Written by Lakshya Jain
Class 12, Vivek High School, Chandigarh
Source: Bar and Bench
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
The COVID-19 pandemic has disrupted the justice delivery system like never before. The compulsions associated with 'social distancing' coupled with lockdown directives led courts in India to shut their premises to the public. At the same time, recognizing that a complete shut-down of the justice-delivery system is undesirable, judicial administrators turned to technology to meet the challenges posed by the pandemic. However the courts and legal professionals also faced several challenges during the Pandemic, the author in this article seeks to highlight the impact of COVID 19 on the legal industry and tries to analyse the different measures which were put in place to counter the effects of various restrictions imposed in these times while administering justice in the society.
The COVID’19 pandemic led to unprecedented times and posed a challenge to the very existence of the human race and placed serious restrictions on the justice delivery system in the country. The said situation created a void and standstill of all the three wings under the Constitution of India, i.e., Legislature, Executive and Judiciary. However, the present article focuses only on the impact of COVID- 19 upon the judiciary and legal profession by listing various challenges faced by them in order to ensure continued administration of justice.
New working of Indian Judiciary:
The Hon’ble Supreme Court of India and the various high courts and the trial courts underwent an exemplary technological transformation when the Supreme Court of India initiated the hearing of the cases on a virtual platform.
To the author’s understanding, the legal profession was immensely affected as the accessibility to the court to seek any relief was curtailed. The legal profession has been adversely affected which in turn has affected the society at large. A person whose fundamental rights were violated or was wrongly accused of doing something illegal, had no door to knock to seek justice.
This situation again proved that necessity is the mother of invention and as the situation had arisen, the concept of the online and virtual process was brought into play for executing and upholding the fundamental rights of the citizens of India, although in a restricted manner.
The Supreme Court of India took up the challenge and vide circular dated 23.03.2020 started the proceedings in the Supreme Court of India by virtual hearing. Subsequently, various circulars dated 15.04.2020, 16.05.2020 and 14.06.2020 which demonstrates the guidelines and the standard operating procedure were prescribed. Accordingly, the various High Courts and its subordinate Courts were extended the technical know-how to start the proceedings in urgent matters. That the other limb of the legal profession i.e. the lawyers, gave a mixed response and the reason was the lack of availability of internet services and proper technical infrastructure. The lawyers also faced grave difficulty in presenting their cases for various reasons such as lack of accessibility to the library, non-availability of the support staff and various other problems.
The judiciary faced multiple challenges as it had the responsibilities to provide a stable and uniform justice delivery system to the citizens of the country.
Accordingly, the Supreme Court of India and the Chief Justice of India rose to the occasion and took reformatory actions and decisions, but nonetheless, it faced the hurdles in overcoming the challenges such as:
1. Increase in Pendency Of Cases
The pendency of cases has been impacted severely due to the imposition of lockdown and COVID-19. The courts working was brought to a standstill and according to the information available on the National Judicial Data Grid, there are around 3.5 crores cases pending before the Subordinate Courts, High Courts and Supreme Court alone. This data does not account for various litigations which were pending before various tribunals such as Consumer Forums, CAT, NCLT, NGT, TDSAT, Income tax Tribunals, GST Tribunals and various others speculated tribunals apart from Arbitration Tribunals.
The pendency of cases of civil nature has affected the economy of the country and the pendency of the cases of criminal nature has affected the personal liberty and freedom of the citizens of the country. In both situations, the justice delivery system has been adversely affected.
2. Judicial Appointments Delayed
Due to the ongoing pandemic, the judicial appointments have been delayed, however, the retirements of the judicial officers took place as per their date of retirement. The net result of the same is that the judiciary which was already facing a dearth of judges and judicial officers was and has been further left with less number of judges. This affects the performance of the existing judges as they have to take the burden of additional work after the retirement of their other judges and also increase the number of pending cases. Since the appointment of judges and judicial officers requires equal contribution from the central and state governments, the process has delayed the new appointments as well as the promotion in the subordinate judiciaries. All these have also impacted the judiciary extensively.
3. Quasi-Judicial Authorities And Tribunals Stopped Working
The working of various quasi-judicial authorities and tribunals which are constituted under special laws also came to a stop. This extensively hampered the judiciary as well as the economy. For example, a person who had sought a refund from the GST Tribunal and his appeal/ case was pending before the Tribunal, was forced to go into a financial crunch as his money/capital was blocked and more so the difficulty had arisen as no one could foresee as to how much time and for how long this pandemic was to stay. The quasi-judicial authorities under various local acts which take care of the specific matters had to be compromised with delays and a common man had no place to seek redressal of his grievance.
4.Hardships of Under Trials
It is a well-established fact that the jails in our country are extremely over-occupied. Hypothetically stating, a jail having a capacity of 100 prisoners has a least 1000 prisoners. In the backdrop of a peculiar spread rate of COVID- 19, it was a great challenge for the judiciary to intervene and control the situation. The Supreme Court of India in a judicial order dated 22.09.2020 asked for the state authorities to look into the safety of the prisoners and release them on bail where necessary. The Punjab and Haryana High Court was amongst the first few High Courts which constituted a committee and released on bail a large number of undertrials, especially in the cases of petty offences. In addition to the above, the jails were continuously monitored and every accused was compulsorily made to undergo COVID- 19 test and were kept in absolutely segregated and isolated areas and away from other jail inmates. Having said the above, the overall situation in the country has not been very good and the judiciary has to keep a close watch on this and not able to divert its time in the more important matter coming before it
5. Virtual Court Proceedings
The concept of “access to justice delivery system” was severely affected despite the fact that the same is a fundamental right which is guaranteed under Article 14 of the Constitution of India. The essence of access to justice has the following elements:
● The state must provide an effective adjudicatory mechanism
● The process of adjudication must be speedy
● Litigants access to adjudication must be affordable
● The mechanism provided should be accessible in terms of distance.
