The outbreak of the COVID-19 pandemic imposes a challenge for many public functions beyond India’s healthcare system. The Indian judiciary has come under immense pressure to innovate during this pandemic so as to balance public health concerns with access to justice.
Perhaps with an aim to strike this balance, the Supreme Court recently issued a notification stating that only urgent matters will be heard, with the number of benches decided as per need. While the Supreme Court is concerned about its own functioning, there are no uniform instructions regarding what should constitute urgent matters at the other echelons of the Indian judiciary.
This lack of consistency is evident as the high courts are adopting different mechanisms to deal with this pandemic. This haphazard approach by various high courts and the Supreme Court to manage their cases at a time like this reveals an administrative void in the higher judiciary.
Unexplained, arbitrary positions
Similar to the Supreme Court, many high courts, are only taking up urgent matters for hearing. What encompasses as urgent matters is not clear. For example, both the Patna High Court and the Gauhati High Court have issued notifications on how to list cases in the interim. While it emphasises on hearing only ‘urgent matters’, the Gauhati High Court makes no reference to citizenship-related writ petitions. Its notification also does not mention listing of bail matters and habeas corpus petitions, which are urgent because they involve loss of liberty.
The Patna High Court emphasises that bail applications are to be given preference, but the number of such matters is arbitrarily restricted to 25 applications a day. It is not clear if this number has been arrived at after analysing the court’s total number of bail applications. Legal practitioners are well aware that urgent matters often translate to senior counsel appearances and high-profile cases. This may delay cases of the common lawyer and the common litigant, which may be urgent for other reasons.
District and family courts are worse off
We are also left to wonder what will become of the important cases in the district courts. These courts, which are dependent on instructions from the higher judiciary, are already neglected when it comes to infrastructure. A study conducted by Vidhi Legal Policy on the infrastructure facilities in Delhi’s district courts revealed that the restrooms are often without running water. While the Supreme Court can request sanitisation of the premises and will be able to procure the service, the same is not true for the district courts.
The district courts are in a greater threat during the time of this public health crisis, accentuated by their existing infrastructure problems. Litigation, as we know it today, is not conducive to the ‘work from home’ model, which is becoming a norm in the times of coronavirus. Cases require lawyers and parties to travel to the courts, and often travel between various judicial forums. Social distancing, another major way to help contain the virus, is not an option. Family courts are also sites where the virus may spread. The parties are often asked to be present in divorce proceedings for every hearing. Given the present circumstances, the system will unwittingly become complicit in creating a health risk for the staff, lawyers and the parties themselves.
A reality check
A policy that focuses on how the courts should function when faced with a pandemic is the need of the hour. The United States’ Bureau of Justice Assistance constituted a task force in 2007 to frame a roadmap on how courts can combat a pandemic. The roadmap particularly focuses on how to deal with due process and substantive legal issues during a pandemic. Such a policy would outline framework for court closures, reduce the inconsistent approaches taken by the various courts in India and allow for a uniform approach to judicial functioning. The policy will also help in elaborating on what categories of petitions qualify as urgent in various courts.
Civil cases are being given the short shrift in this chaos. Currently, various courts are adjourning most of the cases and ensuring that no adverse orders are passed in the interim. This will add to the issue of judicial delay and pendency.
The coronavirus pandemic emphasises the need for an increased use of technology in the justice system. We have spectacularly fallen behind in implementing technological processes in our courts. The Patna High court has initiated video conferencing for some of the court rooms. The Supreme Court may introduce video-conferencing and encourage e-filing, but what will happen to important cases in the lower judiciary, where district judges do not have the infrastructure like those available to the Supreme Court and high court judges?
Thus, this health crisis is a reality check for the judiciary. It is an opportunity to evaluate the justice system and whether it is equipped to handle a crisis of this nature.
This is what India needs
Access to justice is fundamental to India’s democratic framework and must not be ignored even in these dire circumstances. One way to retain access for most litigants as quarantine, self-isolation and social distancing are being implemented to avoid contracting the deadly virus, is by using technology. Some jurisdictions abroad have the facility to operate online courts and even telephone hearings for non-substantive issues.
The importance of allowing technology within the judicial process is already recognised in studies conducted by Indian legal analysts. For instance, DAKSH’s white paper series on a next-generational justice platform moots the idea of re-calibrating the Indian judicial system through a natively digital platform.
Also, filings related to a case, and non-essential hearings — which take up a substantial amount of time — can be moved online. A study conducted by DAKSH states that in some Bengaluru district courts, about 40-50 per cent of the judge’s time is consumed by non-substantive hearings. E-filing and video conferencing should be available to litigants at all levels. In matters of bail hearings and habeas corpus petitions, where individual liberty is at stake, it is imperative to allow for video conferencing or other suitable mechanisms to ensure their disposal.
While courts cannot function in the manner they do regularly in the midst of a pandemic, using technology can help to some extent. We need the judiciary to be a pro-active force that will ensure access to as many litigants as possible, even during a health crisis.
The author is a Research Consultant at DAKSH. Views are personal.
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