They say that emergency situations are wake up calls. How are the Indian Courts holding up to their very first experience of a global pandemic and what lies ahead.
Professor to 1st year law students : What is law, what is law? Is law relevant in emergency situations?
Student : Prof., wouldn't we be concerned with Maslow's hierarchy of needs, especially in emergency situations and clearly law ain't one of them!
Professor : Law is present at each hierarchical level - Just think of Art. 21 of the Indian Constitution! More importantly law alone can legitimately define, 'emergency' itself.
This would be the first time that the Courts in India would be facing a crisis like this. While the American courts have some experience in this regard, dating a century back with the Spanish Flu in 1918, Indian Courts would be first-timers in responding to a global pandemic.
There are some good news and some bad ones. The good news is that the Indian Supreme Court already has the power it needs to meet the exigencies of the current COVID-19 situation, by issuing directives under Art. 142 of the Indian Constitution. Now is the time that the visionary leadership of the Indian Supreme Court will be needed more than ever before, in its entire history of existence. In America, no single set of rules govern all courts and all 94 federal district courts and 13 federal appellate courts are devising their own strategy to deal with COVID – 19. The Indian Supreme Court is better placed in this regard to lay down rules for all courts in India. This is also why in India, what the Supreme Court does will have a bearing on all the other courts and broadly on the Indian legal system itself.
The bad news is that the challenge that the Indian Courts, especially the Supreme Court, face are unique and unparalleled, atleast in two aspects. First, their challenges are both outward and inward - simultaneously. Outward – because while the Courts have to play a co-operative role with the government in the view of the larger pandemic facing the country, they also have to monitor the government closely for any constitutional exigencies. For e.g., massive salary cuts or lay-offs, or denial of basic human rights by the police personnel, and overall maintenance of human rights have to be monitored by the Courts.
Inward – because it will also have to deal with its own internal challenges as regards infrastructure, lack of technology (especially for subordinate courts) and management of court cases in the times of social distancing.
The only experience that the Indian Courts have of an 'emergency' like situation is that of 1971. But the breadth of issues that COVID-19 situation present are incomparable to the same. The present crisis is not just about holding up 'judicial independence' in the light of government power, but it is also a test of 'judicial sensitivity', 'judicial expertise' and 'judicial vision' to deal with the current pandemic.
For e.g., will the Indian Courts remain 'sensitive' to the plight of the poor, migrants and the marginalized under the current lockdown and further, if it is extended. Similarly, will we see 'judicial expertise' in addressing technical issues that may arise from testing to prescriptions for COVID-19, or in balancing our privacy with our security in light of government surveillance. Further, is there a 'judicial vision' which goes beyond using video conferencing facility to hear cases. This vision may be reflected, for instance, in ordering for some preventive measures for the healthcare professionals and police personnel – two set of professionals who are at the frontline of dealing with COVID-19. With the absolute lack of training for the police personnel, beyond hand sanitizers and face-masks, the government has a duty to ensure that those protecting us, do not become the worst affected by this current crisis.
Similarly, preventing our prisoners, most of whom are undertrials, from the onslaught of COVID-19, due to overcrowding in prisons is another such concern which the Courts have to respond to. While the Supreme Court took suo-motu cognizance of this matter on 16th March, 2020, its follow-up remains to be seen. In essence, whether the Indian legal system holds up in the fight against COVID-19, will depend substantially on the vision and leadership demonstrated by the Indian Courts.
Let's begin by looking at what the Courts have already done to fight this menace. Courts in India, like every other institution are under tremendous pressure to be functional while under lockdown. The initiative of the Indian Supreme Court to use video conferencing facility for hearing urgent matters, which has now been adopted by most High Courts in India, deserves applause. By allowing video conferencing, the Supreme Court struck a balance between shutting down (in the light of the total lockdown for 21 days) and remaining functional. It issued a Circular on 26th March, 2020 stating that 'in light of orders of a nation-wide lockdown.. effective from 24th-25th March, 2020', it shall 'continue to function and hear matters involving extreme urgency.' In this Circular, the Supreme Court also clarified the procedure that has to be followed by the Advocate on Records (AORs) or Party-in-Person for use of video conferencing facility, building on its earlier circular dated 23rd March, 2020.
