Administration of Justice during Covid: lessons to learn from the Supreme Court’s response
ABHISHEK YADAV
Advocate | Corporate, Finance and Regulatory Laws | Former Law Researcher at the Supreme Court of India
INTRODUCTION
The coronavirus-induced pandemic created a global disruption, at an unprecedented scale. Not only it exposed the fragility of human existence in developing countries, it unraveled the weakest nods in even the most developed economies of the world. One such nod, that every country was striving to find the solution to, was the justice delivery mechanism. All across the globe, the legislators had a daunting challenge to tweak the laws to deal with the new normal set by the pandemic, whereas the judiciary had to ensure that the public faith in the justice delivery system remains unshaken. In this process, nobody could fail to argue that in dealing with such an unprecedented crisis, the world needed unprecedented solutions. But was the judiciary of the largest democracy in the world, ready to adopt this change?
At a time when India, the largest democracy in the world, was struggling with issues of unemployment, poor urban infrastructure, sluggish growth, the pendency of cases in judicial courts and flooding of prisons with undertrial prisoners, hardly anyone could forecast that it would soon be hit by the biggest inimical wave- COVID-19 pandemic. For India, the post covid scenario was more challenging than the developed nations. The entire democratic machinery came to a standstill when the Union government announced a strict nationwide lockdown on 25th March 2020 [1], to contain the spread of coronavirus. Under the Disaster Management Act, the Ministry of Home Affairs (MHA) also passed a slew of other directions and guidelines[2], inter alia, in relation to domestic and international travel, quarantine facilities and contact tracing of people infected with the virus etc.
The shockwave of the lockdown disrupted the justice delivery mechanism, in toto. The judicial system which was suffering from inherent systemic breakdowns now went kaput. And, the evil consequences of this executive action to impose the necessary lockdown - more pendency of legal matters before the courts, contractual challenges to corporates, and non-access to justice, could very well be sensed by the Indian judiciary. Therefore, in their pursuit to not further disrupt the existing weak justice delivery system, the Indian courts and tribunals have been very proactive in their response. The reaction of people has been mixed-bag. The judiciary, as a whole, has been both- praised and criticized, for its judgments, order and viewpoints. However, this article intends to put a spotlight on only the major actions/inactions of the Supreme Court of India in respect of various challenges faced since the day first lockdown was announced by our Hon’ble PM Sh. Narender Modi.
The article has been segregated into different parts to better analyze the approach, planning, execution and performance of the apex court in dealing with various challenges within the larger disruption caused by the pandemic.
First, the legal and technical challenges posed by the lockdown and social distancing norms.
Second, challenges in protecting the rights of children, undertrial prisoners, and migrants.
Third, the challenges in balancing human rights and construction and redevelopment projects.
Fourth, the health infrastructure crisis (like oxygen supply, hospital beds and vaccines) was witnessed across India. The Supreme Court’s orders, judgments, and directions not only highlight its philosophy of justice but also its problem-solving mindset.
In the following sections, we take a deeper dive into the actions and inactions of the Supreme Court, as a response to various challenges and threats posed by the pandemic.
I. CHALLENGES RELATED TO THE ADMINISTRATION OF JUSTICE
The Supreme Court of India adopted a very proactive and timely approach considering the difficulties that could be faced by litigants in filing legal documents within the stipulated period of limitation. The court took suo motu cognizance[3] to the pandemic situation by extending the period of limitation with effect from 15th March, 2020. Furthermore, it clarified that the above order could neither be interpreted in a manner to have eclipsed the period of filing charge sheet as mandated by Section 167(2) of the Criminal Procedure Code, nor could government restrict the indefeasible rights of the accused to get default bail on non-submission of chargesheet within the prescribed time period.[4] The underlying concern was to protect the human rights of the accused. This clarification prevented any laxity on the part of law enforcement agencies and roadblocked any attempt to linger the criminal justice system. The court further sent a reminder to other courts to maintain judicial discipline and comity.
