The COVID-19 Pandemic has fundamentally disrupted our social and economic order. It has affected the functioning of most institutions and the Indian Judiciary is no exception. The Guardian of Law now finds itself compelled to guard against this deadly virus, its fraternity and litigants alike. The declaration of lockdown in India was accompanied with Courts across the country restricting functioning to limited matters in order to curb the number of lawyers/litigants entering court complexes. Soon, all hearings were being conducted through videoconferencing only, in order to avoid any human contact whatsoever. However, just like previous health emergencies in India like the Bubonic Plague of the late 19th century and the Spanish Flu of 1918, Corona Virus has made many its victims including the Judiciary, and the legal profession. In order to fully appreciate the impact of the virus, the author attempts to provide an account of the effect of Covid-19 with reference to historical health emergencies and their impact on the judicial apparatus.
Pendency in Indian Courts:
The Indian Judiciary has been over-burdened for several years and COVID-19 is only adding to this menace. As of May 27, 2020, there are approximately 3.24 crore pending cases in India’s subordinate courts[i] and about 48.2 lakh pending cases in the High Courts[ii].
The Supreme Court via its Notification dated March 13, 2020 restricted functioning of the Court to “ urgent matters ” only ( w.e.f. March 16, 2020 )[iii], thereby only entertaining bail matters, suspension of sentence matters and the like.
High Courts too have restricted their functioning to urgent matters. In normal course, a High Court hears north of 400 matters a day. However, since late March, High Courts across the country are hearing anywhere between 10-100 matters a day.[iv]
Subordinate courts account for over 80 % of the pendency of cases. On April 30, 2020 the Karnataka High Court extended the closure of all District Courts, Family Courts, Labour Courts and Industrial Tribunals in the State until May 16, 2020[v]. On April 29, 2020 the Punjab & Haryana High Court ordered that all the district and sub-divisional Courts in Punjab, Haryana and Chandigarh will function “restrictively” from May 1 “till the lockdown / curfew is in force in the respective area”[vi]. These restrictive measures have led to a glut of pending cases, thereby increasing the burden on courts.
Justice Delayed Is Justice Denied:
Pendency in India’s courts has always been a hindrance in securing timely justice for people, if not denying justice altogether. As the usual functioning of courts has been disrupted, many under-trials and even many of those whose appeals are pending are left with no recourse. It can hardly be denied that the subject adage has particular force in the criminal sphere.
In pursuance of the Apex Court’s directions dated March 23, 2020, States and Union Territories have been asked to constitute High Powered Committees “ to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. ” Therefore, each State is free to determine its own criteria for granting bail. Further the Supreme Court has clarified vide its order dated April 13, 2020 that it has not directed the States / Union Territories “ to compulsorily release the prisoners from their respective prisons.”[vii] This clarification has allowed High Courts to further restrict the nature of cases in which they are prepared to grant bail.
On March 29, 2020, the Insolvency And Bankruptcy Board Of India announced the insertion of regulation “ 40 C ”, which laid down that the period of lockdown imposed in the wake of COVID19 shall not be counted for the purposes of the time-line for any activity that could not be completed due to such lockdown, in relation to the corporate insolvency resolution process (CIRP)[viii]. While this move has come as a relief for companies undergoing the CIRP, it has left creditors waiting for repayment of dues for longer than the mandated 330-day period. NCLT benches across the country are hearing only urgent matters until the lockdown is lifted. This has left many other matters, which do not qualify as urgent, pending. [ix]
Plight Of Advocates:
A PIL was filed in the Supreme Court urging that non-payment of rent for professional premises belonging to advocates should not be made a ground for eviction, during lockdown. However, on April 30, 2020 the Apex Court refused to entertain the plea remarking that it was “not going to enter into this issue,” and dismissed the petition as withdrawn. [x] Further on May 8, 2020 a three- Judge bench of the Supreme Court dismissed a plea urging the court to direct the government to formulate a uniform welfare scheme for lawyers affected across the country.[xi]
Daily appearances in court are the main source of income for most advocates, and cash flow has come to a drip, if not completely dried up. In the month of April, 82,725 cases were filed in India’s courts as compared to 8,80,000 cases in March [xii]. This steep decline in cases filed has consequently resulted in a significant dip in court fee, besides Lawyers’ income.
