This article is written by Rida Zaidi, a law student from Faculty of Law, Aligarh Muslim University. This article deals with the Impact of COVID-19 on the Indian Legal System and its restructuring.
COVID-19 being a deadly, contagious disease has crashed every sector of our economy to the core. It has shown us unprecedented times whose impact could not be predicted at all. Our legal system already had a backlog of cases and the COVID-19 crisis escalated the rate. Our country went under a total lockdown for months which affected the rate of unemployment, fall off in education as it switched to the online mode, healthcare facilities deteriorated, the rate of mental illnesses were on the rise etc.
The prevalent virus posed some serious threats to the legal system of our country. The legal system shifted to an online mode from the physical courts. As the first wave emerged, the courts were all together shut but the justice mechanism could never cease to function. The article shall deal with the challenges faced by the judicial officers in dispensing justice and the lawyers in offering their services furthermore the way ahead and the reforming of the legal culture of our country.
Changes in the Indian legal system
Virtual courts acted as a custodian in the COVID-19 era. It brought many changes in the pattern of the functioning of the courts at all levels. Our legal system has resorted to the age-old method of delivering justice by-taking into account all the documents and evidence in the hardcopy but the COVID-19 virus reformed the entire legal system. The changes are as follows-
- The proceedings were held on a virtual platform where lawyers argued in the same manner in which they performed earlier by producing evidence, examining witnesses and the Judges passed the judgements or orders.
- The vakalatnama, documents, petitions, affidavits etc were submitted and recorded in electronic form.
- The litigants could be updated with the status of their cases through the online portals.
- The prisoners could contact their family members through video conferencing.
- The prisoners were produced on virtual platforms where they were witnessed and examined.
- Owing to the virtual platforms the trials were quite speedy and transparent.
- Due to overcrowding and congested prison cells many prisoners were given interim bails for the time.
- The installation of e-courts helps the litigants to file complaints from anywhere in the country 24/7.
- The practice of live proceedings streaming online could be viewed by the general public.
- The promotion of Alternate Dispute Resolution (ADR) which was conducted in an online mode way before the COVID-19 era began.
It was also held in the case of Anita Kushwaha v Pushap Sudan (2016) that access to justice, apart from falling under the ambit of Article 21, is also guaranteed under Article14. The Indian legal system has always been flexible in making amendments as and when required. For example, it included the statute of Information Technology Act, 2000 and the digitalisation of e-courts portals and apps for the public to access the copies of the judgements or orders passed by the courts. It was held in the case of Youth Bar Association of India v Union of India (2016) that electronic form of FIRs on the State Police websites were helpful as the courts could access it in the electronic form. Everything has its opportunities and obstacles and so does COVID-19 which made our legal system technology-friendly in carrying out its daily functions blended with the technical glitches that existed.
Looming challenges to the legal culture
Adapting to any new culture has certain challenges which need to be mastered. The virtual proceedings constituted some challenges for the law professionals and judges which are as follows-
- The problem of being technophobic
There were many instances reported where lawyers were not competent enough regarding the working of the virtual platforms. They had to suffer and were at a disadvantage from those who were technology- friendly.
- Connectivity issues
A wide range of people, the parties, their counsels etc hail from a variety of backgrounds and all of them may not be financially well off to have a good network of connectivity or having electronic equipments for the same, which makes their access to justice difficult and is not fair for the litigants belonging to the poor strata of the society.
- Violation of privacy
There was a lot of debate as to the virtual proceedings which are against the right enshrined under Article 145(4) of the Constitution and are against the rule of law although it makes the legal system more transparent.
- Unemployment among the advocates
The pandemic has hit the lawyers, especially the first generation lawyers; they are unemployed and those who were earlier employed were fired from their posts as no senior advocate wanted to recruit new lawyers and to pay them their dues.
- False evidence and conduct of the accused could not be judged
The evidence is produced in the electronic form which could not be relied upon completely as it may not be 100% accurate. The judges face problems during the trial of the accused as they are not able to infer the facial expressions, gestures and body language of the accused which play an important role in discovering the truth. Under certain situations, the streaming is 2-3 seconds delayed than the actual scenario which generates obstacles in analysing the case.
Advantages of the legal system’s cultural reboot
COVID-19 has rebooted the legal system and has paved the way for a better legal system. The advantages that can be perceived are as follows-
- Virtual hearings are quicker, transparent, time-saving, and accessible. It is less costly as the travel fee is cancelled.
