2020: The Year Covid-19 Left its Indelible Footprint on the Judicial Landscape

2020 has been unforgettable in more ways than one. For the legal fraternity, it has been an eye-opener and a learning experience as Covid-19 went on a rampage all over the country, affecting the workings of courts. Did the courts rise up to the challenge? Yes, they did, especially the High Courts, while the Supreme Court could have done better in its handling of the lockdown, the migrant crisis, tackling a muscular executive, health issues, protests and hate speeches. Nonetheless, there were judgments that restored our faith in the judiciary, the last bastion of constitutional order. Even as virtual courts continue to work, it is hoped that the New Year will bring with it new optimism and hope and more importantly, a strong and independent Bar, writes INDIRA JAISING.

2020 was annus horribilis, a year of such misfortune and disaster that almost everyone everywhere would like to forget it. As the world was held hostage to a tiny virulent and fast-spreading virus, Covid-19, which originated from Wuhan, China, matters changed inexorably and inextricably. As various countries clamped down and imposed a lockdown in an effort to stem the growing surge of the virus, sectors such as health (naturally), economy, tourism, labour and allied services were hit badly. People saw their lives going into a tailspin as job losses and health issues became the order of the day.

The year also brought to the fore many issues in India and the government and the judiciary’s handling of them. These were:

The Illegality of the Lockdown

The title of this reflection is borrowed from the Cyrus Barucha’s show “The week that wasn’t”. I wish it was half as funny, but it isn’t. The lockdown in India was grim, desolate and full of illness and death. For the legal profession, 2020 was a year full of gloom and doom, the year of the legal pandemic.

To begin with, we saw no legal basis for the lockdown. It began on March 23, 2020, but under what law was it imposed? While the Disaster Management Act, 2005 was cited, was there a biological disaster plan? If there was, the plan was ignored and not invoked.  Serious restrictions on freedom of movement and the right to work were imposed on an unsuspecting and unprepared public with no advance notice. This led to misery for thousands of migrants, who trudged back to villages from uncaring cities, and loss of earning for the rest of us.

Senior lawyers demanded in the Supreme Court that a national plan to deal with the pandemic be prepared to mitigate its impact, but it fell on deaf ears. The legality of the lockdown and its proportionality were never questioned. This was perhaps because of the uncritical and unquestioning manner in which the statements of the executive were being accepted tamely by the Court. This made us lose all hope that our petitions would be examined objectively.

Petition after petition calling for relief for the migrants was rejected on the ground that the executive surely knows best. So gross was this failure that at one point, the top court accepted a statement by the solicitor-general of India that there were no migrants walking home.

Migrant Crisis

The denial of access to justice to the migrants was visible for all to see. Statements from the top court such as “When you have wages, why do you need money” and “If they are being provided meals, why do they need money for meals?” shocked the nation and exposed the callous nature of judicial functioning.

It was clear that courts froze in fear the face of the pandemic and took the stand that the executive knows the best way to handle it. While it is true that courts cannot be expected to handle the health consequences of the pandemic, it is equally clear that human rights need to be respected precisely in a time of emergency. This was especially so of migrants who found themselves without food, shelter or transport to go back home.

Petition after petition calling for relief for the migrants was rejected on the ground that the executive surely knows best. So gross was this failure that at one point, the top court accepted a statement by the solicitor-general of India that there were no migrants walking home. He said that “there is no person walking on the roads in an attempt to reach his/her home towns/villages”. One bench even said that “it was not possible for the court to monitor who is walking and who is not walking”.

For the first time, we saw the failure of the system when the case against Prashant Bhushan was fast-tracked to meet a retirement deadline, while bail applications were not given the same treatment, though urgently needed. Assuming that justice was done, it was not seen to be done.

Finally, the Court had to eat humble pie when a group of Bombay Lawyers wrote an open letter to the Chief Justice of India (CJI) complaining about the death of the rule of law. It was then that the Court took suo moto cognisance of the issue of migrants and began to pass orders directing the Union of India to provide Shramik trains to get them home.

