Context: The pandemic has compelled the government to suspend work, movement, businesses, services, liberty and more. The Constitution itself, however, cannot be suspended and without legal practitioners being classified as essential, fundamental rights cannot be realised.
Current scenario of the judiciary :
- The higher courts are hearing ‘urgent’ matters, the lower courts are entertaining only ‘remand’ cases.
- Consequence: courts have ceded important constitutional and legal space to the executive. Video-based online proceedings have been proposed as an alternative.
- Issue: everyone does not have equal access to properly functioning equipment as well as fast Internet.
- Also, all courts do not have an internet friendly environment.
Need for judicial intervention:
No Legal Protection: Several situations today warrant the intervention of the judiciary. For instance, the enforcement of the constitutional rights of life, health and food requires urgent resolution.
- Denial of access to justice: Any constitutional challenge, however, requires unfettered access to lawyers and courts. The non-inclusion of both in the state’s list of permitted activities effectively denies such access.
- State’s are active in policing: For instance, In Guwahati, on April 7, two activists were arrested in connection with a 2018 case, a day after complaining that officials were siphoning off rice meant for public distribution. Last week, the Delhi police booked two students under the Unlawful Activities (Prevention) Act, in a case related to communal violence in Delhi over the Citizenship (Amendment) Act of 2019.
- Reports of summary punishments by the police without any sanction of the law are pouring in from across the country. Videos of police forcing persons to perform push-ups and squats; vandalising vegetable carts; and harassing migrant labourers and the homeless are evidence of arbitrariness.
- Increasing domestic violence with no immediate remedies: The National Commission for Women has reported an increase in incidents of domestic violence. Despite abusers and victims being locked down for over 40 days, the institutional response has been to take away the civil remedy of obtaining ‘protection orders’ against the abuser under the Protection of Women from Domestic Violence Act, 2005.
- Constitutional rights are violated:
- Article 22 of the Constitution guarantees every individual the right to consult and to be defended by a legal practitioner of their choice upon being arrested or detained in custody by the state.
- Arrests by the police are rampant, however, the legal protection has almost vanished on account of non-functioning lawyers and courts.
- A comprehensive response should be outlined: the minimum judicial infrastructural requirements; the nature, type and manner of priority cases; enforcement of physical distancing guidelines; and list of key personnel permitted to ply to and from courts, prisons, police stations, residences, etc. should be maintained.
- These lacunae must be remedied. Justice must not become a casualty to the pandemic.
Image Source: the hindu