The Delhi High Court has also taken suo-moto cognizance of the COVID-19 situation under Art. 226 and Art. 227 of the Indian Constitution and restricted its functioning only to urgent matters till 4th April, 2020. It has adjourned routine matters en bloc to particular dates in April and interim orders subsisting as on 16.03.2020 have been automatically extended till 15.05.2020. This practice of hearing urgent matters through video conferencing is the route that most other High Courts have also taken. While the Courts do need to exercise maximum caution and cannot continue to function regularly, they cannot be 'completely shutdown' either.
While the Indian Supreme Court and the High Courts have adopted video conferencing to hear matters, the lack of effective use of technology remains a major concern for the Subordinate Courts in India. Most litigants, lawyers and courts at the subordinate courts' level are still not upto the challenge. Since the subordinate courts are the first level of justice delivery in the Indian legal system, making them technology adept is the need of the hour. Until each district and taluka court in India become fully technologically equipped, Indian legal system will be far from rising upto the challenge that COVID-19 presents. Infact, the government should release immediate funds, before things get worse to enable the subordinate courts to be technologically upto date.
There is perhaps no better time for the lawmakers, policymakers and the Indian Courts to give serious thought to Richard Susskind's reform proposals outlined in his book 'Tomorrow's Lawyers' to bring the Indian Legal system up-to-date on the technology front. Alongside video conferencing, there are a host of other technology options that the Courts should consider, especially live streaming the hearings (for e.g. on a Youtube channel for the Supreme Court), even when they hear the matters through video conferencing.
Beyond technology, the courts in India face several challenges in the light of COVID-19.
First obvious challenge relates to the pendency in Courts. With about 60,000 matters pending in the Supreme Court, and 87 percent of all pending matters in the Subordinate Courts, the present lockdown can have a severe impact on the backlog in terms of the average time taken to dispose of the matters. If the current situation continues for another four to five months, based on China's experience, then while there will be few new cases before the Court, there will also be very few matters which will be disposed over the next few months. However, this may not mean status-quo when the Courts do finally re-open. Several matters may have to be heard urgently, with parties competing to make-up for the time lost. Also, the Courts may be forced to reckon with new issues hitherto unheard of, which arise from the government's handling of the COVID-19 situation.
Since the Modi government expressed its intent to address pendency in Courts, as latest as in September, 2019, if it is serious, this may be a good time to take stock and address this challenge. Appointment of judges and filling vacancies will be required to deal with the case-load that the Indian Courts will see post COVID-19.
Secondly, beyond the issue of pendency, lies the challenge of determination of 'Urgency'. Given the current lockdown, judges across India are only hearing the very 'urgent' matters. One may ask - how do we define this 'urgency'. Unfortunately the judges' discretion is the only criteria in India today to determine 'urgency'. While that is so, any matter involving hampering of fundamental rights, such as that involving the writ of habeas corpus, should be treated with utmost urgency by the Courts. Similarly, any complaints against the public authorities, including police officials, for misuse of their powers should also be treated with urgency. In the current times, Police and other state functionaries seem to hold unparalleled power but with great power comes great responsibility and the courts need to be sensitive to the abuse of these powers in any way.
The recent news of the death of a 32 year old man in Howrah, West Bengal, who was taken to the hospital by the Police and found dead on arrival is the case in point. He was allegedly brutally beaten up the Police when he had gone out to buy Milk, according to his wife. It is pertinent that the Courts closely monitor the human rights issues that may arise from the State or the Police's handling of the situation during COVID-19.
Similarly, the Courts may need to exercise their power, if larger Constitutional questions arise during this time, especially if the State can and does declare any sort of Financial Emergency under Art. 360 and/or the interpretation of the legal provisions under the Disaster Management Act, 2005, which has been invoked by the Government.
