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HOW SHOULD COURTS RESPOND EFFECTIVELY TO THE COVID 19 PANDEMIC WHILE PRESERVING THE RULE OF LAW?

“The best response is one that responds proportionately to immediate threats while protecting human rights and rule of law.”

                                                                                    Antonio Guterres, Secretary General, UN

The COVID-19 pandemic has affected the conventional administrative setups in an unprecedented manner across the globe. Though in certain discourses this COVID-19 pandemic is likened to the Spanish Flu pandemic of 1920s, no modern democratic set up has any tailor-made situation to deal with it, primarily due to lack of experience. Hence, countries across the globe have resorted to empirical methods of lockdown and quarantining the population. This has resulted in forced closure of workplaces and businesses, as well as suspension of movement, religious rituals, educational system and even liberty. But as constitution cannot be suspended, any measures enforced under statutory framework must conform to the constitution.[1] This nation has travelled a long way since the ignominy of the emergency of 1970s wherein the constitution was ‘cribbed, confined and cabined’ to the executive whim. It was left to the Supreme Court to restore the constitutionalism and the Apex court responded with giving an ever-expansive interpretation to the Art. 21 of the constitution to celebrate the rights of man. Since then, constitutionalism and rule of law has been the backbone of Indian Nationhood. So, when this country is faced with a near emergency situation with severe clamping down of life and liberty through the executive machinations of “lockdown”, “shutdown”, “containment zone” or “quarantine centre”, can the constitutional courts remain a mute spectator? At the same time, what is the extent to which judicial overreach in this situation be accepted without compromising the overall policy decision? When faced with such a question early into this pandemic the Chief Justice of India has gone on records: “This is really a situation when the Executive gets into action. The usual three ‘Ms’ – men, material and money are in the hands of the government. It is very difficult for the court to assume charge and say this is what the priority should be’ and ‘this is what it should be like. The Executive is better suited to decide on the whats, hows and whens of deploying money, material and men.”[2]  Judicial restraint echoed in the aforementioned quote is being expected to be hallmark of role of judiciary throughout the pandemic. The constitutional courts of this country have displayed utmost restraint and stood solidly with the State, even if the later has resorted to certain draconian measures by evoking the much-criticised Epidemic Diseases Act of 1897. Very succinctly, the Chief Justice of India delineates the role of the judiciary during the crisis, when he says during the time of crisis “the three organs of the state (legislature, executive and judiciary) should act in harmony”[3]. To put it straight, the Courts have started with a fine balancing act. The problem with any epidemic is it lasts for a considerable period of time, and when it is COVID-19 it ought to spring surprises every now and then. The situation is very volatile; it can change within a day. This causes the policy directives to change faster than it can be understood and imbibed by the society. On the other hand, the rule of law is very static to the extent of antithetical to the dynamic executive regulations, on many, if not all, occasions. How are the courts supposed to deal with it? Are they equipped enough to keep pace with the changing circumstances? In the present article, it will be an endeavour to examine the role the courts are playing presently (in respect of COVID-19 situation) and how they should reinvent themselves to deal the situation in a more efficient manner.

This article is divided into four parts. The first part discusses the changing scenario of the pandemic and the roles of courts therein. The second provides an assessment of the various systemic changes the courts have heralded to ensure access to justice. The third is a critical analysis of the role of courts and the fourth deals what should have been done to improve the efficiency of the justice delivery system during the pandemic.

ROLE OF JUDICIARY DURING THE PANDEMIC- A BAG OF CONFUSION

Though the COVID-19 pandemic first hit India in the late January of 2020, any kind of systemic response started on 23rd March when India officially entered into a mode of national lockdown. Initially envisaged for 21 days, the lockdown was extended in a phased manner up to 31st May. After 31st May, a process of gradual opening up, commonly called unlock-down, has started though till date many of the restrictions on free movement still exists. This extended period of restriction of varying degrees have given rise to many socio-legal issues. For the sake of a better perspective, this whole period restrictions can be divided into four separate waves.

The first wave was the unwavering enforcement of lockdown with almost complete suspension of free movement and liberty. Government offices, business establishments and all kind of enterprises except those dealing with health and essential services had been closed. The courts had almost retreated into background. Whereas the constitutional courts decided only urgent matters, the lowers courts limited their role to remand cases alone. Meanwhile, this period also saw the severest form of policing the country had witnessed since the emergency days. People were routinely arrested and forwarded to court either in connection with any crime or because of violation of lockdown guidelines. But due to lockdown, the access to lawyer was severely restricted. As the vanishing legal protection against police action created a vacuum, extrajudicial sanctions/punishments came to fill it in the name of lockdown. Police brutality was no longer a closed-door phenomenon. Many unscrupulous police personnel went berserk with severe form of oppression in the zeal to keep people away from coming out; internet was full of videos of hapless citizen being beaten with wooden lathis, made to do sit ups, vegetable carts tossed etc. In a few occasions, the police brutality had surpassed all levels of civility, as in case of the custodial killing in Tamil Nadu. If the people were not safe out on the road, the women were not safe in the houses either. There was a surge in the cases of domestic violence cases. As per National Commission for Woman (NCW) data there was 2.5 times increase in the domestic violence complaints.[4] And access to justice was severely curtailed. This wave was characterised by sheer helplessness of public at large resulting from a deafening silence from the courts of law.

If first wave, was characterized by unabashed restriction on fundamental rights, the second came with a bigger malice i.e. an attempt by unassuming political wantons to communalise the pandemic. A minority community was being targeted being the cause of spreading of the virus. The narrative was, a religious gathering of the community triggered the spread of the virus to various parts of the country. Sadly, many government agencies too fell into such a rabidly communal plot. Various tweets by certain Government official handles mentioned the spread was from “A single source”. Such events have given rise to spread of hate messages, communally coloured messages, hate speeches etc. in social media exhorting for a social boycott of the community. Many rights activists have knocked the doors of constitutional courts to take effective steps to curb such communalization. But unfortunately, the role of the Apex Court in dealing this issue was less than efficient. On a petition moved against communalizing the pandemic in television and social media, the Apex court held that it could not gag the press and denied passing any interim order[5]. However, the least the Supreme Court could have done to make an observation condemning such irrational media reporting. This would have been a sobering effect on the media houses.

