Updated: Jun 22, 2020
Author: Aditya sharma
Student, B.B.A.,LL.B., II Year, FIMT School of Law (GGSIPU)
With the recent declaration of COVID-19 as a pandemic by the (WHO), many countries had invoked public health laws dealing with pandemics and epidemics. The World health organization has laid down an international regulatory framework to deal with public health emergencies in the International Health Regulation, 2005. While national governments is required to build legal capabilities to enact and effectively implement public health laws.
Have courts issued any directions in light of the COVID 19 outbreak?
The Supreme Court of India has announced that from March 16, 2020, the Supreme court are visiting be hearing only urgent matters. The Supreme court has also directed that only the lawyers performing on the matter, i.e., either for arguments or making an oral arguments or to assist, along with one litigant only, are visiting and be permitted within the court room. The Supreme court has also reserved the right to wish thermal-screening within the littlest amount entrants, and deny entry to persons found to possess signal.
Similar restrictions are announced by various courts, including the Bombay, Delhi court, Karnataka court, NCLT, district courts in Karnataka and many other tribunals. The restrictions include the hearing of only urgent matters, requiring parties to point urgency on matters, which could be thereafter heard only upon the court’s satisfaction of the urgency, limiting the presence of litigants in matters to only those matters where it's mandatory/ unavoidable (such as in cases of anticipatory bail), closure of cafeterias, and the potential thermal-screening of holiday makers to the courts.
As we all know, covid 19 is one of the major pandemic in India and all over the world it. Majorly effect the legal system as the legal hearings are not able to carryout in the lockdown. This lockdown Bring many changes in our legal system as all the hearings and Cases are going through online procedures. Particularly in district court(DC). The use of Visual platform filling cases. Arguments, authentication of document Presenting, evidence etc. This is a drastic change in civil and criminal procedure. .
In terms of disputes practices The court are not working properly only urgent matters are taken up and various guidelines and office orders are provided by the government but the matters which are not urgent are not given the importance and not even considered. In the first phase of lockdown the Delhi HC is came with circular which defines urgent matters as bail matter, demolition matter and bank guarantee eviction etc. However in the second phase we can see HQ has relaxed the earlier guidelines in which and has include matter which have rights to hear like matrimonial matters , sec. 9 and sec 34 matter under the arbitration and conciliation act and council of the parties can approach and file a joint application for consent listening and if it is allowed then it is posted on a mutually convenient date for hearing and disposal of case. Some of the step our taken by the court to upload the other pleads on a given link if its accepted then they will provide a particular date and firstly they’ll give a oral hearing but if your plead is reject you can file the same plead on second link in which there would be single judge taking your plead and even the taking evidence and facts from online are little bit difficult but they’re working on that…
WHAT ARE THE STEPS?
*E-filing the first step in moving towards the system of e-Court.*
- The Supreme Court(SC) today conducted an online demo of the proposed e-filing module through a webinar attended by CJI SA Bobde and the Chairman of the e-committee, Justice DY Chandrachud. During this webinar, CJI Bobde observed that e-filing is the first step to move towards the e-Courts system.
- Owing to these changing times, thousands of Courts across the country, in addition to the Supreme Court (SC), have been conducting hearings through video conferencing, the Chairman of the e-committee said.
- Justice Chandrachud said that the motto of the e-committee is "efficiency, transparency, and access to every user of justice service" and that one of the initiatives by the committee has been to set up e-Seva Kendra at High Courts (HC) and District Courts(DC).
Laws governing lockdown
The lockdown has been carried out by State and district authorities on the directions of the Union Ministry of Home Affairs under the Disaster Management Act (DMA) of 2005, which was intended “to provide for the effective management of disasters and for matters connected therewith or incidental thereto”. Under the Act, the National Disaster Management Authority was set up under the leadership of the Prime Minister, and the National Executive Committee , was chaired by the Home Secretary(HS). On March 24, 2020, the National disaster management authority ( NDMA ) and National executive authority (NEA) issued orders directing the Union Ministries, State governments and authorities to take effective measures to prevent the spread of COVID-19, and laid out guidelines illustrating which establishments would be closed and which services suspended during the lockdown period.