Virtual Court

We almost reinvented a new judiciary with the ability to have global lawyering, a virtual judiciary where the “control room” had the last word on who to give access to court. The system was inefficient and unequal as not everyone had access to digital media. The power of judges over lawyers increased manifold. Prashant Bhushan, who dared to question the non-functioning of the judiciary, was hauled up for contempt. Even if his tweets were factually incorrect, contempt was not the way forward for a right-minded judiciary.

The worst hit during Covid-19 were trial courts with no access to technology. This meant that prisoners were not produced in court nor were prisons equipped with video facilities, denying mulakat with families and lawyers.

But then, it seems all of us were lost during the pandemic, invisible, in enforced silence about the malfunctioning of the judiciary. For the first time, we saw a form of justice which was not evident to the public eye. We saw the failure of the system when the case against Bhushan was fast-tracked to meet a retirement deadline, while bail applications were not given the same treatment, though urgently needed. Assuming that justice was done, it was not seen to be done. These were the injustices of our times as we were unable to be present in court to support our fellow members.

At the time of writing, the Supreme Court continues to work virtually, while several High Courts are experimenting with physical hearings. The reactions by lawyers to this have been mixed, with some demanding physical hearings, while other refusing to leave the safety of their homes. The worst-hit were trial courts with no access to technology. This meant that prisoners were not produced in court nor were prisons equipped with video facilities, denying mulakat with families and lawyers. Most famously, noted activist Stan Swamy was denied a straw, while jailed Telugu poet Varavara Rao got succour only after a Bombay High Court order said that his three-month-old catheter be removed. The 81-year-old was already suffering from life-threatening ailments, including urinary tract infection and dementia. There was no justice behind prison bars during the pandemic.

Also Read: Remarkable Judgment that Reclaims Human Rights by Use of CCTV in Interrogation

Webinars

The judiciary like other sectors saw the proliferation of webinars and we saw several sitting judges share their views with us. Law firms too held branded webinars and led to the dissemination of legal views even among ordinary people. Shall we say it was the year of international lawyering?

Functioning of the Court

Some described the Supreme Court as an “executive Court”, while others described its functioning as “judicial barbarism”. I prefer to describe this period as the emergence of the “ideological court”.  We have read about Indira Gandhi’s “committed judiciary”, but it was during the current phase that we saw some judges proclaim the prime minister as their “hero” and others referring to him as a “veritable genius”. It is an open question whether how much of what judges do is on account of what the executive expects of them and how much because of their ideological alignment with them. All that can be said at this point is that this is a very self-conscious Court.

There was a general consensus that High Courts were a beacon of hope and performed better than the Supreme Court on human rights. This first became obvious on the migrant issue when High Courts insisted on proper transport for them as opposed to the Supreme Court where some judges observed, “If they are being provided meals, then why do they need money for meals?”

The decision to defer the hearing of the challenge to electoral bonds, the scrapping of Article 370 and the Citizenship Amendment Act (CAA) 2020 must be presumed to be very conscious decisions. While judges looked the other way, we have a new Constitution taking shape under our noses, an unrecognisable one for lawyers of my generation. While the judges seemed to be in slumber, we lost a state and added Union Territories and discovered conspiracies in every corner of the nation. The Delhi Riots, the Shaheen Bagh protests and now the farmers’ protests were all “conspiracies” by “anti-national” elements. More and more activists and intellectuals got arrested in the infamous Bhima Koregaon case and faced inhuman conditions in jail and were denied basic facilities.

Media reporting on courts reached an all-time low with television anchors demanding the immediate arrest of Rhea Chakraborty for allegedly abetting the suicide of actor Sushant Singh Rajput. Courts are yet to decide the limits of reporting on pending court proceedings so as not to prejudice fair trials.

