When Doors Of Justice Remain Closed

"If I absent for one month, I fear, company's business will be adversely affected. But what I fear more is that it may not be".

I am afraid, the Judiciary of this country has not shown the wisdom of the hardworking manager. Came COVID, and the Courts closed! Would the judiciary not suffer a heavy blow on its relevancy and necessity, one would fear, in lighter vein. But the worse fear is something happening, establishing that the judicial system is indeed relevant and inevitable. The videos of police highhandedness to enforce lockdown, going viral than the virus justifies the later fear.

It is reported that one of the Judges of High Court of Kerala took note of these and "wrote a letter to the DGP", "requesting to direct the officers in Kerala not to beat people"^[1]. This was not exercise of Judicial Power. Justifiably so, since the Honourable Judge did not have the benefit of having the facts before him through pleadings. That is what happens when the doors of the court are closed to the people of the country.

When the Country was Locked-down to prevent the spread of COVID-19, it was stipulated that the most essential services would be continued. But the courts, from the Munsiff to the Supreme, are closed! Is Court not an essential service! In fact, the Courts in Kerala closed a day before the Beverages outlets! A stronger statement on hierarchy of necessity to people couldn't be made. Now the news says that efforts would be made to make available liquor through online platforms^[2]. But still, there is no whisper regarding online courts in the State!

On an ordinary day, thousands agglomerate in crowded and cramped court-halls. Certainly, it is one of the most potent places for the spread of COVID-19. Normal functioning of the Court cannot justifiably continue.

But can that justify there being no court at all? Can the courts be considered as a dispensable service? The role of the court is to guard the dignity of people, and no service given by a Democratic State could be more important. Access to Justice has been held to be basis of our legal system^[3], and democratic dimension of remedial jurisprudence^[4].

When the spread of COVID 19 started, the High Court of Kerala declared that only most urgent cases would be taken up^[5]. Hearing matters would be taken up only on mutual agreement of parties. The work went on albeit in limited manner.

Later it was decided only urgent cases will be taken up. The 'hearing list', typically consisting of cases of litigants who had been waiting for long years, won't be taken up. They are not urgent! But then, desperate times call for desperate measures.

Soon, the situation escalated. Social Distancing became need of the hour. Courts decided to close down^[6] and have hearing of only extremely emergent cases, ie. Sentence suspension, custody, Habeas Corpus, bail and anticipatory bail, on two days a week^[7]. The Kerala State declared lockdown of seven districts, including the district where the High Court is situated.

At this time, there was a proposal to have sitting of High Court through video conferencing and e-filing of urgent maters. It was decided that facility for providing video conferencing for hearing would be provided for those who opt for the same, and that in matters which do not fall in the category of bail, habeas corpus etc., if urgency is there, the request for taking up the case can be made through email.

But this proposal couldn't be implemented. The all India Lockdown was declared the next day. This resulted in the total closure of the court. No sitting or hearing even through video conferencing is there. No arrangement is announced as to how urgent matters are to be moved. A full Bench of the High Court of Kerala was urgently constituted to consider a suo motu writ petition^[8], and all interim orders were extended. The Central Government and State Government graciously conceded to defer all recoveries. The judgment further extended all interim bails. Question of bail or parole for undertrials/ prisoners is left to the discretion of Undertrial Review Committee/ High Power Committee constituted by the government in light of Supreme Court directions in this regard. With these arrangements the Court decided to be closed^[9] totally till April, 14^th.

The effort made here, is to ensure that there is no need for any person to come to the court. The attempt is to try and avoid any cause of action from arising. But is it possible for one to foresee all contingencies? Myriad possibilities of violation of rights of citizens cannot be foreseen fully at any point of time.

For example, the Kerala Government has promised the court not to make arrest unless it is unavoidable. But who is to decide unavoidability? Can the decision of the police be the final word in it? On the first day of Lockdown, the Kerala Police made just 2535 unavoidable arrests^[10]. About 1636 vehicles were seized.

True, those arrested would be produced before the Magistrate at his residence. What if a person is aggrieved by refusal of bail by the Magistrate? What would be the remedy for a person who is unhappy about decision of the High-Power Committee deciding parole and bail? What will happen when a citizen does have a complaint that his fundamental rights are violated for some other reason?

