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Judiciary: An Essential Service

INTRODUCTION:

Coronavirus disease (COVID-19) is an infectious disease caused by a newly discovered coronavirus. Most people infected with the virus will experience mild to moderate respiratory illness and recover without requiring special treatment. Older people and those with underlying medical problems are more likely to develop serious illness. At this time, there are no specific vaccines or treatments for COVID-19. However, many ongoing clinical trials are evaluating potential treatment.[1]

However, it is equally important to uphold the law since it plays a very fundamental role in society. Needless to say, this pandemic has not only posed threats to the working of the judiciary alone but almost all fields at various levels. A pandemic is undoubtedly a very unique challenge and of all the issues, it is the least foreseen. In such a case it is very important to make planned operations. It must be in such a way that the necessary authorities must ensure the continuance of operations without compromising the health of the judicial workers as well. The Indian Judiciary for its existing condition with a huge number of case backlogs could find a lot of alternatives to address the urgent matters through video conferencing. While this provided a lot of happiness to a set of people, other people, whose issues were not considered ‘urgent’ by the court could not find justice. With the help of modern technology, courts have accepted the challenge to their efficiency to have a continued commitment towards the constitution of the country and provide access to justice at the time of need.

DIGITISATION OF COURTS:

The Supreme Court’s approval of live web streaming of court proceedings in Swapni Tripathi v. Supreme Court of India was one of the major decisions in the year 2018. This was also approved keeping in mind that transparency is the key to any judicial system. However, complete digitalization of the court proceedings itself is a challenge undoubtedly. This was the case when the novel coronavirus attacked the whole world. The judiciary in India, to maintain access to justice, turned to digitalization. This was an unexpected opportunity for challenging the courts to evolve and digitize their services.

Article 142 of the constitution states that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.[2] Article 130 of the constitution states that the chief justice of the Supreme Court may, with the consent of the president of India, be allowed to set up the Supreme Court in different places.[3] In exercise of these powers given under the constitution, the Supreme Court on the 6th of April issued an order to conduct the hearing through video conferencing. E-filing software is in place for uploading copies of the documents online. High courts and other sub-courts, within their power, were asked to adapt to this new technology as well.

The digitization process as a whole may turn out to be very advantageous to the court shortly. The E-Courts project was conceptualized based on the National Policy and Action Plan for the implementation of Information and Communication Technology (ICT) in the Indian Judiciary-2005 submitted by E-Committee.[4]This was done to make the justice delivery system more efficient and cost-effective. Quoting Winston Churchill ‘Never let a good crisis go to waste’; this whole process of digitization might also turn out to become one of the long time pending system that the Indian Judiciary is yet to establish. This might result in various positive effects and advantages such as reduced paperwork, more transparency, and a solid database leading to hearings and bails on the time given leading to lesser backlogs of cases which is the need of the hour. As much as it is important to deliver justice, efficiency is one of the most important features of a successful and independent judiciary.

The judiciary could not afford to stop its service as it was also essential. As much as it is considered essential, matters which weren’t listed as ‘urgent’ by the court were not heard. What is ‘urgent’ is left open to interpretation. The judiciary takes up suo moto cases and public interest litigations thus, changing how a situation is handled. However, problems such as illegal evictions, wages of daily wage laborers, and other problems such as transportation of migrants were awaiting the Court’s response. Few courts even extended the expiration of bails and anticipatory bills to one more month. Such restricted functions of the court are the reason to make judiciary an essential service. Therefore such technological advancements must be implemented in a planned manner so that this does not hinder the process of rendering justice.

EFFECT ON COMMON PEOPLE:

Due to the independence of the judiciary, it cannot suspend its services temporarily or permanently. An independent judiciary is very crucial for a free society. Article 50 of the C onstitution separates the three organs of the government from one another.[5] Due to the principle of separation of power, the suspension of non-urgent matter has been according to the instructions of the respective administrative heads and not by the specific limitation of the functioning of the judiciary. In The Essential Services Act,1981[6]the following have been enlisted as essential services Hospital& Hospital support services, Defense, Police, electricity, water, sanitation, bank, transport limited to essential goods or related to fire, Law and order, and emergency services. During the pandemic, the courts should also be able to check if the people’s fundamental rights have been infringed. In the case of Imran Mohd. Salar Shaikh v The State of Maharashtra and others.[7], where a plea to include judicial services as an essential service was filed, the Bombay High Court rejected the plea because it was up to the State government to decide upon such issues, as per the Essential Services Act, 2017. Although the government order and the act do not specifically state that judicial services are essential, the government has not stopped or suspended its functioning because of the crucial role that it is playing. The Supreme Court was unable to handle other cases as however resulted in a lot more case backlogs. It has resulted in a lot more basic problems waiting to be addressed.

