Does the Judiciary face defeat at the hands of COVID–19?

This article seeks to analyse whether the judiciary is defeated at the hands of COVID–19. Firstly, the article looks at what is happening internationally (Malaysia and New Zealand). Secondly, the article examines whether the lockdown has caused the courts to close and lastly, the article understands the actions of the Apex Court. The article then concludes that the Judicial system although slowed down has not been defeated by COVID–19.

The world is witnessing a global pandemic. There is panic everywhere. In times like these, it is necessary to uphold the pillars of democracy so the people feel safe. Judiciary is one such pillar. The judicial systems worldwide cannot fail during times like these, they are too important an institution.

Does the Judiciary face defeat at the hands of COVID-19?

With cases on the rise everyday this becomes a challenge for the Indian Judicial System. Amid the COVID–19 pandemic, many courts have also shut down. Two prominent issues in the Indian Judicial system – Pendency of cases and trial of accused will face stagnation due to the lockdown, the burden on the judiciary is bound to increase. But does this mean that the effect of the pandemic is so adverse that the judicial system will regress?

Without the Judicial system, there would be no redressal mechanisms. In times of panic, this is more needed than ever. A strong functional judicial system inspires confidence in the people.

International status

Many governments have announced lockdown in their nations. As judicial functions are crucial in any democracy, many nations seek to continue theirs amid the lockdown. Malaysia is using their online system called e-review – An online forum within the e-Court System which enables judges, judicial officers and legal representatives to conduct case management in any case via an exchange of written messages without having to attend court.[i]

In New Zealand, all jury trials have been suspended from 23^rd March. Chief Justice Winkelmann of New Zealand stated the following[ii] –

“I acknowledge the concern amongst the public, court staff and legal practitioners regarding any requirement to travel to court for hearings or to attend to filing of documents. I also understand that the restrictions imposed by the level 4 alert make it difficult for parties and legal practitioners to conduct court proceedings.

However, courts are an essential service. New Zealand courts must continue to uphold the rule of law and to ensure that fair trial rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld.”

To proceed with upholding the rule of law the following protocols have been placed by Chief Justice Winkelmann –

1. Only priority proceedings to be heard
2. Remote participation to be used predominantly
3. Court attendance may sometimes be required, safety is paramount
4. Filing by email
5. Filing fees may be waived

The judicial functions are very important to uphold the democracy of any nation, total suspension to judicial functions comes at a high price.

Courts to remain closed?

Amid the lockdown announced by the Prime Minister on 24^th of March 2020, the Supreme Court of India shall continue to function and to hear matters involving extreme urgency, till further orders in this regard.[iii]

1. Supreme court

The apex court in a notification has declared to remain open for urgent matters, the court laid down the procedure and provision for the same which stated –

“Since the prevailing situation demands that persons be discouraged from undertaking any kind of journey/travel, SC Registry is taking all steps necessary to conduct the aforesaid hearings through remote Virtual Circuit (VC) links, and hence Advocate On Records/Parties-in-persons are advised to refrain from exercising the option of participating in the hearing through VC link facility available at the SC premises for the present, as that would entail unnecessary and avoidable travel through public spaces.”

Standard Operating Procedure for Advocate/Litigant-in-person for attending urgent hearing of a matter through video conferencing – Video Desktop/Video Mobile application available on http://ecourtvc.nic.in.[iv]

Upon approval of the urgency by the Hon’ble Presiding Judge of the Bench, the case(s) would be enlisted in the cause-list to be published on the website by evening hours on the day preceding the sitting of the Bench; in case the application praying for listing on grounds of extreme urgency is not allowed, the Advocate On Record would be permitted to make oral mentioning before the Hon’ble Presiding Judge, over the landline phone at His Lordship’s residential office strictly between 10:30 am and 11:00 am on the day of the hearing; if upon such mentioning, the matter is allowed, the same would be listed as per directions of Hon’ble Judge.

