About the Authors:Naman Kumar UpadhyayInstitute of Law Nirma Univerity.Ahmedabad SEM-6
Aisha Ali,
Faculty of Law, Jamia Millia Islamia, New Delhi Sem; 4
ABSTRACTIndian judiciary is known and acknowledged as one of the most progressive and most reliable judicial institutions around the globe, supporting and serving democratic order. It is appreciable that the Court has quickly adapted to technology to address the grievances of the litigants and dispose of the crucial and urgent matters which is a vital function of judiciary highlighting the fact that justice cannot be suspended even during the lockdown. At the same time, some hurdles are ceasing the way to deliver justice. In this essay, the authors aim to discuss the limitation of law in delivering justice and the matters which are crucial and urgent, yet unable to get listed for hearing.
INTRODUCTION
With the World Health Organization declaring COVID-19 as a pandemic[1], all spheres of life have been affected, and judiciary is no exception to it. The one question that has risen to the effect of COVID-19 is one the period of limitation and the Court's approach to it.The Supreme Court has answered this in its vide order dated March 23[2] to some extent. The issue of limitation could have become extremely contentious and had the potential of opening multiple litigations in various Courts/Tribunals; the Hon'ble Supreme Court while exercising its powers under Article 141 and 142 of the constitution vide its order dated March 23, 2020, In Re: Cognizance For Extension Of Limitation being[3] Suo Moto Writ Petition (Civil) No. 3 of 2020, the Hon'ble Supreme Court has brought respite to litigants and lawyers by extending the period of limitation under all general and special laws, irrespective of the same being condonable or not, for proceedings pending before all Courts and Tribunals in the country with effect from March 15, 2020, till further orders.
Various high courts are essentially rendering the interpretation of the period of limitation under Section 4 of the Limitation Act 1963[4].
While the Supreme Court has issued an order, yet there is no practical certainty on how it would be applied for which litigants and lawyers would have to face many practical hurdles in meeting the strict timelines of filing under various legislations such as:
Overcrowding of courts, physical interaction required for signing and attestation of documents, for the litigants in overseas which are under lockdown it would not be possible to execute documents, the meaning of "urgent" when one party deems it urgent and other does not.[5]
Supreme Court has dealt the issue of limitation to a large extent, but not all High Courts and tribunals have extended the benefit of extension of interim orders. Unless specifically extended, they can be deemed to have lapsed. Also, the practicality of the notification needs more clarity. Due to these pandemic situations, the Indian judiciary needs to be more suggestive and should implement innovative measures to ensure that access to justice remains as unimpeded as is possible in the circumstances.
DELAY OF FIVE KEY CASES IN SUPREME COURT
Citizenship (amendment) act 2019
With the enactment of the Citizenship (Amendment) Act, 2019 (‘CAA') and the initiation of processes for the creation of a National Register of Indian Citizens ('NRC'), a citizenship vesting apparatus based on religion, has now been operationalized. This is one of the most famous cases before the SC that has been delayed. It has created an uproar in the various parts of the country has taken many lives too. More than 150 petitions have been pending on this issue. The Sc has earlier issued the notice to the Central Government but refused to stay the operation of law. The matter was last heard on February 18 was scheduled to be listed on April 21 but did not happen due to the lockdown.
Article 370[6]
The abrogation of Article 370 of the constitution which guarantees the special status of Jammu and Kashmir is a matter which is pending in the Supreme court. After August 2019, when the central government scrapped the special status, a total of 23 petitions have been filled in the Supreme Court. Kashmir was then divided into two union territories Ladakh and Jammu and Kashmir. The matter was scheduled on December 10 before a bench headed by Justice NV Ramana, and it comprises of Justice Sanjay Kishan Kaul, Justice R Subhash Reddy, Justice BR Gavai and Justice Surya Kant. Later on, March 2 a five-judge constitution bench declined to refer the case to a larger bench of the seven judges, and since then it has not been heard after that.
Creamy layer Case.[7]
The creamy layer case is another case which is the controversial case is awaiting top coat central Government of India the supreme Court to review its judgement in the Jarnail Singh the Court said that the principle of creamy layer previously that applied to the OBC light to the SCS and STs for the reservation in promotion. It is the term that is being used to marginalize the better than the rest OBC's who are not eligible for the reservations as per the findings of the Mandal commission report. For those who have income is more than Rs. 8 lakhs per annum are categorized as a creamy layer under the OBC's. Nevertheless, the central government is objecting the application of this rule in case of SC ST as they have been getting the benefit from the centuries and the reservation must be provided on the ground of economic betterment.
