Computers Will Not Save the Courts

This is an excerpt from the book The New Normal: How to Survive a New World Order

In the months following the ‘lockdown’ there has been a spurt of webinars discussing what it is that the judiciary will have to do in a post-Covid world; how technology can be used to get the process of administration of justice as close to ‘digital’ as possible.

Whether it is the judiciary or any other sector when we talk about adjusting with a ‘post-Covid’ world what we mean is that since Covid-19 has made physical human proximity, especially in large groups, fatal in the worst-case scenario and inconvenient in the best-case scenario, how do we carry on with equal efficiency without such gatherings. We naturally turn to technology and ‘digital’ for answers.

Dushyanth says, “I must confess to mixed feelings whenever I come across webinars discussing the functioning of the judiciary in a post Covid world and the need to inject more technology and so on. The Supreme Court is the custodian of the Constitution of India. The constitution of India guarantees some fundamental rights. Governments frequently violate and infringe these rights. The Supreme Court, once described as ‘the last refuge of the bewildered and the oppressed,’ has been mandated by the Constitution of India to stand between the vulnerable individual and the mammoth state and protect the vulnerable. It is an institution meant to act as a check on the executive and the legislature. When either acts in a way which is violative of the con- stitution, the Supreme Court steps in to say- not constitutional and thus not happening. Similarly, when the executive and the legislature are failing to do something that they should have done, the court steps in to ensure that such an act is done. For instance, on account of the government’s failure to pass a law penalizing sexual harassment at work place and providing a mechanism which would hear grievances pertaining to such harassment, the court stepped in and framed the Vishakha guidelines, which became the basis of an anti-sexual harassment law which was passed sometime after.

But the apex court has come a long way from those days. From the moment that the first pan- India lockdown was imposed, it seemed that the Supreme Court firmly ‘locked’ its doors to all who wanted to seek justice. The court ‘distanced’ itself from administration of justice and appeared to treat fundamental rights as a virus more dangerous than the novel coronavirus itself. Let us try to think over the various and very egregious instances of injustice that splashed across our television channels newspapers and screens: i) millions of migrant workers walking hundreds and in some cases thousands of kilometers back to their home and many dying of fatigue or hunger in the process; ii) women giving birth in the middle of these journeys and continuing to walk; iii) extraordinary discrimination and propaganda against Muslims aggravating their misery; iv) an increase in police atrocities especially against the poor; police overturning the carts of vegetable vendors; v) doctors and health workers being thrown out of their homes by homeowners; vi) health workers being denied protective equipment; inedible food being served at camps organized by the government; vii) the Karnataka government cancelling trains for workers reportedly at the behest of a builder lobby and after much outrage reversing that decision; viii) videos of gov- ernment officials extorting unreasonable sums from workers for train tickets when the trains finally started plying; ix) Uttar Pradesh government practically criminalizing the disease by coming out with a law which punishes its contagiousness! Now let me share some observations of the Supreme Court: In a petition seeking payment of wages to lakhs of migrant workers, the court asked: “If they are being provided meals, then why do they need money for meals?” It took Prashant Bhushan to remind the court that people needed money for things other than meals: “They don’t just need food in the shelter homes…. We need to give them money to send to their families back home.” To a submission that the food being provided in some shelters was inedible, the court said: “They (petitioners) are saying that in some shelters the food is inedible. That is not something the court can monitor. We are not experts. We do not intend to interfere with what the government is doing without knowing what it is all about. “We do not plan to supplant the wisdom of the government with our wisdom.

We are not experts in health or management. We will ask the government to create a helpline for complaints,” Finally in this particular hearing, the court observed: “We cannot make a better policy decision at this stage. We don’t want to interfere in government decisions for the next 10-15 days,” Then, in an interview to a newspaper, the sitting Chief Justice of India said, “Executive with its three ‘Ms’ of money, men and material is better-suited to deal with Covid-19 crisis.” But in the framework of our constitution, all arms of the state are supposed to ‘deal’ with every crisis. There is no crisis which only the judiciary deals with or only the legislature deals with. All institutions have to play their role in the daily functioning of the state. The stance of the court kept evolving. From saying that it had no role to play, it moved to saying that actually the workers were at fault because they were just doing what they wanted to do, and no one could stop them. In one hearing, the court observed: “How do you stop people who want to keep walking? Can anyone go and stop them? Impossible for anyone to stop them,” When told about the incident where workers sleeping on a railway track were mowed down by a train, the court said: How can anyone stop this when they sleep on railway tracks?”

