Menu Close

Post COVID-19 Judicial Mechanism |An Analysis!

INTRODUCTION 

WHO has formally declared Covid-19 a pandemic. The WHO has created this declaration based on the Alarming rate at which the disease has been spreading across multiple countries / multiple continents and according to its Assessment there has been an Alarming level of Inaction by the government’s containing the spread of the disease. So, based on these factors the WHO has designated covid-19 as a pandemic. 

The word PANDEMIC is a Greek origin Pan means all, demic means multiple countries/ multiple continents. The disease is spreading at a really quick rate and outbreaks have occurred across multiple countries.

It is only infectious diseases that can be declared as an epidemic or pandemic this standing is not given to non-communicable diseases.

For instance, we have non-contagious diseases such as cancer, heart conditions, etc., even those diseases are present across multiple countries they are not declared as epidemic or pandemic because they are not contagious or infectious. So, it is only an infectious disease that can be declared as an epidemic or pandemic based on the extent of spread.

 Earlier covid-19 has been declared as an international public health emergency by the WHO. But now, it has become a necessity for the WHO to declare covid-19 as a pandemic due to the uniqueness of this disease.

CHANGES DUE TO DECLARATION 

Not many changes because of the pandemic declaration. If there is not much change what is the purpose of declaring a pandemic- it has declared a pandemic it indicates that it has reached a new level especially concerning its spread. It says that the disease has spread to multiple countries. 

THE OPERATION OF THE COURTS

Like several other institutions, the Indian courts too are currently functioning in a limited way and only hearing urgent cases via video conferencing because of the number of cases that have gone pending.

 Now the courts are hearing what they identify as urgent cases and this is obviously due to the ongoing pandemic.

HOW THE PROCEEDINGS WORKS 

Before the nationwide lockdown has Announced itself, many states and their local guidelines for shutting down offices and curfews were imposed in parts of the country.

High courts and district courts were severely restricted their functioning from the early march and the Supreme Court itself from 25th of march declared that it will only take what are the urgent cases. So, there is a list what are these urgent cases but usually cases that deal with issues like life and liberty. 

For instance, someone is getting evicted tomorrow and they need to come to court these sorts of cases where you need immediate relief. 

See also  The legality of Live-in Relationships |Explained!

Normally court categorizes urgent hearings. This is what the court does during the pandemic, but the problem really was on some days there were so many urgent cases so Supreme Court on unusual days not had a hearing despite being a working day. This is the essence of the first history of the supreme court itself.

Supreme Court does have a mechanism for via-video conferencing. The Supreme Court has developed its stage to hear the E-courts but the pandemic forced to scale it so, the courts were prepared only to hear urgent cases like 10 out of 15li through video but when they realized it has not sustainable, they have to recover the scale up the Supreme Court committee did or formulated guidelines and they have now started to hear more cases but it is still not the scale that we used to.

PROBLEMS DUE TO VIRTUAL HEARING

Access to Technology was an issue:

Ther are mainly lawyers who are not prepared for this and did not have the infrastructure to entirely do it on time which is from filing a case to approaching via video conferencing number of High courts scrabble because they were not aware of the software for videoconferencing. So hearing was happening on anything from Zoom to WhatsApp video sometimes Judges would pick up the landline call with lawyers. 

Now it somehow mobilized more or less High courts have come up with their international policies but the problem is really if we look at District Court there is still an issue of Access to these technologies.

Most of the District courts don’t have these video conferencing like one computer one screen. These usually facilitate under trial prisoners because you don’t want to bring prisoners from Jail just for a hearing but for regular hearings, District Court are still not prepared for this sort of not having the physical court Hall.

So, Jammu and Kashmir again a unique situation because apart from the pandemic itself the restrictions on internet speed have impeded the High Court or even District Court from dealing with this.

What kind of cases and How many cases are pending?

In terms of pendency, it not just the number District Court are having about 3.92 lakh cases are pending and in the High court, 40 lakhs cases are pending so all of these cases do get a regular listing. They are hearing the fresh cases that are filed.

