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
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
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
Right of unimpeded access to a court of law should be every citizens
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
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
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
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.
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
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
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
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.
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
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
- 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
- Evidence shall not be recorded without the consent of both the parties
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
- Animesh Upadhyay - 4th Year Law Students at Dr. Ram Manohar Lohiya National Law University,
- Shikhar Shukla - 4th Year Law Students at Dr. Ram Manohar Lohiya National Law University,