To every lawyer’s astonishment, the court also berated the lawyer who was raising this issue by saying: “Every advocate read incidents in the paper and became knowledgeable about every subject. Your knowledge is totally based on newspaper clippings and then you want this court to decide. Let the state decide. Why should this court decide or hear? We will give you a special pass. Can you go and implement government orders?” I was astonished because the Supreme Court has a glorious history of Suo Moto acting on newspaper clippings. Meanwhile, the Solicitor General, who in layman terms is the lawyer of the government, was supporting this approach and encouraging the court to stay on this path.

On 31st March, he said: “I have instructions to state that no one is now on the road. Anyone who was outside has been taken to the available shelters” He relied on this to also say that it was in fact the media which was creating unnecessary panic. Needless to state that this was a white lie, one that the Solicitor General ultimately suffered no consequences for. In another hearing, he said: “it is impossible to stop people who want to keep walking”. “Migrants must have patience to wait for their turn” So, in summary the top court had been saying: not our job and we need to step aside and finally moved to saying what can we do even if we want to, migrants just want to walk. Meanwhile, in the same country, there were countless other courts who believed differently and did not think that all that was needed of them was to step out of the way so that the government could ‘deal’ with the situation. The Madras High Court passed a ruling on the right to privacy of people infected with Covid-19. The Delhi High Court passed a judgement pertaining to the functioning of ration shops and the entitlement of those who did not have ration cards.

In one case, the Kerala High Court questioned the Central Government about why Aarogya Setu has been made mandatory and noted that most poor people didn’t have smart phones even now. In a petition filed by a workers’ union, the Bombay High Court has also demanded answers from Navi Mumbai Municipal Corporation about the protective equipment – masks, sanitisers, etc., being given to workers. It also slammed the City and Industrial Development Corporation of Maharashtra for making gardeners work during lockdown without protective gear, calling the corporations’ conduct “callous and inhumane”. The Patna High Court sought from the state government district wise data of the quarantine centres, ob- serving that 1/10th of India’s population lives in Bihar. The Andhra Pradesh High Court took the same approach and in one case observed: “This Court notices that hundreds of migrant labours with their children and baggage is walking on the National Highways… If at this stage, this Court does not react and pass these orders, this Court would be falling in its role as a protector and alleviator of suffering. Their pain has to be alleviated at this stage.”. Ironically, the court was taking cue from news reports. A report in LiveLaw.com states: “The bench took note of “disturbing news reports” about the plight of migrants. It referred to a report in “Eenadu” that in a period of 24 hours between 13.05.2020 and 14.05.2020, 1300 people have passed one check post on foot or with cycles. Another 1000 of them have gone in lorries and in other transport ve- hicles. The Court also referred to reports which indicated that a woman had given birth when she was walking from Nasik to Sathani on the road. Further, this report also indicated that two hours after the delivery, the woman started walking and continued to walk for 150 kms. The National Human Rights Commission has taken note of this. Reports also indicated that ambulances are charging

