By Scaling Down, India's Courts Have Become Party to an Undeclared Emergency

During the COVID-19 pandemic, access to justice continues to be imperilled despite the constitutional mandate and the ready access to technology.

The constitution, which underpins India’s democracy, guarantees fundamental rights. While the fundamental rights are primarily available to citizens of India, two of these rights are guaranteed to all “persons” that is, even to non-citizens.  First, Article 14 which mandates that “The State shall not deny to any person equality before the law or the equal protection of the laws [within] India”. Second, Article 21 which prescribes that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

The width and amplitude of these simply worded articles are wide. Resultantly, actions of the state are subject to judicial review and the public is protected against any encroachment of fundamental rights by the state. Illustratively, under Article 14, any action of the executive must be informed by reason which has a reasonable nexus with the object sought to be achieved; and under Article 21 the right to life encompasses the right to unfettered access to justice.

The framers of the constitution were conscious that if the security of India (or any part of India) was imperilled by war, external aggression or armed rebellion, fundamental rights may need to be temporarily curtailed or suspended. To that intent, Part XVIII of the constitution empowered the president, on the advice of the Union cabinet, to issue a proclamation declaring an external or internal emergency. Article 358 envisaged that during emergency, fundamental rights may need to be abridged or suspended during the period of emergency. Therefore, Article 359 empowered the president to declare that the right to move any court for the enforcement of fundamental rights (and all proceedings pending in any court for enforcement of those rights) shall remain suspended during emergency.

By a proclamation dated October 26, 1962, an emergency was declared on account of external aggression. The proclamation was followed by an order dated November 13, 1962, suspending the right of persons, including foreigners, to move courts if their rights under Articles 21 and 22 were deprived by the Defence of India Ordinance, 1962.  By a proclamation of December 3, 1971, an emergency was declared as India’s security was imperilled by external aggression.

On June 25, 1975, an internal emergency was proclaimed. Two days later i.e. on June 27, 1975, the right to move courts under Articles 14 (equality before and equal protection of law) and Article 21 (right to life and personal liberty) were suspended.  On January 8, 1976 the right to move courts for enforcement of rights under Article 19 was suspended. The Supreme Court in ADM Jabalpur 1976  (later overruled) upheld the suspension of these fundamental rights and the right to move courts against infringement of fundamental rights.

The emergency of 1975-1977 was a grave attack on civil liberties. To preclude such abuse, the Constitution (44th Amendment) Act, 1978 (effective June 20, 1979) was enacted. The most significant amendment to the constitution (in the present context) was the amendment to Article 359 whereby the right to move the courts for infringement of fundamental rights guaranteed by Articles 20 and 21 could 20, not be suspended. Therefore, any infringement of the right to life and civil liberties would always remain subject to judicial scrutiny and redress.

In this backdrop, the current events need to be considered.

Although the WHO declared COVID-19 as a public health emergency on January 30, 2020, the courts continued to function through the third week of March. On March 23, 2020, the Supreme Court issued an order (in Writ Petition No. 3 of 2020) extending the period of limitation in all proceedings, irrespective of the period of limitation prescribed under any law, until further orders of the Supreme Court but with retrospective effect from March 15, 2020. This was two weeks in advance of the national lockdown effective March 25, 2020.  Clearly, the Supreme Court was conscious that the prevailing situation was abnormal and the people’s right to access justice was impaired.

By March 20, 2020, the Bombay high court had effectively ceased functioning. By its order of  March 26, 2020 (in Urgent Writ Petition No. 2 of 2020), the high court extended till April 30, 2020 all interim orders passed by all benches of the high court. The court also directed that till April 30, 2020 all orders / decrees for eviction or dispossession or demolition passed earlier by any subordinate court or tribunal or authority would remain in abeyance.  This continuance of injunctions and stay against dispossession / eviction was extended till June 15, 2020 by the high court’s order of April 15, 2020. The Bombay high court was clearly conscious that the right to access justice had been limited by the prevailing circumstances and it extended its judicial protection to the extent it could.

By its notice of April 17, 2020, the Bombay high court permitted e-filing and introduced video hearings. Yet this was limited to “urgent” matters which would be heard on such days and during such hours as permitted by the court. In effect, the high court has worked for only two days in a week and that too between 12 noon and 2 PM. No guidelines were provided as to which cases would be considered urgent. Parties / advocates have no means to approach the bench if the registry declines to list a case for urgent hearing. For practical purposes, the high court has shut its doors.

In its entire history, the Bombay high court (in its previous avatar as the ‘Supreme Court’) closed down only once. That was for a period of about five months way back in 1848 and as a result of a confrontation between the executive and the judiciary.

The working of all other high courts – and even of the Supreme Court – has been similarly curtailed although media and other reports indicate that the working of the other high courts and of the Supreme Court has been more efficient. It is now obvious that although the lockdown may be eased or even vacated, various restrictions, particularly social distancing, will endure for an indeterminate time. Meanwhile, the rights of citizens – and non-citizens – to access justice will continue to be imperilled, contrary to the Constitutional mandate. Effectively, since March 20, 2020, Maharashtra is under an undeclared state of emergency.

At the best of times, our judicial system was plagued with delays. As of June 2019, the backlog of cases in the Bombay high court was nearly 4.6 lakh cases. Should the high court open its doors by June 30, 2020, at least about 6,700 new filings may reasonably be expected. Is there any hope for the court to improve its justice delivery system unless it makes optimal use of available technology by permitting e-filing and video hearings in all and not “urgent” cases?

In the context, two factors are crucial:

First, the right to life guaranteed under Article 21 of the Constitution encompasses the right to timely access to justice. The right to equality before law also encompasses the right to timely access to justice. In Anita Kushwaha v. Pushap Sudan (2016) the Supreme Court ruled “Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilised societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens”. Further, a “citizen’s inability to access courts …. is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws”.

In Swapnil Tripathy (2018), the Supreme Court, taking cognisance of the advance of technology, issued directions to enable live streaming of proceedings. It also needs to be borne in mind that “Every court has a solemn duty to proceed with the judicial business during court hours …… The court is under an obligation to hear and decide cases brought before it …. Strike [by lawyers] infringes the litigant’s fundamental right for a speedy trial…”. If lawyers cannot impede justice, can the courts do so?

Second, in 2005 the National Policy and Action Plan for Implementation of Information and Communication Technology in the Indian Judiciary was introduced. The Central government undertook the e-Courts Mission Mode Project in 2010. Phase II of the project was undertaken pursuant to the policy action plan document of 2014. According to the National Council of Applied Economic Research’s report of February 10, 2015 on Evaluation Study of e-Courts Integrated Mission Mode Project, the Bombay high court has around 80% availability of video conferencing infrastructure facilities and between 80% to 100% availability of connectivity required for this purpose. Since then, substantial progress must have been made but the fact is that video hearings are few and connectivity is poor. Why these facilities are left to idle is unknown.

Theories are rife as to the reasons underlying this denial of access to justice. Absent cogent supporting facts, prudence demands that such theories must be dismissed as speculation. The fact is that courts are unable (and unwilling?) to function effectively.

Perhaps the root of the problem has been identified by Dr. Shahid Jameel, renowned virologist – COVID-19 is a public health emergency which cannot be dealt with as a law and order problem.

The issues are large and worrisome. Many of us have lived through and overcome the Emergency. Unwittingly, still less wittingly, India cannot allow itself to be subjected to the undeclared emergency.

M.P. Bharucha is a senior partner at Bharucha & Partners and an advocate-on-record at the Supreme Court of India.