However, this pandemic provided a new opportunity for the judiciary to formulate an effective justice delivery system.
The Supreme Court on the very first occasion took the lead and started virtual court proceedings. Since the court premises were always overcrowded and people from all walks of life would visit, therefore, the same was taken as an extremely sensitive zone. To curb and contain the spread of the virus, the Hon’ble Supreme Court of India started virtual/online hearing by putting the technology to its optimum use. The digital platforms with high-speed internet service and logistic support for the same by the staff created a new mode of court proceedings. The judges were visible and audible online on a computer/tab/laptop/smartphone and on the other side the lawyers appearing for their clients were online too. Despite initial hiccups, both the Court as well as the lawyers improvised and successfully started using the technology effectively for providing justice administration to the common man. The cases were being filed online and short notes are exchanged on emails as well as on WhatsApp. The arguments have been improvising from time to time and are more concise and precise.
Although, the Hon’ble Supreme Court of India successfully started conducting virtual proceedings and few High Courts also followed but the infrastructure at the subordinate court level is still a challenge which is being taken care of.To sum up, the judiciary has faced huge challenges due to the COVID- 19 but has come out strong and updated by using the technology to its best use.
The legal profession has also taken a big toll.
The role of the judges and the impact of COVID- 19 has been discussed in the first part of the article and another important limb is the legal profession which is discussed here. The professionals as all other citizens of the country also faced the heat. The Courts and Tribunals having shut down created not only financial implications for a lawyer but also caused a socio-economic problem.
The legal profession was severely affected as the young lawyers lost their jobs and there was an acute downfall in the litigation. Although the disputes were there, but since the courts were not functioning, the earning of a lawyer was badly hit. The Supreme Court and Bar Council of India came to the rescue and granted financial support to young lawyers. However, the other side of the coin saw a great new era where a lawyer could appear in any court while sitting in his own office. The cases were heard at length meticulously and as of now, there is no disruption while a matter is being argued. The pleadings and memorandum have become a very important part because in case a lawyer is not able to put forth his case due to any technical difficulty, the court relied upon the pleadings and passes the order. The Author is of the opinion that this pandemic has improved the drafting skills of the lawyers as very less is left upon the arguments. The socio-economic scenario has also drastically changed as the litigation has been scuttled and due to this pandemic, a common man is not able to approach the Court and seek justice as his movement and approach to a lawyer was restricted. A poor illiterate person, who is not equipped with the modern technologies internet and accessible to the gadgets, has suffered drastically. His right to seek justice for a wrong done to him has been affected critically. He had been left with no recourse. It was impossible for a common man to approach the court for his rights but at the same time, the lawyers and the judges with the support of their staff took up the challenge and effectively made their submissions through electronic mode and enabled the court with their assistance to pass the orders. The Government did their part of the job, but as far as the violation of the fundamental rights of the citizens is concerned, a common man could not approach the Court and his right access to justice was restricted.
The outbreak of this pandemic influenced litigation and the legal profession in numerous manners. Although the judges, lawyers and litigants are trying to accomplish the justice delivery system however the quick spread rate of this virus has raised a big hurdle. The social distancing from human touch and the use of masks to prevent the spread has caused extreme difficulty in the court work. For example, if a document is to be attested by a notary/oath commissioner, the same would have to be touched and signed in front of each other and there would be human touch and exchange of paper involved. The ground level working has been hit badly due to this virus. The legal profession has seen a sea change in terms of working as well as approach. Although, the advocates earning has reduced, but the positive sign is that needless litigation has also come to an end. The people have started resorting to amicable solutions and adjustments in petty matters. The professionals have raised their acumen and are contributing positively to society. The new advance virtual procedures are being taught to various professionals of different age groups so as to equip them to be a part of these new digital court proceedings. There is a percentage of lawyers who are far away from the new technology either due to their age or lack of availability of infrastructure. It is learnt that the Bar Council of India and various Bar Associations of lawyers are taking extensive steps to support the lawyers financially as well as technically to make each and every lawyer compatible and accessible to this new model of the online justice system.
A change never comes without criticism. There has been various opposition and challenges to the working of this digital platform. The new system of electronic filing and virtual arguments through video conferencing applications is difficult to comprehend for some. However, the support staff which undertakes the smooth functioning of the entire court proceedings deserve an applaud. In fact, the process of E-Filing should be extended to all the Tribunals and Quasi-Judicial Authorities, so that a larger number of citizens can have access to the court of competent jurisdiction for redressal of their problems. To conclude, it is summarized that the COVID- 19 has impacted immensely as well as severely on the legal profession and the judiciary but at the same time, this segment of the society has accepted the challenge and is strongly undergoing the transformation.
 Anita Kushwaha v. Pushap Sudan 2016 (8)SCC 509