Are we as lawyers and judges doing our best in the challenging times of COVID-19?

 Senior Advocate Vikas Pahwa
Senior Advocate Vikas Pahwa

More than 7.86 lakh cases of COVID-19 have been registered worldwide, with more than 1,300 in India alone. The global death toll has crossed 38,000.

Prime Minster Narender Modi had announced a nationwide Lockdown for 21 days to fight the Coronavirus pandemic. He said that the only way to tame the spread of the virus is to break the cycle of transmission by practicing social distancing.

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Since most of the countrymen are quarantined at home for 21 days, I am worried about lakhs of undertrial prisoners languishing in the overcrowded jails of our country. All of them are presumed to be innocent till they are proven guilty. Considering the low conviction rate in our country, majority of them have a fair chance of being acquitted.

The Supreme Court, considering the severity of the situation, issued directions on March 23 to all the High Courts to form a High-Powered Committee to consider granting parole to convicts and interim bail to undertrials who are charged with offences punishable up to 7 years, as a preventive measure. This leaves us in an obscure area for the convicted and undertrial prisoners facing trial in the other offences.

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The Registrars of High Courts are empowered to list matters which are extremely urgent for hearing in these cases. But what constitutes "urgent" is not explained and is completely ambiguous.

The High-Powered Committee headed by Justice Hima Kohli, is doing a commendable job towards the release of people covered in this category. The Committee has further relaxed the criterion on March 28 and brought more prisoners under the ambit of the Supreme Court guidelines.

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However, the listing of the urgent bail applications of undertrial prisoners in the other cases is simply being rejected, fearing that if one is listed, many shall follow. This procedure of rejecting the listing is arbitrary and discriminatory. I, myself, tried to get matters listed twice, but failed. I was surprised to see the reluctance of the Registry to list these cases, citing the absence of paraphernalia to deal with this situation.

The Delhi High Court has the maximum number of digital courts in the country and has the state-of-the-art technology for high-tech video teleconferencing and telepresence facility. Extraordinary situations demand extraordinary measures. We should use this opportunity to stimulate the judicial system and make it digitally accessible in the present global health crisis. The High Court should use this facility and set an example for the world.

I urge you to imagine the condition of the undertrial prisoners who are not covered by the directions of the Supreme Court and are elderly and/or sick and require urgent medical attention.

I personally mentioned a bail application on March 28 on behalf of a person who is in custody since the last four months for a violation of the Companies Act. I was informed that no application was being listed unless it was a matter of life and death.

On March 30 again, I mentioned an application for bail [which was already listed for April 1] on behalf of a man who is unwell and can lose his eyes, if appropriate medical treatment is not given. This application too was not allowed. The Registrar neither picked up my call, nor called back. However, the Registrar General sympathized with me and tried to explain the peculiar situation and told me to wait for some more time.

Considering COVID-19 is an unprecedented and grave circumstance, would it not be unjust to keep undertrial prisoners of a certain age or those suffering from health ailments behind bars, especially when the chances of them succumbing to complications related to COVID-19 are much greater?

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It is apprehended that even if a single prisoner contracts the virus, thousands can be infected in a very short span of time. The outcome shall be devastating and possibly uncontrollable. The 16 Jails in Delhi house 17,440 prisoners as against a capacity of 10,026. In a pandemic which spreads rapidly especially in areas with large crowds, these figures are shocking and can result in horrific outcomes.

Though the Tihar Jail, in consultation with the High-Powered Committee, has identified around 3,000 prisoners for release, only around 800 have been granted parole/interim bail till now, which is not enough to decongest the overly crowded jails.

Tihar Jail
Tihar Jail

Most of us in the legal fraternity have quarantined ourselves and are watching from the periphery. When the police, hospitals, municipality, transport department, media houses and others are working within the permissible means, what is holding us back?

We don’t even need to step out, as we have the advantage of digital technology. The cases can be heard by video conferencing and court orders can be passed and served digitally. These are desperate times. The world is changing and so must we.

Why don’t we, the legal fraternity, take this opportunity to revamp and update the justice delivery system? We should facilitate hearing of cases using the high-tech systems that have been installed in the High Court recently.

By simply adjourning the matters to a later date, we are adding to the load of the already overburdened courts. It will increase the backlog of cases in a country which records one of the highest numbers of pending cases in the world.

At present, some cases are being heard by the Delhi High Court judges by video conferencing, but none of them relate to the liberty of the undertrial prisoners.

I feel that those who deserve immediate attention are the prisoners not falling within the guidelines propounded by the Supreme Court on March 23. There are prisoners who have been incarcerated for months and their bail application are not being listed, even those praying for bail on medical grounds.

Article 21 of the Constitution of India guarantees the people of India an unfettered Right to Life and Liberty. We have always followed the principle of ‘bail is a rule and jail is an exception’.

Worldwide, courts are resorting to video conferencing for urgent and essential matters relating to undertrial prisoners in the face of the Coronavirus crisis. In order to combat this unprecedented situation, it is imperative not to flood the courtrooms. However, the judicial system should not come to a standstill.

The Indian Judiciary has always played a critical role in nation building. Besides advancing our nation’s sovereignty, it promotes Constitutionalism, and enhances adherence to the Rule of Law, while ensuring maintenance of law and order.

In this rapidly evolving difficult situation, the legal system in India needs to demonstrate incredible resilience and foresight to decongest prisons and give a fair hearing to prisoners seeking bail in order to protect their fundamental rights. Undertrial prisoners - particularly those who are women, old, sick and infirm - deserve to be heard on bail in all circumstances and at the earliest.

The author is a Senior Advocating practising at the Courts of Delhi.

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