Now is the time to ensure systemic legal reform: analysis
The delivery of justice is not considered an essential service by law. But it is. Justice is more than a theoretical ethical principle that supports democracy and development. It is a practical system of rules and remedies that guides our daily life. That is why in times of crisis such as the one we are in due to the coronavirus pandemic, the justice system (the police, the judiciary, prisons and legal aid) must strive to provide continuous and quality service. similarly. We hope that the fire service and pharmacy are on call. People need justice 24 hours a day, 7 days a week, and the system must be geared toward that. The key lies in developing practical measures at all levels, using available spaces and people to their maximum level while minimizing the risk of contagion for all.
The Supreme Court has already taken suo motu notice of problems that may arise due to the disruption, and ordered that attorneys and litigants do not need to physically present the proceedings in various courts. It has also liberalized the rules for filing delays. District courts have been asked to switch to videoconferencing and continue their services. Presidents have asked to suspend proceedings if measures to control crowds in court fail. In a formal judicial setting, it is difficult to see why crowd control should fail if it is strictly implemented.
The vulnerable require special attention. State institutions such as prisons, burstals, orphanages, nari nikatans (women’s shelter), and mental institutions house captive populations that are susceptible. The State cannot be considered negligent or increase the risk to the people in its care. Instead, you should decrease it significantly. To address the need for estrangement, the court has also asked all states to create a high-level committee to oversee the release of minors and prisoners sentenced on provisional bail and probation, respectively.
Naturally, there will be a gradation of who is worthy of release and who is not. Almost 70% of all inmates are in pre-trial detention because investigations are ongoing. Even among 30% of those convicted, many are first-time offenders or are in prison for minor crimes. This crisis provides an opportunity for magistrates to remember that bail, not jail, is the rule and to use alternatives to incarceration, such as probation, parole, and permits.
In new cases, it is an opportunity to let go of the practice of mechanically granting police arrest requests and instead ensure that there are genuine grounds for arrest and that additional detention does not automatically extend, as is the practice in too many. courts
Hopefully, current innovations will create new habits that break with old practices and work to fix this imperfect system. With deficits, on average, representing 30% for superior courts and 25% for subordinate courts, the appointment of more capable judges is obvious. Experienced and specialized court managers will free judges from administrative and managerial tasks and leave them with what they do best: judge.
This is also a good time to use technology that dispenses with physical presence, makes life easier for the litigator and the lawyer, and helps improve the quality of justice. A lot can be done: use multi-person videos to listen to all sides of a discussion and broadcast it outside of court for the public to hear; electronic notification notification and receipt tracking; using voice-to-text applications to accurately record what’s going on in court; create common platforms across courts and geographies that are mutually compatible so that people who need access to various parts of the system get quick responses; and advice and information through updated websites, helplines, and phone-enabled applications. The technology is there and so is the money. But often, the resources allocated are not spent, thanks to a lack of initiative and institutional apathy.
It is also a good time for the government to review its own bloated litigation record and narrow it down to issues where the delay would be too long to bear.
This unprecedented time requires precise guidance to ease dilemmas in the future. The widespread assurances that urgent matters can be taken at the discretion of the court are not sufficient. For the seeker of justice, all matters are urgent. But issues related to personal liberty or protection from predators, be they private or state agents, are not something you can expect. As we enter a second phase of closure, the courts must return to the fundamental principles that distinguish the delivery of justice from the political executive. Anything other than this gold standard would be unacceptable.
Maja Daruwala is Senior Advisor to the Tata Trusts and Commonwealth Human Rights Initiative
The opinions expressed are personal.