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Right to Access to Justice Amidst Covid-19

Covid-19 has had catastrophic effects on the world so far. Healthcare systems are in a crisis, world economy is collapsing, hospitality and energy sector is facing bankruptcy and government institutions have to operate on limited manpower even under such demanding times. Amidst such an international crisis, nations are in a dilemma as to whether to extend the lockdown and curb the spread of the virus or slowly remove restrictions to keep the economy afloat.

One such problem came up before the courts on whether to postpone the hearing of cases until the circumstances return to normal or not for courts are a quintessential part of any democratic institution, and even a temporary halt in their day to day operations would be denying the people their right to access to justice.

Access to justice is recognized as a basic human right by the international community and is read into every constitution of a democratic sovereign irrespective of whether it's written or unwritten. Right to access to justice is a very important facet of rule of law. The principle of rule of law upholds the supremacy of law and ensures the smooth working of a democratic sovereign and if the same is breached, there are appropriate mechanisms put in place to ensure that such actions are penalized.

Every constitution guarantees its citizens rights; be it fundamental or statutory that they enjoy and where there are rights, there are bound to be those who infringe them. Ubi Jus ibiremedium means for every right that is infringed; there is a right to remedy. Courts act as the protector, enforcer of the law and ensure fair and smooth delivery of justice. However, if an aggrieved party cannot for whatever reasons appear before the court be it the high cost of legal aid, lack of awareness or access to a court of law, it raises questions as to whether right to access too is only for the privileged.

The inception of right to access to justice can be traced back as far as 1215 when magna carta came into existence. The birth of magna carta made sure that the king was also now a subject of the law and at that ensured basic freedoms to the people.

No freeman shall be taken or imprisoned or diseased or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny or delay right to justice…. is one of the many clauses of magna carta establishing the right to access to justice as fundamental to the rule of law.

The same has been expounded upon multiple times by English courts for example in Bremen Vulkan Schiffban and Maschinenfabrik v. South India Shipping Corp., where Lord Diplock said that:
Every civilized system of government requires that the State should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access to.

 Steyn LJ also laid emphasis on the same in R v. Secretary of State for Home Dept, ex p Leech stating:
Right of unimpeded access to a court of law should be every citizens constitutional right.

The Universal Declaration of Human Rights of 1948 also recognised Right to Access to Justice as fundamental to a life of dignity and respect of any human giving it ground in the international community.

Article 8 of the charter says that:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Since then, Right to Access to Justice has made an integral part of numerous international pronouncements such as ICCPR, CESCR, UNCRC etc.

In India, right to access to justice can be found enshrined in the constitution after the Apex court in 2016 in the case of Anita Khushwa v. PushpaSadan read right to access to justice in Article 14 and 21 of the constitution of India. Right to access to justice has since become an inalienable right of every citizen of the country and cannot be taken away by any constitutional or statutory pronouncements; not even in the times of an emergency.

Court's Approach Amidst Covid-19: Global Scenario

The prevailing circumstances have led for the government at the centre and of the states to take stringent measures to promote social distancing as a way to curb the spread of the virus. Taking into account the seriousness of the situation, the Apex court has directed the subordinate judiciary to undertake necessary measures in promoting social distancing on its premises as they may deem fit.

It is not the first time in a country's history when courts have had to halt their proceedings due to an outbreak. During the 1790s in the US, the Supreme Court justices used to practice what was known as circuit riding; which involved their travelling to different parts of the country to hear on cases alongside district judges. During this time when the court was convening its proceedings in the state of Philadelphia, the outbreak of yellow fever forced them into postponing their proceedings not once but twice.

A similar incident took place during the outbreak of Spanish flu in 1918. The court by then had done away with the practice of circuit riding and used to convene proceedings in the state of Washington. The outbreak of the flu forced the court to shut its premises consequently postponing the proceedings for over a month.

The world is now faced with a similar crisis where the spread of COVID-19 has forced countries to close down their borders and businesses resulting in a complete shutdown of their economy. There should be no doubt as of now that COVID19 is here to stay. It already has been over a month now and it doesn't look like things will return to normal anytime soon. Social distancing will more or less become a norm and hence the system now must change and evolve to its surroundings to accustom itself for a COVID-19 overrun world.

