THE INDIAN JUDICIARY DURING COVID-19

ABSTRACT:

Covid-19 has brought practically the entire world to a halt, and India’s court system, which is notorious for its slowness even in the best of times, is no exception. Official data shows that while the number of new cases filed in both the higher and lower courts has decreased since the state-wide lockdown began on March 25, the disposal rate has been substantially impacted due to the forced closure of courts. During this pandemic, the judiciary has been under tremendous pressure to innovate in order to balance public health concerns with access to justice. The pandemic has forced courts to close unless there is an “urgent matter.” Final arguments in criminal appeals or the delivery of a reserved judgement in such appeals would scarcely be considered “emergency.” What does this entail for someone who is incarcerated? He or she can stay in jail indefinitely because the matter isn’t “urgent”? Workers receiving meals is sufficient to satisfy the judicial conscience, necessitating no further assessment of salary or other entitlement issues. How many of them actually get food or shelter, or who are the millions marching on foot, on bicycles, or in rickshaw-carts, is not a matter that the judiciary thinks fit to consider at all, and judges seem to believe that these matters should be left to the executive because they know best how to put the law into effect.

Many people in India have been affected by the COVID-19 pandemic, both in terms of health and money. It has had a significant impact on the legal system. It has caused us to adopt a new perspective and do something that was before forbidden. Just two months ago, going to court and taking a photograph, or even more heretical, conducting an audit or video recording, would get you tossed out and likely land you in jail.

In many countries, the issue of recording and filming has sparked heated debate and discussion. In the United States, it appears that photography was authorised in courts until around 1925. Following that, limits were imposed. Committees were formed, and rules were drafted to prevent or restrict photography. However, exceptions were allowed in select circumstances, such as the televised trial of O J Simpson.

Returning to India, the case of Swapnil Tripathi is crucial. Tripathi, a National Law University of Jodhpur student, was doing an internship in Delhi. He wanted to accompany his senior to the Supreme Court because he had worked on a specific case. Interns were not allowed in the Court on Mondays and Thursdays due to the enormous number of cases that were being heard and the fact that the Court was entirely full. Tripathi was enraged that he was not allowed to see the courthouse and, with his senior’s permission, filed a writ petition, requesting that at the very least, live streaming be permitted. The matter was discussed in conjunction with others involving comparable difficulties.

The Supreme Court stated in its decision that it is “open to exploring the potential of live broadcasting.” The filming would be done on Court cameras, the copyright would be owned by the Court, and live streaming could only be heard in a separate Court chamber, the press room, and the offices of the Attorney General and Solicitor General.

All orders must be pronounced in open court, according to Article 145(4) of the Constitution. Hearings do not have to take place in open court, according to the Constitution. Hearings should, however, be open to the public, according to Section 153B of the Civil Procedure Code and Section 327 of the Criminal Procedure Code. So, though the Supreme Court has accepted the concept of filming in order to make the proceedings more accessible, it was a cautious step at first. The Court stated in the judgement that it was “open to exploring the potential of live streaming.” It didn’t say anything about live streaming or even recording on a regular basis.

Then came the epidemic. On March 16, Chief Justice Sharad Bobde made the brave decision that justice would not be delayed any longer and that virtual courts would be established. The Bombay High Court moved quickly to hear a case via video conferencing. Following that, the Supreme Court and other courts handled a number of cases. Now it appears that the technology and apps used are different from what was utilised on the first day, and that there have been some difficulties. It also appears that, while anybody who logged in could hear the first few cases, access is now restricted, and only the parties involved are invited into the virtual hearings.

As a result, having virtual courts is no longer a question. The questions today are: under what conditions should a virtual hearing be held, in what types of cases should these be held, and in what other ways can technology be used effectively?

The court’s dignity must be preserved, and the ultimate litmus test for such actions should be whether the cause of justice is served. Virtual courts cannot be used in place of real-life courts. They can, however, complement or fill the void in some cases. We must acknowledge that technology has paved the road, and we must make the most of it.

According to Article 130 of the Indian Constitution, the Chief Justice of the Supreme Court may, with the approval of the President of India, cause Supreme Court benches to be established at various locations. In all these years, however, there have been no Supreme Court benches outside of Delhi. Perhaps now is the moment to put this clause into action. A plaintiff who is not from Delhi and does not willing to go, particularly in these times, should have the option of being heard through video.

An additional court fee may be charged, the lawyer will appear from a court room, a chamber of commerce, or a designated centre, an officer of the court will be present in the courtroom, the opposing lawyer could be in Delhi, appearing before the Judge, or arguing from a designated room in any court or centre, and a definite date may be set.

• Our judicial system has served as the nation’s moral conscience, speaking truth to power, safeguarding citizens’ rights, settling inter-state conflicts, bringing justice to the wealthy and the poor, and, on multiple instances, protecting democracy itself.
• Despite its accomplishments, the distance between the ideal and reality has grown over time.
• Justice is slow to arrive, judges are controversially appointed, disciplinary measures rarely operate, hierarchy is valued above talent, women are significantly under-represented, and constitutional issues sometimes stagnate at the Supreme Court for years.
• The courts, as Justice Chelameswar stated in his dissent in the NJAC decision, must reform in order to preserve.