The nationwide lockdown, and the mandatory guidelines to maintain social distancing, gave a strong blow to the conventional physical hearings and filing procedures, prevailing across all judicial forums. The judges and court staff couldn’t remain immune from the contagious nature of the virus. The physical court hearings could not be sustained for long, due to higher instances of covid infection among judges, court staff and advocates. Therefore, in another suo motu writ petition[5], the Supreme Court issued guidelines for virtual conferencing as a mode of courts’ functioning. The Indian Apex Court was among the first responders across the world, to embrace modern technology as a medium of administration and delivery of justice. Under the aegis of the National e-Governance Plan (NeGP), the e-Court Project was incorporated. This infrastructure offered a user-friendly interface with facilities like online case management, e-filing and virtual hearings. The Supreme Court held 43,713 hearings through virtual conferences as of 31st December 2020.[6] Don’t the numbers look astonishing and impressive? Certainly, it does. But the situation turned from bad to worse for the lower judiciary. The overall judicial cases backlog has soared by about 19% since March 2020 (at the start of the pandemic).[7] For the first time, the pendency of cases before subordinate courts have crossed the mark of 4.4 crores (from 3.68 crores at the end of March 2020).[8]
It was only recently, after a decline in the number of reported cases and agitation by the lawyers’ fraternity to resume physical hearings, that the Supreme Court agreed to adopt a hybrid model of hearing whereby physical hearings would be conditionally permitted. Although early adoption of technology alleviated the administrative and judicial burden by breaking the ice between justice dispensation and technology, the overall scenario- huge pendency of cases, and vacancies in various high courts and lower courts, is bleak. Prior to the recent appointment of nine new judges at the Supreme Court which now takes its total strength to 33 (including CJI), out of total sanctioned strength of 34, the apex court too was understaffed.[9] The vacancies of judges in all High Courts is more than 400 and the number goes on to 5,000 for subordinate courts. However, its recent final warning to the Union government to fill the vacancies at tribunals before it initiates contempt proceedings against them,[10] reflects well that the Supreme Court is determined to reclaim its lost glory and reestablish public faith in the Indian judiciary. Though life is returning back to normalcy, a lot remains for the Supreme Court to redesign the justice delivery system to ensure the timely appointment of judges, early disposal of cases, adoption of new age technologies to enhance efficiency and promotion of alternate dispute resolution processes (like mediation and negotiation).
II. CHALLENGES RELATED TO THE HUMAN RIGHTS
A). Rights of school children
The pandemic created unprecedented difficulties for the school management and the parents of the children. While on one end, the management was keen to collect full school fees as to meet their operating expenses as the education delivery shifted to an online mode of learning, the parents pleaded to reduce the school fees, especially the components that remain unused during the pandemic (like transport, annual/cultural fest, development fee, etc.). The conflicting interests were further aggravated when some schools decided to raise their school fees without offering parents an alternative EMI option to pay their dues.
In response to their woes, parents approached the Supreme Court seeking a moratorium on school fees. The court decided not to intervene as it felt that High courts are better placed to decide matters specific to the prevailing circumstances in different states. The bench observed “At the moment we do not know what to do. In such matters, even though problems may vary from state to state, parties approach this court and get disappointed when we refuse to issue notice.”
The inaction of the Supreme Court led to the chain of fresh rounds of litigation before various High Courts, which further deteriorated the situation. While some High Courts decided in favour of the parents by allowing them easy payment options (EMI installments) or reducing the fees by 20-30%, other High Courts decided in favour of the schools by permitting them to collect full fees.[11] The indecisive act of the Supreme Court to hear the initial case related to school fees led to a batch of appeals from High Courts across various states (Delhi, Rajasthan, West Bengal, Madhya Pradesh, etc) knocking its doors. In an appeal [12] against the Rajasthan High Court order which allowed a reduction of school fees by 50-60%, the Supreme Court decided in favour of private unaided schools. As a one-time measure and to avoid more rounds of litigation, the Supreme Court issues guidelines like inter alia, which allows a uniform 15% deduction in the annual school fees in lieu of unused facilities/activities, giving parents an easy payment of dues in installments.[13] The court further highlighted that neither the state governments nor the regulating authorities decide on the school fees issue, as these fall within the category of contractual matters- “In the scheme of the Act of 2005, there is nothing to indicate that the Authorities can interfere with contractual matters or indirect hardships — such as the inability of parents to pay school fees due to pandemic situation.”[14]
Even though balancing human rights against contractual rights is precisely not the easiest job, some act of balancing is desired and needed to find amicable solutions. The omission on the part of the Supreme Court to issue similar uniform guidelines to schools across the country at the start of the lockdown created havoc. The victims were the school children, the demographic dividend that our nation plans to reap the benefits of. The Supreme Court should have been more proactive to find a workable solution, just like it did while disposing of a similar plea after a year when it first received petitions for parents from various states.