Firstly, the problems of the migrant workers could have been easily addressed by the order of the court instructed additional safety measures. Millions of migrants are already facing a crisis with a lack of proper food, shelter, wages, and other necessities. A lot of migrants started on foot on their journey to their homes. A lot of lives were lost in the process. Although the Inter-State Migrant Workmen Act 1979[8] was in place, which was specially enacted to protect workers whose services are requisitioned outside their native states in India, it ultimately failed during this pandemic. The top courts which did not intervene in these matters until then, however, took up the case and filed a suo moto writ petition and issued an order to the state governments to make sure that necessary arrangements have been made at ease for the safe transportation of migrant laborers. The three-judge bench, on 26th May, issued an order to the state governments for immediate free of cost arrangements for transport, food, and shelter for those stranded because of the lockdown. This order also admitted inadequacies and lapses despite the measures taken by the Central and State governments.[9] On 8th June, The NHRC applied intervention and this was admitted by the court. The commission has sought a list of short-term and long-term measures to prevent such happenings in the future.[10] The court also issued an order on the 9th of June about the admission of The NHRC intervention and other measures taken after discussion with the Indian Solicitor General.[11]

Secondly, in addition to the violation of human rights, the problem of Domestic Violence is on the major rise these days. This has pointed out the inadequacies of the Anti-Domestic Violence Law. Due to the lockdown, women have been subjected to a lack of access to crisis shelters, legal aid, and protection. As they have been cut-off from a lot of support systems to which they previously had a reasonable amount of access, they are not able to report and take legal action or so. Although the National Commission for Women has taken few viable steps, the track record of crimes such as Rape crimes, Dowry harassment, Cybercrime, and Child abuse is on the surge. This is becoming a problem at a global level. A lot of high courts took steps to curb the number of cases of domestic violence.

Although the courts could not work up to its fullest because of the current technology that is not accustomed, here are a few notable orders/judgments and suo moto cases by the courts:

The Supreme Court took suo moto cognizance of the news of the virus being spread to 35 kids in shelter homes and sought status reports in Tamil Nadu.[12]

The top court released an order on 8th June upon hearing about the increase in child trafficking and prostitution. The court released an order seeking a reply from the government about the policies in action to curb the surge during this lockdown period.[13]

The Madurai high court bench took suo moto cognizance on the Sathankulam custodial death case of a father and son duo.[14]

The Supreme Court filed a suo moto writ petition and issued an order to the state governments to make sure that necessary arrangements have been made at ease for the safe transportation of migrant laborers.

In this situation where healthcare workers are considered to be soldiers of the pandemic, the Supreme Court ordered the Centre to issue directions to states and union territories for complying with payment of full wages to doctors and healthcare workers non-compliance of which will be treated as an offense under the Disaster Management Act and Section 188 of the Indian Penal Code.

CONCLUSION:

In any successful government, Judiciary is very essential. Revolutionizing the judicial system via technology should not result in inefficiency. Despite lockdown times, crime rates are on the surge and the evident need for the judiciary is very explicit. The efficiency of any judiciary during these times will take a toll on the people as there are bigger problems and they expect a reasonable amount of support from the Judiciary about the amount of power it has. The Government should never be the reason people losing their hopes on the country’s justice system. Supreme Court seeks status report from Tamil Nadu on the issue of the spread of COVID-19 in children’s shelter home in Chennai.


[1] Coronavirus, World Health Organization, https://www.who.int/health-topics/coronavirus#tab=tab_1.

[2] INDIA CONST. art 142, cl.1

[3] INDIA CONST. art 130.

[4] Ecourts services, https://services.ecourts.gov.in/ecourtindia_v6/static/about-us.php.

[5] INDIA CONST. art.50

[6] The Essential Services Act 1981,No.41,Acts of Parliament,1982 (India).

[7]Imran Suleman Shaikh vs. The State Of Maharashtra, 2010 ALL MR(Cri) 2490.

[8] The Interstate Migrant Workman Act, 1979, No.30, Acts of Parliament ,1979.                                                                 

[9] Re: (Problems and Miseries of Migrant Labourers), WP No.6 of 2020.

[10]Devika, Supreme Court allows NHRC intervention in its suo moto petition on problems and miseries of migrant labourers in the wake of nationwide lockdown,SCC ONLINE (June 8, 2020), https://www.scconline.com/blog/post/2020/06/08/supreme-court-allows-nhrc-intervention-in-its-suo-motu-petition-on-problems-and-miseries-of-migrant-labourers-in-the-wake-of-nationwide-lockdown/.

[11]Supra note 9

[12] Shruthi Mahajan, Supreme court seeks status report from Tamil Nadu on the issue of the spread of COVID-19 in children’s shelter home in Chennai, BAR AND BENCH  (June11,2020,12:19), https://www.barandbench.com/news/litigation/supreme-court-seeks-status-report-from-tamil-nadu-on-the-issue-of-the-spread-of-covid-19-in-childrens-shelter-home-in-chennai.

[13] Bachpan Bachao Andolan vs. NDMA, WP No.483 of 2020

[14] Jeyaraj and Benicks: Five policemen arrested over India custody deaths, BBC (July 02, 2020),https://www.bbc.com/news/world-asia-india-53260209.


Cite this article (The Bluebook 20th ed.)-

Samyuktha Anand, Judiciary: An Essential Service, Ex Gratia Law Journal, (October 1, 2020), https://exgratialawjournal.in/journal/volume-1-issue-2/judiciary-an-essential-service-by-samyuktha-anand/.

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Author

Samyuktha Anand
Student - SASTRA Deemed to be University