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Like the Bubonic Plague of the late 19th century and the Spanish Flu of 1918, COVID-19 has made many, including the Judiciary and the legal profession, its victims. The guardian of law now finds itself compelled to guard against this deadly virus, its fraternity and litigants alike.
In order to fully appreciate the impact of the virus, the author attempts to provide an account of the effect of COVID-19 with reference to historical health emergencies and their impact on the judicial apparatus.
The Supreme Court, vide its notification dated March 13, 2020, restricted functioning of the Court to “urgent matters” only.
High Courts too have restricted their functioning to urgent matters. In normal course, a High Court hears north of 400 matters a day. As per data collected from Daily Cause Lists of various High Courts, since late March, High Courts across the country are hearing anywhere between 10-100 matters a day.
Subordinate courts account for over 80% of pending cases. On June 2, the Karnataka High Court extended the closure of all district courts, family courts, labour courts and industrial tribunals in the state till July 6. On April 29, the Punjab & Haryana High Court ordered that all district and sub-divisional Courts in Punjab, Haryana and Chandigarh will function “restrictively” from May 1 “till the lockdown/curfew is in force in the respective area”. These restrictive measures have led to a glut of pending cases, thereby increasing the burden on courts.
Justice Delayed Is Justice Denied
Pendency in India’s courts has always been a hindrance in securing timely justice for people, if not denying justice altogether. As the usual functioning of courts has been disrupted, many undertrials and even many of those whose appeals are pending, are left with no recourse. It can hardly be denied that the subject adage has particular force in the criminal sphere.
In pursuance of the Apex Court’s directions dated March 23, states and union territories have been asked to constitute High Powered Committees “ to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. ”
Therefore, each state is free to determine its own criteria for granting bail. Further the Supreme Court has clarified vide its order dated April 13 that it has not directed the states/union territories “ to compulsorily release the prisoners from their respective prisons.” This clarification has allowed High Courts to further restrict the nature of cases in which they are prepared to grant bail. Coronavirus cases have already sprung up in various jails across India, including over 180 cases in Mumbai’s Arthur Road Jail.
Plight Of Advocates and Law Firms
A PIL was filed in the Supreme Court urging that non-payment of rent for professional premises rented by advocates should not be made a ground for eviction during lockdown. However, on April 30, the Apex Court refused to entertain the plea, remarking that it was "not going to enter into this issue", and dismissed the petition as withdrawn.
Further, on May 8, a three- Judge Bench of the Supreme Court dismissed a plea urging the Court to direct the government to formulate a uniform welfare scheme for lawyers affected across the country.
Daily appearances in court are the main source of income for most advocates, and cash flow has come to a drip, if not completely dried up. In the month of April, 82,725 cases were filed in India’s courts as compared to 8,80,000 cases in March. This steep decline in cases filed has consequently resulted in a significant dip in court fee, besides lawyers’ income.
A petition was filed in the Madras High Court, seeking a direction to the state and the Bar Council to release Rs. 50,000 to advocates, in order to compensate for the loss of work. However, the Bar Council Of Tamil Nadu & Puducherry has resolved to disburse only Rs. 4,000 each to needy lawyers. The Bar Council was not in a position to release any more money because of limited resources.
Law firms have also been severely affected. Many partners have either chosen to renounce salaries this financial year or agreed to take significant pay cuts. Moreover, clients are questioning the actual amount of time that firms are spending on their matters, thereby making firms consider implementing technology that would track the number of hours spent by an executive on a client’s job, in order to provide proof to clients. This is great innovation; however, it comes with a significant cost in a day and age of unprecedented lows in business.
Historically, the Bubonic Plague of the late 19th century and the Spanish Flu of 1918 are two points of reference when the entire framework of the judiciary was disrupted on account of a health emergency.
The arrival of the Bubonic Plague in Bombay in 1896 brought courts to a grinding halt. JC Mistry, a managing clerk at the Bombay law firm, Wadia Ghandy & Co. has given a grim account of the situation in early 1897. Mistry noted that the judges of the Bombay High Court “had no work to do.” The staff of the firm returned to work after four months. However, over the next decade, three members fell victim to the plague.
Mahatma Gandhi on page 72 in his book The Law and The Lawyers, while discussing an appeal which was to be heard in Veraval in Gujarat, writes that there were as many as fifty cases heard daily (a lot of cases for that day and age) in the court at Veraval, which had a population of about 5,500 people. However, at the time of writing, the “plague was raging” and the courts were “practically deserted”. This anecdote bears a striking semblance to the scenario today.
Property which was seized in discharge of debts those days included pots, pans, utensils, bedding etc. These items were regularly hauled in and out of court. Legal historian Mitra Sharafi in her book - Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772–1947, writes that this practice of bringing property inside court rooms had become a “ particularly unsavoury phenomenon when the bubonic plague swept through the city. ”
When the Spanish Flu arrived in 1918, the judiciary was hit once again. Jurors, lawyers and assistants of the Calcutta High Court were severely affected. The Court was functioning as skeletally as they are today, thereby causing consequent pendency issues.
Even in Bombay, law offices were bought to a standstill. In June 1918, the Times Of India reported,
“Nearly every house in Bombay has some of its inmates down with [influenza] fever and every office is bewailing the absence of clerks.”
The Flu soon found its way into jails and a need was felt to decongest prisons. The District Magistrate of Bijapur particularly wanted to release sick prisoners from jail, but the then government was not ready to cooperate.
It may be relevant to mention here that Gandhi was himself laid down with the Spanish Flu with a faltering heartbeat. However, destiny had charted out a different path for him, and for India.
This piece has only covered some of the ramifications of COVID-19 on the legal profession and there are other areas such as legal education which also need to be addressed on a priority. The existing delays in the legal system will only be exacerbated by the impediments COVID-19 will inevitably present to the progress of investigations, charging decisions, pre-trial processes etc.
It appears that the Coronavirus is here to stay, and the Judiciary needs to cope with it. Normal functioning or rather “new normal” functioning of courts is going to take its own time. Hopefully, it shouldn’t take too long, lest Lady Justice will soon have to, along with a blindfold, sword and scales, be adorned with a face mask.
The author is a Post Graduate from Punjab University and a keen student of current affairs with context to lessons from history.