B). Rights of migrant labourers:
With the imposition of the nationwide lockdown in March 2020, the lives of migrant labourers who come from far-flung states in search of employment opportunities, were adversely impacted. The lockdown guidelines during the first Covid wave were directed to maintain status quo in construction activities while all business activities and shops would remain closed unless they fall in the category of ‘essential services’. The migrants were panic-stricken due to the unprecedented nationwide lockdown, absence of any employment opportunities, lack of food, shortage of funds and uncertainty with respect to things returning back to normal. As a last resort, returning back to their hometowns seemed viable. However, the guidelines [15] issued by the Central government placed restrictions on inter-state travel. The whole world witnessed what happened next. Images of helpless and downtrodden sections of the Indian population (mostly migrants) were widely circulated in the digital and print media, where they were seen walking on roads to cover their journey back home.
Most of the North Indian states witnessed an exodus of migrant labourers, which later followed in southern states also. The situation got aggravated when some of the states started reporting high numbers of Covid infected cases and decided to restrict travel (via bus, trains and air) to/from the state to any other state. Moreover, the capitalists and labour hiring agencies lobbied State governments as the semi-skilled labourers from north Indian states (like UP, Rajasthan and Bihar) are required in construction and other development-related activities across India. Sadly, in one out of many similar reported instances, migrant workers were seen walking on Ballari highway (in Karnataka) to reach back to Uttar Pradesh! [16]
Since the first lockdown was announced, many petitions were filed before the Supreme Court for directing the Union and state governments to help the stranded labourers with food, travel and shelter facilities. Nothing moved by these petitions. In another application filed before the Supreme Court, petition Alok Shrivastav mentioned the Aurangabad instance where 16 migrants died when run over by the train while they were sleeping on railway tracks. In its response, the court adopted a shockingly insensitive and unwise approach.[17] Instead of questioning the Central government on the veracity of their stand that no migrant workers are on roads as they have been relocated to shelter homes, the bench remarked- “How can we stop them from walking?”. The Centre has on numerous occasions exposed its lack of planning and coordination, however, the Supreme Court has ‘cherry-picked’ some of these to take cognizance and arrive at workable solutions, and adopted a ‘non-interference’ approach in the rest. The letter [18] written by twenty senior advocates of the likes of Indira Jaising, P Chidambaram, and Anand Grover, served as a wake-up call for the Supreme Court to leave its non-interference approach aside, and dispense justice to the blatant violations of the fundamental rights of migrant workers. The last sentence of the letter “injustice anywhere is a threat to justice everywhere” must have reminded the Supreme Court of the famous quote by Martin Luther King Jr. and indirectly propelled it to change in its earlier adopted ‘non-interference approach. The next day i.e. May 26th, 2020 the apex court took suo motu cognizance [19] of problems and miseries of migrant labourers who had been stranded in different parts of the country and heard the matter at length. It took sooner than later for the Supreme Court to realize that arrangements made by Centre and state governments are inadequate. The court passed and order [20] whereby it framed guidelines in respect of shelter, food, health facilities and travel of the migrant labourers. The bench even went on to criticize many state governments (Delhi, UP, Maharashtra and Odisha) for the inadequate information and execution of its earlier order(s).
The second covid wave in March-June 2021 repeated the pitiable situation of migrant workers witnessed in the first wave. However, this time mutation was a common characteristic between the coronavirus and the apex court. In its judgment [21] delivered on June 29, 20201 the bench comprising Justice Ashok Bhushan and Justice MR Shah, adopted a clearer and more precise approach. The seven directions given in the judgment were related to- (i)registration of workers on an online portal; (ii)allocation and distribution of foodgrains; (iii)dry ration to migrant labourers; (iv)one-nation-one-ration card scheme; (v)exercise under National Food Security Act to collect data of population in rural and urban areas.
