LEGALITY OF LOCKDOWN AND ITS IMPACT ON INDIAN JUDICIAL SYSTEM

By- Muskan Sadhwani


At present the predicament confronted by the world at large is covid-19 that has been declared as “pandemic’s Disease” by World Health Organization and this is the prerequisite concern for all administrative units of respective countries. India is also endeavoring to manage the growth of virus through some strict measures.


In these crises, Lockdown has been announced by the central government and ministry of affairs published the official notification under section 6 and issued guidelines under section 10 of the Disaster management Act, in which restriction are ordained on fundamental rights of the citizens of India to move freely and assemble peacefully, guaranteed under Article 19 (1) (b) (d) of Indian Constitution to maintain public order and in the interest of general public.


To effectuate the lockdown legally, various provisions are being invoked:


1. If someone does not follow the guidelines and escapes “quarantine”, the authorities may issue section 271 of Indian Penal Code which says that “whoever knowingly disobeys any rule made and promulgated by the government for putting any vessel into a state of quarantine or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months or with fine or with both”.

2. The recourse was taken under Article 256 of the Indian Constitution which stipulates that “every state shall utilize its excecutive power in conformity with the laws made by the parliament and the central government can give direction on how to implement laws as may whenever it may appear to be necessary under and Article 257 asserts that the state has the executive power to issue orders.


3. Section 188 of Criminal Procedure Code shall be applied, whereby offender defiance to the directions or order which are promulgated by a public servant causes obstruction, annoyance, injury, riot, affray to any person lawfully employed. The offender shall be punishable with imprisonment for a tern which may extend to one month or fine which may extend to hundred rupees or both in case of minor injury but if such disobidence causes danger to human life, health, safety or severe harm shall be punishable for six months imprisonment or one thousand rupees or with both.


4. In several states, section 144 of Crpc is promulgated where more than 5 people are prohibited from assembling in public places for instance all the educational institution were closed and banned on movement of any public except in case of necessity. To deal with emergency situation powers are conferred to executive magistrate, district magistrate and sub divisional magistrate to impose restriction on personal liberties of individual whether in a specific region, locality, town in order to maintain peace and safety of health care this notification is issued by the district magistrate.

5. The biological disaster covid’19 was handled by the legal and constitutional institution. The current lockdown has been imposed under Disaster management Act, 2005 and the national disaster management authority is the centre body authorizes to conduct effective management of disaster with the prime minister as its chairmen’s. NDA mandates that authorities at state, centre and district level to contrive the plans, policies to overcome form this issue, some of the relevant sections of this Act which shall apply are:

  • Section 11(2) deals with the National plan which is prepared by the National executive committee in consultation with state government and other bodies. The plan shall include the measures to be taken for mitigation and role and responsibilities of different ministries.

  • Section 22(h) entitle the state executives to give direction to any department of the government or any other authority regarding actions to be taken in response of this threading disaster.

  • Section 24 and 34 empowers state and district executives to regulate the movement of vehicle and entry of people within the affected area. To remove debris, carry out rescue operations, search and provide shelter, food, healthcare, essential provisions accordingly.

  • ·To curtail the spread of disease Section 35 has been invoked which authorizes the central government to constitute inter-ministerial central teams and dispatch them to states to make on spot assessment, issue directions to the state and report to the union. Centre shall coordinate the work between various authorities and deployment of forces for effective implementation.

6. In addition to DM Act, the state government has used Epidemic Disaster Act. Under section 2A of the act allows the centre to prescribe the rules and regulation to inspect any ship or vessel leaving or arriving in any port and to detain any person planning to leave or arrive.


The utilitarianism theory is pertinent in the present circumstances, Jeremy benthum laid down the proposition in order to justify his theory that” the state is endowed with the responsibility to maximize pleasure and minimizing pain of whole society”, furthermore john staurt also articulated its opinion in this theory” individual happiness should be in harmony with societal happiness” hence the pain of being infected by the virus supersedes the pain of being simply staying indoors. This validatess the legality of lockdown. In this ideal scenario, Former secretary general, PDT Chary contends “the Doctrine of Necessity, which proclaims loud and clear that Necessity knows no law”.