The outbreak has caused hindrance in the daily working of courts. But even during these strenuous times, courts cannot risk postponing hearings because unlike private businesses or other government bodies, judiciary being the 4th pillar of a democracy is charged with the responsibility of protection of rights of the people and enforcing the rule of law which if not done or delayed can cause the constitutional machinery to fall apart.

As discussed, it is not in the capacity of a court to abruptly halt or postpone its proceedings for longer durations hence the Apex Courts of countries around the globe have chosen to resort to video conferencing as a means to be able to continue hearings on urgent issues particularly criminal cases acknowledging the role of technology and how it has equipped us with better tools in effective handling of the COVID19 pandemic.

Judiciary of England and Wales as of 20th March has issued Protocol regarding remote hearings wherein the court has provided guidelines for the functioning of courts via video conferencing and live feed. The protocol contains suggestions on how hearing via video feed is to be conducted and what all procedure is to be followed pre and post hearing following which the technological infrastructure of the courts is being upgraded. Also, the courts have been directed to resort to public hearing only when necessary after all the safety protocols have been adhered to. Parties have been asked to keep their court bundles concise with only relevant documents and authorities.

Similarly, United States formulated The Coronavirus Aid, Relief, and Economic Security Act on 27th March 2020 under which Section 15002talks about the court's approach in criminal cases and goes on length to mention under what all circumstances can the federal court or a particular district court can hear criminal case proceedings via video teleconferencing and if the same is not available then via telephone conferencing such as detention hearings, preliminary hearings, initial appearances, waivers of indictment etc.

Indian Scenario
It should come as of no surprise as to how poor the condition of courts in India is, especially that of lower courts. There are approximately 20 judges per 1 million people in India when the same should be 50 to 1 million as has been recommended by the Law Commission in its 120th report. On the other hand, poor infrastructure ails the lower and subordinate judiciary and is hopelessly undermanned.

This still only manages to paint half the picture as the people too are often faced with countless problems of their own and at times do not have proper access to courts depriving them of their basic rights. Add to all of this the problems that the pandemic has brought to our front doors and it becomes even more crucial for our judiciary to remain operational in these critical times.

In view of the same, the Supreme Court taking suo moto cognizance in IN Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic. said:
The Supreme Court of India and High Courts have adopted measures to reduce the physical presence of lawyers, litigants, court staff, para legal personnel and representatives of the electronic and print media in courts across the country and to ensure the continued dispensation of justice.

Adding that:
Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India. The challenges occasioned by the outbreak of COVID-19 have to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it

The 3 judge bench invoking Article 142 of the constitution of India has issued guidelines for smooth functioning of the courts during COVID-19:

  • Any and all actions taken by the respective High courts to reduce the risk of the spread of the virus on its premises shall be deemed to be lawful.
  • To make use of video conferencing technology for robust functioning of the judicial system
  • Maintain a helpline where complaints can be registered as to the quality of the feed.
  • Litigants with no access to the facilities shall be provided with the same
  • Evidence shall not be recorded without the consent of both the parties etc.

Concluding Remarks:
Our Judicial System has already have had to deal with multi-faceted problems such as poor infrastructure and low occupancy of judges even prior to this pandemic. Not to mention that justice is anyway not very easily accessible to the underprivileged. The illiterate are unaware of their rights, many are often reluctant to go to a court as it can at times take months if not years for one to receive his due under the law. The whole judicial process from start to end can be exacting on one's mental and physical health and at times can run their finances dry. The pandemic has only added to the pool of problems and as of now, the use of technology seems our only way out.

There would still be many who due to their lack of exposure to technology will at times face problems as has been the concern of many. Supreme Court in view of the same said There cannot be divergent views about the fact that justice cannot be spoon-fed. Justice delivery, even at the door-steps of the stakeholders, requires the stakeholders of the ecosystem to diligently discharge their role and duties, prescribed and required in the scheme of things" defending its virtual courts system.

COVID19 has without a doubt done unprecedented damage to the entire world which is why tough times call for tough measures. Where traditional means have failed and might seem outdated, one must resort to unconventional methods. Hearing cases over video feed may be inefficient but is still better than a complete lockdown on court proceedings consequently increasing the burden on the already overburdened judiciary and depriving the people of their right to access to justice.

Written By:
  1. Animesh Upadhyay - 4th Year Law Students at Dr. Ram Manohar Lohiya National Law University, Lucknow &
  2. Shikhar Shukla - 4th Year Law Students at Dr. Ram Manohar Lohiya National Law University, Lucknow

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