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“There is no better test of the excellence of a government than the efficiency of its judicial system”, Lord Bryce.
ABSTRACT:
This article aims to analyse the operating of the Indian system. Indian laws are absolutely capable of determination problems with citizens and additionally these laws evolve with time in according with the wants of the society. It is interesting to envision that how the Judiciary and also the government is moulding the Indian system within the unfold of COVID nineteen pandemic spread everywhere the globe. This paper more on the bases of the legal system of India and the current state of affairs through that the state is surviving through. It is important to know that to fulfil the ideals of Principle of Justice, Equity and smart Conscience it’s necessary to stay in mind the reality and condition of the society. In an exceedingly heavily inhabited country like Republic of India it’s a tough and sensitive state of situation to render justice as it is expected because of the population and their actions generally additionally brings friction within the manner.
INTRODUCTION:
The system of a country is one amongst the foremost vital components of a free and democratic country. Its correct running ensures that the country does not fall in chaos. In these tough times of an unprecedented crisis, each a part of an economy has been hit hard including the government machinery designed to run a country. Every time, India has emerged as a stronger nation. The delicate balance between three pillars of parliamentary democracy has worn the test of time and validated the decision to embrace it. The underlying solidity supplied by the constitution is the source of our nation’s success story. The three pillars’ regions of activity were judiciously defined by the founding fathers. The concept of judicial activism can be traced back to the English concepts of ‘equity’ and ‘natural rights.’ It is difficult to pinpoint the origins of judicial activism in India. For a long time, the Indian judiciary had taken a traditional approach to the concept of judicial activism. People’s perceptions of judicial activism are influenced by their understanding of the proper role of a constitutional court in a democracy. Judicial activism is a judicial philosophy that holds which courts can and should consider the broader societal implications of their decisions in addition to the applicable law. It is occasionally used as an antonym for judicial restraint.
Activism depends on their conception of the correct role of a constitutional court in a democracy. Those who think that the role of a constitutional court scarcely, as restricted to mere application of the pre-existing legal rules to the given state of affairs, tend to equate even a liberal or dynamic interpretation of a statute with activism. Whereas, those who think about a wider role for a constitutional court, expecting it to provide both meaning to various open textured expressions in a written constitution and apply new meaning as required by the ever-changing times, typically not associating judicial activism as an aberration or abnormality, but as a traditional judicial function.
Critics of judicial activism say that the courts usurp functions assigned to the other organs of government. On the other hand, defenders of judicial activism assert that the courts just perform their legitimate function. In keeping with adult Mr. Justice A. H. Ahmadi, the previous chief justice of India, judicial activism could be a necessary adjunct of the judicial function as a result of the protection of public interest, as opposed to private interest, is that the main concern[1].
INCONVINENCE BY THE PANDEMIC:
The Indian judicial system has many impressive and efficient features, but there are also certain backdrops that cause delays or denials in specific situations. Amid Corona Virus, the Hon’ble PM of India declared a 21 days lockdown to contain the spread of the deadly virus. This created a havoc across the country and immense burden was laid on the Judiciary to balance both public and health and with access to justice. Since then, the judiciary reduced its stride and decided to restrict from addressing matters of quite less importance. In their pursuit of restrictive measures, the collateral damage has been a significant drop in the number of magistrates sitting in court and the amount of cases heard by the benches on a daily basis. The absolute lack of medical facility and resources associated with epidemics has spread the sensation of worry and lack of confidence a number of the masses. Due to the sudden disturbance in the daily routine, courts have been closed and are unable to work the way it was before.
Numerous senior advocates have complained of being unusual with the technicalities of a computer, setting them at a drawback and on the mercy of the younger generation. Such is the irony of our instances while seniority withinside the subject of legal career has come to a sheer downside. Several courts, through the Bar Council have taken an initiative to assist the advocates whose earning had been affected by the pandemic. Through numerous acts of the Judiciary, it could be concluded, with no doubt that our Judiciary machine has proven to be flexible and useful to a common cause. Taking note of the situation, supreme court issued notices regarding functioning of courts via video conferencing only for the matters’ of ‘extreme importance’ through Suo motu cognizance. Justice C.A Bobde, the then Chief Justice of India, called for an urgent meeting to take the decision on the operative steps and guidelines for the functioning of the Judiciary amidst the pandemic in the country. SC E- committee Chairman Justice D.Y Chandrachud ordered for a limitation of people-to-people contact and make use of the virtual proceedings via video conference. The lawyers can also download the applications.