The Sabrimala Case [8]
Another landmark case which related to the entry of the women into the Sabrimala temple and other religious and gender-related issues of Islam and the Zoroastrian community was keeping an eye. It was scheduled to be heard in March. The case was to be heard by the 9-judge bench on March 16 as it was earlier stated by Chief justice SA Bobde. Nevertheless, eventually, the Court was not functioned formally. Moreover, the week of March 16 noticed the steps taken by the government to combat against COVID-19. This resulted in a nation-wide lockdown from March 24. This judgement after the review petition will be heard by the 9-judge bench headed by the Chief Justice of India.
Money bill route.
The controversial issue of the central government complying to the money bill route to get the laws passed in the Parliament has to be heard by the Supreme Court. It has to be taken by the 7-judge bench in order to facilitate the justice yet no clarity has been given as to when this will be heard. When the Finance Act 2017, which was accepted as cash, was challenged, on November 13, 2019, a decision of five courts was decided, the Court had to review the previous decision in the case of Aadhaar, which approved the invoice scheme cash. In this case, the decision could affect several laws, including the Aadhaar Act, which Parliament passed as funding.
ANALYSIS
· Guidelines of the Supreme Court
The apex court said that the district courts in every state there to the mode of video conferencing prescribed by the concerned High Court of the state maintain helpline case guarded to the quality should be communicated proceedings brother sad should make availability of the facilities video conferencing.
Later the Court said that in appropriate cases the courts might appoint an amicus curiae the facility of video conferencing available to an advocate unless appropriate rules are framed by the High Court video conferencing will be the primary method for hearing the arguments whether that case is in the trial stage or at the appellate stage.
The Court further said that it is mandatory and necessary evidence in a courtroom be an appointment of presiding officer the role of the presiding officer to restrict the entry of the person courtroom the points from which the arguments are addressed by the advocates however where the number of litigants is many presiding officer power to restrict the number.
· Bail and other remedies in criminal law
After the announcement of a complete National lockdown throughout the country, it was important for the courts to look after the bail and other remedies such as revision, recovery the particular criminal cases.
No uniformity in the extreme urgent matters as the Rajasthan High Court that for bail and sentence suspension does not come under the extremely urgent matter during the lockdown. Meanwhile, Bombay High Court in the ex-prate hearing of the bail application filed in the matter and the case of cheating a single judge bench opened that term and usage of the term urgent it does not apply for the person who jail and seeking the bail.[9] There is a procedure for filing of bail Applications by advocates during the lockdown an advocate can file a bail application in trial courts as well as the magistrate courts. Meanwhile, the Madhya Pradesh high court has granted bail to a person who was accused under the case of MP Excise Act as the trial take the time in the wake of COVID-19 lockdown bail was filed under section 439 of The Criminal Procedure Code.
Looking forward to the Kerala High Court as made the provisions of bail recovery revisions matters the proceedings for the same conducted through and e filing of the bail applications are organized in the Kerala High Court.
RECOMMENDATIONS
The Plight of Migrant Workers: How Supreme Court Failed to Response
The grave humanitarian crisis in the unfolding demanded a prompt and pro-active response from the Court. The migrant workers have been worse affected by this lockdown[10]. The abrupt declaration of lockdown without any pre-notification has resulted in the exodus of large no. of workers from their workplace to native city. Social media and news headlines are bombarded with the various unfortunate incidents of their death due to either scorching heat or accidents or hunger. This situation was alarming enough to take Suo moto intervention by the Court because the judicial remedy was beyond the access of these victims.
In this situation, a question arises- Has the Court done complete justice to its constitutionally assigned task of holding the executive accountable?
The Supreme Court has undoubtedly disposed of the PIL seeking direction to return to their native places by trains without conditions and charges. However, SC has disposed of the case without any effective directions for future events, saying:
"As all necessary steps are being taken by the Centre and the States, we do not see any purpose in keeping this writ petition pending".
The Court also made a finding that this significant exodus was caused by 'Fake News' trending over social media and news channels that this lockdown will remain for a long period of more than three months. Such panic-driven migration has caused untold suffering, and some have lost their lives too. These findings were solely based on the centre files affidavit considering 'Fake News' to be the cause of it, and SC failed to consider other factors such as Unemployment, lack of food and shelter. These findings which are made without any evidence has resulted in two problematic aftermaths:
1. It has absolved executives of their liability
2. Ignorance of the genuine sufferings of the workers by terming their exodus as an effect of 'Fake News'.
CONCLUSION
In light of the evolving situation, it is suggested that the Indian judiciary should adopt innovative measures and mechanisms. The changes should be tailored according to the current scenario to ensure that the access to justice remains undisturbed. Apart from the five landmark cases that have been mentioned in this article, there are various cases and issues that are being hindered due to the lockdown. This lockdown revealed income disparities in the legal profession. A majority of lawyers are dependent upon new filings, and hearings for their income. Government advocates are also facing problems due to delay in payments. The outbreak of COVID-19 has indeed jammed the justice delivery mechanism in India.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.