The inadequate response of the Apex Court was somewhat compensated by the astute rulings of many of the High Courts. For example, in granting bail to thirty-one members of a particular community, Madras High Court held that it could not “collectively thingify” the accused as it would be having serious pitfalls. In saying so, the Madras High Court clearly resonated its disapproval for communalizing the pandemic. Similarly, the Kolkata High Court has cautioned[6] the media houses against irresponsible reporting. Treading the same path, the Orissa High Court in W.P. (c) no 12430 of 2020, without speaking in so many words ordered the state authorities not to disclose the identities of the patients in any intra-departmental communication or in any media platform. The judicial response to the second wave of pandemic was disconnected and grossly inadequate. It is pertinent to mention that the pandemic is preceded by a disastrous communal riot in the National capital. So, it was the duty of the legislative, executive and judiciary to work as a collective entity to guard against any communal flare-ups. But there was failure apparent on the parts of the first two, and judicial indifference to this issue was even more harming. When the country was being driven towards the brink of a nation-wide communal divide, perhaps the destiny intervened, and the third wave of migrant crisis surfaced. This gave a silent burial to the communal frenzy that was about to hit the country.

If the judiciary could not live up to it expectation in the first and second wave of the pandemic, during the migrant labour crisis, the responses of the constitutional courts were more fractured. The lockdown was announced within a matter of hours. The extension of it was also poorly planned. This caused millions of labourers in unorganized sectors, more commonly called as inter-state migrant labourers, to be stranded on various parts of the country. With all economic activity coming to a total closure, all modes of communication totally grounded, India witnessed the biggest ever human translocation since the partition days, when these workers started walking back to their native places. Aruna Ray described the conditions of migrant labourers as “The mantra of mandatory social or physical distancing repeated ad nauseum, lulled the unconcerned classes to view the people on the streets as a health hazard. The hypocrisy of pretended ignorance of conditions of living of workers – in cramped rooms, crowded homes, and in congested streets, was no more than a platitude. The privileged, in fear of contamination, with assured room for physical distancing and food stocks, cannot wish reality away.”[7] This was a distressing time, and the High Courts rightly intervened!

In a pandemic of this proportion where almost 20% of Indian population were faced with existential crisis, the Supreme Court had failed them. However, only silver lining was, the Supreme Court’s order in staying the Orissa High Court order of not allowing migrant labourers into the State. On 7th May, the Orissa High Court passed an order[12] that all the migrants who were in queue to come to Odisha should be tested negative of COVID-19 before boarding any conveyance. This order was rightly stayed by the Supreme Court the next day. However, National Vice President of PUCL and senior Advocate Mihir Desai questions[13] whether the Supreme Court had been so forthcoming had the petition was preferred by any civil society organization instead of the Central Government going on appeal against the order. Looking at the track record of the Supreme Court in dealing with the migrant crisis, the apprehension of Mr. Desai was not totally unfounded.

Madras High Court was again the leading light in judicial response to the interstate migrant crisis when it declared the issue to be “nothing but a human tragedy”.[8] The court demanded answer to a slew of questions from the Central Government including the proposed compensation plan for those migrant labourers who had lost their lives en route. Similarly, the Andhra Pradesh High Court, ordered the State Government to take specific actions including medical facility, transportation and food for the migrant labourers. The court had gone on records “If at this stage this court does not react and pass these orders, this court would be failing in its role as a protector and alleviator of suffering.”[9] The Karnataka High Court reminded the Governments about the important role of the migrant labourers in the economy of this country and directed to decide on taking care of their transportation to their native place. The Delhi High Court also took a sympathetic view towards the crisis of the migrant labourers and had ordered the Delhi Government to facilitate the movement of the migrant labourers to their home states by operating round the clock helplines. The Gujarat High Court went on record that the poor were afraid of dying of starvation and not COVID-19. It also directed the state government to come up with appropriate plan to alleviate the suffering of the migrant labourers. Similarly, the High Courts of Kerala, Orissa, Himachal Pradesh, Uttarakhand and Telangana had directed their respective state governments to provide for food and medical facilities to the migrant workers. Whereas the High Courts have displayed empathy with the migrant labourers and intervened for protecting their rights, the Apex Court has displayed uncharacteristic coldness to the issue. In Alakh Alok Srivastava v Union of India [10]the Supreme Court was requested to intervene in the matters of migrants walking on the road long distances. The Court’s response was dismissive in nature. Rao J. held, “How can we stop them from walking? It is impossible for this Court to monitor who is walking and who is not walking?”[11]

In the fourth wave of the pandemic which is widely called as unlock-down was a time for the Supreme Court to go on a damage control mode.  On the May 28th, the Supreme Court took a suo moto cognizance on the plight of the migrant labourers and ordered the central government to ensure free travel of migrant labourers. In the same order, it also directed that the originating states would be taking care of the food and shelter of the migrants’ labourers before they board a conveyance. Railway would take care of their food during the journey by train. On 9th June, the Apex Court went a step further and ordered that the appropriate Governments would withdraw any prosecution lodged against the migrant labourers for violation of any lockdown guidelines.[14] In the same order, the court directed the Railway to increase the number of Special Trains to transport all migrant labourers with making provisions of food and water during the journey. The Court also directed the Director Generals of Police of the States to deal with the migrants in a humane manner. The Supreme Court also praised the Civil Society Groups for their contribution during the migrant crisis in particular and lockdown period in general. And for the first time, it praised the outstanding role played by the various High Courts in dealing with various issues pertaining to lockdown and castigated the central government, albeit in a softly, for the remark of “High courts running a parallel government”.

ROLE OF JUDICIARY IN PROCESS IMPROVEMENT

However, such attempt of image makeover was short lived when the Supreme Court was unnecessary drawn into the controversy regarding the celebration of Rath yatra at the religious city of Odisha. This was a classic case when the Supreme Court played to gallery and faltered resultantly.

From the discussion, supra it is crystal clear that the constitutional courts have been approached throughout this pandemic for various issues affecting life and liberty of people. The responses were not uniform. Whereas the High Courts tried to curtail the executive hegemony to protect the rights of people, the Apex Court for majority of time was indifferent. If there was a widespread confusion among the higher judiciary with regards to questions of life and liberty, the sub-ordinate judiciary was worst hit and so also the common man.

Though Constitutional courts are the bedrock of the legal set up of this country, people come in contact with the sub-ordinate courts more regularly and more rigorously. But the Lockdown has affected the almost forced closure of the sub-ordinate courts in the country. For example, on 15-04-2020 the Delhi High Court ordered the suspension of all subordinate courts with automatic adjournment of all matters listed between 16-04-2020 and 03-05-2020.[15]In the same order, vague instructions were passed to conduct hearing on video conferencing mode. It was also left to the discretion of the District and Session Judge to depute judicial officers to hear urgent matters like bail matters and injunctions in civil suits as per the requirement of a district. Of course, this complete suspension was modified so as not to prohibit passing of final judgement/orders on matters pending before the courts.[16] Similarly, Bombay High Court passed an order that the sub-ordinate courts would function in a restrictive manner and take up only remand matters and extremely urgent matters. Many other High Courts have passed on similar orders restricting the functioning of the sub-ordinate courts. Besides, vide blanket orders, various High Courts have held that the interim orders/directions issued or protection granted to remain in force throughout the pandemic situation; orders relation to eviction, dispossession, demolition etc. to be kept in abeyance, interim protections granted in anticipatory bails to remain in force, paroles granted to be extended etc.