Younger lawyers are left with little or no work. Today, a senior lawyer has the time, and the need to address minor matters, if any, personally, rather than refer them to a junior, which may have been done prior to the lockdown.
A petition was filed in the Madras High Court, seeking a direction to the State and the Bar Council to release Rs. 50,000/- to advocates, in order to compensate for the loss of work[xiii]. However, the Bar Council Of Tamil Nadu & Puducherry has resolved to disburse only Rs. 4000/- each to needy lawyers. The Bar Council was not in a position to release any more money because of limited resources.[xiv]
Law Firms:
Law Firms have also been severely affected. Many partners have either chosen to renounce salaries this financial year or agreed to take significant pay cuts. Firms which charged clients anywhere between Rs. 20,000 and Rs 75, 000 per hour, our now renegotiating their fee, since cash-strapped clients are no longer willing to pay exorbitant sums. Moreover, clients are questioning the actual amount of time that firms are spending on their matters, thereby making firms consider implementing technology that would track the number of hours spent by an executive on a client’s job, in order to provide proof to clients[xv]. This is great innovation; however, it comes with a significant cost in a day and age when law firms are suffering unprecedented lows in business.
Prisoners:
Corona Virus cases have already sprung up in various jails across India. Amongst other jails, there are over 180 cases in Mumbai’s Arthur Road Jail[xvi]. Authorities have been compelled to take drastic measures such as – release a large number of inmates, shift inmates to different prisons and designate temporary places as jails for keeping new undertrials.
By end February, nearly the cases (233 of 565) of COVID-19 reported in Wuhan, China, were from the city’s prison system.[xvii] This fact is reflective of just how dangerous prisons are today.
Indian prisons have historically been overcrowded and may potentially become breeding grounds when threatened by a contagion like Covid19. Considering the difficult living conditions and lack of hygiene, which is an unfortunate reality of our prisons, containing the spread would become nearly impossible.
Coping With This Challenge:
We are now in the age of what has come to be known as “Virtual Courts ” which function through videoconferencing, e-filing, telephonic mentioning of urgent matters and online payment of court fees. These are not bereft of teething problems. Perhaps, the biggest drawback of this new system is the inability to provide public access to courtroom proceedings. Virtual proceedings are being held in camera, and are therefore not open to public which is discordant with what has been held in Naresh Shridhar Mirajkar v State of Maharashtra[xviii], where the Apex Court observed that the public has a right to be present in court and to watch proceedings.
Lawyers are facing problems with basics such as uploading petitions on the Supreme Court website, since the data restrictions put in place are just 5 MB for a petition and 2 MB for additional documents, thereby compelling lawyers to break up the file into multiple volumes.[xix]
Déjà Vu
Historically, the Bubonic Plague of the late 19th century and Spanish Flu of 1918 are two points of reference when the entire framework of judiciary was disrupted on account of a health emergency.
The arrival of the Bubonic Plague in Bombay ( now Mumbai ) in 1896, brought courts to a grinding halt. A J C Mistry, a managing clerk at the Bombay law firm, Wadia Ghandy & Co. has given a grim account of the situation in early 1897. Mistry noted that the judges of the Bombay High Court “had no work to do.” The staff of the firm returned to work after four months, however, over the next decade three members fell victim to the plague and died.
Mahatma Gandhi on page 72 in his book – The Law and The Lawyers[xx], while discussing an appeal which was to be heard in Veraval in Gujarat, writes that there were as many as fifty cases heard daily ( a lot of cases for that day and age ) in the Court at Veraval which had a population of about 5,500 people, however, at the time of writing the “plague was raging ” and it was “ practically deserted ”. This anecdote bears a striking semblance to the scenario today.
