Legality Of Lockdown And Its Impact On Indian Judicial System

Ayush Kumar Singh
Article By Ayush Kumar Singh| ICFAI Law School, Dehradun.

When calculating a timeline for any task that could not be completed due to the COVID-19 outbreak, “the period of lockdown imposed by the Central Government shall not be counted in relation to any liquidation process, subject to the provisions of the Code”.[1]No. IBBI/2020-21/GN/REG060 , INSOLVENCY AND BANKRUPTCY BOARD OF INDIA, (https://ibbi.gov.in/uploads/whatsnew/4697af9d01b6c12c0816f4be28ea6835.pdf) accessed on 27 August,2021

Due to the global Coronavirus outbreak, the global economy has been destabilised, companies and individuals have lost earnings, the unemployment rate has increased and stock markets have plummeted. In the midst of the Covid-19 tsunami crisis in India, the possibility of a worsening global impact is looming large.[2]Gary L. Benotn, ‘How will the Coronavirus Impact International Arbitration?’ (Kluwer Arbitration Blog, 13 March,2020) … Continue reading

World Health Organization has declared covid-19 a “pandemic’s disease” and this is the primary concern for all administrative units of respective countries. India is also trying to control the spread of the virus by enforcing strict regulations. A state of emergency was declared by the central government. The Ministry of Affaires issued a formal notification under section 6 of the Disaster Management Act, which imposes restrictions on citizens’ fundamental rights to move freely and assemble peacefully, guaranteed by Article 19 (1) (b) (d) of the Indian Constitution.

 

To effectuate the lockdown legally, various provisions are being invoked:

  1. Section 271 of the Indian Penal Code states that “whoever knowingly disobeys any rule made and promulgated by the government for putting any vessel into quarantine or for regulating the intercourse of vessels in a state quarantine with the shore or with other vessels, for regulating the intercourse of vessels in a state quarantine with other vessels” is guilty of violating the law.
  2. This action was taken under Article 256 of the Indian Constitution, which states that “each state shall use its executive power in accordance with the laws made by parliament, and that whenever it appears necessary, the centre government may give direction on how to implement laws.” Article 257 states that the state has the executive power to issue orders.
  3. Criminal Procedure Code Section 188 shall be applied when an offender disobeys a public servant’s directions or orders, causing obstruction, annoyance, injury, rioting, or affray to a person lawfully employed. Imposing a fine of 100 rupees or incarcerating the offender for a period of up to one month will suffice in the case of minor injury; however, if the disobedience results in danger to human life and health as well as severe harm then the offender faces a penalty of up to six months imprisonment or a fine of 1000 rupees or both.
  4. More than five people are prohibited from gathering in public places in several states. For example, all educational institutions were closed and all public movement was prohibited except in the case of necessity under section 144 of the Cr.PC. If there is a need to restrict personal liberties of individuals in a specific region, locality, or town, a district magistrate can issue a notification. This notification is issued to maintain peace and safety of health care.
  5. The legal and constitutional institution handled the biological disaster covid’19. According to the Disaster Management Act of 2005, a lockdown has been imposed, with the prime minister as its chairman. Several sections of the NDA mandate that authorities at the state, centre, and district level devise plans and policies to overcome this issue, including:
  • According to section 11(2), there is a national plan, which is prepared by the National executive committee in consultation with state governments and other bodies. The plan must include mitigation measures, as well as the roles and responsibilities of the various departments.
  • Article 22(h) allows state executives to direct any government department or other entity to take action in response to this threading disaster.
  • State and district officials are empowered under Sections 24 and 34 to regulate vehicle movement and entry into the affected area. For example, clearing debris, performing rescue operations and searching, and then providing necessary provisions like shelter, food, healthcare, and other necessities as needed.
  • As a preventative measure, as a result, the central government has invoked Section 35, which allows it to form intermenstrual central teams and dispatch them to states to make on-site assessments, issue directions to the state, and report back to the union For effective implementation, the centre will coordinate the work of various authorities and the deployment of forces.
  1. The state government has also used the Epidemic Disaster Act in addition to the DM Act. According to section 2A of the act, any ship or vessel departing or arriving in a port can be inspected, and anyone planning on leaving or arriving can be detained.

According to Jeremy Benthum, “the state has a responsibility to maximise pleasure and minimise pain for society as a whole”, and John Start agreed that “individual happiness should be in harmony with societal happiness,” hence the pais. This proves that lockdown is legal. “The Doctrine of Necessity,” says former secretary general PDT Chary in this ideal scenario.