In such a grim situation, unlike its lackadaisical approach to migrant crisis, the Supreme Court has taken the lead to secure the ends of justice by way of process improvement. The Supreme Court vide Suo Motu Writ (Civil) No. 5/2020[17] has provided a slew of guidelines regarding the functioning of the court, ensuring the norms of social distancing. The focus of the order was on the use of modern technology for justice dispensing. The court referred to State of Maharastra v Prafulla Desai[18] and held that video conferencing could be used to record evidences. Invoking its power under Art. 142 of the Constitution the Supreme Court held that that video conferencing technologies should be adopted more expansively; the courts to maintain a helpline to ensure any redressal of any complaint with regards to any technical glitches; courts to take steps to make video conferencing facility available to litigants not having any access to video conferencing facilities etc. Similarly, the presiding officers were empowered to take all necessary steps to ensure social distancing in court rooms, including taking steps necessary to remove persons from the court room if situation so warranted.

After the general directions by the Supreme Court, many High courts took the lead and made many progressive orders. For example, the Karnataka High Court held[19] that the first production of the accused in a criminal court could be held through video conferencing notwithstanding the S. 167 (2) proviso b of Criminal Procedure Code. The Delhi High Court also allowed the mentioning of a matter before the registry telephonically and in case of rejection resubmission through an online link[20]. It published a body of rules[21] on 1st June, 2020 which decided all virtual proceeding to be judicial proceedings and all the court protocol must be adhered to. The court also held that all the statutory provisions of CPC, CrPC, Indian Evidence Act, Contempt of Courts Act and Information Technology Act should be applicable to the virtual proceedings. Guidelines were laid for conducting remand proceedings, charge framing, examination of accused and recording of statements under Section 164 through video conferencing. The Madras High Court was presented with a similar matter, albeit the case of accused involved in a crime in Tamil Nadu but arrested in other states. The Madras High Court held[22] that, the first production before the magistrate in whose jurisdiction arrest was effected was to be a physical production and even though the judicial magistrate did not have the jurisdiction, he would remand the accused to judicial custody. After the accused was remanded to judicial custody, the first production before the cognizance taking court would be through video conferring. This extraordinary order was made in view of the nationwide restriction on interstate vehicular restriction. Bombay High Court has also taken up case disposal through video conferencing in a major way and disposed of an admiralty case[23] through this mode.

The COVID-19 crisis has given a great fillip to engage technology in a more engaging manner in Indian judicial system. The kind of eco-system the Apex Court has wished in State of Maharastra v Prafulla Desai and Swapinil Triapthy v Union of India, has almost become a reality during the COVid-19 times.

HOW JUDICIARY HAS PERFORMED IN UPHOLDING RULE OF LAW DURING THE PANDEMIC

The foregoing paragraphs have portrayed two contrasting pictures about the role of courts during the pandemic. On one hand, the courts were absolutely united brilliantly to engage technology for securing ends of justice, but on the other, the same level of judicial unity and intervention was missing on the face of major crisis related to lockdown. In this chapter, an endeavour will be made to have a fair assessment of the role of the courts in upholding rule of law during the pandemic.

The intervention of the Supreme Court in process improvement is brilliant, as already discussed. But a dispassionate examination is required to see whether the process improvement modicums have trickled down to Gramya Nayaylayas at the grassroots level.  This question has also intrigued Justice D.Y. Chandrachud to certain degree as is evident in his lecture on the webinar on “Future of Virtual Courts and Access to Justice.”[24] He states three cardinal principles be followed while discussing the interplay between technology and justice delivery. They are (1) access to justice to common masses (2) technology intrinsic element of rule of law and (3) making ‘justicing’ an indispensable ‘service’ to the people rather than taking it as a mere sovereign function.

 Justice Chandrachud was very forthcoming in declaring technology as an adjunct to rule of law. But one must not be oblivious to the systemic issues pervading this nation. The internet density in India is pegged at 52%. Around sixty percent the population stay in rural areas and of which only 27% have access to internet. The use of mobile phone-based internet user is limited to only 25% of the population. In such a scenario, an all-out dependence on technology is bound to create a class of ‘haves’ who can access justice at the click of a mouse; and a class of have-nots, whose access to justice is severely curtailed because of no fault of theirs.

Justice Chandrachud’s apprehension is not entirely unfounded. If at all, a stark divide between ‘digital haves’ and ‘digital have-nots’ does not get created, definitely a group of middlemen will come into picture and hijack the access to justice. In this perspective, technology and its interface with rule of law can be understood on the following two premises.

If Senior Advocate Dushyant Dave is to be believed, Indian Judiciary in particular and the governance system in general has missed the bus of digital evolution a full decade ago.  Faced with a virus whose only cure is social distancing, when the whole system has to bank upon a biosphere of virtual reality, one is encountered with unsurmountable digital divide. The digital divide is both at the infrastructural as well as ideational level. Courts are not located in A class city alone, where one can find infrastructure apropos to the digital requirement for online courts. Scores of courts are located in the hinterlands of Chhattisgarh, Odisha, Bihar where an uninterrupted supply of electricity is a luxury. The access to internet is severely limited in those areas. The physical infrastructure is not very encouraging too. Most of the court rooms don’t have facility for litigants to be connected online. Cognizance taking courts are yet to be connected with the prisons via online. The seamless meshing of ICJS from the court side and the CCTNS from the Police side has not yet taken place uniformly. No doubt, this infrastructural lacuna can be cured but then as Mr. Dave says, “To computerize the judicial system in the country, you will need billions of rupees which I don’t think India can afford to spend today”.[25] 

Indian digital divide is not limited infrastructure or connectivity alone. A large percentage of population don’t use internet services. When courts go online, their access to justice will be severely truncated; and they will fall prey to lumpen elements masquerading as middleman and create unnecessary hardship to them. Accessibility to justice is a part and parcel of right life under Art. 21 of the constitution[26].  The Supreme Court has also held that “citizen’s inability to access courts …. is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws”. This exactly is the trepidation of Mr. Dave. Supreme Court in its zeal of speedy adoption of technology, must not make justice inaccessible to the vast majority of the people stranded on the other side of the digital divide.

A sense of aversion to technology is prevalent amongst many lawyers also and the traditional way of litigation cannot be expected to change overnight.

