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Unlock Justice! Adv Shyam Dewani on why justice must be delivered as essential service in lockdown


Shyam Dewani | May 13, 2020 12:09

Adv Shyam Dewani

Renowned advocate from Nagpur Shyam Dewani elaborates on why justice should be treated as essential service amid the lockdown in India.

Alexander Hamilton once said, “Laws are a dead letter without courts to expound and define their true meaning and operation.”

Then there is a famous legal maxim “Justice delayed is justice denied’, which means that if legal redress or equitable relief to an injured party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all.

As Prime Minister Narendra Modi announces the continuation of the lockdown (even after May 17), without elaborating on the nuances and scope of lockdown 4.0, the uncertainty looms large on the prospects of millions of pending cases in Indians courts. The COVID-19 crisis continues to push millions of litigants to believe Alexander Hamilton’s words that laws are dead letters, if the courts fail to function and operate. Further delay caused in getting justice is leading them to indignation and frustration.

The judiciary of this largest democracy of the world is positioned at the highest pedestal in the nation. It is impossible to imagine that the functioning of the judiciary, which is the most enterprising creation of the Constitution, can be put in a suspended state. Be it enforcement of the Constitutional rights to life, health, food or the requirement of urgent resolution of any dispute, for every situation in life now, judicial intervention is utmost necessary. Thus, it requires unfettered access of public at large to lawyers and courts for the said purpose.

It is understood that in the prevailing scenario of the deadly spread of COVID-19 outbreak, the Government is compelled to suspend regular activities of citizens, movements, businesses, services, liberty, etc.

Also read: Adv. Shyam Dewani suggests COVID-19 lockdown relaxations for restoring livelihood

Unfortunately, with the lockdown, there is near-complete shutdown of India’s Justice system too, particularly, when it comes to dealing with regular cases in all the Courts and Tribunals of India, right from the lowest court of Tahsildars, Magistrates till the highest court of the country i.e. The Supreme Court of India.

The Courts in India, right from the lower courts to the highest court of India, have stopped working practically since near about 2 months. With the declaration of or extension of lockdown every time, all the Courts & Tribunals have declared stoppage of their functioning and practically, all are operating as Vacation Courts, and only One or Two Courts are functioning intermediately, taking up only extreme urgent matters.

While the higher courts are hearing ‘urgent’ matters, mostly pertaining to enforcement of measures by Government relating to COVID-19, the lower courts are entertaining only ‘remand’ & ‘urgent bail’ cases.  Various Tribunals like DRT, NCLT etc., had practically stopped functioning initially, and recently it was reported that they had started taking up only procedural matters.

The considerations of ‘Urgencies’ are not specified.  It is left to the discretion of the concerned Courts and Tribunals. Although the urgencies should be a relative consideration and a litigant should have a say in deciding upon the urgency, as the urgencies vary from person to person and situation to situation.  

It is a matter of fact that in last about two months, across the country there have been numerous situations warranting the intervention of the law.

It is settled law that the right to life and liberty guaranteed under Article 21 of the Constitution of India cannot be suspended. We have, ironically, witnessed hundreds of instances demanding the enforcement of the constitutional rights to life, health and food, with extreme urgency during the lockdown; and any constitutional challenge requires unfettered access to lawyers and courts. However, Ironically, the legal services are not included in the State’s list of essential activities, permitted during lockdown, which undoubtedly denies or makes it difficult for the people at large to have unfettered access to the justice delivery system.

Also read: Nagpur lawyer moves HC against PM-CARES fund, demands financial transparency

The Coronavirus lockdowns have brought the wheels of Indian justice system almost to a grinding halt, as we are seeing only the most important of the cases are being heard, that too, through virtual hearings i.e. through video conferencing, which allows litigants and lawyers from any location to access courts anywhere else in the country. It is true that technological upgrades to the judicial process like video hearings are both important and beneficial for the Indian legal system. However, it has several limitations, including that of phobia we, the legal community, have in respect of adopting and usage of technology, technical glitches, Internet connectivity, availability of the required infrastructure, etc. We have also been seeing the efficacy and pace, at which computerisation of the courts and e-courts projects are moving since many years and inherent limitations in adopting the said modern way of rendering justice speedily and cost effectively.

Further, it is believed that as the Judiciary is basically non revenue earning institution for the Governments, they have reservations about making available advanced technologies and proper infrastructure for making the process of virtual hearing in courts successful. The ultimate result of it is that the phenomenon of virtual hearings, particularly in the lower courts, has failed miserably. This should be a serious cause of concern. Such failure of depriving the people of justice system is drastically against the essence of the Constitution itself.  

As per the recent statistics, India has 739 Districts with around 3000 Court Complexes and more than 6600 establishments with sanctioned strength of about 1100 High Court Judges and about 22,000 judges in lower judiciary. As compared to the United States of America, where there are 107 judges per million people, and United Kingdom, where there are 51 judges per million people, in India, we have only 19 judges per 10 lakh people.

In 1987, the Law Commission had recommended increase in the number of judges to 50 judges per 10 lakh people. However, nothing concrete has been done till now, except discussions about the same.

