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Judiciary also needs to ‘learn to live with coronavirus’

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R. Madhav Bera
An Advocate practising in Supreme Court , High Court & various District Courts & Tribunals etc. at Delhi.
 

Senior Advocate of Supreme Court Mr. Dushyant Dave while addressing on the subject “Role of judiciary in a pandemic” in a seminar organized by All India Lawyers Union on Saturday had stated that court system is not very E-friendly. Efforts have been made by the Bar to help in the technological revolution of the system but there has been no dialogue between the Supreme Court Bar and the Supreme Court Bench in this regard.

During the pandemic, the Court has the opportunity prove that it can rise to the occasion and is not helpless, he observed. Mr. Dave said that the crisis is a time for every segment of the society, including the Judiciary to come up with crucial solutions for critical problems and this is the time for the Judiciary to galvanize itself.[i] Further, Mr. Dave in his speech has strenuously pointed out the failure of the judiciary over questioning government accountability while dealing with many odd issues arises during the present pandemic.  

Senior Advocate & Rajya Sabha MP, Kapil Sibal while addressing the media urged the judiciary to declare a plan to make justice delivery system an essential service, noting that people were facing hardships due to restricted functioning of courts during the coronavirus lockdown. Mr. Sibal said, “I want to ask the judiciary whether judicial service is an essential service in this country. If food, water and electricity are essential service, is the justice delivery system not essential,”[ii]

The concern raised by aforesaid two prominent senior advocates might be more focusing on governmental accountability over some of the odd situations arises in the country amid pandemic. However, one cannot deny this fact that non-functioning or minimal functioning of regular courts is affecting the rights of the common people or litigants.

We all are aware that functioning of normal courts are erupted badly due to COVID-19. That non-functioning of regular courts is creating havoc in justice delivery system. Further, non-functioning of regular courts is piling up pendency of cases in courts. People of Delhi might be worst affected state due to non-functioning of regular courts amid pandemic as in the month of November 2019 regular court hearing were affected due to lawyer’s strikes over unpleasant incident of clash between cops & lawyers at Tis Hazari.

It is pertinent to note that Ministry of Health & Delhi CM Mr. Kejriwal while advocating for opening up the economic activities, had urged people to ‘learn to live with Corona’.[iii]

 

Doesn’t our judiciary too feel that it should also learn to how to live or function with corona?

Brief Insight Of Functioning Of Judiciary During Various Lockdown Phases In Delhi:

Hon’ble Supreme Court of India vide notification dated 13.03.2020 has issued an advisory for the first time to restrict function of the Hon’ble Courts on account of COVID-19. It is pertinent to note that Hon’ble Apex Court vide aforesaid notification had decided to hear only ‘urgent matters’ and also restricted the movements of the litigants in the courts.[iv] Simultaneously, Hon’ble High Court of Delhi in consonance with the aforesaid advisory of the Supreme Court, had also restricted the functioning of the Hon’ble Courts to hear only ‘urgent matters’  w.e.f 16.03.2020 vide notification dated 13.03.2020.[v] In pursuant to aforesaid notification, Registry of Delhi High Court had also issued certain advisories to its subordinate district courts & urged to hear only ‘bail matters’ and matters requiring urgent stay/injunction till 31.03.2020.[vi]

 

Again, Hon’ble Apex Court vide notification dated 26.03.2020 had further restricted the function of the courts to hear only “extremely urgent matters” through video conferencing and necessary advisories had been issued to the litigants/advocates to represent their cases before the Hon’ble Courts. [vii] That Hon’ble High Court of Delhi by showing solidarity with the Hon’ble Apex Court, had also decided to hear “extremely urgent matters’ through video conferencing and issued certain guidelines to the litigants/advocates pertaining to filing and listing of their matters.