The present pandemic is not the first time that compelled the Supreme Court to adopt technology of video streaming in court processes. Much before it, in Swapnil Tripathy the Supreme Court has upheld the legality of video streaming. But this pandemic situation did not provide time for setting up of a robust network for successful implementation of a dedicated IT interface. This necessitated selecting video streaming applications from the open source. For example, the Supreme Court initially asked the litigants to use an app called Vidyo. There were unforeseen data leakage issues. So, alternative modes of video streaming apps like Skype and WhatsApp have been used. Till the time, a dedicated video streaming app not used, a threat of data leakage would always be there. Adjudication is too important a function to be held over third party propriety software.

Besides, many Senior Advocates argue that, video conference may become an impediment for fair trial. N Hariharan, senior advocate at the Delhi High Court says, “Elements of physicality must not be lost in a criminal trial.” In his opinion, the art of cross examination depends a lot on the demeanour of the witness. If the witness is sitting in the comfort of his own personal space it is not possible for the court to discern the conduct during cross examination. Though in a number of cases, the Supreme Court had used the technology for taking deposition, this had been a topic of debate amongst the criminal lawyers. If such a procedure becomes prevalent in trial courts, then the whole art of cross examination will go scuttle.

A second facets of fair trial is the Open Court system of adjudication. In Naresh Shridhar Mirajkar v State of Maharashtra[27], Gajendragadkar CJ. had held that trial held subject to the public scrutiny and gaze naturally would act as a check against judicial caprice or vagaries and would serve as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. In his opinion, courts normally should hear causes in open and permit public entry to court rooms because the public hearing was fundamental to the democracy in India. But the online courts remove the openness of the process of adjudication. Earlier, the Apex Court had discussed the role of technology in administration of justice multiple times[28]. But underlining principle in all those cases was that technology should be adopted to facilitate access to justice. Technology can at best act as a force multiplier but cannot entirely replace the traditional system of adjudication at the cost of restricting access to justice. However, during COVID-19, the Supreme Court adopted a very restrictive view on the Open court system and held that, public access to an open court system could not be unlimited and unregulated. It might be the thinking on the part of the court that, in the present times, there cannot be an easy alternative than to hearing arguments on video conference. But such restrictive view cannot be the principle in general lest the Apex Court should run the risk of denting the tradition of open court system which also finds its mention in At. 145(4) of the constitution, Section 327 of Criminal Procedure Code and S. 153 B of Civil Procedure Code.

If the performance of the Apex Courts of the country with regards to process enhancement is well conceived, their role in deciding substantive matters of law and public interest was lackadaisical to put it humbly. The Supreme Court had given to itself the role of sentinel qui vive in State of Maharashtra v VG Row in defence of its role of protecting the fundamental rights of citizen. But as Justice A.P. Shah aptly puts[29], “is the sentinel, as the saying goes, qui vive at all?”

Two perspectives emerge amongst the eminent lawyers of the country about the role of judiciary amidst the crisis. Dushyant Dave minces no word to blame the parliament and judiciary about their silence on both executive excess in enforcing lockdown and executive silence on suffering of men. On the other hand, Harish Salve says, “But areas of executive discretion in matters of governance that are politically and socially neutral, in times of emergency, cannot be subject to judicial interference.”[30] Between the two extremes the truth lies somewhere, only it needs a typical Justice Chandrachud style “service” orientation, filled with empathy and compassion, vision to keep a fine balance between the suffering of men vis-à-vis executive action. At this juncture, it is pertinent to critically examine the stance of the Supreme Court on serious matters that have cropped up during the pandemic situation. The first chapter of the article has provided a broad chronology of events that has necessitated the intervention of the constitutional courts. In the following paragraphs a humble assessment is tried about the role of judiciary in upholding the rule of law.

The courts are faced with the question of life and liberty at least on two occasions, during the pandemic; the diatribe against a particular minority community and resultant vilification and the migrant crisis. On both occasions the role of the court was sadly not befitting of sentinel qui vive. As earlier stated, when a petition was moved against the attempt of communalizing the pandemic, the Supreme Court did not even offer any observation. However, such dismissive tone was not sported in any other word agencies of repute. For example, the World Health Organization in its advisory on 6th April warned the countries against the rabid communalisation of the pandemic. It said, “…governments not to politicise the issue and stop profiling people on religious basis…”[31] A similar kind of discrimination had also affected the Europe during the COVID-19 times- it was the racial discrimination. As per Michael O’Flaherty[32], Roma had been blamed for the virus in many parts of the Europe. They had been subjected to stricter regimes for policing lockdown. But the European Union and the Council of Europe have come into picture immediately and have called attention of all nations against the racial profiling of Roma population. The UN committee of Economic, Social and Cultural Rights had called on states to “protect and mitigate the impact of the pandemic on vulnerable groups such as older persons, persons with disabilities, refugees, and conflict-affected populations, as well as communities and groups subject to structural discrimination and disadvantage.”[33] Michelle Blanchet, the UN High Commissioner for Human Rights has also warned that COVID-19 crisis has had a worse impact on racial and ethnic minorities in the United States and a range of other countries.[34] Likewise, the UN Network on Racial Discrimination and the Protection of Minorities, the UN special Rapporteur on Racism, COE secretary general and COE commissioner for Human Rights, COE Advisory committee on the Framework Convention for the protection of National Minorities etc. had all given clarion calls against negative racial profiling of the pandemic.

When such international bodies have understood the social division that the pandemic had caused and taken appropriate steps within their purview, the Supreme Court of India with all its might was expected to be a bit more sensitive on the issue of communal divide due to COVID-19. It was more so important because the mainstream media houses had gone with an unprecedented communal frenzy in religious profiling of the spread and the executive was a moot spectator if not a willing partner to it.

As if the Supreme Court’s silence on the communalization of the pandemic was not enough, its uncharacteristic insensitivity to the migrant crisis portrayed a very dim picture of the judicial system in this country. Historically, the Apex Court had stood steadfast in protecting the rights to work and livelihood. It has declared life does not mean a mere animal existence but a life with dignity. Such lofty ideals were not protected when thousands of migrants, including pregnant migrant started a long walk back to their native place across the country. As discussed earlier, the Supreme Court at first denied accepting the truth and later on, left it on the executive to take decision on the matter. Why Supreme Court denied the existence of the problem at the outset? Justice Shah laments, there is differential of perception what the privileged class’ notion about life with dignity and a poor man’s notion about it, and Supreme Court fell prey to such a disconnect. The ivory tower approach of the Supreme Court which is evident from its deafening silence on the blatant falsehood of Solicitor General “as on today no migrant is walking on the streets.” Contrast can be made with the attitude of Justice Bhaktawar Lentin of Bombay High Court in 1980s. When the Olga Tellis case was being adjudicated in the Bombay High Court, Justice Lentin himself went down to the street to understand the plight of the pavement dwellers instead of believing on the Government’s averments. That day was a high-water mark for Indian judiciary because it held its own much to the chagrin of an omniscient executive. Had the Supreme Court not believed the false claim of the Government and tried to, if required, a redo of Justice Lentin’s heroic, that would have been a befitting homage to the great man. Sadly, this was not to happen.

