Access to Justice as a Fundamental Right during COVID-19
This Research Paper is written by Nimisha Gautam, a Third Year B.A LL.B (Hons.) Student at PES Modern Law College Pune, Maharashtra.
ABSTRACT
This Article aims at the Access to justice as a fundamental right during COVID 19 which says that justice can’t be denied to anyone, anywhere, and anytime. The COVID 19 pandemic is considered as the most crucial global health calamity of the century and the greatest challenge that humankind faced since the 2nd world war. The largest shutdown in the world has helped save several thousand lives, but it has also put people in difficult situations. The prevailing situation was abnormal and the people’s right to justice was impaired. In this lockdown, there should be access to justice against infringement of fundamental rights and there is no suspension of human rights completely. According to the 44th Amendment, 1978 the right to move to the courts for infringement of fundamental rights guaranteed by Article 20 and 21 could not be suspended and always remain subject to judicial scrutiny and redress during emergency and pandemic situations.
INTRODUCTION
The COVID 19 pandemic has overwhelmed the entire world and India also has borne the brunt of the same. This pandemic is evolving rapidly. Many of the challenges faced by the people due to the coronavirus outbreak. Lockdown affects all segments of the population and is particularly detrimental to members of those social groups in the most vulnerable situations, and continues to affect populations, including people living in poverty situations, older persons, middle-class people, persons with disabilities, youth, jobless and indigenous peoples. And it increases inequality, exclusion, discrimination, crimes, and global unemployment, and as well as it affects the economy. That’s why there is a need for access to justice.
FUNDAMENTAL RIGHT: ACCESS TO JUSTICE
[1]Access to justice is defined as the ability of people to seek and obtain a remedy through formal or informal institutions of justice for grievances in compliance with human rights standards. Access to justice is extremely important because if laws aren’t implemented people won’t have their rights. If justice is not accessible there will be an injustice. This has a negative impact on individuals and wider effects on society as a whole. It is important for the development of a country’s economy and growth. Access to justice can neither be suspended nor delayed until the Covid-19 pandemic is over. Everyone needs and will need this access in order to assert and defend their fundamental rights and their freedoms including to safety, security and health etc. It also give protection of vulnerable groups from discrimination.
It enables individuals to protect themselves against infringement of their rights, to remedy civil wrongs, to hold executive power accountable, and to defend civil proceedings. Most people are affected by the lockdown due to which many cases are arising and pending in the court . The pandemic has compelled the government to suspend work, movement, business services, liberty and more but the constitution itself, however cannot be suspended. Any measures enforced under statutory frameworks must conform to the Constitution.
Access to justice does not only include justice but also many things which might be helpful in lockdown for people like getting the right information about the law and making sure your voice is heard when laws are made. The enforcement of the constitutional rights of life, freedom, health and food requires urgent resolution in this situation. Any constitutional challenge however, requires unfettered access to lawyers and courts. The non- inclusion of both in the state’s list of permitted activities effectively denies such access.
E-Courts
“Real change in society must start from the individual initiative”- Dalai Lama
In March 2020, lockdown was imposed in the country because of Covid 19 pandemic. Due to this lockdown , most people were affected and could not reach court against infringement of fundamental rights. An unpredictable lockdown has crippled the judicial system and rendered it incapable of ensuring its constitutional mandate- that of providing access to justice at all times. Technology however, now provides us an opportunity to meet the challenge headlong. It brings change in the society.
[2]With the help of technology, digital courts and justice are easily accessible to people and there is no need to go out. This effort is taken to build systems for the present and the future by the use of technology and it helps to provide justice in time of crisis.
VIDEO CONFERENCING
Amid the lockdown, courts in India are experimenting with video conferencing to take up emergency matters. With the help of video conferencing , it reduced the burden on conventional courts. This application helps in speeding up court proceedings and it even facilitates an end-to-end comprehensive process and improves disposal of cases.
DIGITAL COURT
Digital court reporting technology can provide a complete transcription of every hearing simultaneously generating insightful data. Parties can access information on the time taken for each stage and consequently discern exact causes for delays. It also helps people easily access courts without traveling with a competent lawyer. It also allows successive judges to relate to a case without having to spend much time to understand its history. Blockchain technology can be leveraged to improve the reliability of evidence and security of transactions thus minimizing disputes in the first place.
E- filing
E- filing provides the facility for filing cases through the internet. NIC has designed a user-friendly program with interactive features. Advocate on record are provided with a password for accessing the website of the supreme court , which is provided to them by the registry. Also, in e-filing the prescribed court fee can be electronically transferred.
