The pandemic has compelled the government to suspend work, movement, businesses, services, liberty and more. The Constitution itself, however, cannot be suspended. Any measures enforced under statutory frameworks must conform to the Constitution. Nevertheless, practically, with the near-complete shutdown of India’s justice system, such operation of the Constitution lies in limbo.
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. 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.
Peculiarly, the judiciary too has retreated into the background. While the higher courts are hearing ‘urgent’ matters, the lower courts are entertaining only ‘remand’ cases. In doing so, they have ceded important constitutional and legal space to the executive. Video-based online proceedings have been proposed as an alternative. But their success rests on the assumption that everyone has equal access to properly functioning equipment as well as fast Internet. The idea also assumes that all courts are Internet-enabled and all functionaries are tech-savvy.
No legal protection
Meanwhile, the state is still active in its traditional policing functions. 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. 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. While arrests by the police are rampant, legal protection has almost vanished on account of non-functioning lawyers and courts. Without legal practitioners being classified as essential, one wonders if fundamental rights can substantively be enforced.
Moreover, in the enforcement of lockdown, 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. The ease with which we have given up on the principles of rule of law is deplorable.
With justice being inaccessible, the populace has become powerless in both the public and private spheres. 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.
The lacunae must be remedied
In contrast to India’s response, the U.K. first notified legal practitioners as key workers and then notified how different categories of courts shall function. In the U.S., the Department of Homeland Security categorises ‘workers supporting the operations of the judicial system’ as essential.
In India, the judiciary and the executive should have instituted means to serve the cause of justice. A comprehensive response should have 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. These lacunae must be remedied. Justice must not become a casualty to the pandemic.
G. S. Bajpai is a Professor and Chairperson of the Centre for Criminology and Victimology at National Law University Delhi; Ankit Kaushik is a Research Associate there. Views are personal