Despite the world’s embrace of social distancing measures, litigation’s reputation as the champion of dispute resolution appears to be fading. Indian courts are adjourning or moving regular hearings to a Virtual Court Room System.[3]Alok Jain and Dhruv Jain, ‘Arbitration in the time of COVID-19’ (Bar and Bench, 26 March, 2020) (https://www.barandbench.com/columns/arbitration-in-the-time-of-covid-19)  accessed on 28 … Continue reading It is possible that the virus will exacerbate the already massive backlog of cases in India’s courts. However, the legal system isn’t just dealing with hearings being postponed. The lack of freedom of movement throughout the country makes gathering evidence and interviewing witnesses more difficult.

It’s a pandemic that’s forced the government to shut down all of India’s government and judiciary systems in order to stop the virus’s spread.

Because of this, the populace has been rendered powerless. As a result of the implementation of guidelines in lockdown, police from all over the country are pouring in, forcing people to perform push-ups and squats, harassing migrants, vandalising vegetable carts, and displacing the homeless. As reported by the National Commission for Women, domestic violence incidents are on the rise.

While the Supreme Court has paved the way for continuous access through virtual court hearings, and the higher courts are hearing urgent matters, the lower courts are hearing cases on remand on this issue as well.

Pros and Cons of Virtual Conferencing

Covid-19 has had a profound impact on the Indian legal system. Justice was dispensing, law was being taught, and legal services were being delivered in a way that was antiquated. Indian law firms have long resisted using alternative work models and underused tools, but Coronavirus has taken advantage of them. Fast and easily, traditional working methods have been altered and accepted.[4]Mark A. Cohen, ‘ Covid-19 and the Reformation of Legal Culture’ (Forbes, 14 April, 2020) … Continue reading

A two-judge while dealing with the transfer petition case instituted under Section 13 of the Hindu Marriage Act, 1955, where both parties were not located within the jurisdiction of the same court, referred the parties to participate in the matrimonial dispute cases through video conferencing as the problems were faced by the litigants living beyond the local jurisdiction was acknowledged by the Hon’ble Apex Court that “it is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the parties. Proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties make a request for use of videoconferencing,”[5]Bench in Krishna Veni Nagam v. Harish Nagam [Transfer petition (CIVIL) NO. 1912 OF 2014]

In Santhini v. Vijaya Venketesh[6]TRANSFER PETITION (CIVIL) NO. 422 OF 2017, the Supreme Court of India overturned Veni Nigam’s case by a 2:1 majority. AK Khanwilkar and Dipak Mishra, the Chief Justice of India, ruled that “video conferencing cannot be directed in a transfer petition.” In his opinion, the use of modern technology and video conferencing is preferable. In his dissenting opinion, Justice Chandrachud outlined the following advantages of video conferencing:

  • “This law was enacted in 1984 at a time when modern technology had not fully developed, allowing people separated by distance to communicate face-to-face. Courts, which set precedent for the nation, have no reason to exclude technology from being used in the judicial process.”
  • According to him, requiring personal and physical presence without exception (and excluding facilitative technological tools like video conferencing) would be “a denial of justice.”

There was a point made by the Hon’ble Supreme Court in M/S Meter and Instruments vs Kanchan Mehta[7] CRIMINAL APPEAL NO. 1733 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.5449 OF 2017) that “non-paperless courts, as well as reducing court overcrowding, should be considered when using modern technology Traffic challans and cases under Section 138 of the NI Act are examples of cases that can be concluded “online” without the physical presence of the parties.”

As a result of video conferencing, not everyone has equal access to properly functioning equipment as well as high-speed internet access The fact that virtual court proceedings are not open to the public and only judges, lawyers representing the party, and both parties are allowed to participate has also been a source of concern for many lawyers and other professionals. for example, in the case of Naresh Sridhar Mirzkar[8] Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr [1967 AIR, 1 1966 SCR (3) 744] and others public hearings before courts are fundamental to Maharashtra’s democracy and judiciary, as they are in other countries.

