The Campaign for Judicial Accountability and Reforms (CJAR) has written to the Supreme Court of India raising concerns about the functioning of the Supreme Court during the current lockdown and changes that need to be made in various aspects of its functioning.
Calling the apex court's response to issue of rights of migrant labour, curbs on 4G internet in Kashmir or in important habeas corpus cases, passive, CJAR states that the Supreme Court failed to carry out its constitutional duty of holding the government to account through powers of judicial review, by simply accepting whatever was put on affidavit by the Union in important cases. The note states-
"We believe that the Court's passivity in the face of dire need is difficult to comprehend. As a constitutional institution, the Supreme Court has a duty to protect the fundamental rights of all even in exceptional circumstances and its response so far has left much to be desired.
We call upon the Court to adopt a stricter approach to scrutinizing the Union Government's measures to tackle Covid-19 and hold the latter accountable for its actions."
Secondly, questions are raised about the way cases are being listed and heard by the apex Court. Although due to the current lockdown, functioning of Courts is limited to urgent matters, the manner in which certain cases are being heard at great urgency while other similar matters are kept pending without a hearing for long, is likely to make the public lose faith in the fairness of the Court's processes, the letter states.
"We find that cases concerning rich and powerful persons are getting listed out of turn. The impression created is that the process has been left to the utter discretion of the Registry staff and not guided on rules or principles of fairness and equality before law."
Thus, the apex court is advised to adopt clear and well-defined norms and principles on the basis of which the "urgency" of a case can be determined by the Registry. Matters of civil liberty must necessarily get priority and equally urgent cases must be heard as expeditiously as possible without any scope for bias and arbitrariness, the letter states.
While the Supreme Court's efforts to continue hearings using video-conferencing technology is appreciated, there is a concern that this has led to the negation of the valuable principle of transparency of courts and the need for public hearings. The letter states-
"We therefore call upon the Court to livestream all e-hearings to the public at large, in accordance with its own judgement in Swapnil Tripathi v Supreme Court of India (2018) where it had agreed to live stream proceedings in important cases."
Finally, with an objective to reduce delays in pending cases and dispensation of justice, the Supreme Court is urged to immediately cancel summer vacations, resume the simultaneous sitting of all benches through video-conferencing and list at least ten regular cases per bench on a non miscellaneous day and thirty cases per bench on a miscellaneous day, during the continuance of the lockdown.
"We urge the Court not to sacrifice the right to justice on the altar of expediency."
The Supreme Court Bar Association has already urged the Chief Justice of India to cancel the summer holidays scheduled to begin in May. High Courts such as the Allahabad High Court, the Bombay High Court, the Karnataka High Court and the Madras High Court have already cancelled their respective summer vacations, the Supreme Court has not taken any such decision yet.
CJAR has patrons such as Justice (retd) PB Sawant, Justice (retd) H Suresh, former law minister and Senior Advocate Shanti Bhushan, Arundhati Roy and Senior Advocate from Bombay High Court Mihir Desai.
The letter states-
"Though the Court has taken measures to limit functioning considering Covid-19, we believe that the Court has sacrificed core principles of fairness and transparency in justice delivery while doing so. In his retirement speech, Justice Deepak Gupta said, "In times of a crisis such as the ones we are living in, the courts must protect the poor and the underprivileged, because it is they who are hit the hardest in trying times." Unfortunately, we see that the court has taken no consideration of the poor and dispossessed in passing the orders it has during this period of lockdown."