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In closing times, why do courts matter | Analysis – analysis


Prime Minister Narendra Modi’s announcement on March 24 to subject India to a national blockade was followed by a notice containing a list of essential services that could operate. A notable exception to this list was legal services.

However, the events of the first two weeks under closure have made it clear that the courts are an indispensable public service, a control and vital balance over the excesses of the State, especially in a country where executive action is characterized by opacity and lack of access.

Regardless of the omission, the Supreme Court (SC) and various higher courts (with the enthusiastic assistance and cooperation of their respective bars) have admirably improvised and adapted. Videoconferencing and electronic presentations have shown that there is an easier (and more efficient) way of doing things. Despite being hampered by the omission of the March 24 list, the courts are trying to ensure that matters of “extreme urgency” are heard and addressed. They have shown that the value of the courts, especially in times of crisis, cannot be a matter of debate. There are three illustrations from the closing period that support this proposal.

First, the vigilantes argument. That, without fear of review or supervision, certain members of the police force may be victims of dictatorial tendencies. Images of policemen jealously using lathis or visiting medieval humiliations of offenders who have gone out for legitimate purposes to buy drugs or groceries have been disturbing. Some states, such as Punjab, sought to take immediate corrective action when these incidents were reported to the state leadership, but others offered no apology or explanation. Violence has no place in a civilized society and the limits of state power or the interpretation of how elastic the scope of section 144 of the Code of Criminal Procedure cannot be left to the different consciences of political leaders in different states .

Second, the courts are the last refuge for the voiceless. In the first week of confinement, the SC, in its motion, approved a forward-looking order, ordering the release from detention sessions in custody for non-atrocious crimes. Another example is that of the Delhi High Court leadership (two days after the announcement) the free treatment of an 18-month-old boy with a rare disease. Ensuring justice when constitutional and statutory rights are especially vulnerable is a primary function of the judiciary.

Third, the review of arbitrariness in State action. In a country as large as India, policymaking often collides with implementation. There is a real temptation on the part of certain officials to choose convenience over constitutional guarantees. This concern is also what concerns a large part of the fields of constitutional and administrative law. The blockade was a measure supported by all political parties, but as the problems of migrant workers and the unorganized sector grew in size, different states responded with measures ranging from humanitarian, giving up transportation and rent costs and providing food, even draconians who spray migrant workers. and excessive use of force. The SC approved detailed instructions last week (before refusing to intervene in another subsequent request) to address these concerns, but imagine if it had not. The power to formulate policies does not exempt the government from guaranteeing that it meets the rigors of article 14 of the Constitution; that the action of the State must demonstrate the application of the mind that it must be free from malice and, above all, it must not be arbitrary.

There is a frequently quoted warning attributed to Benjamin Franklin, “Those who sacrifice individual liberty to guarantee temporary security deserve none.” In a country of more than a billion people battling an unprecedented epidemic, this might be a bit harsh, but it contains a relevant warning that it will have an influence on the nation emerging from this crisis. Not only will the state be judged for its handling of the crisis, but also the courts whose legacy will be defined by how, even in a crisis, they ensured that the Constitution reigned supreme.

In a separate, but related note, it should also be noted that the rapid Covid-19 response measures introduced by the SC and followed by other higher courts have shown that the technology renders several of the old formalities obsolete. The SC has also presented detailed guidelines for this to continue when normal hearings resume. Remote filing through an online portal addresses the overuse of paper, while helping to reduce overcrowding. It is also faster. Procedures that use video conferencing demonstrate the effectiveness with which an argument can be concluded. Admittedly, this lacks the majesty, pageantry, and emotion that comes with the prestige of arguing in historical rooms.

But it is a faster route to justice.

Muhammad Khan is the additional general counsel (for Chhattisgarh) on the Supreme Court, Aishwarya Mohapatra is a lawyer

The opinions expressed are personal.

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