The government declares 21-day national lockdown, and the Supreme Court and all High Courts successively notify their (and that of their subordinate courts) respective shut-down. Some such as the Allahabad, Madras, Karnataka, Bombay, Delhi and Kerala High Courts had already taken leave or considerably restricted their functioning to one or two benches and "fresh matters of extremely urgent nature" even sooner.
In all fairness, the Supreme Court has subsequently taken to continue hearing, albeit for the vague categorisation of "extremely urgent matters", via alternative means such as WhatsApp, FaceTime and Skype, and the High Courts have also contemplated a similar system for "imminently urgent cases". The special filing guidelines laid down in detail as to how the stakeholders are to approach the Registrar (Judicial) by email, justifying the urgency of the grievance, and, if found convincing, the listing date and time is intimidated. In most states, there are rosters in place for daily duty in the district courts. The judicial administrative officer, being satisfied that the matter is extremely urgent and requires an immediate hearing, shall contact the duty judge for the particular day who shall in turn reach their courtroom as soon as possible. However, in practice, this arrangement is proving to be quite obscure and non-uniform, not to mention arbitrary.
What is urgent and what is not, is a matter of subjective assessment of the court registrars, whose judgment is often shrouded with hesitation and uncertainty as to whether or not to let a matter come up on the docket, lest they invite the ire of the judges. A glance at the Supreme Court's Friday cause-list (the first after the lockdown) shows PACL Director Subrata Bhattacharya's plea for interim bail to look after his wife who has had surgery and Adarsh's Raj Kumar Modi's challenge to the Punjab & Haryana HC's November, 2019 refusal of regular bail. So out of the minimal cases that are being taken up by the apex court, how is it that these assume priority? In the absence of any guidelines, the urgency of a matter seems to be inferred on the basis of privileged litigants and engagement of celebrity lawyers!
Conceding that though applications for bail and suspension of sentence are of "preeminence" in "the category of urgent matters", the Rajasthan High Court on Tuesday observed that they are not "extremely urgent" so as to be listed during the lockdown. The High Court held that in view of the formalities of conveying the order to the court below, sureties and bail bonds and the producing the release order before the jail, the "release of one accused or convict shall risk the life of many and would adversely affect the measures taken by the State for complete lockdown". But in most international jurisdictions (and as per the lockdown guidance issued by other High Courts of India too), bails, bail appeals and sentence suspensions have been specifically enumerated as matters to be accorded priority attention, with several international courts expressly providing for the release order to be communicated directly to the executing magistrate and the prison staff electronically.
The Bombay High Court had last week imposed a cost of Rs. 15,000 for a 'non-urgent' challenge of an order of the Maharashtra Food and Drugs Department (which incidentally has come to be stayed in other similar petitions). But the UK High Court has envisaged consideration of judicial reviews (for relief against public authorities) even in these critical times.
After the first COVID death in the valley, all court complexes in even the strife-torn Jammu and Kashmir have shut down! That urgent matters can be adjudicated through video conferencing from the judges' home offices is causing several eyebrows to arch in skepticism, considering the region's questionable data connectivity. Also, the fate of routine bails, existing habeas petitions and UAPA cases seems unclear.
Moreover, even on Monday and Tuesday, the Supreme Court listed only 2 matters for hearing, both of which concern migrant workers stranded amidst the sudden lockdown.
The world scenario reveals that India is apprehended to be so closed for well beyond the stated 21 days. How long in a country like ours, where both the pending cases and those filed freshly each day run into notable digits, can the court continue to address only a handful of issues per day? While such operation of the judiciary may survive the country the first few most critical days, can it be the way to go in the longer run? Especially when law and order and magisterial duties have been listed as one of the "essential services" exempted from the lockdown, and when their counterparts in other essential services- health care professionals, police- continue to function?
