Indira Jaising

| @IJaising | April 8,2020

AMIDST the Coronavirus pandemic which has hit the entire globe, the Supreme Court of India is hearing petitions through videoconference in furtherance to its commitment to the justice delivery system. While the objective is laudable, there are several issues that need to be highlighted in order to make the process and purpose equitable and ethical.

First, there has already been criticism on how the court time is allocated and the issues prioritized. Be that as it may, we are told that the apex court would hear only “extremely urgent” matters. No criteria, however, has been spelt out as to what would fit within the category of “extremely urgent”. In the absence of any criteria to this effect, we have no option but to apply our common sense as to what constitutes “extremely urgent” case, apart of course from accepting the identification of what is urgent and what is not.

Surely bail is an urgent matter since it involves life and liberty of an individual. Moreover, it is now judicial policy that prisons should be decongested to avoid community spread of Covid19. It is for this reason that the apex court on March 16, 2020, noted that there was an imminent need to take steps on an urgent basis to prevent the contagion of COVID-19 virus in prisons.

It, therefore, directed the states and Union Territories (UTs) to constitute a High Powered Committee to determine which class of prisoners could be released on parole or on interim bail for such period as may be thought appropriate. For instance, the court said that the state/UTs could consider the release of prisoners who have been convicted or are under-trial for offences for which prescribed punishment is up to 7 years or less, with or without fine and where the prisoner has been convicted for a lesser number of years than the maximum.

Even in normal times bail is considered an urgent matter, and should be considered more so in abnormal times: yet two High Courts namely the Bombay High Court and the Rajasthan High Court have held that bail matters are not urgent. It is here that the Supreme Court must step in and clarify that the bail matters are urgent and cannot be ignored during the lockdown. A few days ago the Supreme Court stayed a Rajasthan High Court’s order,  declaring that bail matters were not urgent and thus they need not be listed for hearing during the lockdown period.  However, this interim stay of the HC’s order by the apex court is not a clear judicial order under Article 142 of the Constitution of India.

Regarding those awaiting arrests, it makes no sense whatsoever to take more and more people into jails when in fact the urgency is to decongest prisons. The Apex Court on April 8 directed civil rights activists Gautam Navlakha and Anand Teltumbde to surrender within a week in the Bhima Koregaon violence case saying the time will not be extended now as the courts are functioning in Maharashtra. They were directed by the apex court on March 16 to surrender within three weeks. However, they moved the plea seeking an extension of time on the ground that going to jail during ongoing COVID-19 pandemic is “virtually a death sentence”.

They have been out of prison and very much available for interrogation all these days, so why arrest them now when there is a need to avoid overcrowding in jails. At this point, their arrest is in fact abuse of the power of arrest.

There is another case of Assam based activist Akhil Gogoi who has been repeatedly granted bail and repeatedly arrested in one case following another which is “evergreening”  of a so-called crime, thereby exposing the actual motive behind his arrest, that is, not to investigate his crime but to put him away form communicating with his people.

Similar is the case of Dr Kafeel Khan. He was booked by the Aligarh Police for an alleged hate speech made in the context of The Citizenship Amendment Act. Even though the Aligarh Court had ordered his release, he was retained in prison and immediately booked under the National Security Act (NSA) on February 13, 2020. He is in jail since then.

Another important issue is the question of open justice. As I said, we welcome the functioning of the Supreme Court via videoconference, but a court without open doors is no court at all. We have been repeatedly told that courts need the sunshine of public watch to keep them accountable and to inspire confidence that their decisions are made in the public interest, in our name. Today the Supreme Court of India is cloistered and shrouded in secrecy – only the judges themselves and the lawyers know what is going in inside the court.

The decision to live stream the court’s proceedings were made in 2018. Justice D Y Chandrachud in his separate but concurring judgment had noted:

“Access to justice can never be complete without the litigant being able to see, hear and understand the course of proceedings first hand. Apart from this, live-streaming is an important facet of a responsive judiciary which accepts and acknowledges that it is accountable to the concerns of those who seek justice. Live-streaming is a significant instrument of establishing the accountability of other stake-holders in the justicing process, including the Bar.

Moreover, the government as the largest litigant has to shoulder the responsibility for the efficiency of the judicial process. Full dissemination of knowledge and information about court proceedings through live-streaming thus subserves diverse interests of stake-holders and of society in the proper administration of justice”.

And yet the court fails to implement its own judgment even today.

It is important to remember that the legal profession and the general public have a stake in the functioning of the justice system and the proceedings of the court must be shared with us. Today it is the government, which is a party to every case in the court relating to the Covid19, and its voice in court must be heard loud and clear. Front line medical professionals, migrant workers, those providing essential services who are putting their lives on the line must also be able to hear and feel the presence of the courts. The court continues to exercise a moral authority perhaps greater than the executive being non-partisan and needs to give to these communities a sense of assurance that it cares about them. It is required in the public interest to put in place the mechanism so that people could see what transpires in the court.

This is an appeal to the Chief Justice of India to take a quick decision to live-stream all court proceedings in the time of Corona pandemic and make them available on the court’s website. To my knowledge, the Gujarat High Court and the Kerala High Court are making available the live streaming of the court’s proceedings. Why not take a leaf out of their book? By embracing live streaming of the court’s proceedings, the courts would only promote a greater degree of confidence in the judicial process.

In the time of Corona, the one thing I miss is not that I am not arguing in court but that I am not in a position of being an eyewitness to the functioning of the court, an institution I have loved for its justice delivery function.

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