E-bundling softwares can counter paper based practices, completely removing the risk of loss and destruction of documents and E- Payment also helps in transfer court and lawyers fees. These are just a few examples of digital court
There are many hurdles in access to justice in a digital way like the socio- economically weaker sections will not find a digital system easy to handle. The education system of lawyers and litigation practice and intake process for judges will need to factor in these developments.
Rural people cannot understand the e-court and e-filing system. The skill set of clerks, registry officials, lawyers will be changed because e-court requires different skills.
Digital security across all activities needs to be fortified . With the help of technology, it reduces the burden of court but it increases cyber crime in court functioning.
CURRENT STATUS
[3]During this lockdown, there are 1,282 advocates registered for e-filing of petitions. Most of the pending cases are also heard in e-courts. Push mail services and installed common service centers in court premises to help litigants and lawyers to move on to the online case filing system. Facilities of video conferencing have been made available at district and subordinate courts besides all the high courts and supreme courts. Paper filing was replaced by e-filing. Access to justice is the most important element and with the help of digital systems we can access justice during pandemic situations. It should be accessible to people who want justice for their rights.
On 30 March,2020- The kerala High Court with the help of technology created history by not only conducting proceedings through video conferencing but also live streaming the proceedings. The judges conducted the hearing from their homes . Nearly 30 urgent matters were taken up for hearings including bail applications and writ petitions and were disposed of in many cases. The advocates concerned and law officers also participated in the proceedings from their respective office. Access to justice in lockdown is important because the current situation has been accompanied by crackdowns to enforce rules, in which many have suffered , as well as increased surveillance while basic freedom of movement, assembly , employment and information have been put on hold. Responding to vivid accounts of police arbitrariness across India during the nationwide lockdown. There should be a set of rules of police which are framed according to constitutional framework. In lockdown, most of the people faced many challenges and access to justice is the fundamental right of people . There should be no hurdle in accessing fundamental rights.
ARTICLE 142(1) has been providing assistance in promoting access to justice in India. It provides that in the exercise of its jurisdiction the supreme court may pass such decree or make such order as is necessary for doing complete justice in any court or matter pending before it.
[4]In Madras High Court in the case of Settu vs the state (CRL OP (MD) . No. 5291 of 2020 – It granted bail to the accused stating that the supreme court did not mention the time extended to complete the investigation under section 167 of CrPC. Therefore, the accused was given the rightful bail. It states that if the benefit of direction of the Supreme Court order is applied to extension periods under special statues, it would essentially curtail the liberty of an accused for an invariable period without following the procedure mandated in the statute. It holds that the benefit of direction of the Supreme Court order of extension is to apply in cases of extension would not be in accordance with decisions of the Apex court and High court.
S Kasi vs State SLP ( CRL.) No. 2433/2020)- Justice G. Jayachandran of the Madurai bench of the Madras high court refused default bail to S. Kasi, an accused in an idol theft case registered in 2015. The accused, who was arrested on February 21, has been in custody beyond 90 days, the period within which the police is expected to file a final report, failing which bail by default as contemplated under section 167(2) of Code of Criminal Procedure (CrPC) applies .It was found that the agency was unable to complete the investigation because the guidelines of lockdown and bail was not granted.
In the landmark judgement of Maneka Gandhi vs Union of India 1978 AIR 597, 1978 SCR (2) 621- It is stated that no one can be deprived of his rights and liberty by any executive action unsupported by law. Everyone has the right to access the court .
CONCLUSION
In conclusion, the Covid 19 which has been characterized as a pandemic is attacking societies at their core. Access to justice is very necessary for people who live in society and it is a fundamental right which can’t be denied to anyone, anywhere and anytime. Every person is entitled to liberty , equality and fraternity and there is justice even in an emergency or situation of pandemic. Most of the things are held in stake but the world can’t keep justice on hold. There is no situation which encumbers any person to access justice. It is the fundamental right of people. The only way to control and defeat this mammoth pandemic was to make people follow social distancing and also to restrain them from moving out to avoid social contract.
[1]https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-law-institutions/access-to-justice/
[2] https://services.ecourts.gov.in/ecourtindia_v6/static/about-us.php
[3] Kerala High court latest judgement https://sflc.in/kerala-high-court-declares-right-access-internet-fundamental-right#:~:text=The%20Kerala%20High%20Court%20in,of%20the%20Constitution%20of%20India.
https://m.timesofindia.com/india/only-1282-lawyers-register-for-e-filing-cases-during-lockdown
[4] Related cases Manoharan v. State by Inspector of Police, Variety Hall Police Station, Coimbatore
Vettro Traders and Integrated Services v. Sub Inspector of Police, Aroor Police Station