Also read: MEDIA TRIAL AND CRIMINAL ANGLE
STRUGGLES OF ADVOCATES DUE TO PANDEMIC:
In the Indian judicial system, it’s aforesaid that the Litigants’ interest is that the most supreme, however, we all know it’s aloof from true. With most of the cases running for over five years the faith of the general public within the judicial system is slowly decreasing. Solely the wealthy will somehow flip the case into their favour and create it go quicker whereas the centre category remains waiting. With the arrival of this pandemic and therefore the resulting lockdown, the courts had to pack up for a few months. They would only hear terribly imperative cases that too through video conferencing. This change has brought the unfinished cases even additional. currently the litigants cannot even head to the courts to form their case and even the loss of a single hearing will cause case running for an extra year.
With the courts solely hearing those cases that area unit terribly urgent a large number of lawyers remain without work. It’s a familiar incontrovertible fact that the majority of the lawyers in this country are daily wage workers. They depend on the daily running of the court. With the lockdown being extended day by day it’s turning into tougher for the lawyers to stay up their expenses. Several of the urgent cases are disproportionately taken up by the senior advocates within the business who earn in lakhs from single hearings. This kind of operating discriminates among the majority of lawyers. Most of the lawyer’s area unit daily wage workers and just like it is seen, the results of an epidemic on wage worker of other sectors similar situation is prevailing with the lawyers who are having problem in obtaining purchasers and paying rents of their offices. Keeping this mind, a number of the Bar councils are making efforts to assist their junior members financially. For instance, the Himachal Pradesh Bar council is providing monetary facility by providing a sum of 5000 rupees to the poverty-stricken members after obtaining the scrutiny of their applications, that they made seeking monetary facilitate to curb them from such distress.
MATTERS OF URGENCY:
There is no clear definition about the clause “extremely important’ but the Apex Court is deciding by observing the matters some of the matters are mentioned below:
- Cases related to personal protective equipment for doctors and medical professionals
- Cases related to welfare of the migrant workers
- Cases related to guidelines to be notified to prevent spread of COVID 19
- Cases related to citizens struck in another country
Hence it is still not made clear that exactly which category of cases have been considered to be “extremely urgent” by the courts.
PUBLIC INTEREST LITIGATION – A BLESSING AND A CURSE:
The Constitution grants the Supreme Court by virtue of article 32 and the Superior Court by virtue of article 226 the powers to issue orders and orders of the nature of habeas corpus, obligations, certificates, injunctions and Quo Warranto. The Supreme Court can issue these orders to enforce basic rights. The court the procedures for initiating public interest disputes to facilitate ‘s access to ordinary people and increase public participation in the judicial process as a means of controlling other governing bodies. Amidst the fight of India with Covid 19, several PILs have been filed before the Supreme Court as well as various High Courts regarding the pandemic. In a democratic country, where constitution being the basic structure which ensures the fundamental rights to the people, there’s continuously scope for legal activism as sacred courts are entrusted with the obligation of securing citizens’ rights against conceivable overabundances by the State[2].
Some of the most prominent PILs filed in Supreme Court are given below –
- National Alliance of Journalists v. UOI& others[3]
Wherein, a PIL has been filed by the Media Unions across the country against all such media organisations who recessed their employees or have coerced them to have remuneration kickbacks due to the national lockdown.
- Alakh Aloke Srivastava v Union of India[4]
A PIL has been filed an SC advocate regarding the essential supplies such as to food, water, shelter etc, of the migrant workers seeking its immediate intervention in the matter during the Covid crisis.
- Sachin Jain v Union of India[5]
On Wednesday, the Supreme Court urged the government to identify private hospitals, particularly those that got land at a reduced cost government concessional rate, which might allow Covid-19 patients to be treated for free or at a reduced cost or for a little cost.
- K.N Govindacharya v. secretary general & Ors[6]
It was said in this petition that Approximately 60,000 cases are pending before the Hon’ble Supreme Court. The Court places a significant burden on the pendency by restricting its operations due to unforeseeable occurrences and situations such as COVID-19. As a result, it is evident that the Court requires proper processes in place to continue dispensing justice at a time when the public health emergency is looming.
VIRTUAL COURTS: TRUTH AND DEFIANCE –
As Indian Judiciary should not be affected by the outbreak of the pandemic and the justice must prevail, Supreme Court chose the method of virtual hearings to hear the matters and resolve matters where the parties can present themselves through video conferencing. This is not the first time such incident has happened in the year 2002 when the Apex court allowed the audio – visual equipment to be used in civil cases. In 2014 some of the jails also got fortified with the video conferencing.
