ACCESS TO

JUSTICE DURING
THE TIMES OF
COVID PANDEMIC
- SUBMITTED BY ALPESH UPADHYAY
PRN-21010241012
  Ubi jus ibi remedium is an age-old Latin maxim which means –
where there is a right there is a remedy. Meaning to say, if an
individual has committed a wrong against an aggrieved person then
later has a right to ask for an appropriate remedy to undo the wrong

Introduction caused to him by former, thereby, he can request for access to

justice.

 Access to justice is more than improving an individual’s access to

courts or guaranteeing legal representation.

 Legal aid programmes are a central component of strategies to

enhance access to justice.

 In the absence of access of justice , people will be unable to have

their voice heard, exercise their rights, challenge discrimination or
hold decision- makers accountable.
The notion of “access to justice” which is envisaged in the constitution of almost all the
modern democratic societies of the world can trace its roots to the Art. 39 of Magna
Carta. According to it: “No free man is to be arrested, or imprisoned, or disseized, or
outlawed, or exiled, or in any other way ruined, nor will we go against him or send against
him, except by the lawful judgment of his peers or by the law of the land .”

 In the case of Anita Kushwaha v. Pushap Sadan The honorable court listed four main
facets which are considered as essential ingredients of access to justice. These are:

1. “The State must provide an effective adjudicatory mechanism

2. The mechanism so provided must be reasonably accessible;

3. The process of adjudication must be speedy; and

4. The litigant’s access to the adjudicatory process must be affordable”

  COVID-19 has changed the way a legal system works. the Indian legal
system was already addressing the need to adapt itself with technology
and was in the process of digitalization when the virus entered the
country.

courts in the pre-covid  The national e-governance projects that provided for e-courts project

era helped bridge the gap and has made justice accessible. Access to case
information system, cause lists, judgements, checking the status of a
case and such other facilities were made easier to avail which proved to
be very helpful during the lockdown.

 The apex court of the country had it’s own application, The Supreme
Court application.
 The doors of a virtual court rooms are thrown open to provide for access
to justice in the times of pandemic. Virtual hearings have been taking
place before the advent of COVID itself. But prior to the pandemic, the
court had already started being accepting towards the digital reform. In
State of Maharashtra v. Prafulla Desai (Appeal crl. 476 of 2003) the Supreme Court of
  A judicial system operating on the principles of access to justice emphasizes on the principle
of ‘Leave no one behind’. The courts have followed through with their promises in the times
of pandemic as well.

 “E-judiciary is a step towards modernization in Indian legal system and the computerization

The rise of E- in judiciary has become an effective tool to bring down the pendency of cases and to reduce

judiciary in the the delay”

covid-19 crisis era  Interim bail- to deal with the overcrowded prison cells, keeping in consideration the health,
safety and well-being of the prisoners and jail staff, the courts have granted interim bail to
the prisoners.

 Statutory limitations were suspended- the strict and rigid conditions were done away with
and the statutory limitations were made flexible by suspending them in order to ensure that
justice is not denied.
JUDICIAL DIGITISATION

 The digitisation of Indian courts has received a major thrust due to the Covid-19 social distancing
restrictions. The judiciary, led by the Supreme Court and the High Courts, have adopted e-filing for
urgent matters and conducted frequent hearings over video conferencing.

 “The e-filing process in the Supreme Court has made it easy to file cases. During the lockdown period,
640 advocates on record have registered for e-filing cases in (the) Supreme Court. This is a move towards
digitization of the judicial process," said law and information technology minister Ravi Shankar Prasad.

 “A 24x7 e-filing facility, incorporation of online court fee payment, use of digital signature and
digitalized scrutiny mechanism for defects and objections in the petitions are some of the key features
envisaged through the introduction of e-filing," said justice D.Y. Chandrachud, the chairperson of the e-
committee.
CHALLENGES FACED BY THE
JUDICIAL SYSTEM
PENDENCY OF CASES
HACKING AND CYBER SECURITY
TECHNOLOGICAL GLITCHES
INCREASE IN EXPENSES
 IMPACT ON WOMEN