Hate Speech

Hate speech emerged as a legal category in Indian jurisprudence. Sudarshan TV was challenged for its communal reporting against minorities. It suggested that the Indian Administrative Services had been packed through unfair means. It was argued that this was a form of hate speech and required to be restrained.

Hate speech emerged as a legal category once again when television anchor Amish Devgan challenged an FIR against him for alleged derogatory remarks against Sufi saint Khwaja Gareeb Nawaz Moinuddin Chishti, which the Court refused to quash. The Supreme Court almost for the first time articulated a jurisprudence of hate speech. While this was a welcome development, the law can be used against those who campaign for human rights based on identity. An example of this could be found in the allegation made by the UP government that Dalits were encouraging caste hatred against the upper caste, a complete reversal of the purpose of formulating a jurisprudence of hate speech as an offence against stigmatised classes.

The tragedy, however, is that the discretion to prosecute is in the hands of the state and its agencies and this is exercised in a biased manner. We see the State prosecuting its critics and not fellow travellers. This could lead to a dangerous situation as happened in the Hathras case when Kerala journalist Siddique Kappan was arrested for attempting to create communal disharmony. It seems almost that prosecutions will happen only if the State wants them to happen, making a complete mockery of the rule of law.

Media reporting on courts reached an all-time low with television anchors demanding the immediate arrest of Rhea Chakraborty for allegedly abetting the suicide of actor Sushant Singh Rajput. Courts are yet to decide the limits of reporting on pending court proceedings so as not to prejudice fair trials.

Social media posts led to prosecutions for “causing religious disharmony”. At least in Mumbai, we noticed judges willing to give “no coercive action” orders in all such matters. That was a welcome development

Access to Health and Medicines

Several petitions were filed in the Supreme Court challenging the high cost of medication, testing facilities and hospitalisation in the time of Covid-19. The Court initially passed an order that all hospitals would have to provide access at reasonable rates, but later withdrew it when faced with a challenge from the private sector whose sole aim is profits. The absence of jurisprudence on access to medicines was sorely evident and an opportunity to develop a law for it was lost.

The most outstanding judgment of all was delivered by Justice Rohinton Nariman in the Tofan Singh case. The issue was whether officers of central and state agencies conferred powers under the NDPS Act are police officers, though not formally police, and whether a statement made to them was admissible as evidence under Section 25 of the Evidence Act. The judgment held that they were police officers and statements made to them were not admissible as evidence.

YS Jagan Mohan Reddy Letter

The controversy surrounding the letter written by Andhra Pradesh Chief Minister Jagan Reddy to the CJI making serious allegations against a senior judge of the Court will forever remain a mystery. Why was no contempt of court action taken against him for a patently contemptuous matter? The Attorney general of India refused consent on the ground that the matter was pending with the Chief Justice of India . We saw no press release by the Court about this letter or a notice for contempt of court.

We cannot lose sight of the fact that the target of attack was the incoming Chief Justice if India . Given that the political association between Jagan Reddy and the NDA government is well-established, we can only speculate on whether the letter had the blessings of the government of the day, providing a form of immunity from all legal action.

Also Read: A grave constitutional impropriety by Andhra Pradesh Chief Minister

Comedian Kunal Kamra, on the other hand, found himself being called out for contempt of court for his satirical representation of the Court as an institution. On November 12, 2020, Kamra posted some tweets criticising the Supreme Court for giving interim bail to Republic TV Editor-in-Chief Arnab Goswami in a 2018 suicide abetment case. He also posted a picture of the top court in saffron with the flag of the BJP. While many may disagree with the form in which he expressed himself, it is debatable whether humour can be a subject matter of contempt at all.

Towards the end of the year, Arnab Goswami, the litigant, not the journalist, made news. His arrest by the Maharashtra police and the rejection of his prayer for bail by the High Court of Bombay led to a dramatic judgment authored by Justice DY Chandrachud releasing him on bail. The Court seemed to be pointing out that the prosecution was targeted against him for his opposition to the state government and in that sense, it was a malafide exercise of power. While the rights and wrongs of the decision will be debated for a long time, there is no doubt that the judgment is an attempt to develop the law that malafides can vitiate a prosecution.

