Unlocking justice in the lockdown


Without legal practitioners being classified as essential, fundamental rights cannot be realised

  • The pandemic has compelled the government to suspend work, movement, businesses, services, liberty and more. The Constitution, however, cannot be suspended. 
  • Any measures enforced under statutory frameworks must conform to the Constitution. Nevertheless, practically, with the near-complete shutdown of India’s justice system, such operation of the Constitution lies in limbo.
  • The enforcement of the constitutional rights of life, health and food requires urgent resolution.
  • Any constitutional challenge, however, requires unfettered access to lawyers and courts. The non-inclusion of both in the state’s list of permitted activities effectively denies such access.

No legal protection

  • Article 22 of the Constitution guarantees every individual the right to consult and to be defended by a legal practitioner of their choice upon being arrested or detained in custody by the state. 
  • Without legal practitioners being classified as essential, one wonders if fundamental rights can substantively be enforced.
  • The National Commission for Women has reported an increase in incidents of domestic violence. 
  • Despite abusers and victims being locked down for over 40 days, the institutional response has been to take away the civil remedy of obtaining ‘protection orders’ against the abuser under the Protection of Women from Domestic Violence Act, 2005.

The lacunae must be remedied

  • In contrast to India’s response, the U.K. first notified legal practitioners as key workers and then notified how different categories of courts shall function. 
  • In the U.S., the Department of Homeland Security categorises ‘workers supporting the operations of the judicial system’ as essential.
  • In India, the judiciary and the executive should have instituted means to serve the cause of justice. 
  • A comprehensive response should have outlined the minimum judicial infrastructural requirements; the nature, type and manner of priority cases; enforcement of physical distancing guidelines; and list of key personnel permitted to ply to and from courts, prisons, police stations, residences, etc. These lacunae must be remedied. Justice must not become a casualty to the pandemic.
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