The pandemic has urged the government to suspend every work, business, movement, services, and liberty with a complete shutdown of Indian justice system in order to cure the spread of virus.

the justice has being inaccessible due to which the populace has become powerless as with the implementation of guidelines in lockdown, the police without any sanction of law are pouring in from across the country , forcing persons to perform push-ups , squats, harassing migrant labors, vandalizing vegetable cart and homeless are evidence of arbitration. The national commission for women has reported an increase in incidents of domestic violence.


While in these crice Supreme Court paved the way for continuous access through virtual court hearing and the higher courts are hearing urgent matters, the lower courts are entertaining on remand cases on this.


Pros and Cons of Virtual Conferencing:


A two-judge Bench in Krishna Veni Nagam v. Harish Nagam 4 while dealing with the transfer petition case instituted under Section 13 of the Hindu Marriage Act, 1955, where both parties were not located within the jurisdiction of the same court, referred the parties to participate in the matrimonial dispute cases through video conferencing as the problems were faced by the litigants living beyond the local jurisdiction was acknowledged by the Hon'ble Apex Court that "it is appropriate to use videoconferencing technology where both the parties have equal difficulty due to lack of place convenient to both the parties. Proceedings may be conducted on videoconferencing, obviating the needs of the party to appear in person, wherever one or both the parties make a request for use of videoconferencing,"

Later on, the Veni Nigam's case was overruled by the Supreme Court of India in Santhini v. Vijaya Venketesh5 by a 2:1 majority. Chief Justice of India, Dipak Mishra and Justice AK Khanwilkar held that "in transfer petition, video conferencing cannot be directed". However, Justice DY Chandrachud wrote the judgment in favor of the use of modern technology and video conferencing. Justice Chandrachud in the dissenting opinion highlighted the pros of video conferencing which are laid down below:

  1. "The Family Courts Act, 1984 was enacted at a point in time when modern technology which enabled persons separated by spatial distances to communicate with each other face to face was not fully developed. There is no reason for court which sets precedent for the nation to exclude the application of technology to facilitate the judicial process."

  2. "Imposing an unwavering requirement of personal and physical presence (and exclusion of facilitative technological tools such as video conferencing) will result in a denial of justice."

In M/S Meters and Instruments vs Kanchan Mehta6, it was pointed by the Hon'ble Apex court that "Use of modern technology needs to be considered not only for paperless courts but also to reduce overcrowding of courts. There is need to categorize cases which can be concluded "online" without physical presence of the parties where seriously disputed questions are not required to be adjudicated like traffic challans and cases of Section 138 of NI Act"


The Downside of the Video-conferencing is that everyone does not have equal access to properly functioning equipment as well as fast internet. Many lawyers also have articulated the concern over the fact that virtual court proceedings are not open to the public and only judges, lawyers representing the party and both the parties are permitted to take part in proceeding. in case of Naresh Sridhar Mirzkar & Ors Vs. In Maharashtra, it has been stated that "public hearings before the courts are fundamental to our democracy and the judiciary as in other countries."


The Supreme Court recently disseminates a press note addressing the above issue and states that the virtual court hearing continues even after lockdown ends. It aims for both the adjudication through open court system and case proceeding via video conferencing. To deliver justice. The press note further articulated that "open court hearings cannot be considered as a matter of absolute jurisdiction and even the adjournment process also does not demand for an open court." However, in the current age where technology is relied upon for every aspect of our lives, virtual courtrooms can in no way “retaliate” against the open court system.


Conclusion


The Government of India impose nationwide lockdown to combat Covid19 which started on march 24th, 2020 and the guidelines were issued, breach of which is criminally punishable. All persons except those are engaged in essential services such as food, security, medical suppliers, municipal cleaning and observe social distancing. This pandemic is expedient for the digitization of Indian court as it helps to reduce the huge backlog of cases before the courts. In the current scenario, the practical perplexity of virtual courts faces a lot of difficulties. Many people and lawyers have difficulty in understanding the digital legal system and internet problems, which can be prevented with some practical training and proper access. In addition, the National Informatics Center needs to create a platform that includes video conferencing and e-filing features.



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