The issue of post-retirement positions for judges haunted the judiciary. When judges make comments on and off the bench on the PM being a veritable “genius”, are they looking for post-retirement positions? Former CJI Ranjan Gogoi was nominated to the Rajya Sabha, thereby lowering the status of the office he held.

On Protests

The judgment of the Supreme Court on the Shaheen Bagh protest in Delhi came well after it had ended and was unnecessary. Strangely, it sought to distinguish protest under a colonial regime from protest under a democracy. It held that while protests were justified against a colonial regime, it had its limits under a democracy. I would have thought the situation would be the reverse–that under a Constitution that guaranteed the right to assemble peaceably and without arms, the right to protest was guaranteed unlike under the colonial rule where there were no fundamental rights.

Some described the Supreme Court as an “executive Court”, while others described its functioning as “judicial barbarism”. I prefer to describe this period as the emergence of the “ideological court”.  All that can be said at this point is that this is a very self-conscious Court.

The comparison was grossly misplaced. The right to protest exists because there will always be differences of opinion on the issue of development or the  way forward in politics. No  parliament can claim to shut a protest, simply because it represents “the will of the people”.

On the other hand, we saw the Chief Justice of India  stating that no restrictions could be placed on the right to protest of the farmers. What accounts for this difference of approach on the issue of protests? Since there is no judgment on the subject, anything we say will be in the realm of speculation. For now, we can say that there is more than one Supreme Courts of India.

Retired Judges

The issue of post-retirement positions for judges haunted the judiciary. When judges make comments on and off the bench on the Prime Minister being a veritable “genius”, are they looking for post-retirement positions? Former Chief Justice Ranjan Gogoi was nominated to the Rajya Sabha, thereby lowering the status of the office he held and calling into question the motive for all the judgments he delivered while in office. Others who campaigned for votes for the Prime Minister on their Facebook walls and were well-connected got appointed as High Court judges. Statutes which create post-retirement positions for judges must be scraped to safeguard the independence of the judiciary.

At the same time, it was heartening to see other retired judges speak out in support of human rights; Justice Madan Lokur is a person who gave us hope for the future.

High Courts

There was a general consensus that High Courts were a beacon of hope and performed better than the Supreme Court on human rights. This first became obvious on the migrant issue when High Courts insisted on proper transport for them as opposed to the Supreme Court where some judges observed, “If they are being provided meals, then why do they need money for meals?”

On civil liberties issues also, High Courts were on alert. The Allahabad High Court directed the UP government to release Dr Kafeel Khan from preventive detention as his speech during the CAA protests contained no threat to public order. The High Court also directed the UP government to remove hoardings which had surfaced in Lucknow of people who protested against the CAA. The High Court also took suo moto cognisance of the Hathras case and questioned the disposal of the rape victim’s body in the dead of night in the absence of her family.

What accounts for this difference in approach of High Courts and the Supreme Court? Perhaps it is the fact that they see no possibility of elevation to the Supreme Court, that there are not enough post-retirement positions for them or perhaps they are closer to the issues of the people.

If all goes well next year and there is no supersession, we will have a new chief justice–Justice NV Ramana–who will come in with his own style of functioning. Each chief justice, we now know, has a style of his own.

Was There Any Good News?

There were some judgments which gave a fillip to women’s rights, both within the family and outside.

Reversing a decade-old decision delivered by Justice Markandey Katju in S.R. Batra And Anr vs Smt. Taruna Batra, the Supreme Court held that a woman has a right to reside in the shared household notwithstanding the fact that her husband is not the owner of the property. Married woman living in joint families in the shared household which belonged to the parents-in-law felt a little secure in their homes after this order.

On succession, the Supreme Court on August 11, 2020, in Vineeta Sharma v Rakesh Sharma held that the 2005 amendment to the Hindu Succession Act which gave a woman a share in the coparcenary would operate even if the father was not alive at the time when the amendment came into force.

