By Kashish Khanna,
Covid-19 has impacted our lives dreadfully. In the situation of lockdown, there have been many discomforts especially, in accessing justice. The common man is facing challenges in his day to day lives. The question arises whether the people can or have the right to justice in case of emergencies faced during the lockdown? How did this pandemic affect the lives of different sections of the society? Are Indian courts affected by this global pandemic and if so, how?
The answers to these questions come with a lot of facts relating to the past. When we say the role of judiciary in situation of lockdown or the impact of covid-19 on the Indian courts, it comes along with two major decisions;
i. What is the current situation of judiciary? Are people getting the justice or has it all come to a halt due to the pandemic?
ii. What should be happening in case people are finding it difficult to cope up with the legalities of the judicial system?
iii. How is the lockdown crises being tackled by the Indian courts?
With the onset of Covid-19, right of citizens to access justice has become much of a task. The working of the judicial system is taking place through video conferencing as most of the lawyers have the access to the internet today. But it doesn’t solve much of the problems, as one of the most affected areas or the citizens in this lockdown are Migrant Workers and the Employees. Due to the cash crunch people who are dependent like in villages are now helpless. Most of the daily wage workers, small businesses ,people working in the security, healthcare workers, guards etc. and the women facing domestic violence at home have nowhere to go neither can they send their children somewhere safe.
The factories that were closed due to the lockdown had leaks and lead to fire. The court passed a judgement to close the factory but that’s how most of the factories are being affected and court needs to take measures before such tragedies take place. The people need the Indian courts at this time of crises to be available and provide them with justice.
The solutions took by courts or the judgments passed and the orders given helped a lot of the people but it was too slow. Now the Indian judiciary started playing an active role in various key judgements and decisions , but it’s too late, for example the migrant workers constituted of children as well as pregnant women and people with health issues but they were not given any relief by the courts for a good time period and all the judgements or court hearings regarding the same have come into existence recently, The “Supreme Court on 5th June suggested that the Centre and state governments transport all stranded migrant labourers to their respective native states within 15 days.” Other than this there have been a lot of relief factors as the Supreme Court had ordered recently for free food, shelter and travel respectively. PM CARE FUND was set up in the beginning of the lockdown. Apart from all this since the courts have been shut down completely or partially the courts have resorted to online measures such as “e-filing, virtual proceedings and also have extended the limitation period for filing appeals, petitions, suits and all other proceedings in Courts and Tribunals” Covid-19 has shown us the worse. The problem with courts is that the decisions of the court doesn’t make much of a difference in the lives of people till the time it gets implemented , like right now the conditions of patients (covid or non-covid) is pretty helpless. They are not being offered help, beds or even access to hospitals, treatments, etc. and the right of life; right to health-care, nothing. Although the govt. has asked the big hotels and private establishments to help in providing the basic necessities of the hospitals and convert them into hospitals and coronavirus centres for some period of time, but the hospitals are charging very high rates for Covid-19 patients that not everyone is able to afford. Private hospitals are being earning there revenues instead of providing help. Either the hospitals don’t admit covid patients or they deny the treatment. Even the charitable institutions, hospitals are earning quite well but again either the hospitals are full or there are less beds. Either ways it’s a chaos and people are not being provided with adequate help and are stuck between the difference of functioning of govt. and judiciary. Due to this people are facing unfortunate demises, be it healthcare, be it workers. The deaths due to the coronavirus are rising humongously, it has become so harsh that even the cremation grounds have long queues. No strict laws are being passed in the period of such distress to curb the outrage of people.
The people, workers, employees, rag-pickers from top entrepreneurs to the daily wage workers all are affected by this pandemic. The salary and the economy all is at a stake. Not only are people dying of hunger but also from depression, mental un-stability and the fear of this virus. The situation is getting out of control, if people don’t get their basic fundamental rights amidst this lockdown, dark times will prevail.
Due to covid-19 an ordinance have been passed with immediate effect about the suspension of fresh insolvency proceedings for next sixth months as a part of economic relief measures presented by the govt. This has been issued in order to protect companies which are majorly impacted due to covid-19.
“Suo Motu Cognizance by the Indian Judiciary. Suo Moto cognizance is when the courts in India take a case on their own. Suo Moto in India has been warranted under Article 32 & Article 226 of the constitution. Recently, a lot of instances can be seen where the Indian judiciary has taken up Suo Moto cases such as the Murthal Rape Case.”
Section 56 is based on a common law principle known as ‘Doctrine of Frustration’ propounded by English judges through a series of case. As per this Doctrine there can be two grounds upon which even a legal contract can be termed ‘frustrated’ or, in other words, absolving all the parties from the liability of performance on account of certain intervening factors: (1) performance of contract is physically impossible, and (2) the object of contract has failed. These principles have been upheld by the Supreme Court to be well within the ambit of Section 56 and thus we conclude that frustration as a result of COVID-19 will be safeguarded by the present contractual law. When in situations where it would be physically impossible to perform a contract owing to restrictions imposed on individual or an area, say, delivery of goods in a locality where all movement of people are restricted will fall within the present law, and both promisor and promise would be relieved from any contractual duty and liability in case of non-performance.
Force majeure is also one of the important clauses to be stressed upon by the courts in India as the courts globally have taken the pandemic as under the “ACT OF GOD” in the contract law. A lot of people will be taking it to their advantage if not decided correctly by the judiciary. It is one of the major decisions to be taken and implied on most of the cases pending in the courts.
Also the decisions regarding the changes of law, compliance and taxes are being taken in these hard times of Coronavirus.