Taking a cue from the guidelines, the State governments and district authorities exercised powers under the Epidemic Diseases Act (EDA) of 1897 to issue further directions. For instance, the Health and Family Welfare Department (HFWD) of Tamil Nadu issued a government order on March 23, 2020, to impose social distancing and isolation measures which directed “suspected cases and foreign returnees” to remain “under strict home quarantine” and people “to stay at home and come out only for accessing basic and essential services and strictly follow social distancing norms”. Subsequently, on March 25 ,2020, the earlier order was extended for a period of 21 days, in accordance with the directions of the National executive authority (NEA). District authorities such as ,Commissioner of Police, Greater Chennai, have consequently issued orders to impose Section 144 of the Criminal Procedure Code in public places.
Accumulatively, these orders constitute the legislative umbrella governing the lockdown that has been in place since March 24. The invoking of the Disaster Management Act (DMA) has allowed the Union government to communicate seamlessly with the States. However, serious questions remain whether the (DMA) was originally intended to or is sufficiently capable of addressing the threat of a pandemic. Also, the use of the archaic Epidemic Diseases Act(EDA) reveals the lack of requisite diligence and responsiveness of government authorities in providing novel and innovative policy solutions to address a 21st century problem. Another serious failing is that any violation of the orders passed would be prosecutable under Section 188 of Indian Penal Code (IPC) of 1862, a very ineffective and broad provision dealing with disobedience of an order issued by a public servant.
the U.K. enacted the Corona virus Act, 2020, which is a comprehensive legislation dealing with all issues connected with COVID-19 including emergency registration of healthcare professionals, temporary closure of educational institutions, audio-visual facilities for criminal proceedings, powers to restrict gatherings, and financial assistance to industry. Similarly, Singapore has passed the Infectious Diseases Regulations, 2020, which provides for issuance of stay orders which can send ‘at-risk individuals’ to a government-specified accommodation facility.
Did this effect International criminal court?
The International criminal court, which has set up COVID-19(corona virus) response group, has published a statement in which it encouraged the parties and tribunals to keep an appraised of developments and “consider discussing their potential impact on pending proceedings, if and when it is necessary”.
According to it, “With particular regard to attend the scheduled hearings, other in-person meetings and any related travel by parties, arbitral tribunals, neutrals and others involved in the pending proceedings, we urge to consult any official recommendations or directives applicable
(i) at the place of their departure and any transit points; and
(ii) at the place where they will be held.”
All hearings scheduled till the end of June in Paris or an affected area are being postponed or changed to virtual meetings.
On 17th March, the International criminal court issued an urgent communication stating that all offices of the Secretariat of the International criminal court (ICC) and the ICC ADR Centre are operational and that staff members are healthy and working remotely via mobile posts.
What shall be the impact of this COVID on judiciary after all this is over
1. Larger allocation of the outlay specifically for technology up gradation, which can reduce the pendency of all cases drastically.
2. Overhaul of entire legal ecosystem to equip the judiciary and legal fraternity, particularly at the district courts(DC) with the knowledge of handling technology and use of visual platforms for filing cases, arguments, authentication of documents, presenting evidences etc. It also require amendments to the Evidence Act, acceptance of e-authentication, e-signatures, etc. This also calls for drastic changes in the Indian Criminal and Civil Procedure Act 1908.
3. Importantly, in the entire chain of events, the litigant - common man - should be a active participant and he should able to see court proceedings through virtual media, get intimation of all hearing well in time, daily rulings not being present in the court.
4. Importantly, the digital platforms shouldn’t be subject to hacking, cyber threats and manipulation by vested interests. There should be strong cyber security systems in the place.
5. Use of latest technology is not a low hanging fruit. Considerable work has to be done in the integrating and linking systems, data, harmonizing procedures, creating digital structures that are user friendly. For instance in US, the idea of induction of technology started over a decade back through meticulous planning to create a ecosystem, which was comprehensive and taking care of all possible disruptions the system can cause. India can borrow this from the US system the automation methodology and innovation trail instead of reinventing wheel.
Image Courtesy: www.theindiaforum.in
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