One wonders if these courts can, for as long as two months, afford to withdraw, even if ever so slightly, from their role as the custodians of rights? More so, in the wake of the glaring lack of planning and preparedness to provide for the loss of earnings and the undisrupted availability of essential supplies, as has been becoming apparent in the aftermath of the lockdown? Add to this the harassment by authorities (of trucks, even those carrying essentials, at state-borders, home deliveries of even essentials, of meat and fish shops, newspaper vendors etc), and police brutalities on unsuspecting commoners (under IPC section 188 and the National Disaster Management Act) on the pretext of enforcing this lockdown! While the courts are not expected to assume the role of the Executive, they must be around in times of crisis to check against any excessive infringement of rights; to adjudicate not only on any troublesome aspect of the shut-down regime but to also to dole out positive orders on essential requirements where they are not being met.
Should the courts be waiting for the affected parties to approach them through the significantly narrower window and the hitherto unexplored technological means (snowballing with several bar associations resolving to abstain from work), and expect to be convinced of the 'extreme urgency' of the plea to grant a hearing? Or should the higher judicial system be more proactive in these trying times?
It may be pertinent to note that internationally too, while the wheels of justice are now turning slower, even in countries battling a graver COVID outbreak, courts continue to be serviceable.
"Given that the alert levels may remain in place for a significant period, and the country may move between levels, it is also important that the Court continues to carry on as much of its civil and criminal business as is safely possible under the circumstances", is the commendable stand of the New Zealand High Court amidst the country heading into COVID-19 Stage 4.
The UK Lord Chief Justice has consolidated all court business in the Royal Courts of Justice (which houses the High Court and the Court of Appeal of England and Wales) and a few other Courthouses where Magistrates', Family Care, County and Crown courts sit. An illustrative list of matters of possible urgency in criminal, civil as well as family proceedings has been detailed. Only urgent matters will be addressed by way of a court hearing, which will also generally be undertaken remotely (that is, via email, telephone, video etc). But 'where the requirements of fairness and justice require a physical hearing, and it is safe to conduct one, then a court based hearing should take place. The judge may limit the number of persons in court', it is authorised. And even though all other matters are to be determined without a hearing or adjourned by default, the parties have the option of requesting a hearing which would be subject to the judge's discretion.
Furthermore, while the Supreme Court's physical premises are closed, all routine hearings and pronouncement of judgments are continuing via video conferencing. In fact, the first issue considered by the court in this manner was whether the UK or South Africa is entitled to levy tax on the income of a qualified diver who, being a resident of South Africa, undertook diving engagements in the UK continental shelf.
In South Africa too, a day after the national lockdown was announced, CJ Mogoeng urged that "the courts have to stay open", delegating his authority of management of judicial functions to the Superior Courts and Lower Courts/Magistrates to "enable access to courts" in urgent matters, bail applications and appeals, maintenance and domestic violence related matters, children issues. Accordingly, the High Courts remain functional for such emergency matters, including those relating to COVID, and those "arising from or out of activities related to disaster management". "The High Court building will not be accessible during the lockdown period except for the duty Judge, the Chief Registrar, Court Manager, relevant court staff, practitioners and parties for matters identified above", reads one High Court directive. 'Judges not scheduled for any hearing or allocated any urgent matter may work from home provided they remain immediately reachable by telephone and are able to make themselves available at court within 30 minutes of being telephoned', says another.
So first and foremost, it is necessary that the uncertainty clouding the nomenclature 'urgent matters' be resolved by meting out an inclusive list. Urgent matters are typically those which involve an apprehension of immediate threat to life and liberty, health, safety and wellbeing, or property, or where the resolution is time-critical.
Accordingly, matters of urgency in criminal jurisdiction would clearly be first remand (in fresh arrests), police custody remand, urgent bail and anticipatory bail, parole/interim bail/furlough, bail appeals, sentence suspensions, application under section 436A, Cr. P. C. (where delay results in time on remand exceeding any possible period of custody under the sentence), other proceedings under the Cr. P. C. (including warrants for search and seizure, particularly section 97; supply of police report and other documents to accused under section 207; cancellation of arrest warrant under section 70(2); quashing of FIR); criminal appeals, revisions and writ petitions where extreme urgent orders, stay orders and interim directions are needed.