In Maharashtra only, there were as many as 11,81,439 civil cases and 23,75,896 criminal cases pending in the subordinate courts till December 2019. This must have increased further by few lakhs during these five months period. As on 31st March 2020, 300 Crore cases are pending in all over India. The pendency in Supreme Court alone is said to be around 60,000 cases. It is also reported that there are roughly 4,66,000 under Trial prisoners, which are detained in various Courts awaiting justice

In addition to the lack of requisite number of judges and the pending cases, even during the ‘Lock Down’ period, when practically the whole lives of the citizens are locked, there is an increase in the number of cases. It is learnt that only in Delhi, approximately 66,000 cases of violating ‘Lockdown’ have been registered and in Maharashtra, it is said, that more than 1,00,000 such cases have been registered. It is reported that numerous vehicles are seized. In Maharashtra itself, it is said that around 20,000 people are arrested in connection with commission of the said offences. Similarly, there must be Lakhs of such cases registered in other States all over the nation. There are also reports of abuse and misuse of the provisions of law by the Enforcement Agencies during ‘Lockdown.’ While every person has a right to get redressed of his grievances, with non-functioning of the Courts or decisions being taken on only urgent matters, there is practically no hearing available to the various litigants.

There were reports of various cases of the crimes against women including sexual abuses and offences under the Protection of Women From Domestic Violence Act, 2005. These cases are adding on to the pendency of cases. While the earlier pendency of the cases before various Courts, as stated herein above, was already causing the delay in people getting justice, these additions of the cases during the ‘Lockdown’ period are bound to cause further delay in people getting justice. With each day’s delay in reopening of the Courts, number of pending cases are increasing with admittedly very negligible number of cases being decided upon.

It is needless to say that in the second most populous nation of the world, how crucial it is to have the justice system roll on its wheel to impart righteousness to people who are victims of the situations. It is immensely essential to have the courts functioning in regular manner, even during lockdown, of course, with requisite restrictions of social distancing to deal with COVID-19 pandemic.

It is very much appreciated that the steps taken by the Government are in persistence of the public welfare at large; nonetheless the Constitution itself cannot be suspended. It is obligatory for the Government to comply any measures enforced under statutory frameworks with the Constitution. Nevertheless, practically, with the near-complete shutdown of India’s justice system, such operation of the Constitution lies in limbo.

According to the annual report 2018-19, published by the Hon’ble Supreme Court, 34,653 cases were disposed of between January and October last year, making it an average of 3,465 cases a month.

As per the details available, the Honourable Supreme Court, with the total strength of 31 Judges, heard 593 matters via video-conferencing and delivered judgement in 215 in a month during the nationwide lockdown. In normal times, the apex court disposes of nearly 3,500 cases on an average every month. The Apex Court had shut its doors to litigants and lawyers on March 23, two days before the National lockdown came into force, but opened up to a virtual new way of functioning, albeit with an extremely reduced strength. It is reported that two-three benches have been taking up ‘urgent’ matters in virtual courtrooms daily, during the lockdown, compared to up to 16 benches hearing cases in normal times. It took 87 benches 17 working days between March 23 and April 24 to hear 593 cases. It is further reported that out of 87 Benches, 34 heard main matters, while 53 benches took up review petitions. The top court disposed of 84 review petitions and heard 390 main matters, along with 203 connected cases.

When the Hon’ble Apex Court can make the efforts to start functioning through Video Conferencing, it’s high time various Hon’ble High Courts and District Courts in our country started hearing at least small cases through video-conferencing or by actual hearing of the matters by allowing only the lawyers, whose cases are being called out inside the court by properly adopting social distancing. This is absolutely necessary because with further delay in regular functioning of the Courts, not only the pendency of the matters will be increased, but also it will result into further resentment among the litigants. In so many many matters, which were practically at the fag end of being decided, no decisions have been rendered because of the lockdown.

When the Hon’ble Apex Court can decide the matters like Review and Curative Petitions, there is no reason for the Lower Courts being not permitted to decide the matters, which are closed for orders or the matters, which do not require recording of any evidence in the presence of large number of litigants in the Courts. By keeping the functioning of this important limb of our Constitution suspended, we are bound to adversely affect the cause of justice in the name of being cautious during this lockdown period.

Undoubtedly, COVID-19 pandemic has hit us, like any other part of the world very seriously, but when during the lockdown period, the shops and all other activities, even in Red Zones like Nagpur, are gradually being permitted to be opened, there is absolutely no reason for shutting down the judicial activities.  When non-essential activities like various businesses are being permitted to be run, the legal service, which in the circumstances stated above, is essential service, there is no reason for not permitting the judicial services to be opened.  By keeping the doors of Courts of Law shut, no one will be benefitted. We can very well permit the parties to file written submissions for the matters not requiring personal presence of the parties and the judges can decide the matters based on the such written submissions.

The judiciary and the executive should have instituted means to serve the cause of justice in the country instead of keeping legal services on hold. It is least expected from the Government that a comprehensive strategic arrangement, equipped with the minimum judicial infrastructural requirements, should have been made to streamline the urgency of matters by enforcing physical distancing guidelines. It is of utmost priority that the Government considers the magnitude of functioning of courts has enormous impact on the lives litigants, lawyers, and the entire justice system of the nation. Inaction on part of the Government to revive the functioning of the legal services may result in Justice system itself being a casualty to the pandemic.

A balance has to be struck by the government between enforcing the lockdown to avoid litigants thronging the courts and proper functioning of the Courts. There is absolutely no reason to not to consider the agonies of the litigants and the lawyers, and compelling them to not to function on regular basis. There’s no reason to keep on adding to pendency of the cases, which is bound to affect the functioning of the Courts in future. Therefore, it is inevitable to unlock the legal services to safeguard the justice system during the lockdown.

Joseph Story, Supreme Court Justice, United States of America, has said “Without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected. And if these, or either of them, are regulated by no certain laws, and are subject to no certain principles, and are held by no certain tenure, and are redressed, when violated, by no certain remedies, society fails of all its value; and men may as well return to a state of savage and barbarous independence.”

Keeping this important limb of constitution in suspension during this period of lockdown and not considering the legal services, as ‘Essential Services’ will only defy the purpose and the cause of justice.