The pandemic has exacerbated many criminal courts in India, which are already overcrowded, to grant interim bail to those who are still awaiting trial. Whereas, the Indian Courts have advised parents to replace physical visits with electronic contact in child custody and visitation cases.[9]Vishal Verma v. Twinkle Vinayak (https://images.assettype.com/barandbench/2020-04/13dadb7c-e292-4c5f-99f0-a46ad4e7e107/Vishal_Verma_Order.pdf) accessed on 28 August, 2021

After the lockdown is lifted, there is still a virtual court hearing taking place. In addition to the open court system, video conferencing is intended to be used for case adjudication. To bring justice to the world.

As a result, “open court hearings cannot be considered a matter of absolute jurisdiction, and even the adjournment process does not require an open court,” continued the press release. But in today’s technologically-driven world, virtual courtrooms can’t “retaliate” against open courtrooms in any way.

The legal system cultural reboot has its advantages

It has implemented and safeguarded our ancient custom of justice at all costs by embracing technology during this unprecedented global crisis!

As a result of technology, the administration of justice continues to be unhindered, even in these unprecedented times.” For the Indian legal industry to minimise the impact of the global pandemic, IT-enabled virtual systems and communication facilities are increasingly important. Even with all of the challenges of this new system, virtual technology is flourishing in the Indian legal system.

Undoubtedly, as the pandemic is going to have a long-lasting effect, more hearings will be conducted virtually. This change in the justice delivery system may be the turning point of the Indian legal landscape as Online Dispute Resolution will be widely executed and adopted. Moreover, with the remarkable reach of the internet in today’s times, it will provide access to justice to all while addressing the health concerns.

In addition, the virus will change the way evidence is gathered and transmitted in the future. E-filing and electronic documents are heavily relied upon to curb the spread of this contagious virus. As a result, there will be less paper waste in India, which is a major concern for the environment. Aside from that, the special treatment given to the media encourages them to cover almost all cases and their outcomes in great detail. All of these are signs that the Indian legal system is likely to undergo modernization. India’s legal culture will be altered by this pandemic.

Conclusion

A nationwide curfew was imposed by the Indian government on March 24th, 2020 in order to combat Covid19. Except for those engaged in essential services such as food, security, medical suppliers, and municipal cleaning, everyone observes social distancing and avoids direct contact with others.

Due to the huge backlog of cases, this pandemic is beneficial to the digitization of Indian courts. With today’s technological advances, virtual courts are faced with a number of challenges. When it comes to the digital legal system and internet problems, a little practical training and proper access can go a long way. It is also necessary for the National Informatics Centre to develop a platform that allows video conference calls and electronic filing.

 

This article was written by Ayush Kumar Singh ICFAI Law School, Dehradun. He may be reached at aksingh007aks@gmail.com. The views and opinions expressed in the article are those of the author. They do not purport to reflect the views and opinions of Hello Counsel.

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References

References
1 No. IBBI/2020-21/GN/REG060 , INSOLVENCY AND BANKRUPTCY BOARD OF INDIA, (https://ibbi.gov.in/uploads/whatsnew/4697af9d01b6c12c0816f4be28ea6835.pdf) accessed on 27 August,2021
2 Gary L. Benotn, ‘How will the Coronavirus Impact International Arbitration?’ (Kluwer Arbitration Blog, 13 March,2020) (http://arbitrationblog.kluwerarbitration.com/2020/03/13/how-will-the-coronavirus-impact-international-arbitration)  accessed on 27 August, 2021
3 Alok Jain and Dhruv Jain, ‘Arbitration in the time of COVID-19’ (Bar and Bench, 26 March, 2020) (https://www.barandbench.com/columns/arbitration-in-the-time-of-covid-19)  accessed on 28 August, 2021
4 Mark A. Cohen, ‘ Covid-19 and the Reformation of Legal Culture’ (Forbes, 14 April, 2020) (https://www.forbes.com/sites/markcohen1/2020/04/14/covid-19-and-the-reformation-of-legal-culture/#4b8c3168171) accessed on 28 August, 2021
5 Bench in Krishna Veni Nagam v. Harish Nagam [Transfer petition (CIVIL) NO. 1912 OF 2014]
6 TRANSFER PETITION (CIVIL) NO. 422 OF 2017
7 CRIMINAL APPEAL NO. 1733 OF 2017 (ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO.5449 OF 2017
8 Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr [1967 AIR, 1 1966 SCR (3) 744]
9 Vishal Verma v. Twinkle Vinayak (https://images.assettype.com/barandbench/2020-04/13dadb7c-e292-4c5f-99f0-a46ad4e7e107/Vishal_Verma_Order.pdf) accessed on 28 August, 2021

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