Matters related to public health and safety and COVID, such as quarantine, refusal of treatment; urgent writ petitions/appeals for interim directions; applications for stay/temporary injunction, urgent landlord-tenant matters may demand attention in civil proceedings.
Self-isolation has further gloomed the situation of women and children, making them more vulnerable than ever. Accordingly, Protection Orders under the Domestic Violence Rules and their breaches, matters of interim custody and injunctions against access/visitation rights definitely qualify as urgent.
Down the same lane are Foster Care and Sponsorship orders, orders for 'restoration of child to parents or family' or 'placement in Children's Home or adoption facility' or 'placement with fit person for long term or temporary care' and Protective Custody orders (being emergency protection orders under the Juvenile Justice Act), besides issues of guardianship and maintenance.
Further, it would be greatly beneficial if the courts in India could adopt the Essential Services Model, on the lines of the judiciaries of New Zealand and several provinces of Canada- to not limit the ambit of their operations to only urgent matters but also continue hearing other essential matters.
The Canadian province of Alberta declared a public health emergency on March 17, and its Court of Appeal (the highest court in the province) nonetheless continues to hear appeals, application and motions generally, even in three-judge panels. The only modification is that now the hearings proceed electronically and, in some cases, even on paper without any oral arguments, though in-person hearings would still be allowed if circumstances so warrant. In fact, the court has urged that where an appeal (whether fast-track or standard) has been set for hearing, it must proceed as per the deadlines. In New Zealand too, the High Court continues to take up all currently scheduled work which is of priority, besides the urgent matters. Taking cue from these instances, the Indian High Courts may also resume hearings in atleast the much-delayed criminal revisions and appeals, routine bail applications, MACT matters and certain pension matters.
Even in the Supreme Court of New Zealand (which is the court of final resort), the hearings that are scheduled to be conducted over the next three months are expected to proceed through audio-video links or telephone, with the clarification that special arrangements may be made for any urgent hearings. So as an addendum to the "extremely urgent matters" that it is convening to hear at present, the Supreme Court of India may also consider taking up the long-pending criminal and civil appeals, and certain compensation matters.
In the subordinate courts in New Zealand, District court judges continue to sit (though remotely from home, unless rostered to be in court in person) for priority proceedings during normal hours on weekdays and until the conclusion of business on Saturdays, even during Alert Level 4 period. Only Community Magistrates and the Justices of Peace (who hear less serious or minor cases) have been stood down. Besides, 'priority matters' have been construed widely so as to encompass those 'facilitating and promoting the public' and those of 'significant national or community importance'. Similarly, in Alberta too, the trial courts are listening to certain 'essential' matters over an above the quintessential 'urgent' matters- essential proceedings including time-sensitive commercial matters where there are significant financial consequences and criminal cases where there is risk to fair and proper adjudication due to passage of time.
So the judicial officers in India too, as is also directed by certain High Courts like Kerala, Telangana and Andhra Pradesh, may work out of their home offices to cover pending essential work- bails and injunctions (at present, some courts have adjourned these matters for after the lockdown, choosing to hear only 'fresh cases of extreme emergency'); receiving of FIRs; accepting of solvencies; recording of dying declarations; recording of evidence, statements under Cr. P. C. section 164; applications for cancellation of bail bonds, variation of conditions of bail; urgent probate matters; urgent caveat matters; Rent Control matters.
Agreed that this is not an easy task and indubitably, this transformation into the age of 'remote' litigation with multiple parties would come with its fair share of challenges. The courts dealing with mostly priority work, the mounting of arrears is also unavoidable. But this prudence of the judiciary, with cooperation from the bar and members of public, will ensure that the dispensation of justice continues in these unprecedented times.
Views are personal only
Mehal Jain is an Associate Editor, LiveLaw