Anshu*
INTRODUCTION
During this unprecedented period in
which the world is dealing with the Covid 19 pandemic, numerous hitherto
unimaginable difficulties have arisen. One of these is access to justice. As
the world struggles to grasp the epidemic and embrace the new social, economic,
and political realities that have emerged, the justice workforce finds itself
on the frontlines.
In the case of Anita Kushwaha v
Pushap Sudan[1], a
Bench of the Honourable Supreme Court of India ruled that access to justice is
a component of the guarantee enshrined in Article 14. The Bench also held that
‘access to justice' includes the following elements:[2]
● the State must provide an effective
adjudicatory mechanism;
● the mechanism provided must be
reasonably accessible in terms of distance;
●
the
adjudicatory process must be quick; and the litigant's access to the
adjudicatory process must be affordable.
During the Covid-19 outbreak, the
judiciary is fast altering its methods of operation in order to deliver
justice.
Measures
being used to deal with the troubles caused by the epidemic
According to the
National Juridical Grid, the number of cases pending has increased dramatically
since the suspension. We may simply discover from the National Juridical Grid
Data website that there are more than 5.84 million cases pending at all Indian
High Courts. In India, around 3.89 million cases are pending in district
courts.
In India, for
example, the number of lawyers and litigants permitted to enter the courtroom
was restricted. However, due to the large number of
pending and listed cases, daily footfall was not much reduced. This prompted
several courts to make another decision to limit the listing of cases to only
'urgent' concerns, and eventually the listing was reduced to only'very urgent'
cases.
Former
Chief Justice of India Sharad Arvind Bobde (Supreme Court of India) remarked
that the “pendency of cases has gone out of control,” with a backlog
that has grown significantly during the lockdown.
Sharad Arvind Bobde, a former Chief
Justice of India, led a five-judge bench that said the appointment of temporary
and ad hoc judges can help reduce the backlog of cases. Overall, the clearing
of the piles will be helped by the appointment of judges at all levels of the
judicial system. Ad hoc judges are appointed under Articles 128 and 224-A
of the Indian Constitution. A judge of that court or another high court may be
requested by the Chief Justice of a state's high court to sit and act as a
judge of that state's high court at any time, with the President's prior
agreement, according to Article 224-A. A pandemic, on the other hand, makes it
difficult to clear the backlog and appoint judges at all levels. Even in times
of pandemics, the government should take action as soon as possible to remove
the backlog of cases that have not been addressed.
Problems that are
faced while delivering justice
The Indian judicial system is approaching
a phase of digitalisation, which is a burden for plaintiffs. Digital illiteracy,
followed by the epidemic, effectively halted the operation of the courts.
The physical presence of officers and
judges inside the courts was eliminated by the pandemic. All of the activity
began to shift toward e-courts with a restricted number of courts and cases.
Due to the pandemic, filing of lawsuits, affidavits, and so on became a burden
on the advocates; it is still difficult for many to e-file the litigation and
other digital procedures due to a lack of competency with computers and the internet,
making the e- procedural onerous. Concerns are also raised about network and
connectivity issues; online links do not work and online timings, as well as
links, can disappear due to technological glitches.
There are now two ways to file a lawsuit.
A lawsuit can be filed either manually in offline mode, in which a paper copy
is handed in at a counter, or electronically via the Internet. It had been
years since manual or offline filing of suits had been used, and this online
form of e-filing had been an illusion until the epidemic arose.
Supreme Court of India says "fair,
just and reasonable procedure envisaged in Article 21 of the Indian
Constitution ensures an accused's right to be tried speedily".[3]
This right is both in the accused's best interests and in the public's.
"An unacceptably protracted
delay has the unavoidable consequence of a flagrant violation of the Rule of
Law and detrimental impacts on the common man's access to justice," declared the Supreme Court in
Imtiyaz Ahmed v. State of Uttar Pradesh.[4]
It is a fundamental right protected by Article 21 of the Constitution."
Uncertainty and a lack of trust in the justice delivery system are now the
result of such a long wait.
Resolving legal matters in general
in Indian courts looks to be a never-ending effort. It is unreasonable
to a large extent for people who are victims of injustice and have not been
proven guilty, and others are under-trials or unjustly incarcerated. In Vishnu
Tiwari vs. State of UP (2019), the Allahabad High Court ruled that Tiwari
was not guilty of rape, but rather spent 20 years in jail before the Allahabad
High Court ruled that he was “wrongly convicted” in a rape case. In another
example, a Nepalese citizen was imprisoned for 40 years while on trial for
murder. He was accused of murder in 1981 and was later released by the Calcutta
High Court. Allegedly, the State of Uttar
Pradesh was directed to pay Shiv Kumar Verma and three other individuals
Rs.25,000 as compensation in Shiv Kumar Verma & Three Others vs. State
of Uttar Pradesh (2020). Also, "public authorities acting oppressively
in violation of constitutional or statutory provisions are accountable for
their behaviour before the commission or court entrusted with the
responsibility of maintaining the rule of law," was noted as a means of
punishing and disciplining officials who violate constitutional or statutory
provisions.
Important sections that
deal with access of justice
Under Article 145(4), all instructions
must be issued in public. It is not required by the Constitution that hearings
be held in open courtrooms. It is required that public hearings be held in
accordance with sections 153B and 327 of the Civil Practice and
Procedure Act. However, at first the Supreme Court was reluctant to videotape
sessions in order to make them more accessible for the public. According to a
landmark ruling, the court is "open to examining the notion of live
broadcasting." No daily, regular, or permanent live broadcasting or
recording was necessary.
The conduct of
mediation processes is a larger issue. The legal services authority is
frequently employed to carry out court-ordered mediation proceedings. We'll
have to wait and see how virtualisation influences mediation proceedings, given
the fundamental job of a mediator is to aid contending parties in achieving a
settlement through his/her engagement and/or counselling. Virtual/electronic
proceedings do not necessitate the same level of adaptability on the part of
litigants as they do on the part of the Bench and Bar. Mediation sessions would
be substantially more difficult to keep up with the current altering
environment and technology than judicial processes. Similarly, there would be
barriers to overcome in the case of legal aid.
Conclusion
Hopefully, this will be
the case in the future, as the world after Covid-19 will be a very new place
with entirely different regulations.
All of this urgency may
fade as soon as the lockdown is lifted, and we'll be back to business as usual.
The current circumstance necessitates that we take use of this opportunity to
introduce technologies that will improve both the procedural and substantive
components of the legal process. "Never throw away a good crisis!"
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