For instance – Supreme Court most of the cases at least in the first few weeks since the video conferencing mode was on. They were having public interest litigation to the management of a covid crisis.

See also  Law of Self-Defence In War: The Caroline Case

Procedure during this pandemic

When the court is hearing only urgent cases, and it is a court that defines what are the urgent cases. The procedure works something like this if you were a lawyer who wants to file a case you have to send a one-page document explaining the urgency. So, this is first looked at by a court official and moves to the registrar and he thinks whether urgent or not and he file before the Judge when it is listed.

So, there is a double-filter it operates. Because we don’t have a definite list of what urgent it has become a subjective process. You have Registrar saying for instance the case of a 19-year-old girl who was in jail for 3 months she has been arrested in February on a sedition case. A District Court Judge essentially qualified her Bail Application as not urgent.

The process we go for a session court if session Court rejects then you can file an Appeal before the High Court but if the cases don’t get listed for the Session’s Court that’s become a problem. So, you have to first get your case listed.

Enforcement 

Whether there is a crisis or not every person has the right to move to the High Court and Supreme Court for the enforcement of fundamental rights which is for supreme court it is under Art -32 and High Court it is under Art-226 of Constitution of India and the courts have a duty to ensure Enforcement of Fundamental Rights to all citizens.

 So many of the cases especially public health emergencies it would be Government Mismanagement or in a sense checking Arbitrariness and violation of fundamental rights. So, for the enforcement of fundamentals, we look towards the court.

Ensuring safety in Courts

Even before the Covid-19, there were series of suggestions on how we can reform the Judiciary. One suggestion was that the vacancies that we have in various High Court and Supreme Court these vacancies should be filled.

The second suggestion was right now we have 10.5 Judges per million population. The number of Judges should increase. We should have 50 Judges for a million population.

 There was another recommendation, reform we should use more and more technology in our judiciary so we should go more and more for electronic filing of the cases.

If we look at Judiciary Supreme Court, for instance, we can say that Supreme Court Judges are also working from home only important cases are taken up and these cases are taken up simultaneously.

See also  CITIZENSHIP |DEFINITION, TYPES AND INDIAN CONSTITUTION

Bar Council OF India had written a letter to Chief Justice and they have opposed the virtual hearings once the lockdown is lifted, we should not continue with virtual hearings because 90% of the Advocates According to the Bar Council Of India Advocates were not Aware of Technology.

Once lockdown is lifted there is indeed less pressure on the courts but once the lockdown is lifted there will be more pressure on the courts and more cases will be filed in the courts.

 How does the judiciary respond?

One suggestion is that more and more e- filing of cases, there should be various guidelines and they should be implemented.

 For example, not everyone should be allowed to enter the court premises only cases only those lawyers whose cases have been listed in the courts only those lawyers should be allowed entry not everyone.

  • Even if there are 100 lawyers for instance whose cases are listed in the court all of them together should not enter the court premises. They should be allowed entry in batches so that social distancing, physical-distancing is maintained. thermal image cameras should be installed at the entrance of the court building so that we can identify who are the risk persons. So that we can check their temperature and those who are running a fever should not be allowed entry.
  •  Those who are installed Arogya Setu App only can be allowed entry. So that we can check whether these lawyers were in the vicinity of covid -19 or not only such includes who are free from such interactions with covid-19 patients should be allowed entry to the court.
  • They should sanitize
  • Canteens at court
  • Wear a mask
  • Junior lawyers who have been severely impacted because of this lockdown their incomes have taken ahead they should be provided financial assistance in the form of loans from nationalized banks by the central Government.

CONCLUSION

As a matter of truth, this system of justice is completely out of place and out of time and tune with democratic procedures and norms that please solely a particular section of the society with unconditional interests. 

The judiciary encompasses a golden chance to imagine a justice delivery system that might perform unhampered the least bit levels throughout any emergency.

The online court is one in variety of connected justice modernization wants. It should price many billion and appearance a vast total to commit at a time of self-denial, however, if it succeeds it will save many additional billions.

Author/Editor

Leave a Reply