Inherent Issues with the Indian Judiciary: The Preamble of the Indian Constitution guarantees “justice”—economic, political, and social—to its citizens. However, obtaining meaningful justice for the vast majority of residents has remained a faraway goal even after 70 years of independence. In the domain of justice delivery, India is dealing with a number of issues, including significant backlogs and pending cases.

Despite the judiciary’s independence from the executive and legislative branches, the Indian judicial system has a number of issues. The following are the system’s primary problems:

• Cases that are still pending.
• Corruption.
• Transparency is lacking (particularly in the appointment of judges).
• During the accused’s trial.
• There is a lack of communication and contact between people and courts.

Coronavirus has had the following effects on the Indian Judiciary:

1. A decrease in the number of cases:
2. Cases pending before constitution benches have been pushed to the back burner, with only a few benches ruling over select items on a daily basis.
3. A total of 82,725 cases were filed in India’s courts in April, with 35,169 cases being resolved.
4. In 2019, the average number of cases filed per month was about 14 lakh (total number of cases 1.70 crores), with the average number of cases disposed of per month being around 13.25 lakh.
5. In total, there are approximately 3.23 crore cases pending in the country’s 19,683 subordinate courts, with 90 lakh civil cases and 2.32 crore criminal cases.
6. The situation is no better in the upper courts. There are around 48.16 lakh civil and criminal cases pending at this time.
7. Social Distancing’s New Normal:
8. The quality of adjudication in a courtroom is of little use to potential litigants if they are unable to access it.
9. All courts, including the Supreme Court, the high courts, and the district courts, have been operating under stringent conditions.
10. The majority of courts have already agreed to keep the restricted operation in place until at least May 17th.
11. Judicial appointments stalled:
12. Judicial appointments have come to a halt as a result of Covid-19 and the ensuing lockdown.
13. Even before Covid-19, more than a third of high court jobs were unfilled: out of 1,079 sanctioned jobs, 201 permanent ones and 184 extra judge seats were unfilled.
14. However, the appointment of over 120 high court justices is currently pending in the Supreme Court Collegium, and the various high court collegiums have made 50-odd new recommendations.
15. Quasi-judicial entities have ceased to function:
16. What’s more odd is how over a dozen tribunals’ sessions came to a standstill during the lockdown, despite the fact that these legal bodies are equipped with video conferencing gear.
17. The National Green Tribunal’s central zonal bench had been considering cases through video conference for over two years before being shut down due to the lockdown.
18. The public will bear a significant cost as a result of the impasse, as the NGT has halted development on several critical government-funded projects.
19. With the processes on hold, cost increases for these projects will eventually be passed on to the general public.

Change is required: 

The pandemic has forced us to innovate or embrace fresh adjustments in many parts of our lives. This move affects the judiciary as well. The moment has come for online court to be adopted and popularised. However, even before the epidemic, there have been various attempts to use technology into the courtroom. The time has arrived to put these technical frameworks into practise on a larger scale.

In practise, there are some alternatives to traditional courts:

• The judge is physically present in the courtroom, but neither the lawyer nor the litigant is.
• This is the current configuration, except that owing to the lockdown, the courtroom is now the judge’s residence.
• Virtual courts (VC), in which there is no judge, lawyer, or litigant, and a computer makes a decision based on the litigant’s inputs.

Technology is the only way out:

• While quarantine, self-isolation, and social distancing are being taken to avoid getting the fatal virus, using technology is one strategy to keep most litigants connected.
• Online courts and even telephone hearings for non-substantive problems are available in some jurisdictions around the world.
• Studies undertaken by Indian legal analysts have already recognised the relevance of allowing technology to be used in the judicial process.
• DAKSH’s white paper series on a next-generational justice platform, for example, explores the possibility of recalibrating the Indian legal system using a natively digital platform.

In fact, the current justice system is completely out of date and out of step with democratic procedures and norms that benefit just a small segment of society with vested interests. As a result, there is an urgent need to rebuild the entire judicial system in order to make it more responsive to the needs of a democratic, progressive community. The judiciary has a unique chance to envision a justice delivery system that can operate without interruption at all levels in the event of an emergency.

As judges, advocates, and litigants struggle to obtain justice under the law while balancing public safety, the epidemic of Covid-19 is disrupting litigation in many ways and has crippled courts around the country. The rapid spread of this virus has forced the country’s courts and tribunals to close in order to avoid human contact and prevent the transmission of new coronavirus. The central government and the judiciary, on the other hand, have taken a number of efforts to help those who are confronting this unprecedented problem.

Despite the fact that the courts are closed, the Hon’ble Supreme Court of India has decided to take up urgent matters using virtual technology so that counsel and plaintiffs do not have to attend in person in the court. The Honourable Supreme Court of India has further instructed that virtual proceedings and e-filing be promoted by the separate Bars.

Even the Courts suo-moto, in recognition of the difficulties faced by lawyers in physically appearing before the Court for the filing of respective Appeals, Petitions, and other documents, have extended the period of limitation until further order, in the hopes of combating coronavirus and putting estoppel on its expanding territorial jurisdiction.