Because of the mitigating measure of ‘lockdown’ women are forced to

stay under one roof with their abusers. According to the official data
published by National Commission for Women, there is an increase of
at least 2.5 times in domestic violence complaints during lockdown.
Unfortunately, the legal services provided by legal service authority of
different states is not under the ambit of “essential services”
consequently, the victims of domestic violence are not able to access the
legal aid clinics to get the legal advice. As they are confined within the
precincts it becomes very difficult for them to seek proper legal remedy,
in certain circumstances the conditions turn up, so worse that access to
justice become a matter of ‘life or death’. Due to lockdown they are
unable to attend counselling sessions organized by NGOs. With the
inaccessibility of justice, the populace has become powerless in both the
public and private sphere. The mitigating measures have restricted
physical contact with the outside world, because of which tormented
might not be able to communicate their pain
 Furthermore, with the usage of “Video Application” for
virtual hearings, there are chances of privacy
IMPACT ON PRISONERS infringement of prisoners through data hacking. Later,
due to “unforeseen linkage issues” other international
With the virus hitting the country hard and the prisons being over- applications for video conferencing are allowed, which
crowded with people, the apex court of the country having
raises the concern of “sovereignty and security”. In this
consideration towards public health and on humanitarian grounds has
regard, an application was filed by KN Govindacharya,
granted interim bails the people and has also required that there be a
limit on the arrests made. The court also provided for medical which says: “It is true that a unique situation requires
assistance to the prisoners and the jail staff as well. unique solutions, but the same cannot be at the altar
One of the major fears of overcrowding of prison is- the increased of Rule of Law. It is submitted that most of the Video
chance of spreading of infection. Consequently, on March 16, 2020 the
Conferencing Software being used are products of
Supreme Court took a Suo Moto action to “decongest the jails”. On
March 23, 2020 they issued an order directing the government of every
foreign internet companies, with their terms of use
state and union territories to appoint “High Powered Committees” to mandating transfer of data outside India as well as its
make recommendations pertaining to release of certain under trials and commercial exploitation.”
convicts.
ROLE OF JUDICIARY AT THE TIME OF COVID-19

 On January 30, 2020 World Health Organization declared COVID-19 as a public health emergency. As a result of
this, Indian government adopted certain mitigating measures to ensure the well-being of its citizens, one of these
was the imposition of “lockdown”. Consequently, in consonance of this, Indian judiciary decided to go virtual.

 Every day thousands of people approach the court with a faith that justice will be served to them. However, with
closure of courts in the third week of March 2020, the complete Indian legal system came to a halt due to the
unprecedented situation of COVID-19. Therefore, in order to meet up the legal needs of people, court by applying
the findings of Supreme Court from Swapnil Tripathi v. Supreme Court of India moved towards “live streaming
of proceedings” through video conferencing. The court was of concerned opinion: “By providing virtual access of
live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and
public trial, right to know the developments of law and including the right of justice at the doorstep of the litigants.
Open justice, after all, can be more than just a physical access to the courtroom rather, it is doable even virtually in
the form of live streaming of court proceedings and have the same effect.”
The Supreme Court has constituted a 12-member National Task Force of top medical experts to formulate a
methodology for allocation of oxygen to states and union territories for saving lives of COVID-19 patients and to
facilitate a public health response to the pandemic.
Further, the Supreme Court has expressed it’s pleasure on hearing that the Center has decided to pay compensation to
the families who have lost their family due to COVID-19 and stated that “What India has done, no other country in the
world has done.” It has also directed the Center to frame simpler guidelines for issuance of death certificate of
COVID-19 deaths.
Delhi High Court during the times when the country fell short on oxygen, reiterated that it was the government’s
responsibility to provide medical assistance and held that the court will have to enforce the fundamental rights of the
people, “Beg, borrow and steal and do whatever you have to do but you have to do.”
Karnataka High Court directed the Center to allocate 1,200 MT of medical oxygen to Karnataka. This order of the court
was further upheld by the Supreme Court of India saying that it was a reasoned decision.
The Madras High Court came down heavily on the Election Commission of India for not stopping political rallies,
violating protocols and stated that ‘murder chargers’ should probably be imposed on the panel.
INTERNATIONAL PERSPECTIVE
TOWARDS ACCESS TO JUSTICE
 ARTICLE 8 - “Everyone ARTICLE 10 - “Everyone is
has the right to an effective entitled in full equality to a fair
remedy by the competent and public hearing by an
national tribunals for acts independent and impartial
violating the fundamental tribunal, in the determination of
rights granted him by the his rights and obligations and of
constitution or by law.” any criminal charge against him.”
Guidance note on ensuring Access to Justice in the Context of COVID-19, Published by UNDP, can be viewed as
a framework for guidelines which should be adhered to while meeting international commitments and
safeguarding the rights of different social groups during COVID-19.
There is an absenteeism of constitutionalism and primary focus is upon the health care sector. The entire legal
system across the world has come to a standstill, thereby, very difficult for an aggrieved individual to access the
legal system for redressing the grievances.
Few countries were already ahead of their time and were well-versed with the use of technology prior to the rise
of COVID across the globe, such as South Korea, USA, etc.
Judicial cooperation in the establishment of emergency measures (Albania). On 16 April, the Albanian Judicial
Council (KLGJ) established a Temporary Committee mandated to analyze the legal framework, identify problems
relating to the infrastructure of courts. It was also tasked to draft, propose and oversee measures for judicial
services during the COVID pandemic in collaboration with the court councils and chief judges. Based on this
mandate, the Committee drafted a guiding instruction for the courts on the measures to be taken during the
pandemic on the judicial services. It included preventive measures for the spread of the infection, provisions on
planning and administrative measures for conduct of proceedings and administrative measures for court services.
Approach of courts in a federal state (Germany)
In Germany, each judge was to decide independently within the provisions of existing statutory law whether it was
appropriate to carry out a hearing or to postpone. General guidance was developed, e.g., by making available an overview
of existing statutory provisions that provide legal grounds for procedural alternatives to a face-to-face hearing.
A potential problem for ongoing criminal proceedings was resolved by a temporary legislative change. In order to avoid the
need to restart criminal trials as a result of the effects of the COVID-19 pandemic, the German Bundestag passed a new
regulation under which the courts were able to interrupt a main hearing for a maximum time period of three months and ten
days, for example, in the event of restricted court operations or the involvement of persons belonging to at-risk groups. In
addition, recommendations and binding regulations were also published by some of the federal states.
Whether or not court proceedings were to be postponed under these circumstances, however, was decided by the judges
within their judicial discretion. Yet, during the height of the pandemic, most courts (including the Federal Court of Justice,
the Federal Administrative Court and the Federal Constitutional Court) decided to keep visitor traffic at courthouses to a
minimum.
 CONCLUSION
Judiciary’s role is more pivotal than it has ever been. It needs to safe guard citizens’ rights and maintain
justice system. Courts have been operating in a virtual manner. Lower courts have been judging
remand cases while the Supreme Court and High Courts are hearing urgent cases (though the process
of selecting urgent cases is bit dubious).

