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CJAR Statement on functioning of Supreme Court during lockdown

CAMPAIGN FOR JUDICIAL ACCOUNTABILITY AND REFORMS

6/6 basement, Jangpura B, Delhi – 110014

judiciareforms@gmail.com, judicialreforms.org

 

Patrons: Justice P.B. Sawant, Justice H Suresh, Shri Shanti Bhushan, Prof B.B. Pande, Dr. Bhasker Rao, Ms. Arundhati Roy, Shri Pradip Prabhu, Prof. Babu Mathew, Dr. Baba Adhav, Ms. Kamini Jaiswal, Shri Mihir Desai, Shri Manoj Mitta

Executive Committee: Prashant Bhushan, Nikhil Dey, Anjali Bharadwaj, Amrita Johri , Cheryl Dsouza, Venkatesh Sundaram, Indu Prakash Singh, Devvrat, Siddharth Sharma, Dipa Sinha, Annie Raja, Rohit Kumar Singh, Pranav Sachdeva,Alok Prasanna Kumar, Ramesh Nathan, Vipul Mudgal, Indira Unninayar, Madhuresh Kumar, Vijayan MJ, Koninika Ray

 

 

Statement raising concerns with the functioning of the Supreme Court during the lockdown

13th May 2020

 

The Campaign for Judicial Accountability and Reforms (CJAR) notes with deep concern the inadequate and unsatisfactory response of the Supreme Court of India in coming to the aid of the vulnerable and dispossessed, and mitigating the suffering caused by the governmental response to Covid-19. Though the Court has taken measures to limit functioning considering Covid-19, we believe that the Court has sacrificed core principles of fairness and transparency in justice delivery while doing so. In his retirement speech, Justice Deepak Gupta said, “In times of a crisis such as the ones we are living in, the courts must protect the poor and the underprivileged, because it is they who are hit the hardest in trying times.” Unfortunately, we see that the court has taken no consideration of the poor and dispossessed in passing the orders it has during this period of lockdown.

 

In our view, the Supreme Court of India needs to address some areas of concern that have emerged in this regard, since the lockdown was imposed. We hereby earnestly appeal to the Court to address these areas and set a shining example to the courts all over India. 

 

First, in several public interest litigations, the Court has accepted without demur whatever the Union Government has put on affidavit and not carried out its constitutional duty of holding the government to account through powers of judicial review. Whether on the issue of the rights of stranded migrant labour, the curbs on 4G internet in Kashmir or in important habeas corpus cases, we believe that the Court’s passivity in the face of dire need is difficult to comprehend. As a constitutional institution, the Supreme Court has a duty to protect the fundamental rights of all even in exceptional circumstances and its’ response so far has left much to be desired. 

 

We therefore call upon the Court to seek and satisfy itself of the adequacy of the measures being undertaken by the Union and State Governments and where appropriate, pass necessary orders without fear or favour, without simply accepting their statements at face value. We call upon the Court to adopt a stricter approach to scrutinizing the Union Government’s measures to tackle Covid-19 and hold the latter accountable for its actions. 

 

Second, we are seriously concerned about the way cases are being listed and heard by the Court. While the need for physical distancing to limit the spread of Covid 19 requires the Court to limit its work only to urgent matters, the manner in which certain cases are being heard at great urgency while other similar matters are kept pending without a hearing for long, is likely to make the public lose faith in the fairness of the Court’s processes. On the other hand, we find that cases concerning rich and powerful persons are getting listed out of turn. The impression created is that the process has been left to the utter discretion of the Registry staff and not guided on rules or principles of fairness and equality before law.

 

We therefore call upon the Court to adopt clear and well-defined norms and principles on the basis of which the “urgency” of a case can be determined by the Registry. Matters of civil liberty must necessarily get priority and equally urgent cases must be heard as expeditiously as possible without any scope for bias and arbitrariness. We call upon the Court, in consultation with the SCBA, the SCAORA and other concerned stakeholders, to evolve a set of rules to determine the urgency of a case to ensure error and bias free listing of cases. We call upon the court to restore the faith of the public in the processes and the procedure of the court through such measures. 

 

Third, though we appreciate the Court’s efforts to continue hearings using video-conferencing technology, we are concerned that this has led to the negation of the valuable principle of openness of courts and the need for public hearings. When litigants and the public at large see that justice is being delivered in an open and transparent manner, their faith in the system increases and is strengthened. However, the use of proprietary technologies which only connect lawyers (and in some High Courts litigants) to judges and Court staff has meant that this vital principle has been compromised upon. 

 

We therefore call upon the Court to livestream all e-hearings to the public at large, in accordance with its own judgement in Swapnil Tripathi v Supreme Court of India (2018) where it had agreed to live stream proceedings in important cases. With the adoption of technology to facilitate e-hearings, we do not believe it should be a significant challenge for the Court to commence live streaming of all hearings in the interests of open justice.

 

Four, while the Supreme Court Bar Association has urged the Chief Justice of India to cancel the summer holidays scheduled to begin in May, and High Courts such as the Allahabad High Court, the Bombay High Court, the Karnataka High Court and the Madras High Court have already cancelled their respective summer vacations, the Supreme Court has not taken any such decision yet. Moreover, even with the use of videoconferencing, only a very limited number of benches of the Supreme Court are sitting and only a few cases are listed before them. We believe with the use of technology, there is no reason why all the benches of the Supreme Court cannot hear matters on a daily basis using video conferencing. 

 

Keeping in mind the need to dispense justice and reduce delays in pending cases, we therefore call upon the Supreme Court to immediately cancel summer vacations, resume the simultaneous sitting of all benches through video-conferencing and list at least ten regular cases per bench on a non-miscellaneous day and thirty cases per bench on a miscellaneous day, during the continuance of the lockdown. We urge the Court not to sacrifice the right to justice on the altar of expediency. 

 

We trust that our views shall be given due consideration in the interest of ensuring that every citizen of this great country has access to justice and in fact believes that justice is being done.