Similar types of advisories/guidelines have been issued by Hon’ble Apex Court & High Court from time to time regarding functioning of the courts & hearing of the matters. [viii] Further, some virtual courts are started all over India and more emphasis were tried to be given on hearing matter through video conferencing. But, ‘Digital India’ concept is hard to implement widely in legal routine framework during present pandemic as many litigants/advocates are not so tech savvy. As the concept is new and outside the ambit of many, so, it can’t provide much asylum during the present pandemic.

It is very crucial to mention that Judiciary being one of the foremost pillar of a democracy should resurge its existences in order to contribute in country’s growth amid pandemic. We have observed that other branches of democracy whether it is legislative or administrative, have shown significant changes in their functioning from time to time in order to manage several affairs of the country amid coronavirus. We all have observed how Government Departments & agencies have progressively changed its functioning during each lockdown phases. However, no significant progress in the functioning of the courts were observed during different lockdown phases or between lockdown 1.0 to 4.0 or till today.

Crux Of Functioning Of Ministerial, Governmental Offices & Overall Movements During Lockdowns

During Lockdown 1.0 & 2.0 functioning of the government offices & other administrative branches were mainly restricted to essential purposes. However, during lockdown 1.0, Central Government had decided to open all Central Ministerial offices & directed all senior level officers to resume to work from offices with one-third essential staffs. [ix] Further, both Central & State Government have provided certain leniencies pertaining to the lockdown measures during Lockdown 3.0 & subsequently in Lockdown 4.0. That functioning of the Ministerial offices & other governmental branches were seems progressive during each lockdown phases.

That moving step forward during lockdown 3.0 Delhi Government had decided to open all its government offices dealing with essential services with full strength & also allowed private offices to function with 33% staff. Further, new guidelines were issued and certain leniencies were provided pertaining to the movement of vehicles, opening of shops, private offices & business establishments etc. in order to revive the struggling economy during the pandemic. Further, many goods and services which were restricted and were not enumerated in the ‘List of Essentials’ during prior lockdown phases, are now allowed to function in the recent lockdown period. For example In Delhi, Government has allowed to run private offices, construction works, stand-alone shops, industries, liquor shops, buses, taxis, cabs & rickshaws etc. [x] 

From the above analogies, it is very clear that functioning of the other government & administrative machineries are more or less satisfactory, moreover, there movement & functioning were progressive throughout different lockdown phases.  

It is submitted that crowd, movement of litigants, advocates, court staff etc. might be some of the possible hurdles in functioning of the regular courts. But, as success says “if there is a will there’s way”. Therefore, judiciary should make all possible endeavors in order to move for the welfare of the country or we can say “In The Interest Of Justice” amid pandemic. Further, there is no guarantee when situation will be under control, therefore, waiting for situation to come under control will not be a plausible option during the pandemic.

Things Can Be Done:

In addition to running courts through video conferencing & virtual mode, Judiciary should open up physical courts after taking adequate safety measures. Furthermore, our judicial system have to “learn to live with Corona” in order to contribute to the nation’s growth amid the pandemic.

Supreme Court of India & High Courts should increase the functioning of courts as soon as possible. In Delhi, High Court should also issue advisories/guidelines to its subordinate courts to open their courtrooms & take up more matters immediately. That functioning of the regular courts is very much required not only in order to serve justice to the common people but also for maintaining proper law & order in the country amid the pandemic.

We all are more or less familiar with the rush at the Delhi Courts during normal period of court hours. However, this type of situation can be managed if court administration takes adequate measures. Court administration can also take note from the government offices, how they are dealing with public & crowd during this pandemic. Needless to say, if government can manage crowd from liquor shops during this pandemic then this type of crowd management thing must not be a blocking rock in movement or functioning of the courts.

It is pertinent to note that Delhi is divided into 11 Districts and 6 court complexes are established for effective management of judicial system. Except Patiala House & Dwarka District Courts, all other 4 district courts are handling cases pertaining to 2 or more district from single court complex.