Property which was seized in discharge of debts those days included pots, pans, utensils, bedding etc. These items were regularly hauled in and out of court. Legal historian Mitra Sharafi on page 48 in her book – Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947, writes that this practice of bringing property inside court rooms had become a “particularly unsavoury phenomenon when the bubonic plague swept through the city. ”
When the Spanish Flu arrived in 1918, the judiciary was hit once again. Jurors, lawyers and assistants of the Calcutta High Court were severely affected. The Court was functioning on somewhat similar lines of how the courts are functioning today, thereby causing consequent pendency issues. [xxi]
Even in Bombay, law offices were bought to a standstill. In late June 1918 the Times Of India reported,
“ Nearly every house in Bombay has some of its inmates down with [influenza] fever and every office is bewailing the absence of clerks. ”
The flu soon found its way into jails and a need was felt to decongest prisons as inmates began to fall sick and the jails were short-staffed. The District Magistrate of Bijapur particularly wanted to release sick prisoners from jail, but the then Government was not ready to cooperate.[xxii]
It may be relevant to mention here that an eminent lawyer by the name of, Mohandas Karamchand Gandhi was himself laid down with the Spanish flu with a faltering heartbeat. However, destiny had charted out a different path for him, and India.
Conclusion:
This piece has only covered some of the ramifications of COVID-19 on the legal profession and there are other areas such as legal education that also need to be addressed on a priority. The existing delays in the legal system will only be exacerbated by the impediments COVID-19 will inevitably present to the progress of investigations, charging decisions, pre-trial processes etc. It appears that Corona Virus is here to stay, and the Judiciary needs to cope with it. We have been through a pandemic before and have come out of it as well. Normal functioning or rather “ New Normal ” functioning of courts is going to take its own time. Hopefully, it shouldn’t take too long, lest Lady Justice will soon have to adorn, along with a blindfold, a face mask!
[i] “ Pending Dashboard ”: National Judicial Data Grid (District and Taluka Courts of India).
[ii] National Judicial Data Grid For High Courts.
[iii] Supreme Court Notification, March 13, 2020.
[iv] Data collected from Daily Cause Lists of various High Courts.
[v] Vide Notification No. DJA.I/550/1993, dated April 30, 2020.
[vi] Vide Order No. 13/Spl./RG/Misc. , dated April 29, 2020.
[vii] Suo Motu Writ Petition (Civil) No.1 Of 2020 ( In Re : Contagion Of Covid 19 Virus In Prisons ): Order dated April 13, 2020.
[viii] Vide Notification No. IBBI/2019-20/GN/REG059 Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) (Third Amendment) Regulations, 2020. , dated March 29, 2020
[ix] NCLT Notice dated April 20, 2020.
[x] Writ Petition (Civil) Diary No.11055/2020 ( ALJO K. JOSEPH Vs. UNION OF INDIA & ANR.): Order dated April 30, 2020.
[xi] Writ Petition (Civil) Diary No(S). 11049/2020 ( Abhinav Ramkrishna Vs. Union Of India & Ors. ): Order Dated May 8, 2020
[xii] “ How lockdown has hit judiciary, in numbers — April cases fall to 82k from 14 lakh avg in 2019 ”: The Print, May 4, 2020.
[xiii] W.P.No.7419 of 2020: ( Dr.A.E. Chelliah vs. The Chairman and Members of the Bar Council of Tamil Nadu and Puducherry and an. )
[xiv] Bar Council Of Tamil Nadu & Puducherry: Press Release Dated 08-05-2020
[xv] Covid-19 Fallout: Pressure on hourly fee of top consultants, lawyers: The Economic Times, May 1, 2020
[xvi] “ After 180 cases from Arthur Road Jail, Maharashtra to release half the state’s prisoners ”: The Indian Express, May 12, 2020.
[xvii] Mainland China adds 573 coronavirus infections, eyes risks abroad: Reuters.com, March 1, 2020
[xviii] (1966) 3 SCR 744
[xix] “ ‘ Public hearing fundamental to democracy’: Lawyers on SC hearings via video conference ”, The Print, April 20, 2020.
[xx] The Law and The Lawyers By: M. K. Gandhi
[xxi] Pandemic or poison? How epidemics shaped Southasia’s legal history by Mitra Sharafi: Himal Southasian, April 20, 2020.
[xxii] GD 353, 1918 GOB to District Magistrate, Bijapur, 13 November, 1918.
About Author – This article has been authored by Rusy Kohli, The author is a keen student of current affairs with context to lessons from history. Historical parallels must not be overdrawn, since they are essentially between incomparables, however, it by no means follows that we can draw no lessons by a cautious comparison.
Also Read – Why Indian Courts have Lots of Pending Cases?