Theoretically, it is possible to move the Honourable Chief Justice if an urgency arise. But how will a person or his lawyer reach the Chief Justice? Remember we are confined to the four walls of our houses. Effectively, we are all under house arrest. Then how would a matter be moved in case of emergency?

Practically, there is no means of moving even a bail application before any court in Kerala now. May be the arrests are justified. May be some of them are not. The social media does show that some police men are acting in excess. One can hope it is not true. There are allegations of police beating people for unnecessarily being on the road. Can the decision of necessity be left to the ipse dixit of a police official? But for now, right of a citizen to be on the road is left to the mercy of the Police Officer.

Right of a person arrested to have a counsel of his choice to represent him is not a right that can be brushed aside^[11]. Now, with refusal of right to travel for all, including advocates, the right to counsel for a citizen is a dead letter. The profession of an advocate is not just a right of the one who wears the robes, but an important right of the common man to have in a civilized judicial system.

How will the rights of the citizens be protected? Does our Constitution permit the rights of citizens to be left to the mercy of the executive government? Does a situation where no fully functional judiciary exist find support in our Constitution? Can the citizenry be left without the scope of obtaining informed legal assistance? The answer can only be in the negative. The conferment of power of Judicial Review on Constitutional Courts have been held to be the part of inviolable basic structure of the Constitution^[12]. It cannot be even done away with by amending the Constitution. Then, can it be short circuited by closing the doors of the court?

In fact, the entire system necessary for e-filing of cases at least in the High Court is ready. Before launching it, it is necessary that Judges, lawyers, clerks, court staff etc. be given necessary training to use the new system. But such training has never been made. Now the actual training cannot be conducted due to the close-down. Due to lack of training, it became impossible to roll out e-filing at this time when it was needed the most. This would indicate that avoidable scenario of total lockdown of judiciary was created only because we were unprepared. The Technology is there, but alas, we don't know how to use it.

Even then, it is simply possible to put in place a system wherein most urgent matters can be permitted to be moved, and heard by every court without any difficulty. Filings can be in fact made through email. Every court need to only announce which email address would be used for the filing of urgent matters^[13]. True, signatures of parties and advocates, considered mandatory under rules in vakalats, and in pleadings, cannot be affixed^[14]. But then, as already pointed out, "desperate times call for desperate measures". Though considering the question of expanding the locus standi principle, the Supreme Court has three decades back held "The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people…"^[15]

In State of HP v. Parent of a Student in Medical College^[16], a letter was found fit to be treated as a writ petition, which later became a routine procedure for our courts. Email, is a new incarnation of letters. With the advent of Social Media, the court should also be willing to utilize all possible avenues of communication to reach out to the people it serves. Procedure, we must realise is only a means, and Justice is the end. It is not the other way about.

The email, disclosing the cause of action, can be routed to the respective judge by a court official checking the email at his home. The Judge, from his home, can consider the matter. Copy can be served on Government Counsel by email^[17]. They can certainly get instructions and file pleadings by means of the electronic communications.

Hearing can also happen online through video conferencing. In fact, it has already been experimented and it has been found that even examination of witness through video conferencing is in perfect consonance with the procedural mandates^[18]. At the end of the day, the doors of the court would remain open to all who knock it, while the court building will remain closed and social distancing to defeat COVID 19 would not be the least affected.

This system does not require rocket science. Email is available to practically all free of cost. In a state like Kerala, there is hardly many without a smart phone. Video conferencing can be made without any expense on online platforms which provide them free.

Using this means, the urgent matters, not just bail and habeas corpus, but all genuinely urgent matters, could still be managed to be heard and decided. All these can be achieved without affecting the efforts to ensure social distancing through lockdown. What is required in the scenario is just the will and determination to do it.

It is also to be noted that in many other High Courts the facility to have hearing of urgent matters through video conferencing is already put in place^[19]. Why should Kerala, leading the country by model as to how to face the COVID 19 threat, be far behind? It is necessary that such a system is put in place at the earliest, not just at the level of the High Court, but also at the level of Trial Courts.

We have any number of justifications to not do this. But there is one good reason to do it. The reason is this. The Judiciary, is one of the most essential of services in a Constitutional Democracy and it cannot be permitted to be obliterated even temporarily by any virus. We cannot leave our Constitution without its sentinel on qui vive.