Mr. N. Hariharan, a senior advocate rightly pointed that the fair trial might be affected due to the technical glitches faced in video streaming. The virtual dimension of courts cannot totally cover the physical aspect of the courts unless all the courts, lawyers and parties are fully equipped by proper technological equipment. In such process, the facial expressions and various other factors which are to be noted during a criminal trial might get dominated due to the glitches in technology. It is popularly opined that like many other advanced countries, India is not well enhanced with the technology of video conferencing. Though the courts in Metropolitan cities like Delhi and Mumbai have shifted to online but there are many such other cities where courts are incapable of making the virtual – shift due to technological difficulties and network problems. The district courts present in Tribal and rural areas face a difficulty in accessing the internet and broadcast infrastructure. Many advocates have complained that they are facing a problem in keeping their points and objecting to the opposite counsel’s arguments in between the session of hearings, which resulted in a loss to them and their clients. There were many incidents where the judges and the advocates are not able to communicate properly due to inaudibility which unfortunately creates aa confusion and increases pendency of cases.
The issue of privacy of information of documents are raised as the courts use third party apps to conduct video conferencing. The liability is unanswered as if any case someone’s personal data is used by anyone else while cases being heard by the judiciary.
MEASURES TAKEN BY SUPREME COURT:
In order to undo the hurt caused by the legislature, the judiciary tend to supply justice to the citizens each right promised by the Constitution and also the Directive Principals of State Policy. The rule of law is the bedrock of democracy, and also the key concern for implementation of the rule of law lies with the judiciary. On thirteenth might, 2020, the Supreme Court issued a circular[7] directional that the advocates might wear “plain white-shirt / white-salwar-kameez white sari, with an obvious white neck band” as a precautional live to contain unfold of Coronavirus (COVID-19) infection beneath the prevailing conditions.
On ninth April, the Delhi state high court passed a resolution unanimously to cancel their yearly summer break on June to make up for the loss incurred due to restrictive functioning of courts. It is the view of the court that since the functioning of the courts are impaired due to COVID19, the courts (including the subordinate ones) should still guarantee functioning throughout the entire month of June i.e., from 01.06.2020 to 30.06.2020.
E – FILING: THE NEXT FUTURE:
Due to the nation-wide lockdown, Rajasthan state high court through their website[8] introduced e-filing system for hearing urgent cases. Earlier, the petitioners were able to file petitions using the electronic mail system, however, in lieu of the ongoing lockdown, due to the pandemic, the High Court sought-after to develop a particular e-filing module that is devoted to filing applications (civil, criminal and writ) available 24×7. The web site additionally states that users are going to be receiving regular updates about case status and orders passed through automated machine and SMS and email facility of Case data system.
THE CAUSE OF CUT OFF OF MIGRANT LABOURERS:
On thirty first March, 2020, in Alakh Alok Srivastava v Union of India[9], CJI Bobde discovered that the Centre should take strict actions against those that take fun in spreading fake news amid the Coronavirus Pandemic and make terror. Advocate Tushar Mehta submitted a detailed report in view of the Court’s directions on Monday, March 30. As another important step, the Supreme Court on 26th May, 2020 took Suo Motu cognizance of the difficulties and miseries of migrant labourers who have been stuck in numerous elements of the country because of the pandemic induced lockdown. The Suo motu order titled “In RE: issues and Miseries of Migrant Labourers” the Supreme Court bench comprising Justices Ashok Bhushan, Sanjay Kishan Kaul and Mr. Shah state that even supposing the issue is being addressed at each State and Central levels, “effective and targeted efforts are needed to redeem the situation”. The Apex Court, through the Order directed the solicitor general to help the court and by next date of hearing and produce within the notice of the court all measures and steps taken or to be taken by the Government of India. “The anxiety and concern of the migrants ought to be understood by the Police and other authorities. As directed by the Union of Republic of India, they must wear down the migrants in a very humane manner.” – The Court noted within the matter of Shashank S. Mangal v. GNCTD[10], the Delhi HC has held that there’s dire need to produce a system for the registration of migrant workers, so that they can be protected and also the benefits of relevant laws may be handed over to them. Court directed the administrative department to file an affidavit in terms of the type of portal to be created, for the registration of migrant labour across the country. Such a portal ought to have on board all the state governments so the arrival and exit of a migrant labour is punctually recorded and reported.
Also read: LEGAL AID SYSTEM OF INDIA
PRISONERS’ CONDITIONAL RELEASE:
A bench headed by CJI Bobde; the Supreme Court took cognizance of the matter In Re:
Contagion of COVID-19 Virus in Prisons[11] to avoid decongest jails. to beat the matter
of overcrowding of prisons within the wake of the pandemic, the Supreme Court directed all states and Union Territories to line up high level committees to work out the category of prisoners depending upon the character of offence, the quantity of years to that the convict has been sentenced or the severity of the offence with that convict is charged with and is facing trial or the other relevant issue, that the committee could take into account applicable.