Rs.8,000/- in Mumbai even for moving a small distance.” The Andhra Pradesh High Court issued a slew of directions, making it amply evident how much a court can do and ought to do in the situation. I quote from the LiveLaw report: “Particularly, with regard to the walking migrants, the court has directed that: Adequate arrangements for food should be made and the same should be distributed to the migrant labour, who are walking on the National Highway; Outpost centres that have been established by the State should be stocked with good drinking water, oral rehydration salts and glucose packets which should be supplied to the migrant labour, who are walking; Since a large number of women are walking in the heat, temporary toilets in a hygienic conditions should be provided, assuring the privacy of the women. Further, Sanitary pad dispensing machines should be organised at every alternate centre, at least; Those who are facing difficulty while walking should be transported in patrol vehicles of NHAI and Police Department, to the nearest shelter. Efforts should also be made to convince the migrant labour to stop walking and to take the trans- portation being provided by the State Government; All the Police and Revenue authorities should be made aware of all the centres/food counters and they should guide the migrant workers, who are walking, towards the nearest of such centres; informing the migrant labour, who are walking on the Highways of the location of these shelters and giving them a list of the phone numbers, which they can contact in case of emergencies. In addition to the above, the court has directed that: Adequate police personnel should be posted at the shelters being maintained for migrants, to ensure that social distancing and discipline is maintained. Trained paramedical volunteers and/or doctors should be posted at every centre, with a dedicated mobile line and an ambulance on standby to attend to any sun- stroke victim or for other such medical emergencies. Ambulances on call should be available to assist the migrant workers and to transport them to the nearest hospitals or medical centres for immediate medical assistance, at the cost of the State. The District collector of each District and the Superintendent of Police should appoint a Nodal Officer of a senior rank (Tahsildar/DSP etc.,) from the Revenue Department and the Police Department to look into and supervise each of the shelters etc., and their activities within. One Tahsildar and DSP should be looking into each of the shelters.

The services of the District Legal Services Authority may also be taken in case of shortage of staff for rendering any services. Similarly, the services of Para Legal volunteers, NSS, NCC, Bharath Scouts and Guides, Red-cross, Lions Clubs, Rotary Club and such other organisations should also be taken in order to man these shelters and to ensure that food, medical help etc., reach the migrant labour. The Nodal Officers shall have to coordinate all the activities of the shelter. The High Courts in Bihar, Rajasthan, Karnataka, Maharashtra and many other states came to the aid of the workers at the same time that the Supreme Court was saying that courts have no role to play. All this time, public opinion kept turning against the top court having distanced itself, newspaper editorial after newspaper editorial criticised the approach of the court, retired Supreme Court judges and senior advocates expressed anguish. Finally, the apex court had no option but to do something and nearly two months after the lockdown had been imposed, it initiated Suo moto proceedings.

In an ocean of conversation about digital, one cannot help but keep thinking of the clampdown on the internet that happened in Kashmir and how even now, the people living there are only able to use 2g services. I see tweets from anguished teachers and parents on social media about how kids in Kashmir have to wait for hours to download a simple pdf. If you’re someone who thinks that this is ok be- cause anything is ok as far as Kashmir is concerned, please visit https://internetshutdowns.in/ shutdowns.in where you will see that the internet is being shut down across India at the slightest pretext and more often than not illegally. India is not called the internet shutdown capital of the world for nothing. It is the country which sees the maximum internet shutdowns across the world. 67% of the world’s internet shutdowns happen in India1. Shutdowns which are violative of the Constitution of India and shutdowns which the Supreme Court can do a lot more to stop and regulate but are not doing. How can wide ranging plans for digital integration be made in such a country? 

All this isn’t just a rant from a bleeding-heart liberal but has very real consequences for business. Business will hardly be content with shifting to digital when digital itself is not guaranteed. The crisis that plagues the top court today is not the one posed by Covid-19. It is the one exposed by Covid-19- that even in extraordinary situations the top court is deferring to the executive. It now seems a pale shadow of its former self, a mere extension of the executive. Therefore, the solution will not come from more inter-

net in courts or more computers. It isn’t the lack of computers which prevented the top court from coming to the rescue of migrants in time. What is the solution? The solution is for individuals and organisations to understand what their relationship with the top court is. Indians in any part of their life are not at the mercy of the top court. We gave to ourselves the constitution of India and the constitution of India has mandated that the court protect our rights. The court belongs to us and is answerable to us. Believe me, the court also cares about public opinion. The solution then is that in the same way that in- dividuals and organisations stepped forward to help or as some would say to do their duty in the time of this pandemic, we will also have to step forward to edu- cate ourselves and each other about the constitution of India and the rights we, the people granted to ourselves through it. I see an uber advertisement these days which says that if one rider stays hygienic, she will protect the next rider also. It is the same for legal education also. If one person becomes more aware, he or she is more likely to protect those around her also. This is a crisis where the cure and the vaccine are in front of us. 

We just need to strengthen ourselves and then help others vaccinate too. Because as with the Covid-19 pandemic, even in this pandemic, we are only as safe as the weakest person in our city/state//nation. If even one person remains unwell, the disease will take us any day.