Somasekhar Sundaresan, Counsel, Bombay High Court
We are in the midst of an extraordinary and unexpected phase of evolution of law and justice. The fear inspired by the COVID-19 pandemic has led to extraordinary circumstances and what would otherwise be unbelievable outcomes.
Not just in India, but around the globe, large sections of societies are happy to sacrifice, at the request of their incumbent governments, liberties that they would otherwise zealously guard and cherish, and rights that they would otherwise agitate to assert.
Put differently, around the world, societies are witnessing a “corona coup” – like the complex virus, this is a nuanced and sophisticated version of a coup. The term “coup” usually means a sudden, violent or illegal seizure of governance. But the term also means successfully achieving something considered very difficult. A corona coup is one where the executive arm of the State gets to occupy greater space in the jostling for space among institutions that govern the State.
Indeed, the fear of death in a society, and that too on a mass scale, can trump notions of right to life. Worldwide, the crisis posed by the pandemic, is leading to occupation of greater territories of human agency by governments. Occupied territories that may not be easily vacated after the war is over. New “lines of actual control” get drawn after wars, and such crises, representing a new demarcation of territory occupied by the State and the territory occupied by the individual.
COVID-19 will come and go, but then there will always be the next virus and the next feared epidemic. The urgent need to implement strong preventive measures to prevent them, will confer stronger powers of intervention on the State, and new lines of actual control will come to stay. The State may (justifiably, for most) demand a right to know where the individual has travelled, whom she has met, what her food habits are, religious and other societal predilections – all for studying if she is a risk to society when the next virus and the next epidemic threatens to take root.
It is during crises that what would otherwise have been unthinkable suddenly becomes par for the course. The insistence (by law) of identifying every citizen, whether by Aadhar or by registration could conjure images of totalitarianism and dictatorship. However, the request for identification of a person suspected of being infected by the COVID-19 virus would be welcomed by vast sections of society – so wholeheartedly, that many in the middle class are bringing to bear the social attitudes once held towards leprosy, or for that matter, HIV patients.
Housing societies are implementing exclusionary measures that even the governments would not have envisaged when they called for a lockdown. A staff member of a court is reported to have taken an international holiday, and his neighbours “turned him in” on his return – his test results have proven negative for COVID-19 but serious quarantine measures followed. Indeed, social media brings daily images of strong-arm enforcement of the lockdown by some policemen confronted with civilian policing in a war-like situation.
Naturally, all these symptoms would lead to State intervention in the form of laws that would regulate societal conduct. Provisions protecting public servants for action taken in good faith without use of the term “use of force” are already written into orders notified by municipal authorities in Mumbai. If social media reactions are a barometer, large sections of society may be welcoming of provisions akin to the Armed Forces Special Provisions Act, for those brutally enforcing the lockdown – after all they are being saved from potential death.
Like with any territorial line of actual control, there will be skirmishes at the border. Turf battles that have always existed, would continue too. Yet, the lines demarcating the space for the State would be located deeper inside the space hitherto occupied by the individual. It is the institutional framework in a society for checks and balances on the executive arm of the State, that will determine how well the new lines of actual control are policed.
If ridiculing the State’s response to a terror attack can be expensive, ridiculing the State’s response to a public health crisis is suicidal. When the astute Mr. P. Chidambaram declares that the COVID-19 war is one where he is a foot soldier and Prime Minister Mr. Narendra Modi is the commander-in-chief, you get the political importance of a public health crisis. If US President Donald Trump were to lose his re-election bid, it would be because of his dismissive stance on COVID-19, and not because of his performance in his first term.
If being dismissive of threat to people’s lives is fertile soil for incumbent governments to fall, it is also fertile soil for incumbent governments to get entrenched. This is what would make policing the new lines of actual control even more complex. For justice delivery to effectively police these lines, some low-hanging fruit must be grabbed right away. The silver lining in a crisis as dark as COVID-19 is that it presents opportunities for change that must not be wasted.
Crises are when substantial change can be brought about without the strength of status quo proponents holding up change. Who would have imagined the import-export manual of the 1980s could be thrown into the Indian Ocean? Who would have imagined that industrial licensing would be consigned to ashes, or that the Controller of Capital Issues would be abolished? All of that became possible in 1991 when our Republic on the brink of an international payment default.
Just two fundamental reforms can ensure justice delivery is always up and running, so that the policing of the executive arm of the State is never absent. Senior counsels of the Bombay High Court have written to the Chief Justice expressing concern about access to justice for the weak and poor. These measures would address such concerns.
Electronic access to hearings: This is the easiest to implement. With far more reliable electronic conferencing technology and excellent WiFi bandwidth now becoming available, at least final hearings can be conducted without having to travel.
With the realisation that for all practical purposes, all work can come to a complete standstill, the new lines of actual control would be sought to be drawn in a place where the check and balance of the judiciary is rendered non-existent. This has to be stoutly resisted and access to justice can be ensured by establishing reliable means of electronic hearing. The stop-gap and rag-tag measures that are taking root today for electronic hearings must be built on to draw a new line of actual control from the side of justice delivery.
Electronic filing: Stipulating what “electronic filing” actually means, and introducing it uniformly across the higher judiciary in India (for starters) and then extending it to lower courts with original jurisdiction is a must-do to make access to justice easier and more citizen-friendly.
Electronic filing can mean different things in different courts – some scan images while others scan documents that are not searchable. India generally responds well to central command. The Supreme Court has shown the way by referring to Article 141 and Article 142 and directing suspension of limitation. Replicating the approach with e-filing standards to ensure uniform text-searchable-digitally-signed pleadings and judgements must become a permanent feature.
Indeed, there will be judges and practitioners who cannot suddenly be expected to work with the electronic medium. It may not be fair to suddenly impose a new paradigm on them. But who knows if they actually cannot adapt – who knew our grandparents and parents would take to the internet and smartphones as well as they did. Most lawyers and most judges would adapt. For those who cannot, one can always print the record that is electronic. The resources saved by not printing multiple versions can be spent on printing just for such exceptions.
The alternative to this reform is risking the judicial arm of the State being effaced from the functioning of the Republic during crises such as this pandemic. Justice delivery is a public good and must be available at all times to come. Like the doctors fighting at the frontline of the COVID-19 war, judges and lawyers too are a uniformed force that defends and protects the Constitution.
Having an infrastructure that is not dependent on the executive arm of the State to continue functioning and serving the Republic, is a matter of urgent strategic vision and needs critical attention.