More than, abdicating its responsibility of protecting life and liberty, pitiful was the way Supreme Court castigated the petitioner when it was prayed before the court to make wages available to the migrant workers. Supreme Court’s asking for ‘the requirement of wages for the workers when they were already fed by the state’ is juvenile naivety at its best. Mere provision of food and water does not alleviate the pain of a pregnant mother walking hundreds of miles! It is not a simple accident scene that dead bodies of migrant labourers were lying on the railway track with blood soaked chapatis beside them. It is a strong allegory of our insensitivity. It is a question to the judicial conscience, “where’s the ideal of life means life with dignity?” Justice A.P. Saha says of the Supreme Court “it skirted the real fundamental rights issue in the case.”[35]

Justice Gopal Gowda brings in another aspect of the Supreme Courts continued indifference to the migrant worker crisis. Indian Supreme Court is rightly held as the most powerful court in the world. It has the constitutional mandate to ensure total justice. But the Court sounded helpless when it stated that it could not monitor the activities of those walking on the road. Needless to say, on the face of the abject failure on the part of the executive and inaction on the part of the legislative to deal with the situation, the whole country was waiting for the Apex Court for the guidance, but it was not to be. Why the Supreme Court felt so helpless? Was the enormity of the problem or the suddenness of it a limiting factor for the court? The answer cannot be in affirmative. Supreme Court had already faced with such a situation during the internal emergency, when the fundamental rights were curtailed, human rights were murdered and the whole governance system had become a charade. Four decades ago, the Supreme Court had faltered in deciding ADM Jabalpur. Sadly, Justice Gowda said that even though ADM Jabapur stood overruled on paper, in practice it still appeared to be a guiding light for the Supreme Court.[36] In this context, it is pertinent to mention the celebrated dissent of Justice Khanna in the case. For Justice Khanna, the validity of emergency was not the question to be decided in the court of law. As constitutional Scholar Gautama Bhatia stated[37] Justice Khanna was even willing to concede that the executive authorities had acted in good faith. His chief concern was Rights of the citizen needed protection. Even a good faith decision of executive could not have overriding effect on the rights of people. Justice Khanna had noted, “experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent …  [the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law”.[38] This exhortation by the Justice, was nothing sort of a prophecy for the time to come. And today when the Supreme Court when again faced with the similar crisis, Justice Khanna’s legendry dissent and the spirit therein was forgotten. In a constitutional democracy based on rule of law, the Apex Court is meant to function as a counter-majoritarian institution to protect the rights of every single individual. However, in the instant crisis “poor migrant workers have become invisible in plain sight and not even a word has been spoken regarding their plight.”[39] Justice Gowda in his imitable style criticized as “ADM Jabalpur will no longer be remembered as the darkest moment of the Supreme Court. That infamy now belongs to the Court’s response to the preventable migrant crisis during the COVID-19 pandemic.”[40]

During certain events, apart from the migrant crisis, the Supreme Court acted in a manner as if it has subjugated itself to the executive juggernaut. If the recalcitrance to condemn the communalizing the pandemic or the indifference to the migrant crisis were not enough example of judiciary playing to the tune of executive, the decision or indecision on conduct of Rathayatra at Puri may be a bad day for the judiciary.

In view of the ban on religious congregation by the Central Government, the state government of Odisha sought a clarification regarding observance of the Rathayatra and the Central Governemnt had left it to the discretion of the state government[41]. So basically, the Government of Odisha was required to take an executive decision whether to conduct the Ratha Yatra. Instead, a PIL was filed in the Apex Court by a non-descript third party to ban the Ratha Yatra. In effect the PIL was asking the Supreme Court to do, what the State Government should have done but failed. The Supreme Court could have asked the petitioner what action of the state was challenged in the PIL. But instead, with a prophetic statement “Lord Jagannath will not forgive us if we allow Ratha Yatra this year” a three-judge bench of the Supreme Court banned the Ratha Yatra. The court fell into the trap of the executive and forgot its own self-imposed restraint of ‘3 –M’ rhetoric barely a month ago. Within no time Series of petitions were filed and the Apex Court revisited its own order of a couple of days old and changed it. Within a span of 48 hours, the Supreme Court bench led by the CJI sat over the same issue twice only to go a full circle. It is no way inferred that, Supreme Court became a willing party to the executive whims, but the restraint it was required to show on matters of executive policy was missing leaps and bounds.

The Solicitor General of India has accused many of the High Court’s running a parallel government. Without going into the veracity of such assertion, if true, what led to such a situation? The Supreme Court which ought to lead the judiciary of the Country was indecisive to the core. Hence, the High Courts of respective states decided on matters best suited in a given situation which was not always in consonance with what the executive at the centre wanted. The all-pervasive executive along with the uncertainty of the pandemic situation has led the Supreme Court into a state of confusion. But Senior Advocate Prashant Bhushan does not stop at criticizing Supreme Court as indecisive. He says the Supreme Court has completely surrendered to the executive.

The pandemic situation has offered many legal challenges too. Though it was not expected of the Supreme Court to decide every matter related to procedural law moved by way of a PIL in the situation of health emergency, a clear direction, nonetheless, would have been a guiding light for the law enforcement authorities of the country. The first such legal challenge was surfaced when a PIL was filed to quashing of the thousands of FIRs lodged in the various police stations of the country for offence of the violation of COVID-19 regulations. All such FIRs were filed under S. 188 of IPC. However, S. 195(1)(a) of the CrPC clearly mentions that no court shall take cognizance in the offence under S. 188 unless a complaint filed by a competent authority. So, in short, the police have registered thousands of cases under S. 188 of IPC and S. 51 of Disaster Management Act for violation of lockdown, but the court would not take cognizance on such cases. When the matter[42] was raised before the Supreme Court, the bench dismissed the plea as lacking merit with a scathing observation that “There can’t be a super government. Everyone is going through difficult times! We are wondering why such kind of petitions are coming to this court.” But the law point was not clarified. It is a different issue that, most of the state governments made executive orders vesting power on the Officer in Charge of the police station to file complaint under to the judicial magistrate in compliance with S. 195(1)(a) of CrPC.

