The 20th century was one of idealism, where the world questioned political and economic authoritarianism and people fought and died to universalize the principle of equality, fraternity and democracy. These principles have built a fairer world and held power to account reducing arbitrariness and improving efficiency. It is surprising then, that the 21st century has unfortunately been one of cynicism and individualism, where fear, real or manufactured by propaganda, has seen people voluntarily give up, these long cherished freedoms that gave dignity to citizens, under the mistaken belief that these sacrifices would somehow make them safer. Populations have shown the willingness to let governments and leaders take decisions for them, without demanding even minimal transparency or accountability. National Security has been a boogie that has been harnessed many times to chip away on basic civil liberties, freedom of speech and principles of fair trial. It comes as no surprise then that, a people so willing to give up their freedom for an imaginary threat, would obediently follow any dictat to protect themselves from a real threat, of the invisible COVID 19 virus, that has gripped our world.
World over, while the fourth estate has continued to function, some times laudably and at other times questionably, the Judiciary, one of the pivotal pillars of democracy, has found itself locked down. The space constrained, human intensive justice delivery system was understandably hijacked by an epidemic that needs social distancing as its sole preventive. Yet at such a time, when we as a species are fighting one of the most serious pandemics, it is more important then ever to ensure that systems of accountability, continue to question State power and ensure that there is timely course correction, rather then permitting the exercise of unfettered and unquestioned absolute power.
In India, sometime, in mid march following the lead of the Supreme Court, most Courts, reduced themselves to limited hearing of urgent matters and from the 25th of March, with the announcement of the National Lockdown, the Indian judiciary, has practically locked itself down. With the exception of "life and death" matters which often exclude even bail, being heard over video conference. For the ordinary citizen, there has been no access to justice against state excesses, domestic violence, employers violating of statutory duties. The vulnerable citizens of India have been left at the mercy and goodwill of the more powerful.
As we wait week on week for the resumption of access to justice, the Supreme Court has taken the lead to use technology as a solution, by laying down some rules for hearing of matters by videoconference. Some sections of the bar have welcomed this as revolutionary and have suggested this method permanently replace the open court. Others have raised practical concerns about the availability of technology with lawyers and clients and district courts.
However beyond technological hardship, there is a more fundamental objection to the use of video conference as a tool of judicial hearing, not only is it in violation of both the Code of Criminal Procedure which provides for hearing in open court vide Section 327 and the code of Civil Procedure Order 18 Rule 4 , it is also against the basic principle of fair trial adopted by India from the common law practice. An open court not only safeguards against judicial arbitrariness, it also maintains public confidence in administration of justice. At a time when public confidence in the judiciary is at its lowest and both commentators and citizens alike have found the judiciary willing to accept political expediency over legal propriety in deciding cases, to further deprive the system of transparency would further rob it of legitimacy.
It is not that the open court system is not compatible with technology, there are several technological applications including zoom, which are already being used by universities that could facilitate a virtual open court. Infact in 2018, the Supreme Court permitted the live streaming of court proceedings in the matter of Indira Jaising vs. Secretary General & Ors. Justice D.Y. Chandrachud, who now heads the technology committee of the Apex Court held in the 3-judge bench judgment, " It will encourage the principle of open court, effectuate the publics right to known and reduce dependence on second hand views. It is therefore difficult to understand why, the live streaming of cases, is not being done simultaneous to their virtual hearing?
There is no doubt that there is an urgency to resume, the access to justice and working of the District Courts. In just the first week of the lock down, the National Commission for women reported a rapid increase in domestic violence, stated to have manifested as 92000 calls for help, we also witnessed, lakhs of workers, destitute by their employers who refused them wage or shelter, walking to their villages. In an atmosphere where daily arrests are being reported in matters where there is no grave urgency, there is little direct evidence, the absence of the regular bail court, limited or no access to lawyers has caused a significant challenge to the fundamental promise of Article 21 of the Constitution of India.
The recent move by Rajasthan High Court to commence hearing of bail matters on a daily basis, with guidelines to minimize numbers in court was a welcome move that inspired confidence. It is not just necessary to resume courts but the method adopted to resume court cannot compromise the basic principles of justice, like having an open court.
As we live on in order of law, we see the rule of law vanishing faster then Covid 19 . It Is not the first time that the Judicial system has faced a huge systemic challenge, but we hope that it will urgently rise to the rescue of citizens without any fundamental compromises.
Views Are Personal Only.
Author is a Delhi based Lawyer