The list of telephone numbers of the Hon’ble Judges is available on the website of the Supreme Court of India i.e. www.sci.gov.in

If the Advocate/Party-in-Person is unable to connect through videoconferencing due to non-availability of hardware/network on any given date, the matter would be listed on the next date of the sitting of any Bench and the Advocate On Record/Party-in-Person may appear through Video-Conferencing facility being made available in the Supreme Court premises. The Advocate/Party in-Person may avail the facility of video-conference by approaching the videoconference room by indicating in the application their desire to do so.

With a view to streamlining the access to members of the Press, the Deputy Registrar (Public Relations Officer) may permit only 3 media persons to remain inside the Video-Conference Room, whenever the Hon’ble Bench may sit to take up extreme urgent matters, till further orders.

2. Bombay High Court

The functioning of the Courts in High Court as well as its Benches functioning at Nagpur, Aurangabad and the High Court of Bombay at Goa presently for a week commencing from Monday, 16th March 2020 shall be restricted to urgent matters.[v]

3. Delhi High Court

Pursuant to the lockdown for 21 days, there is a suspension of function at the Delhi High Court with effect from 25^th March, Hon’ble the Chief Justice has been pleased to order that the functioning of the High Court of Delhi shall now remain suspended till 15.04.2020.[vi]

4. Madras High Court

Entry to the High Court at Madras and Madurai Bench of the Madras High Court shall remain prohibited for three weeks from 24^th of March or until further notice whichever is earlier. Entry is subject to permission. On permission being granted, the lawyers/litigants shall be instructed of the venue and mode of addressing the court through video-conferencing or otherwise.[vii]

The provincial courts that were first established in India, to follow the Apex Court and hear only urgent matters.

Extension of limitation

The Apex court[viii], taking suo moto cognizance arising due to the COVID–19 pandemic realised announced that – resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.

We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.

This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks.

Trial of prisoners

In the nation, there are thousands of cases pending and thousands of cases on going the Apex Court[ix] stated that – Taking into consideration the possibility of outside transmission, we direct that the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes.

Also, the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.

Conclusion

We recognize that there is a global panic. Ordinary functions cannot be carried out in times of panic and distress. As stated above the judicial system is paramount for any democratic function. A total stop to any nations judicial system is harmful to its citizens/residents. This has been recognized nationally and internationally.

The Indian judicial system, though has a few flaws is resilient. In this time, when our entire country is under lockdown, the judiciary is slowed down but it is not stopped. Courts across the country are still hearing urgent matters with the help of technology. The apex court in an effort to ease the panic has taken measures to ensure the lockdown does not adversely affect ongoing cases. It can rightly be said that the judicial system does not face defeat at the hands of COVID–19.

Contributed By: Kanishta Naithani

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[i] Information about Online Case Management N (e-Review) at High Court (Commercial), Kuala Lumpur

[ii] Protocols: What courts are doing during COVID–19

[iii] Supreme court Notification dated 26.03.2020.

[iv] Supreme court Notification dated 23.03.2020.

[v] Bombay High Court Notification

[vi] Public Notice No.194/RG/DHC/2020 Dated: 25.03.2020

[vii] COVID–19 Nationwide lockdown – Circular to High Court and Subordinate Courts (1.2 MB) (English) (Dated 24 March 2020) New

[viii] In Re: Cognizance for Extension of Limitation, COVID–19, Suo Motu Writ Petition (Civil) No. 3/2020, (23.03.2020 – SC Order)

[ix] In Re: Contagion of COVID–19 Virus in Prisons (23.03.2020 – SC Order) Suo Motu Writ Petition (C) No. 1/2020 (IA Nos. 46086, 46091/2020), W.P. (C) No. 450, 445/2020 (PIL-W) (IA No. 46113/2020) and W.P. (C) No. 466/2020 (PIL-W) (IA No. 48124/2020)

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