In another landmark judgment, the Court said that women in the armed forces would be entitled to permanent commissions, giving them security of employment (The Secretary, Ministry of Defence vs Babita Puniya & Ors.)

Surprisingly, all these landmark judgments were on women’s issues. Are they perhaps perceived as “safe” issues by the Court in a paternalistic manner?

Also Read: Can the Amish Devgan Judgment be Misused to Launch False Prosecutions?

The most outstanding judgment of all was delivered by Justice Rohinton Nariman in the Tofan Singh case. The issue was whether officers of central and state agencies conferred powers under the NDPS Act are police officers, though not formally police, and whether a statement made to them was admissible as evidence under Section 25 of the Evidence Act. The judgment held that they were police officers and statements made to them were not admissible as evidence. This is a great judgment in defence of liberty and the rights of the accused.

Another welcome judgment, again from Justice Nariman, was the ruling that CCTV cameras be installed in the offices of all investigating agencies such as the CBI, ED and NIA so that there is police accountability. The order gave detailed instructions on where and how these cameras should be placed in all police stations. This included all entry and exit points, main gate, lock-ups, corridors and lobby and reception area. The bench also ruled that recordings of the CCTV cameras should be made available to anyone who complains of custodial torture and human rights violation.

Unconstitutional Developments

The UP government passed an ordinance criminalising conversion to another religion for the purpose of marriage. In one stroke, it achieved a double unconstitutionality–violation of the right to marry and the right to freely practice religion, apart from undermining autonomy and agency of women. At the time of writing, it is under challenge and hopefully, the Allahabad High Court will rise to the occasion and strike it down

Also Read: UP’s “Love Jihad” Ordinance – A Sarkari Honour Crime

Farm Laws

These laws also came by way of ordinances. They threaten not only the rights of farmers, but also our right to food security. No minimum support price, with no guaranteed procurement, will mean the end of the public distribution system and no food for BPL people. In a country where malnutrition has increased manifold between 2015 and 2020, this means that we may be looking at famine in the country. The farmers’ protests have brought to the forefront the need for a fundamental right to farming, an idea which was once talked about in the Constituent Assembly. It is time to revive that debate.

Bad Tidings

Towards the end of an already sad year, we saw lawyers getting raided and facing the prospect of arrests for their defence of the accused in the Delhi riots case.

And in a recent case of “love jihad” in UP, Mohommed Hashim Ansari, an advocate who helped a woman who came to him wanting to convert to Islam alleged that he was harassed by the UP police and 10 of his relatives were arrested and taken to unknown locations. The woman later married a Muslim boy. This may be the end of the right to legal representation.

Also Read: Supreme Court’s Curious Judgment in the Amish Devgan Case: Numerous Questions

What Does the Future Hold?

Virtual hearings will continue in 2021 as well it seems, at least until the summer vacation as the pandemic is going nowhere despite the discovery of vaccines for it. By then, if all goes well and there is no supersession, we will have a new chief justice–Justice NV Ramana–who will come in with his own style of functioning. Each chief justice, we now know, has a style of his own.

In recent memory, we have had many types of chief justices–some who cried when talking about not being able to do anything about pendency of work, others who proclaimed themselves Master of the Roster, still others who welcomed prime ministers to Court No 1 and some who were described as “rock stars”.

New avenues for post-retirement jobs may open  up for judges and who knows when we will see a retired chief justice contest an election for president of India or vice-president when newer avenues will be available to them.

This is perhaps a gloomy forecast. But then, I have always believed that the only guarantees of an independent judiciary is an independent Bar. After all, for the executive to get to the judiciary, it needs to climb over the heads of the Bar. This should be the agenda for 2021, to build a strong and independent Bar.

Perhaps the New Year will bring better tidings for all of us.

(Indira Jaising is Senior Advocate at the Supreme Court of India and the Founder of The Leaflet.)

Originally Published in The Leaflet