Access to justice in India has always been a problem in India, and the courts are usually limited in terms of the clientele that can approach them, and even then not all people that are able to access the judiciary are able to pursue this access to its logical conclusion. This needs to be addressed and is a pressing concern for reformers in India. The more pressing matter as of now seems to be the pandemic that has brought pretty much all products and services to a standstill, including but not limited to the courts and judicial access. In the U.S. some states have closed their courts to proceedings thereby outright denying access to justice, whereas in other cities and states, the judiciary is operational but barely: This is because of the social distancing guidelines, and work from home guidelines that have been passed in order to combat the spread of the virus. The U.K, on the other hand, declared courts, lawyers and judges, essential worker and continues to have its court system function as usual without any hitches.
How Indian Courts are functioning
India seems to have flowed the U.K. mode, but with a few fundamental changes: While the judiciary has not been declared essential, it has been functioning, and while it has been functioning, it has not been functioning to its regular capacity, because this would be the first time the Indian court system was wholly online and technological interaction has seeped through all levels of court procedure. In some states, guidelines for online sessions have been issued by the High Courts, so that even in online proceedings decorum of the courts can be maintained. Courts being open during the pandemic is a godsend for many people, since this lockdown has impacted many people personally and financially, it is essential that they have access to legal recourse, and are able to, in the minimum institute a suit, whose actual proceeding might be continued after the pandemic. This is a better situation than in many cities across the U.S where due to the closure of courts, many people wrongfully evicted are unable to make claims against these evictions. This article wants to focus on the impact of the nature of the lockdown on the Indian judiciary, and the specific insidiousness of the lack of a precedent on how to handle a medical emergency like this pandemic.
Firstly, it should be clear that had this been any other emergency that threatened the general population including a natural disaster, the response from the central and state government would have been entirely different: Most importantly in the fact that had this emergency not been a pathogen the immediate government response would have been to declare an emergency for the duration during which measures are taken to combat the emergency. Unfortunately, the government does not have a blueprint for how to deal with a pandemic of this nature, and the only statute that might shed some light on the situation is form 1897. To fill these gaps and ensure that things sail smoothly, the government has to create an emergency, without using the laws that permit it to do so, this meant declaring the pandemic a disaster under the National Disaster Management Act.
This entails all the powers and privileges that come with the act. Most importantly, this means that the pandemic has been sustained through the last few months on the sheer strength of executive orders, and close to zero legislative or judicial intervention. This obviously meant that there had been certain excesses in terms of implementing the guidelines for quarantine and pandemic control. In some states, this has extended to the realm of human rights violations. This is also keenly seen in the rising police brutality towards people that break the lockdown regulations no matter what their justification or reason might be, and in such a situation respite can only be provided by the judiciary.
‘Execution’ of the judiciary
Unfortunately, the judiciary seems to be on the side of the overreaching executive this time around. The court has explicitly refused to accept ‘Publicity Interest litigation’ during the pandemic, signalling that many grievances felt by sections of the population shall not reach it’s notice till the pandemic ends, to avoid unnecessary backlog and waste of time on non-essential matters of courtroom concern.
While this seems like a reasonable proposition taken by a judiciary burdened at the same time by mounting dockets, and social distancing guidelines, the reality is that courts have been using the ‘essential litigation’ definition very loosely, and in instances could even be accused of being the executive’s court in the treatment of certain rights that were sought to be instated through petitions that were rejected as non-essential. Among them, the Bombay, and Karnataka high courts have both decided that bail petitions are non-essential (thereby allowing the executive arm of the government to conduct arrest and detention unbridled), the Supreme court has obviously stepped in and stuck down this decision, but merely days later the Bombay HC passed a similar order.
It is not just that the courts are being arbitrary with legal processing and availability, it is also that the courts are following the executive’s lead on how to deal with the pandemic. This is a dangerous trend, especially in light of the more recent decisions to attack social welfare and potentially renege on a lot of welfare promises that were made during the initial days of the lockdown. The judiciary has become less and less available and accessible, and on those occasions’ accessibility is possible, it has been very heavy-handed with the needs and of people. In some states the debate has sprung up whether family courts need to continue functioning during the pandemic; Despite the rising number of domestic violence cases and the judiciary’s draconian and nonsensical measures to combat the same. This has become a specific problem of the execution of the judiciary during the pandemic.
One crucial advantage that accrues to the judiciary in light of the pandemic, and also points to glaring lacunae in the structure of the judiciary is, the shift to using inline resources, for the longest time, there had been a debate about the accessibility of the Supreme court to the southern part of the country, and a failed proposal to install a permanent bench in Chennai. But since the lockdown ensued, the realization that a majority of court proceedings can be conducted online, not requiring the lawyers and judges to leave the comfort of their homes, or that a slew of filings and petitions could simply be sent across online, thereby streamlining the process outright, is a wake-up call to both the administrators and participants of judiciary: That the system has been left inaccessible as a deliberate function, of either apathy or incompetence, and that all it took shake the cobwebs of the judiciary was the institution of a barely constitutional lockdown notification is a fact of no little import. In many cities a lot of the lower courts have ceased functioning and have not provided an alternative for how filings could be made despite the lockdown orders.
This fact only adds to the post-lockdown docket in these courts and further exacerbates the accessibility problem, which will then be the sole fault of a judiciary that was left unprepared for what the executive had in mind. When this paper talks about preserving judicial independence, the same shouldn’t be exercised at the expense of coordination.
In the current environment where the courts are struggling and [ironically] refusing to hear petitions due to reduced capacity and decisional fatigue as to what might constitute essential filings, the evolving and deteriorating relationship between the courts and the executive is a depressing trend. While it has been no secret that judicial independence was always a flimsy arrangement, the lockdown has proven to us exactly how flimsy it could be and how much the independence of the judiciary has been eaten through by executive orders and convenience.
The pandemic helps us understand that, just because the judiciary and it’s relative independence survived the emergency, doesn’t mean it is prepared to handle the ambiguities of executive function, or that it is prepared to admit that there are some lacunae in accessibility that are inherent to its structure that are deliberately left unaddressed.