CHILD CARE:
To protect kids from the impact of lockdown, the Supreme Court on eighteenth March, 2020 took cognizance of the problem of supply of mid-day meals to the kids even when the schools are closed. Through In Re: concerning Closure of Mid-Day Meal Scheme[12], the court necessitated that each one the States ought to come out with a homogenous policy thus on guarantee, that while preventing unfold of COVID-19, the schemes for providing organic process food to the kids and nursing and wet mothers should not to be adversely affected. On third April, 2020, the Supreme Court took a Suo moto cognizance on the problem of protection of kids who come underneath the compass of Juvenile Justice (Care and Protection of Children) Act, 2015 to make sure the general well-being of children throughout the COVID-19 blow-out. Through In Re: Contagion of Covid-19 Virus in Children Protection Homes[13], L. Nageswara Rao and Deepak Gupta, JJ issued in depth guidelines to the administrative authorities. The Supreme Court had additionally directed all the Juvenile Justice Boards Courts to contemplate release all children considered to be in conflict with law on temporary bail.
Virtual Court in a way have reduced the time, money and energy of the advocates and litigants. Looking ahead to hours for the case to be heard by the judges is over now. All the litigants are now nearly given particular time and correct attention to their cases. Paper work has drastically reduced, which was the necessity of the hour. It is often aforementioned the economically and environmentally virtual court hearings has benefited the nation. This tough time has showed that how dedicated the Judges, lawyers and litigants are to render and seek justice. When it has become tough for individuals to come back out of their homes and do basic chores, Indian system has once more proved that no matter how difficult issue it’s facing to shift to technological setup but it is still direly operating towards not letting down the law and the fairness it denotes.
CONCLUSION:
Judiciary in India is one in every of the necessary limbs of the govt. and as such an integral part of sensible governance. Indian judicial system is coming down through the ages and harnessing traditions for knowledge from generation to generation for the sophistication of present and future ones. The Tradition demands that no matter the political debate, the Judges maintain a neutral stance in their decision-making. They should be radio-controlled solely by accepted legal principles and therefore the dictates of their conscience. The judge being human, the social ambience in which he operates is probably going to have an effect on his judgment, but the extent to that he disallows this to happen determines his courageousness. Access to Justice is important to India’s system and it must not ever be ignored. Despite the fact that shifting from open courts to virtual courts isn’t easy for everybody however it can be made easier. Technology may be a powerful tool that’s being employed by the judicial system of our country. From filing of petitions to deciding the issue of a case are being taken place. blessing for the citizens of India seeking for justice in this tough time.
With the following lockdown, the lawyers everywhere in the country are instructed to work from home. Whereas some Court’s restrictive functioning has tested to be positive in these making an attempt times, the nationwide imprisonment, notwithstanding however necessary, is unsafe in nature.
Many countries have implemented different kinds of technologies like blockchain, faster networks to speed up the judicial proceedings which is the main contention of faith in the judicial system. In India, we still have a lot to catch up to. We still follow old rules which have become archaic in today’s times so bringing full change in the court system is still a farfetched idea. But we can see some welcome changes by the full support of the Supreme Court like bringing video conferencing in these challenging times to keep the wheels of justice running.
However, the question remains, whether or not the functioning of a judicial system is more important than the protection of the citizens of our nation?
[1] A.M. Ahmadi, Judicial Process: Social Legitimacy and Institutional Viability, 4 S.C.C. J. v.1, 1-10 (1996).
[2] Prakash, S. The Tribune, “With all focus on pandemic management, judicial activism can wait” dated 13th April, 2020 https://www.tribuneindia.com/news/nation/with-all-focus-on-pandemic-management-judicialactivism-can-wait-70395
[3] WRIT PETITION (CIVIL) NO. 928 OF 2020
[4] WRIT PETITION (CIVIL) NO. 469/2020
[5] WRIT PETITION (CIVIL) NO. 863 OF 2020
[6] WRIT PETITION (C) NO. 1016/2019
[7] 10 F. No.06/Judl./2020 dated 13th May, 2020
[8] The Official High Court Website: https://hcraj.nic.in/hcraj/
[9] Writ Petition(s)(Civil) No(s).468/2020
[10] WP (C) No. 3324 of 2020 and CM Appl. 11679 of 2020, decided on 29th June, 2020
[11] Suo Motu Writ Petition (C) No. 1/2020 dated 23rd March, 2020
[12] Suo Motu Writ Petition (C) No(s).2/2020 dated 27th March, 2020
[13] Suo Moto Writ Petition (Civil) No. 4/2020 dated 3rd April, 2020
Author: A. MAHIMA, ICFAI LAW SCHOOL
Editor: Kanishka Vaish, Senior Editor, LexLife India.
Lexlife India 