That the COVID-19 pandemic has taken a toll on the Supreme Court can be observed from certain judicial orders made invoking Art. 141 and Art. 142 of the constitution. For example, the Supreme Court in its order dated 23rd March had held,” period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not w.e.f. 15th March 2020 till further order/s to be passed by this Court”. However, while making this order, perhaps nobody thought about the statutory limitation period associated with S. 167(2) of CrPC. Does the March 23rd Order supress the period under S. 167 (2) of CrPC? Presently, this is a question of law in the Madras High Court in view of the contrasting judgements delivered on Settu S/o Govindraj v State the High Court[43]and S. Kasi v State[44]. If an order is made invoking power under Art. 141, it must be crystal clear with absolutely no scope for multiple interpretation. But this was not to be the case.

Notwithstanding the above-mentioned criticisms Supreme Court on its own has taken an absolutely brilliant step to decongest the jails in view of the pandemic. It directed all states and UTs to constitute high-level committees to consider releasing on parole or interim bail prisoners and under trials for offences entailing up to seven-year jail term to decongest prisons in the wake of coronavirus pandemic.[45]

HOW COURTS SHOULD DEAL WITH THE PANDEMIC?

When Winston Churchill was given a report that the German Bombers had started bombing the city of London, his first question was “Are the Courts functioning?” When he was told, the judges were dispensing justice as normal, Churchill exhorted “Thank God! If the courts are working nothing can go wrong.” This sums the high pedestal role of the judiciary even in times of crisis. Courts are not like other government offices. When Courts go for shut down then the life and liberty of the citizenry is at stake. Having said this, it was not expected of the judges to risk their lives. Only a more balanced position is desired.

The courts of United Kingdom are the best example of this balanced approach. When the UK was at the peak of the pandemic the courts were still maintaining a business as usual approach with some sorts of restriction on physical sitting. Reliance was placed on hearing cases through video streaming. As the courts were running as usual there was no effect on the limitation period of cases. Same was the case with the courts in The Netherlands and the Germany. It must be understood, the courts in India occupy a completely different as well as deferential position in the Indian society. And especially, when the executive is going for a forced lockdown with the use of force, the courts are the only succour to a hapless public. So, Indian Courts, instead of going for almost complete shutdown, may adopt innovative and informal ways of dispensing justice. Like the European courts, more stress should be given on deciding matters through written submissions instead of physical presence of parties

The Court’s drive towards engaging technology should be a bit more inclusive. Engaging technology should be understood on two parameters: long term and short-term measure. The long-term solution lies in developing adequate infrastructure in the courts at all level, especially at the grass root level. The E-Courts project has gathered a lot of momentum in the recent times and the COVID-19 is most definitely going to give it the necessary fillip. But as Justice Chandrachud very succinctly puts, a strong legal health is necessary to imbibe the technology in any major way in adjudication. A strong legal health means, the courts cannot rely on Skype conferencing or WhatsApp video calling for hearing arguments. E-courts must shift to open access Application Programming Interface. This API should be available to Government as well as private citizen. The present e-filing system needs to be streamlined and must be made user friendly. A uniform way of e-filing is required to be followed all across the country. Interoperability of the CCTNS from police side and the ICJS from judiciary side needs to be achieved post haste. Another, important long-term solution is training to the lawyers. Most young lawyers have the requisite skillset and aptitude to get adapted to the technological changes. Hence, formal curricular training or special training may be needed to make the lawyers ready to accept the change.

But what needs to be done immediately, so that access to justice does not elude the poor? Justice Chandrachid says the “I want to dissuade people from the idea that virtual court hearings are some sort of panacea. We had no choice in the pandemic but to resort to this. They will not be able to replace physical court hearings.”[46] During the pandemic as an immediate measure, the best model would be a hybrid one. Hybrid one includes the existence of a fair degree of interoperability of both the systems, the online mode and the physical presence mode. As Ameen Jauhar, senior resident fellow at Vidhi Center for Legal Policy says, there should be an “opt-out” option. For example, if the process is being slated to be online, but a party wants a physical appearance, then provision must be there to allow so. It must be understood that, technological intervention necessitated by the pandemic has put the justice delivery system in a transition mode. Unless the transition is smooth keeping everybody especially the public on board, the access to justice will be severely impeded. And, like any other system, the best way to move with a transition is a positive outlook to it. Justice Chandrachud says justice delivery must be a service rather than a sovereign function. When all the stake holders of a judicial system imbibe the value intrinsic in a “service” while delivering justice, the transition period will be smooth. As discussed earlier, technology can be an adjunct to the service of justice delivery. In the transition period, to gain public trust the technology should increase Trust, Empathy, Sustainability and Transparency (TEST) in the judicial proceeding[47]. Justice (Retd.) M.B. Lokur adds a fifth dimension to the four-fold parameter and he stresses on user friendly software for the masses to access to technology.[48]

There is not an iota of doubt in any circle that the Supreme Court’s order regarding decongestion of the prisons is nothing less than extra ordinary. Such kind of empathy and compassion is expected of the Supreme Court in every respect. Life and liberty under Art. 21 is the fundamental of the fundamental rights. Supreme Court’s stance on migrant labour crisis as well as on the allegation of communalization of the pandemic should have been more compassionate.

At the start of this pandemic the state is faced with a legal vacuum to deal with the situation. This has necessitated a situation of enactment of a draconian colonial act, the Epidemic Diseases Act of 1897. Nobody in a modern democratic state has ever foreseen how and to what extent its provisions could have been implemented. Any observation, if not any direction, with regards to that would have been a guiding light for the executive. India has promulgated Interstate Migrant Labourers Act in the year 1971. The Supreme Court might have given direction to the state as per the act for ameliorating the crisis of the migrant labourers.

It is natural that Supreme Court has very little say in the revival of the economy. But in certain respects, legal complications might arise. One such example is the complications arising out of the executory contracts. Righty, Supreme Court has increased limitation period in all general and special laws. But will that be applicable to executory contracts? There can be an interpretation that the COVID-19 pandemic and the regulations pursuant to it attracts the force majeure clause and some parties would seek discharge from the contract. Whether the present situation can be termed as an “irresistible force”, substantially and permanently affecting the performance of the contract is a question of law. In times to come, the courts are going to be flooded with such petitions especially from the construction sectors as well as from green field projects. The Courts are expected to consider broader parameters while deciding the cases.

