Covid-19: Lockdown denies access to justice

What happens if entire courts of law are locked down and justice mechanism is totally adjourned sine die? Does it mean the criminal justice is suspended though crimes are not?

What if the police exceed the limits and injure the migrant labour on the ground of not wearing a mask?

If an innocent is arrested or a journalist is incarcerated for his criticism of the government? For instance, Dr Sudhakar Rao was allegedly suspended and later attacked in Visakhapatnam on May 16 after he raised concerns regarding the shortage of masks and other medical equipment in government hospitals, and he is now being mentally harassed by the Andhra Pradesh government.

"They attacked Dr Rao, removed his shirt, tied his hands with rope, and along with police forces, they assaulted him. The Union SC/ST Commission also stepped in and making a thorough inquiry about the incident.

Ironically Dr Sudhakar Rao was suspended in a unilateral decision, mentally oppressed due to the vengeance by government. Simply because he questioned a series of failures of the State government for the security and protection of the people and frontline Covid-19 warriors like doctors," a BJP leader criticised.

Where will he get justice? Why not NHRC takes up a complaint by email? Why not Andhra Pradesh High Court connect by video conferencing and question the atrocity of police and the government on this doctor? It seems rule of law and constitutional justice is abated during coronavirus attack.

The corona pandemic caused unprecedented crisis in criminal justice system and human rights. The webinar of Bennett University School of Law with CHRI on May 16 revealed that arbitrary actions of executive go unchecked in India, Bangladesh, Pakistan and Sri Lanka.

Access to justice is essential, but social distance is considered lifesaving. But justice delivery is not considered essential service even when lockdown is being relaxed for liquor sale, construction work and other supplies.

Justice delivery mechanism is awfully inadequate during the lockdown days because of coronavirus, at least in four South Asian nations.

Either complete postponement of oral hearings, total blocking down or district and subordinate courts, only higher courts partially working with video conference hearings is not able to address arbitrary actions and human rights violations.

With Parliament almost not functioning in four South Asian countries, the human rights violations are unabated, space for criticism is shrinking and dissent is not tolerated.

Four panellists from four nations - Sara Hossain, advocate of Supreme Court in Bangladesh, Salman Raja, Supreme Court advocate in Pakistan, Vrinda Grover, Advocate Supreme Court of India and Thyagi Ruwapathirana researcher of Sri Lanka - felt that with Parliament not in session in India, Sri Lanka, Pakistan and Bangladesh, only agency that is working is executive government and there is no forum to question their wrongful decisions.

The panel discussion on justice during Covid-19 days, deliberated on reducing space for dissent and criticism, while migrant workers find no scope to live, work or move.

The webinar revealed that South Asian countries face similar challenges without solutions in sight. The biggest challenge remain is how to ensure justice during the crisis caused by virus.

If economic inequalities make access to the legal system difficult in normal times; dysfunctional system causes a crisis in blocking the access during pandemic times.

Sara Hossein (Bangladesh) explained the prevailing tendency to go soft on the peddling of dubious information about the pandemic if it was being done by religious figures.

She also noted the heavy-handed enthusiasm with which the police were enforcing the lockdown (especially) against the poorer citizens. Lockdown is called public holiday in Bangladesh, where mobile courts are doing summary trials, while no other benches are working in real space.

The Presidential ordinance enabled virtual benches at Supreme Court limited to certain aspects like bails and to reduce the congestion in 68 jails which are three times overcrowded.

She said that NGOs were working for release of prisoners and National Human Rights Commission started receiving complaints through emails.

She pointed out various breaches of human rights like restrictions on movements, curbing expression, charging individuals for Facebook postings and on the allegations of spreading fake news or rumours.

Salman Raja, (Pakistan), said that most of the courts were shut down, except a few urgent matters like bail petitions were taken up. Interestingly, he said that the justice became a non-essential matter in democracy.

He also noted that the internal migrant crisis that India seems to be overwhelmed was headed off to some extent because of the cash transfer programme being effective.

He did add a note of caution against complete reliance on government numbers and called for reassessment after the lockdown is relaxed or lifted.

Thyagi Ruwapathirana, (Sri Lanka) Researcher, Amnesty International, South Asia Office, pointed out the anti-Islamic sentiment that seemed to have taken hold of Sri Lanka's governance structure, including the judicial system, after the Easter bombings of 2018.

The pandemic and the resultant lack of access to the court system has been exploited to settle political scores and crackdown on dissent in a rather alarming fashion.

Vrinda Grover (India), spoke about similar happenings in India and analysed political activists being rounded up in Delhi at a time when they do not have access to lawyers.

She also made a point about e-filing in courts and how it could end up widening the fissures that India's legal system is already plagued by.

She also questioned limitations of virtual hearings, privacy issues in Arogyasethu app such as tool of surveillance, centralisation of powers in the hands of a few at the Centre, migrants walking hundreds of miles from place of no work to village of birth without being recognised as an existing issue, criminalisation of human behaviour, stadium converted into new prison in UP etc.

While Supreme Court finds no issue with migrant workers, Madras High Court felt tears rolling down, seeing visuals of pathetic walking of millions on roads going viral on social media, said Vrinda. She advised law students not to be carried away by 'so-called' virtual courts'.

While Sanjay Hazarika, Director CHRI, called the problems engendered by the lockdown a matter of mismanagement and deciding policy on the fly, advocate Grover chose to read a deliberate punitive carceral intent into it.

India Justice Report of Maja Daruwala, senior advisor CHRI, quantified the question of access to justice based on some objective parameters.

While the question of justice can sometimes be a rather vexing philosophical question, focusing on the mundane helps bring some focus to the debate. She believed access to the judicial system was only a part of the larger question of access to justice.

The discussion highlighted some common concerns like human rights abuses and questions of privacy within the larger discourse of access to the judicial system in a time of lockdown.

The inequalities that characterise our societies seem to be manifesting themselves in the very real human tragedy that is the Covid-19 lockdown and the judicial system is no exception to it, panellists felt.

(The writer is former Central Information Commissioner and Professor at Bennett University)