III. CHALLENGES RELATED TO CONSTRUCTION AND DEVELOPMENT PROJECTS
The Delhi Disaster Management Authority (DDMA) released an order on 19th April 2021 restricting the movement of people in Delhi in lieu of the second wave of the Covid-19 pandemic. However, para 8 of the order mentioned “construction activities where workers are residing on site were permitted during the curfew period”. In response to some news articles showing the movement of labourers to and fro at the Central Vista Avenue Redevelopment Project and the absence of any shelter facilities at the construction site, an appeal [22] was filed before the Supreme Court challenging the decision of Delhi High Court that refused to halt the project. The Delhi High Court, without even ordering a probe, agreed with the contentions of the Union government that adequate facilities (shelter, health, quarantine and oxygen) are provided at site and that there is no movement of labour. It held “The construction of Central Vista Avenue Redevelopment Project cannot be seen in isolation. In fact, the whole Central Vista Project is an essential project of national importance, where the sovereign functions of Parliament are also to be conducted. Public is vitally interested in this project”.
The Supreme Court declined to interfere in the matter and turned a blind eye to the observation of the Delhi High Court.[23] It did not even care to weigh the interests of residents of Delhi and construction labourers (right to safe and dignified environment) against the national and sovereign interests, as they put it (construction of Central Vista Avenue Redevelopment Project). This was the second instance apart from the migrant workers crisis, where the Supreme Court has acted oblivious of the pandemic situation and loss of human lives, especially when the victims were the poor, downtrodden and voiceless. Not to mention that this all was happening when the entire nation was begging for oxygen supply and hospital beds, which has been covered in the next section.
IV. CHALLENGES RELATED TO THE SHORTAGE OF HEALTH INFRASTRUCTURE AND SUPPLIES
The second wave of the pandemic was a nightmare for the entire nation! The time laid open the inadequacy of our health infrastructure and basic supplies (like: oxygen, pharmaceutical drugs like remdesivir, and vaccines). The existing pitiable situation was further deteriorated by the poor coordination between states in their attempt to hoard the essential supplies and the extremely disappointing role of the central government in coordinating the situation with a strict plan for procurement, allocation and distribution. On one end the High Courts were ordering respective government bodies and enforcement agencies to meet the health supply requirements in their respective states, on the other end the nation had its eyes on the Supreme Court if it could lead the nation.
Fortunately, the Supreme Court decided to take suo motu cognizance of the health crisis witnessed during the second wave of the pandemic. The three-judge bench remarked in its order -“We also hear people crying. People who have crossed our paths crying for a cylinder of oxygen. Today the ground situation in the national capital is that there is no oxygen or, for that matter, in Gujarat or in other states. We can’t revive those who have left us, but we can certainly do something to save the lives of several others. We want you to tell us within the foreseeable future what is going to be the difference? How will things change on the ground?".[24] In its detailed order, the court reminded the central government to focus its policies on the basic requirements- medical grade oxygen, suspension of patent rights of essential drugs along with compulsory licensing for production of medicines like remdesivir and favipiravir, transportation of supplies, speeding up the vaccination of people and coordinating with all the state governments and UTs. The bench even went on to question the centre on heterogeneity in the prices of vaccines across states and rather proposed the idea of a national immunization program.[25] The Supreme Court remarked in the order- “Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies.”[26]
REFERENCES
https://pib.gov.in/PressReleseDetail.aspx?PRID=1607997
https://static.pib.gov.in/WriteReadData/userfiles/Guidelines.pdf
Suo Motu Writ Petition (Civil) No(s).3/2020
Criminal Appeal No. 452 OF 2020
Suo Motu Writ Petition (Civil) No. 5/2020
https://www.thehindu.com/news/national/were-agreeable-to-physical-hearings-supreme-court-judges-tell-cji/arti cle33890645.ece
Ibid
https://www.barandbench.com/columns/policy-columns/debriefed-controversy payment-of-school-fees -amid-covid-19-pandemic
Indian School, Jodhpur & Anr vs. State of Rajasthan & Ors, Civil Appeal No.1724 OF 2021, Supreme Court of India
Ibid
Supra [12]
Supra [2]
https://www.firstpost.com/india/migrant-crisis-in-karnataka-reveals-dark-underbelly-of-bengalurus-economy-an d-how-recruitment-agencies-exploit-labourers-8343041.html
https://www.scobserver.in/the-desk/migrant-labourers-crisis-and-the-supreme-court
https://thewire.in/law/supreme-court-migrant-workers-lawyers-letter
Suo Motu Writ Petition (Civil) No. 6/2020 [https://scobserverproduction.s3.amazonaws.com/uploads/beyond_court_resource/document_upload/467/Suo_Motu_Petition_on_Migrant_Workers.pdf ]
Supra 19
ibid
Suo Motu Writ Petition (Civil) No.3 of 2021
Supra [24]
