This is the time to ensure systemic legal reform
It needs an overhaul. Build on interim measures, leverage technology, and go back to fundamental principles
The delivery of justice is not considered an essential service by law. But it is. Justice is more than just a theoretical ethical principle that sustains democracy and development. It is a practical system of rules and remedies that directs our daily lives. That is why in moments of crisis such as the one we find ourselves in due to the coronavirus pandemic, the justice system — the police, judiciary, prisons and legal aid — is required to exert itself to provide continuous and quality service in much the same way we expect the fire service and the pharmacy to be on call. People need justice 24*7 and the system must gear itself towards that. The key lies in working out practical measures at every level, using available spaces and people to their optimum while minimising the risk of contagion for all.
The Supreme Court has already taken suo motu notice of problems that may arise because of the disruption, and directed that it is not necessary for lawyers and litigants to physically file proceedings in various courts. It has also liberalised the rules for delays in filing. District courts have been asked to switch to video- conferencing and continue their services. Presiding officers have asked to adjourn proceedings if measures to control crowds in courts fail. In a formal court setting, it is hard to see why crowd control should fail if strictly implemented.
The vulnerable require particular attention. State institutions such as prisons, borstals, orphanages, nari nikatans (shelter for women) and mental institutions house captive populations which are susceptible. The State cannot be seen to be either negligent or increase the risk to people in its care. Instead, it must significantly decrease it. To deal with the need for distancing, the court has also asked every state to create a high-level committee to oversee the release of undertrials and convicted prisoners on interim bail and parole respectively.
Naturally, there will be a gradation of who is worthy of release and who is not. Nearly 70% of all inmates are in pre-trial detention because investigations are ongoing. Even among the 30% convicted, many are first-time offenders or those in jail for petty crimes. This crisis provides the opportunity for magistrates to recall that bail, not jail, is the rule and to utilise alternatives to imprisonment such as probation, paroles and furloughs.
In new cases, it is an opportunity to let go of the practice of mechanically granting police requests for remand, and, instead, ensuring that there are genuine grounds for arrest, and that further detention is not automatically extended as is the practice in too many courts.
Hopefully, current innovations will create new habits that break away from old practices and work to fix this imperfect system. With shortfalls that, on average, stand at 30% for the high courts and 25% for the subordinate courts, the appointment of more well-trained judges is a no-brainer. Court managers with experience and specialisation will free judges from administrative and managerial tasks and leave them to what they do best — adjudicate.
This is also a good moment to utilise technology that dispenses with physical presence, makes life easier for litigant and lawyer, and helps enhance the quality of justice. A lot can be done — using multi-person video to hear all sides of an argument and relay it outside court for the public to hear; serving notice electronically, and tracking receipts; using speech to text applications to accurately record what is happening in court; creating common platforms across courts and geographies that are compatible with each other so that people who need access to various parts of the system get quick responses; and counselling and information through updated websites, helplines and phone-enabled apps. The technology is there and so is the money. But, often, the allocated resources are left unspent, thanks to lack of initiative and institutional apathy.
It is also a good moment for the government to look at its own bloated litigation docket and pare it down to matters where the delay would be too great to countenance.
This unprecedented time requires precise guidance to ease dilemmas down the line. Generalised fiats that urgent matters may be taken up at the discretion of the court are not enough. For the justice-seeker, every matter is urgent. But matters relating to personal liberty or protection from predators — whether private or state agents — are not something that can wait. As we enter a second phase of the lockdown, the courts have to go back to the fundamental principles that distinguish the delivery of justice from the political executive. Anything else outside this gold standard would be unacceptable.