the judiciary lies in the fact that the hitherto overburdened judiciary will later have to face a multitude of pending cases once the lockdown is lifted. Domestic violence issues, discrimination faced by migrant labourers, violence against healthcare workers and police personnel on emergency duty and other such gross violations of human rights during the lockdown period have failed to reach the doors of the judiciary. Certain crucial matters such as petitions regarding the validity of Citizenship Amendment Act, the revocation of Article 370 in Jammu and Kashmir and the prolonged suspension of 4G internet in the area that needs to be addressed immediately have now been suspended for the time being. Further, clarity is nevertheless required regarding the implementation of the rules during and post the lockdown because if this is the plight of the Apex Court, then the condition of the lower courts in the country is unfathomable.



Has Indian Judiciary fared better? - A Global Analysis


Moving on to the global scenario, it can be seen that this pandemic has forced the courts across the world to either close down or devise alternate ways of working. In the United States of America, the courts of each state have adopted their own way of functioning while suspending non-essential matters. In the United Kingdom, functional courts have been reduced significantly. However, matters of extreme importance including custody hearings are being carried out digitally in accordance with the government’s new Coronavirus Act. Furthermore, jury trials have also been completely suspended. The European Union has postponed a number of cases and hears them only on a priority basis. In France also, the apex court is only taking up essential litigations such as criminal matters and extraditions. The judicial system of Italy, one of the worst hit nations, has suspended its activities and has sided with the national government. The situation in the Middle-Eastern countries and Australia have been better off as they have swiftly shifted to a digital justice system. Most courts in Canada are offering limited services. The courts in China were amongst the first to make full use of online systems for litigation by promoting the use of ‘mobile micro courts’ on social media platforms. In South Africa, the courts remain open but physical access has been restricted.


Drawing a parallel between the various countries, it can be seen that between February and April 2020, 28 cases were decided in the U.S.A, 18 cases each in UK and Australia, 47 in South Africa and only 8 cases in Canada. In comparison, India has decided 347 cases which are almost 14 times more than those decided by the courts of US; hence, at an international level, India far surpasses the benchmark of efficiency of judiciary amidst the pandemic.




Conclusion:


Therefore, this ongoing pandemic proves to be an opportunity for the judicial system to reassess its mode of functioning in the future since COVID-19 has emerged as the first major health emergency lockdown that has affected India but it may not be the last one. It must be realized that justice delivery cannot be put on hold, and as the poet Bertolt Brecht rightly said “As daily bread is necessary, so is daily justice”. As Justice Chandrachud aptly summarised that although we are coping with the initial hiccups, there is no doubt that we will be able to conquer these issues if the Indian courts continue under this new form of functioning in the future as well. In fact, CJI Bobde himself agreed recently that a viable and tech-friendly judicial system is the next step forward even after the nationwide lockdown is lifted since technology is the future of modern India and courts must adapt to it in order to deal with any future crisis that may arise. The Information and Technology Act, as well as the various amendments to the Indian Evidence Act, have laid down the foundation for the utilization of digital means to render effective justice. This lockdown has further provided the best opportunity for all Indian Courts to follow the new guidelines in order to reduce its own burden and to decrease the workload along with dispensation of justice in unprecedented times.


***


* The authors are the students at Gujarat National Law University, Gandhinagar.



Image Source: https://onward.justia.com/2020/03/24/coronavirus-and-the-courts-technology-public-health-and-access-to-justice/








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