- It protects the vulnerable groups of the society such as women, children, the aged etc., from advancing the courts and attending the proceedings.
- It helps in minimising the pendency of cases as virtual hearings take less time in disposing of a suit.
- For certain categories like appeals, final judgement etc. were conducted online and required no physical presence and any paperwork can be executed through the online portals and apps, this led to a reduction in the strength of the people moving to the courts.
- Virtual proceedings minimize the workload of the lawyers by attending more than one hearings in a day from the comfort of their homes or chambers.
- Virtual platforms became a medium for dispensing justice in times of the prevalent virus. It aided the legal system with a solution to the problem of COVID-19.
- Law students who wish to intern at different law firms or under different advocates can do so in the online mode which was not possible earlier due to lack of resources to travel, accommodate or financial issues etc. Different advocates and judges can impart knowledge to their juniors through conducting webinars.
Everything has its pros and cons and so do the virtual courts. The challenges go hand in hand with the advantages. COVID-19 has renewed our legal system for the better. All the resetting of the courts will assuredly make our legal system more vigorous in its functioning in the future times to come.
A new way forward
As we know, our Legal system is the product of the British justice system. Our laws have been since their origin unpolished, unresponsive and lead to delayed trials. No doubt there have been a lot of amendments; nevertheless, it requires more of those. The issue of the digital divide is based on lack of access to technological resources like phones, laptops etc. The courts have recommended installing e-Kendras in all court complexes for breaking the digital divide and bringing the litigants at one destination for the assistance of their case formalities that needs to be done. The issue of poor connectivity can be solved by establishing national broadband services in the court complexes of the entire country. Lack of competence in the field of technology can be resolved by arranging awareness and training programmes for the advocates to learn the operation of the virtual platforms.
The Supreme Court has emphasised the importance of open courts as cases of constitutional and national importance require the general public to be aware of the dominant matters decided by the judiciary of our country. It promotes transparency and openness in the legal culture. The live proceedings of the Courtrooms could be witnessed by everybody online. “The judicial system is by far the most important and significant instrument in preserving democracy and the rule of law.”- PN Bhagwati. The Courts has held “In the case of State of Maharashtra v Dr Praful B Desai (2003) the Court gave guidelines to record electronic evidence through video conferencing breaking all the territorial boundaries” The Courts have digitized in the most unprecedented and improbable times but it had a positive side as well . We evolved for the better during these unimaginable times.
India’s COVID-19 response : constitutional and legal instruments
Within our Constitution, the matters of public health and sanitation are dealt with by the state and the local governments whereas the Central government took up the task of quarantine, inter-state migration. During the pandemic, the government invoked the Disaster Management Act, 2005 and notified the people about the pandemic as an emergency and to be prepared for the deadly disease. Under our Constitution, the powers of the Central government in this regard is very limited because of which the government is restricted to perform only limited functions for the healthcare of the public. We have a colonial law prevailing in our country for such unprecedented times like COVID-19 which is the Epidemic Act, 1897. This Act was legislated for a time when the country is under threat of an epidemic disease but not for the management of public healthcare services. During this crisis, there has been a lot of debate as to certain amendments being made in this particular Act or to enforce any other new legislation for the pandemic. Many issues about the Constitutional and legal instruments appeared on the leading news channels, such as- lack of privacy of the patients and disclosure of their medical treatment, investments to meet the medical treatment for the virus, travel restrictions etc. The legal framework of our country has somewhat failed to quite a large extent as everyone witnessed several blazing loopholes. In many countries like the United States and Australia, special emphasis was laid down upon strengthening the public healthcare laws and the preparedness for the same. For example, in Spain, all private hospitals were nationalised for the sake of creating more hospital beds for the COVID-19 patients. The existing laws can lead to coercing the individuals as their powers are limited and there is no transparency by the government towards the general public regarding the services provided to them in the COVID-19 era.