Covid-19 has also impacted the life of people associated with law professionally or otherwise. Due to the pandemic courtrooms were shut down. Hearings were postponed and many cases cancelled, deadlines were extended, a lot of money was wasted. Most of the workers in courts and typewrites or even the lawyers, all faced the challenges of this unfortunate closing of legal system except the virtual proceeding. The law firms would lose their major clients and so will the practising lawyers. The clients are now questioning the integrity of lawyers and law firms as they lash down there fees for each case. In addition to this, cases that were about to be closed will now have to wait for a long time. Due to this pandemic the punishments of most of the people were relaxed and a lot of criminals released on parole, increasing the crime rates outside. Not only is the legal profession hit drastically, but is also having difficulties in making decisions. As soon as the lockdown is eased out completely, the amount of cases, criminal or civil will shoot up at high levels, increasing the tension, pressure and burden of courts. So the legal professionals need to use Covid-19 as an opportunity for their law firms to reassess and strategize.
During the lockdown the cases of domestic violence, crimes, hate crimes and cybercrimes etc. all have seen a drastic increase. Due to the tensions at home, assaults and child abuse have also increased. Women and children are being bullied in poor households. Also by overpricing the basic amenities to the consumers, the marketers are earning successfully, but are emptying the pockets of the consumers. All this needs the court to take action and put an end to victimizing. The tortures and workload have increased for a lot of women and their grievances needs to be heard.
“Also the agreements and contracts couldn’t be executed and stamped hence stopping commercial transactions of the rent agreements, service agreements, corporate agreements, etc.” therefore E-contract came into being “as per section 10A of Information Technology Act 2000”. Even though it does not include various other contracts.
“The Supreme Court bar association SCBA has launched the SCBA covid-19 helpline scheme to give loans up to Rs.25000” to support its member lawyers who are facing financial difficulties due to coronavirus pandemic. The identity of these lawyers will be kept confidential as a rule of law.
It is important for the courts to equip themselves in this lockdown and promote virtual courtrooms as not only are the past cases pending but also in the present there is a lot to be discussed and for the future the piles of cases have already started coming into existence. So during this pandemic the Indian Courtrooms need to make a brilliant use of Technology and work on the time factor for the cases ongoing, or pending, or for future. It is a great time for the legal system of the country as for years the courts are working in a much delayed manner. But with the time, change in its working can be brought into existence and with that the most cliché saying will come to an end “JUSTICE DELAYED IS JUSTICE DENIED” it means the cases will take less time and the paper work will be minimised, the cases could become more brief and easy to understand and elaborate and quick decisions could be taken. Basically, with this pandemic the Courts in India can be changed effectively in becoming more efficient. Talking about the virtual courtrooms, it changes the legal scenario in a totally different way. One of the important points to be taken into consideration is that the funds needed for the making and processing and the setting of court rooms will all be saved by switching to electronic ways and means of courts. It will create an environment which will provide the legal professionals flexible working hours and in addition to this they will be less stressed and have time for taking better decisions or doing other tasks. It is an opportunity full of possibilities for the legal system in India. The justice will be easy, precise and immediate and things will be more manageable than they earlier were. All of this will convert the long hours and big tasks into smaller and easily accessible tasks. Everything will be online the whole procedure of filing a case in the court, hiring an advocate, work will become more professional and efficient.
The contours of the post-corona legal world are taking shape. There are challenges and opportunities. Those who upskill and adopt a learning-for-life mindset will find opportunities. Others who stand pat, hoping that things will soon return to the before-corona world, will be redundant. Covid-19 will produce a thinning of the herd and a new legal industry. Embrace the challenge.What is being done at this time is video conferencing through zoom calls, google meet, skype etc., virtual courtrooms are being encouraged, and trials are being held through zoom calls, making it a bit informal but effective. High Court judges raised funds to fight coronavirus. The law faculty was generous in pooling funds for covid-19 in spite of facing salary cuts for the employees and fee slash for the professionals. Also many lawyers faced unemployment and professionals sat ideal due to lack of agreements as well as contracts.
Since the business transactions were completely put on a halt due to lockdown, the entrepreneurs too will be needing help in the legalities of their firms.
Law firms and individual lawyers must be fully prepared themselves for the rough road ahead. Though the litigation, as well as non-contentious work, is steadily bound to increase post Covid-19, however, they must be vigilant that this rising volume of work would not match their expectation and receipt of revenue. It is high time for the management of law firms to ponder upon this restructuring aspect which could balance the interests of all stakeholders. We have to keep in mind that every year thousands of law graduates join the profession and they have to be suitably placed amid this crisis. We need to generate this confidence in clients that like other sectors, the legal sector is also prepared to face the challenges. We have to further ensure that the quality of legal support, in the absence of huge revenue, is not compromised. We have to scrutinize and identify the prospective cost cutting avenues while ensuring that employees of law firms and working advocates aren’t subjected to unduly harsh measures. Above all, we have to take them into confidence.
To conclude, the judiciary has been quite active in passing the judgements recently but due to the delay in the proper functioning and implementation of the same, the cases of covid-19 grew enormously. As strict guidelines were not issued or implemented, at the proper time, people had to suffer. Moreover, the need of virtual courtroom has been rising since the lockdown started, as for the cases pending are increasing daily apart from that related to Covid-19. The upcoming lawyers should now be acquainted with the digital system than presenting themselves in the court. With the beginning of a new era after the end of this huge pandemic new means and measures shall be established in our judicial system.
Stringent measures, prompt judgements enforced for citizens is the need of the hour to tackle the vulnerable situation we have reached. The supremacy of the highest court of law should always prevail.
I would like to say that we need awareness and optimism, grit and determination to fight Covid-19 and need to stay away from anxiety fear depression and fake news.
THANKYOU!!