Thirdly, there is a bigger concern regarding the impact of the COVID-19 situation on the lawyers, both litigating and those working in law firms. With the economy in recession and courts closed, lawyers fear no work or lay-off.
Similarly, the Delhi Government has invited applications from lawyers who are enrolled with the Bar Council of Delhi and are in the Voters' List of Delhi to provide insurance till March 31st, 2020. The Delhi Government has allocated a fund of Rs. 50 crores for the same. This welfare scheme for young lawyers has no direct co-relation with COVID-19, as it was initiated before the current pandemic. However its fate now remains in limbo, as a group of lawyers have already challenged it in the Delhi High Court, and the Registrar has directed that this matter will be listed after the Corona virus threat is over.
Litigating lawyers fear that they may not have any work till the Courts open, and lawyers in law-firms worry that they may be laid-off. It is important to note that there is no legal remedy available against massive lay-offs of professionals, including lawyers working in law-firms. The Ministry of Labour and Employment recently issued an Advisory suggesting that all private and public employers should not lay-off workers till the COVID-19 situation cools down. First, professionals are not covered under the domain of the Ministry of Labour and Employment as the latter covers only workmen/labourers. Secondly, it is an Advisory at best. Thirdly, the employers can always cite difficulty in making payments and invoking contractual clauses with the employees while laying-off.
Therefore government intervention is crucial to ensure that professionals, including lawyers are not laid-off in ways that has severe impact on their ability to survive. The government can either support the employers in retaining the employees by providing some financial support or by allowing the businesses to retain them at a substantial cut, by providing the remainder. In either case, the current situation can have a deep impact on lawyers and other professionals for which there seems to be no immediate legal remedy except a PIL, which the Courts are very less likely to entertain. A government initiative to address the issue of lay-off of professionals including lawyers, while balancing the employers concerns, is the need of the hour.
The current situation is fraught with challenges and needs fixing with some immediate measures and some long-term measures, to ensure that the Indian legal system is not overwhelmed.
In the short-run, if things get really worse, and the number of matters that come before the Court, even in the 'urgent category' explode, then the Courts can consider doing away with 'oral arguments' entirely. The American Supreme Court adopted this practice during the Spanish Flu, not without criticism. It is therefore only an emergency measure, if the Courts feel overwhelmed due to shortage of staff and increase in number of matters. The Courts in such situation may decide to give judgments purely on the basis of written briefs and evidence before them, doing away with all 'oral arguments'.
This is an emergency measure that can only be taken as a very last resort. It presents serious challenges in itself as parties may be tempted to appeal as routine against every such judgment when the situation cools down, thereby adding further to the pendency.
A less harsher and more long term alternative is for all courts to fix a time for oral arguments for both parties, even when adopting video conferencing. Why should lawyers from both sides be allowed to argue their matters endlessly? Why can't we have a fixed time, depending on the category and complexity of the case, given to both the parties by the Registrar of the Court, before-hand? In USA, there is a practice to allot fixed time for the parties to argue their matters, even before the Supreme Court. It is time for the Indian Courts to consider this practice too.
Most importantly, the Indian Supreme Court may have to consider setting up special benches to hear cases arising out of the COVID-19 situation at all levels of judicial hierarchy. In days to come, the courts may be faced with unique cases which arise in one way or the other from the current pandemic. With different directives by the State Governments, sealing state and district borders, apart from the sealing of the Indian borders by the Indian government, there may be cases, where the government may use the argument of 'emergency' to deny some basic rights to the individuals.
When the Indian Constitution permits that we may have more benches of the Supreme Court than one, and in other places, it is also high time that this proposal is considered by both the Supreme Court and the Indian Government, especially post COVID-19 to deal with the increased work-load and the need to avoid travelling all the way to Delhi.
These are times when destiny calls upon each individual, organization and institution to be their very best. Unique times require unique responses and we have to see whether the Indian Courts, especially the Supreme Court, rises upto the challenge that the Indian legal system faces in the wake of COVID-19.
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