COVID-19 : the tussle between the Centre and State relations
Our constitution provides for Cooperative Federalism. The matter regarding public healthcare falls under the ambit of the powers of the State government. and the Centre has very limited powers. The pandemic witnessed a crisis in the relations of both the Centre and the State. The approach of the centre was not cooperative towards providing hospital beds, vaccinations, proper medical treatment etc. There was an uneven distribution of oxygen and vaccines in the states and the centre was not ready to answer. BBC News published an article in April when the second wave was at its pinnacle which stated how India failed to prevent the second wave. The reports showed that by mid-April, the country was averaging more than 100,000 cases a day. On Sunday, India recorded more than 270,000 cases and over 1,600 deaths, both new single-day records. If the runway infection was not checked, India could be recording more than 2,300 deaths every day by the first week of June. The Centre criticised the performance of the State instead of providing an alternative to the problem. People were running from hospital to hospital in need of beds, ventilators and oxygen cylinders and the State was incapable of providing it all on its own because there were price negotiation problems with the producers or the suppliers or the Centre discriminated in providing these things to the state governments.
The cases were increasing every day on an uncountable rate whereas on the other hand there was a scarcity of resources to be provided to such patients and the Centre instead of lending help and intervening in these times of crisis in the work of various state government maintained a distance and did as good as nothing and repetitively told the media that the healthcare is a state matter.
No amendments were made in the Epidemic Act, 1897 or no new legislation was framed to realign the functions of the centre and the state in the times of emergency like that of COVID-19. The global pandemic made apparent the glitches between the centre and the state in those times where both of them should have aided each other for the welfare of the public at large.
Deep-rooted issues in the Indian Judiciary
The Judiciary, being one of the organs of the government, is the most independent and unaccountable body under our Constitution. It seeks to deliver justice and makes sure that no innocent is found guilty. But the judiciary faces many struggles while carrying out its day-to-day functions which are as follows-
- Pendency of cases
The judiciary at all levels in our country is overburdened with a lot of cases which happens due to the long trials that take place for every case-production of documents, examining witnesses, collecting evidence etc., the parties are given dates after dates for the proceedings and the case continues furthermore there is a vacancy for the posts of judges which never gets filled due to lack of judges.
As it is well said that every profession has good and bad people, it applies to all judges as well that some bring pride whereas some bring shame to the white-collar profession. Some judges in order to extract “money”, in favour of a party while passing the judgement or order failing to recall the preamble of our Constitution or the noble job they are serving. The judiciary is held unaccountable which leads to a lack of transparency in scrutinising the performances of the judges.
- Lack of transparency in the appointment of judges
In the mechanism of appointment of judges, be it through the collegium system or through the NJAC, the problem of lack of transparency persists as no one is aware who selects them and on what basis, whether the officers have favouritism towards a particular candidate or not. It all happens behind the curtains.
- People under trial
Due to the above-mentioned issues, the accused undertrials have to wait for quite a long period for their proceedings to commence. Sometimes the accused are innocent but in order to prove to the court that they are, the procedure followed is quite lengthy and it takes years for a single accused to get out of the prison.
Can we ensure that judiciary remains unaffected even in pandemic
The world has been affected by the deadly virus, so has our judiciary, yet it is the pinnacle of justice that needs to be taken care of at all costs. The judges and lawyers before serving the people should keep in mind their sound health both physically and mentally because only if they are fit, the people are fit. The virtual courtroom hearings must be adhered to till the situation turns back to normal. All the judges and lawyers must be fully vaccinated before approaching the physical courts. The cases which can be easily dealt with through the online mode must be continued in that mode only. The strength of the courtrooms should be reduced and only the parties and the witnesses should be permitted to be present in the proceedings. The work of dispensing justice should not be on halt as there is an existing backlog of cases and doing so will result in the increase of the backlog which cannot be tackled at any cost.
The courts should follow all the COVID-19 protocols of wearing masks, maintaining social distance and sanitizing our hands regularly. All the e-filing and paperwork must be done online which is quicker and is more transparent for the general public. The evidence and statements could be recorded and sent to the lawyers to produce it before the courts rather than doing all this in the chambers.
The COVID-19 era is the unprecedented time that brought changes in the lives of almost every individual, every sector, every institution. Every quarter was put on halt for some time but the justice system could not as access to justice is one of our fundamental rights as enshrined under Article 21 of the Constitution. It shifted to the online mode and dispensed justice for the innocents. The legal system was restructured for the better as it made the legal framework quicker and more transparent. Every change takes time to adapt to but in the end, that is what evolution is. There were challenges and hurdles but all paved the way for a better legal system. The judiciary maintained its ethic of serving the people even at the cost of the lives of its professionals yet all the protocols were followed. These times made us more strong-headed and the legal system more adaptable.
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