Finally, much has been discussed about the indecisiveness of the Supreme Court. In preceding paragraphs, it is discussed how, on certain circumstances the Supreme Court appeared to have kowtowed the executive. But one must understand, like every citizen and every institution of this country the Supreme Court faced this situation for the first time in its history and there is no institutional memory to guide. With good faith, the Supreme Court led by CJI thought the pandemic must best be left to the executive with ‘money, material and manpower’ at its disposal to deal with it. The intention is not to abdicate any responsibility rather extend the much-needed support to the executive machinery in taking tough decisions as well as to work in war footing. The scathing criticisms of Justice Shah or Justice Gowda notwithstanding, the Supreme Court is a venerated institution in this country. Every time, it has gone through a dark era, a Justice H.R. Khanna emerges to guide it through the path of righteousness and rule of law. Supreme Court has been a sentinel qui vive for far too long a period to be faced with a question of credibility. The fact that, despite allegations of Supreme Court’s Supreme Failure[49] or Court being a party to undeclared emergency[50] every civil society organization runs to the Supreme Court when a right is violated, shows that the Supreme Court is still and will always be the last hope as well as the last resort. Supreme Court is required to lead the country in a path made of rule of law. A fine balance between judicial restraint and judicial activism need not be too flexible so as to compel the Court to become obsolete. It is time the judiciary must identify the ‘limit’ to which an executive go in a crisis situation. Executive cannot be allowed to trample the fundamental rights under Art. 21 of the constitution. Judiciary should stand sentinel at such ‘limit’ and zealously guard people from executive whims.

CONCLUSION

The COVID-19 pandemic is not going to be over anytime soon. As the saying is doing rounds, one has to learn to live with the virus. If this is true, then from a health emergency it is going to be a situation of business as usual for everybody. In such a situation, the courts cannot take a back seat forever. The justice delivery system may change, but access to justice should never be curtailed. The Indian judiciary can take one lesson from the executive in this regard. The experience in dealing national disasters like floods and cyclones almost every year, has taught the executive to develop a robust Standard Operating Procedure to deal with it. Similarly, the lessons learnt during this pandemic should help judiciary prepare a future standard operating plan to meet any kind of contingency of similar kind in future with minimum dislocation. Society needs the judiciary to be functional all times including disaster. Judges dispensing justice as usual during the bombing of London during World War II should be a constant reminder for the Judicial fraternity across the globe. Rule of Law is too important a concept to be left at the mercy of the executive, even during a pandemic.


[1] GS Bajpai, A. Kaushik,’Unlocking justice in the lockdown’ (The Hindu, 29th April) < https://www.thehindu.com/opinion/op-ed/unlocking-justice-in-the-lockdown/article31456524.ece > accessed 14 July 2020

[2] Harish V Nair, ‘Government best equipped to handle COVID-19 crisis: CJI Bobde’ (Times Now, 27th April)< https://www.timesnownews.com/india/article/government-best-equipped-to-handle-covid-19-crisis-cji-bobde/583776 > accessed 14 July 2020

[3] Apoorva Mandhani , ‘In crisis, 3 govt organs legislature, executive & judiciary should act in harmony: CJI Bobde’ (The Print, 27th April)< https://theprint.in/judiciary/in-crisis-3-govt-organs-legislature-executive-judiciary-should-act-in-harmony-cji-bobde/409993/ > accessed 14 July 2020

[4] Jagriti Chandra, ‘NCW records sharp spike in domestic violence amid lockdown’ (The Hindu, 15th June)< https://www.thehindu.com/news/national/ncw-records-sharp-spike-in-domestic-violence-amid-lockdown/article31835105.ece >accessed 14 July 2020

[5] Sanya Talwar, ‘”Cannot Gag the Press”: CJI on Plea Seeking Action Against Some Media Houses For Communalising Coronavirus Pandemic'(LiveLawin, 13th April) < https://www.livelaw.in/top-stories/cannot-gag-the-press-cji-on-plea-seeking-action-against-media-houses-for-communalising-coronavirus-pandemic-155177?infinitescroll=1 > accessed 14 July 2020

[6] Dr. Faud Halim v. State of West Bengal & Ors. (and other connected letter petitions) in WP no. 5328/2020

[7]  Jipson J., Jitheesh P.M. ‘The Attack on Democratic, Constitutional Rights During the Pandemic Is Ominous: Aruna Roy’ (The Wire, 8th June) < https://thewire.in/rights/covid-19-lockdown-indian-govt-rights-migrants-aruna-roy-interview > accessed 14 July 2020

[8] Scroll.in, ‘‘It is a human tragedy’: Madras HC on migrant crisis; Centre, state asked to file data by May 22’ (Scroll.in, 16th May)< https://scroll.in/latest/962122/it-is-nothing-but-a-human-tragedy-madras-high-court-on-migrant-crisis > accessed 14 July 2020

[9] Sruthisagar Yamunan, ‘As Supreme Court fails to protect migrant workers’ rights, High Courts show the way’ (Scroll.in, 15th July)< https://scroll.in/article/962214/as-supreme-court-fails-to-protect-migrant-workers-rights-high-courts-show-the-way > accessed 14 July 2020

[10] W.P. (C) No 468 of 2020

[11] Roy Radhika, ”How Can We Stop Them From Walking?’ : SC Refuses To Entertain Plea For Migrants On Road https://wwwlivelawin/top-stories/sc-refuses-to-entertain-plea-for-migrants-on-road-156803′ (LiveLaw.in, 15th May ) < https://www.livelaw.in/top-stories/sc-refuses-to-entertain-plea-for-migrants-on-road-156803 > accessed 14 July 2020

[12] W.P. (C) NO. 11573 OF 2020

[13] Mihir Desai, ‘Covid-19 And The Indian Supreme Court Read more at: https://wwwbloombergquintcom/coronavirus-outbreak/covid-19-and-the-indian-supreme-court Copyright © BloombergQuint’ (Bloomberg, 28th May ) < https://www.bloombergquint.com/coronavirus-outbreak/covid-19-and-the-indian-supreme-court > accessed 14 July 2020

[14] Krishnadas Rajagopal, ‘Coronavirus lockdown | Migrant workers should not be prosecuted, says Supreme Court’ (The Hindu, 9th June)< https://www.thehindu.com/news/national/coronavirus-lockdown-migrant-workers-should-not-be-prosecuted-says-supreme-court/article31784841.ece > accessed 14 July 2020

[15] No. R-77/RG/DHC/2020 dated 15-04-2020

[16] Puneet Kumar v High Court of Delhi

[17] 2020 SCC Online SC 355

[18] (2003) 4 SCC 1

[19] High Court of Karnataka v State of Karnataka 2020 SCC Online Kar 556`

[20] Gaurav Kumar Bansal vs. Union of India., W.P. (C) URGENT 3/2020, Shehla Saira and Ors. vs. Union of India, W.P. (C) URGENT 1/2020

[21] High Court of Delhi Rules for Video Conferencing for Courts 2020 ref. 325/Rules/DHC dated 01-06-2020

