COVID-19 and Fundamental right of access to justice

 Various fundamental rights are provided for the citizens of India. One such right is the right of access to justice, which is included in the articles of 14 and 21, through judicial pronouncements. This article explores the status of this quintessential fundamental right during the pandemic. The changes in the functions of the courts and how they can be improved have also been discussed.

Introduction

An Indian citizen is provided with various fundamental rights in the constitution, beginning with Article 14 to Article 32. But there are also fundamental rights such as Article 14 and Article 21, which are provided to non – citizens, i.e., any person on the Indian Soil. Also known as the “heart and soul of the constitution” by the father of the Indian Constitution, Article 32 is the fundamental right to constitutional remedies[1]. That is, this article is used when a citizen’s fundamental right(s) is/are violated. But what about access to justice? Is that a fundamental right? And is it provided to citizens as well as non-citizens?

Right of access to Justice: A history

Pre-independence Period:

The question of access to justice has been prevailing since the pre-independence era in India. In cases such as Re: Llewelyn Evans[2], the concept of access to justice has been discussed. In this case, the accused was refused permission to meet his advocate for legal advice. In this matter, the court held that he should be allowed to meet his legal adviser, and the presiding judge, Justice Fawcett, had stated that,

The days have long since gone by, when the state deliberately put obstacles in the way of an accused defending himself, for instance, in the days when he was not allowed even to have counsel to defend him on a charge of felony[3]

 Another case took place in 1943, called, P.K. Tare v. Emperor[4], where the petitioners, participants of the Quit India Movement, challenged an Act that denied them from approaching the court in person. The court held in favor of the petitioners and Justice Vivian Bose stressed the significance of the right of a person to apply for justice.

 But after the formation of the Indian Constitution, the mother document recognized the essentiality of the right of access to justice, especially by the Supreme Court and the High Courts.

Post – Independence: The Constitution and Judicial pronouncements

In a very recent case, called Anita Kushwaha v. Pushap Sudan[5], the Supreme Court bench consisting of five judges held that the right of access to justice is a fundamental right. The court had stated that,  

We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution.[6]

They also added that the right of access to justice is also a facet of Article 14, the fundamental right of equality before the law. They gave ‘justifiable’ reasoning for it,

The Citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both concerning equality before the law as well as equal protection of laws.

The court also stated that the state must offer a well-organized adjudicatory mechanism and it must reasonably accessible by people. Now that the fact that the right of access to justice is a fundamental right is established, let us look at the problem in the contemporary world.

Corona Virus, also known as the COVID-19 has waves of fear, shock, and virus around the world. This has forced almost all the major countries in the world to impose the Quarantine Rule or “the lockdown”, as it is called in India. It has become a time where people suffer to get a proper three-square meal per day. But what about the right of access to justice during COVID-19? Let us look at the impact of the COVID-19 on the right of access to justice.

Right of Access to Justice during the pandemic

            Just like all other ‘workplaces’, the courts of India too were closed during the lockdown of the COVID-19. But the legal issues that would arise in any common man’s life continued to exist. During this pandemic time, it became very difficult for common people to exercise their right to access to justice, as even access to transport was not feasible. Knowing very well that the courts can’t stay idle, the judiciary came up with an idea to tackle the problem of providing justice during the pandemic.

Technology and the Judiciary: An overview

            The contemporary world is driven by the power of technological advancements. The judiciary of India has always been up-to-date with technology. With apps such as E-court services and the app of the Supreme Court, even before the pandemic, the judiciary had many matters available online for the easy use of the litigants and general public. Recently in the case of Youth Bar Association of India v Union of India[7], the Supreme court had directed First information Reports to be uploaded online, for easy linking to the e-filing process.

Virtual Courts

            In line with the coronavirus pandemic, the judiciary of India decided to switch over to virtual courts rather than physical proceedings. Starting from the 25th of March, 2020, the Supreme Court decided to hear urgent cases and emerging issues through the help of video conferencing. But several issues and problems are revolving around the judiciary during the pandemic.

Issues with the virtual courts

Connectivity Issues

            Though the hearing and proceedings of the court took place with the help of video conferencing, there have been several problems that are yet to be addressed. If the hearing must proceed properly, then there must good connectivity with all the participants of the proceeding: the parties, their counsels, the bench clerk, the judge himself/ herself, etc. Delayed speech or glitching networks would hinder the progress of the case. Some of the people who seek justice might not even have decent network connectivity.

Remedy

            According to article 39 A, the state has to provide free legal aid to all the people who seek the court. Since this article is in the Directive Principles of State Policy, it is not directly enforceable on the State. But in the case, Hussainara Khatoon v. the State of Bihar[8], the Supreme Court linked the aspect of free legal aid with Article 21. They said that the words, “reasonable, fair, and just” linked free legal as one of its elements.

            In the current situation, the judiciary can try to make arrangements for providing free legal aid by providing a decent internet connection, only for the court hearing. This can be done only for people who approach the courts and for matters that need the utmost attention.

There have also been claims that urgent matters were ignored by the court during the pandemic. On the other hand, there have been news reports stating that by August, almost 13.000 cases were listed for online hearing in the Delhi High Court[9].

COVID-19 to be treated as a Period of Emergency?

            Even though the period of COVID-19 hasn’t been declared as an emergency period, the situation in the initial days was as such. Would it have been better if this period of the pandemic was treated as an emergency period?

            No. If COVID-19 was treated as an emergency, then all the fundamental rights would have been suspended, except the rights under articles 20 and 21. Even though one might argue that Article 21 includes the right of access to justice and free legal aid, it would have not been possible to argue before courts in times of “emergency”, as article 14 too would have been one of the suspended fundamental rights and without Article 32, no one can seek the Supreme Court for constitutional remedies. Therefore, the state’s decision of treating it just as quarantine is justified and the Judiciary’s adapted measures of justice should be appreciated as well as appreciated.

Conclusion

            It can be said that there have been efforts taken by the judiciary to uphold the right of access to justice during the pandemic. There could have been instances where petitions were stayed, listed on a later date, or altogether rejected because of the pandemic situation. Constitutional cases are said to be heard along with urgent disputes. But it is not clear on what basis the cases are listed as ‘urgent’ and not urgent. But the judiciary’s efforts must be appreciated.

 On the other hand, it must also be noted that the current model of video conferencing and online hearing must be improved a lot. This type of online hearings can be used to deliver justice to people in remote areas such as the north-east, who have less access to courts. Therefore, it can be concluded that the fundamental right of access to justice has not been denied during COVI-19, but the mode of access can be improved.

 Frequently Asked Questions

  • 1. Which articles under the constitution confer the fundamental right of access to justice?
  • 2. Is the fundamental right of access to Justice available to non-citizens.
  • 3. Will the fundamental right of access to justice be suspended during an emergency under article 352?
  • 4. Did apps like e-courts services exist even before the pandemic?
  • 5. Is my right of access to justice suspended during the COVID-19 Pandemic?

    References:

1.http://www.delhihighcourt.nic.in/library/articles/Access%20to%20justice.pdf.

2. https://legal.economictimes.indiatimes.com/news/industry/delhi-hc-listed-13k-cases-for-virtual-hearings-during-covid-19-pandemic/77688755.

3. https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=f1a1e3a6-675f-455b-b190-038306399cbb#_ednref4.


Leave a Reply

Your email address will not be published. Required fields are marked *