For Example, Tis-Hazari district courts are handling Central & West District cases from Tis-Hazari court complex. Likewise, East, North & Shahdara Districts courts are functioning through Karkardooma Court Complex. Therefore, to handle the crowd and to maintain proper self-distancing, hearing of the cases can be divided on the basis of ‘districts’ e.g. on a particular day court can take up matters of only one District Zone in its entire court complex.

Similarly, listing and hearing of the matter can be divided on the basis of nature of cases (Civil & Criminal), Designation of courts (Civil Court, Criminal Courts, Metropolitan Magistrate Courts, Sessions Courts etc.). The additional court rooms can be used as a waiting room for the litigants/lawyers & court administrations shall take other effective measures to handle the crowd in the courtroom during hearing. Cause-list of matters should also reflect the proposed timing of the matter in order to avoid crowd in courtrooms.

In Delhi buses, cabs, taxis, auto-rickshaws becomes more or less functional. Furthermore, past week Hon’ble High Court of Delhi had directed the Govt. of Uttar Pradesh & Delhi to issue E-passes for the advocates to visit their offices at Delhi.[xi] As such, movement for litigants, advocates & staffs etc. shall not create much difficulty in court’s functioning. In addition, more beneficial guidelines can be issued in order to make smooth passage for the movements.

More destination buses can be deployed in consultation with respective Bar Associations for the movement of the litigants/lawyers from one court to another. Further, certain leniency can be shown while accommodating adjournments & granting next date of hearing.  Further, certain exemptions from personal appearances can be granted to avoid crowd in the court complexes. Furthermore, certain reasonable restrictions can be provided for filing fresh matters.

As we all know pendency of cases is one of the hardest hit in the Indian judicial System. It has always been the priority of the Judiciary & Law Ministry to curb the pendency of the cases from courts. We all are familiar with a quote ‘Justice Delayed Is Justice Denied’; here a reasonable reason might be with the judiciary for causing delay in giving justice is ‘Covid-19’. However, it’s high time Judiciary should rise against all the odds & set a benchmark in the history of judicial system amid the corona pandemic.


[i] https://www.barandbench.com/news/covid-19-pandemic-judges-have-singularly-failed-in-holding-the-government-accountable-since-the-last-8-weeks-dushyant-dave

[ii] https://www.business-standard.com/article/pti-stories/make-judiciary-an-essential-service-sibal-120042501064_1.html

[iii] https://khabar.ndtv.com/news/india/75-of-delhi-s-covid-19-patients-asymptomatic-or-have-mild-symptoms-says-arvind-kejriwal-2226426

https://www.livehindustan.com/national/story-health-ministry-says-learn-to-live-with-coronavirus-cases-in-india-continued-to-increase-3201927.html

[iv] https://main.sci.gov.in/pdf/Notification/13032020_120544.pdf

[v] http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_J0QQYKWPPJK.PDF

[vi] http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_VQHKSS8VKKE.PDF

http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_X9QC23LSZ3P.PDF

[vii] https://main.sci.gov.in/pdf/LU/23032020_153530.pdf

https://main.sci.gov.in/pdf/cir/26032020_134544.pdf

[viii] http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_5U75WWGF7N8.PDF

https://main.sci.gov.in/pdf/LU/15042020_134922.pdf

https://main.sci.gov.in/pdf/LU/16052020_123951.pdf

[ix] https://www.news18.com/news/india/council-of-ministers-to-resume-work-from-offices-on-tuesday-form-plans-for-post-lockdown-period-2574087.html

[x] https://www.financialexpress.com/lifestyle/health/delhi-lockdown-4-0-guidelines-latest-updates/1962242/

https://www.businessinsider.in/india/news/delhi-lockdown-4-0-guidelines-checkout-what-is-allowed-and-not-allowed-during-lockdown/articleshow/75824466.cms

[xi] https://www.outlookindia.com/newsscroll/hc-directs-up-govt-to-allow-advocate-to-travel-to-delhi-with-epasses-during-lockdown/1840687

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R. Madhav Bera
An Advocate practising in Supreme Court , High Court & various District Courts & Tribunals etc. at Delhi.

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