[22]  W.P. (MD) No. 6126 of 2020

[23] Integr8 Fuels India Pvt. Ltd. vs. WILCHIEF 1, Commercial Admiralty Suit (L) No. 10 of 2020

[24] Monika Rahar, ‘Justice Chandrachud: Access to Justice, Technology and making ‘Justicing’ an indispensible ‘service’ are Fundamental Principles of Law’ (Latest Lawscom, 25 May) < https://www.latestlaws.com/latest-news/justice-chandrachud-access-to-justice-technology-and-making-justicing-an-indispensible-service-are-fundamental-principles-of-law/ > accessed 14 July 2020

[25] Dharvi Vaid, ‘How coronavirus is propelling the rise of online courts in India’ (DW Made for Minds, 11 June) < https://www.dw.com/en/how-coronavirus-is-propelling-the-rise-of-online-courts-in-india/a-53774109 > accessed 14 July 2020

[26] Anita Kushwaha v. Pushap Sudan (2016)

[27] 1966 SCR (3) 744

[28] Krishna Veni Nagam v Harish Nagam (2017) 4 SCC 150; Santhini v Vijaya Venketesh (2018) 1 SCC 134;  Swapnil Tripathy v Union of India (2018) 10 SCC 628.

[29] AP Shah, ‘The Lockdown is a Dangerous Experiment, India’s Democracy Will Not Emerge Unscathed’ (The Wire, 4 May)< https://thewire.in/law/lockdown-democracy-rights-india-supreme-court > accessed 14 July 20

[30] Harish Salve, ‘Corona and the courts: Covid-19 crisis is like wartime Courts must not restrict executive from taking decisions’ (The Times of India, 21 April) < https://timesofindia.indiatimes.com/blogs/toi-edit-page/corona-and-the-courts-covid-19-crisis-is-like-wartime-courts-must-not-restrict-executive-from-taking-decisions/t > accessed 14 July 2020

[31] Down to earth, ‘Refrain from religious profiling of COVID-19 cases: WHO in context of Tabligh’ (Down To Earth, 7 April)< https://www.downtoearth.org.in/news/health/refrain-from-religious-profiling-of-covid-19-cases-who-in-context-of-tabligh-70262 >accessed 14 July 2020

[32] Michael o’flaherty, ‘Racism and the COVID-19 Crisis: Experiences and Responses’ (European Union Agency For Fundamental Rights, 11 May) < https://fra.europa.eu/en/speech/2020/racism-and-covid-19-crisis-experiences-and-responses > accessed 14 July 2020

[33] United nations, ‘Leave No One Behind Racial Discrimination and the Protection of Minorities in the COVID-19 Crisis’ (United Nations Human Rights, 29 april 2020) < https://www.ohchr.org/Documents/Issues/Minorities/UN_Network_Racial_Discrimination_Minorities_COVID.pdf >accessed 14 July 2020

[34] PTI, ”Endemic racial discrimination’ exposed in US: UN rights chief Read more at: https://wwwdeccanheraldcom/international/endemic-racial-discrimination-exposed-in-us-un-rights-chief-844892html’ (Deccan Herald, 2 June)< https://www.deccanherald.com/international/endemic-racial-discrimination-exposed-in-us-un-rights-chief-844892.html > accessed 14 July 2020

[35] Jacob Peenikaparambil, ‘Justice delayed is justice denied’ (Matters India, 27 May) < http://mattersindia.com/2020/05/justice-delayed-is-justice-denied/ > accessed 14 July 2020

[36] Justice(Retd)Gopal Gowda, ‘A Supreme Failure’ (Deccan Herald, 26 May) < https://www.deccanherald.com/opinion/main-article/a-supreme-failure-841803.html > accessed 14 July 2020

[37] Gautam Bhatia, ‘Coronavirus and the Constitution – X: Rights, not Policy’ (Indian Constitutional Law and Philosophy, 7 April)< https://indconlawphil.wordpress.com/2020/04/07/coronavirus-and-the-constitution-x-rights-not-policy/#comments > accessed 14 July 2020

[38] ADM Jabalpur vs Shivkant Shukla (1976) 2 SCC 521

[39] Justice(Retd)Gopal Gowda, ‘A Supreme Failure’ (Deccan Herald, 26 May) < https://www.deccanherald.com/opinion/main-article/a-supreme-failure-841803.html > accessed 14 July 2020

[40] Justice(Retd)Gopal Gowda, ‘A Supreme Failure’ (Deccan Herald, 26 May) < https://www.deccanherald.com/opinion/main-article/a-supreme-failure-841803.html > accessed 14 July 2020

[41] MHA L no 40-10/2020-DM-I(A) dated 7th May 2020

[42] Vikram Singh v State of UP, WRIT PETITION(CRIMINAL) Diary No(s). 10953/2020

[43] CRL OP(MD). No.5291 of 2020, decided on May 8, 2020

[44] CRL OP(MD). No.5296 of 2020, decided on May 11, 2020.

[45] PTI, ‘SC refuses to entertain plea on de-congestion of jails, asks petitioner to approach HCs’ (Outlook, 5 June 2020)< https://www.outlookindia.com/newsscroll/sc-refuses-to-entertain-plea-on-decongestion-of-jails-asks-petitioner-to-approach-hcs/1857272 > accessed 14 July 2020

[46] Express news service, ‘Justice Chandrachud: ‘Irrespective of curbs, courts’ duty to protect rights of citizens’’ (The Indian Express, 25 May 2020) < https://indianexpress.com/article/india/justice-d-y-chandrachud-irrespective-of-curbs-courts-duty-to-protect-rights-of-citizens-6425666/ > accessed 14 July 2020

[47] Editor, ‘The Future Of Virtual Courts And Access To Justice In India By Dr Justice D Y Chandrachud’ (Itatonlineorg, 29 June 2020)< https://itatonline.org/articles_new/the-future-of-virtual-courts-and-access-to-justice-in-india-by-dr-justice-d-y-chandrachud/ >accessed 14 July 2020

[48] Dharvi Vaid, ‘How coronavirus is propelling the rise of online courts in India’ (DW Made for Minds, 11 June) < https://www.dw.com/en/how-coronavirus-is-propelling-the-rise-of-online-courts-in-india/a-53774109 > accessed 14 July 2020

[49] Justice(Retd)Gopal Gowda, ‘A Supreme Failure’ (Deccan Herald, 26 May) < https://www.deccanherald.com/opinion/main-article/a-supreme-failure-841803.html > accessed 14 July 2020

[50] MP Bharucha, ‘By Scaling Down, India’s Courts Have Become Party to an Undeclared Emergency’ (The Wire, 13th June)< https://thewire.in/law/by-scaling-down-indias-courts-have-become-party-to-an-undeclared-emergency > accessed 14 July 2020

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