The courts have given several directions to the state governments and the central
government regarding migrant’s crisis, testing policies, condition of quarantine facilities, but were
these efforts enough remains to be adjudged by the future generations. The virtual courts have a limited
access and depends on the availability of internet and infrastructure. The accused must have an
opportunity of proper representation and lawyers to establish a rule of law. Former CJI SA Bobde said:
“There is no looking back and the way forward will be a combination of virtual courts and physical
courts, the new and the old.”
RECOMMENDATIONS

 AI is on the rise and therefore, proper measures must be taken to protect

sensitive data such as judge’s information.

 Development of technological infrastructure such as internet accessibility to help

make justice more accessible.

 More attention must be paid to support groups that offer legal services in order
to enable communication via remote access technology.
REFRENCES
 https://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39
 (2016) 8 SCC 509.
 Civilsdaily. Judiciary in Times of COVID-19 Outbreak, 12 May 2020,
https://www.civilsdaily.com/burning-issue-judiciary-in-times-of-covid-19-outbreak/ accessed 27 July 2020.
 Govt. of India, Ministry of Law and Justice. Evaluation Study of eCourts Integrated Mission Mode Project,
National Council of Applied Economic Research, New Delhi, 2015, p. XV,
https://www.researchgate.net/profile/Sohini_Paul3/publication/327200189_Evaluation_Study_of_eCourts_Inte
grated_Mission_Mode_Project_Project/links/5b7f8952299bf1d5a723ca5b/Evaluation-Study-of-eCourts-Integra
ted-Mission-Mode-Project-Project.pdf
 https://www.google.com/url?
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detail%2FP174101&usg=AOvVaw0KSl4oNbjvrN1oTW4O8NuK
 https://www.lexology.com/library/detail.aspx?g=92acbf34-58bb-4d42-a157-2a0fe584e950
 The COVID-19 Crisis – the New Challenges Before the Indian Justice and Court Administration System”

 https://www.unodc.org/dohadeclaration/en/news/2020/03/access-to-justice-in-times-of-
judicial-lockdown.html
Thanking You