BENNETT JOURNAL of LEGAL STUDIES an Annual Journal Published by the School of Law, Bennett University, Greater Noida BENNETT Volume 2 Issue I February 2021

V olume 2 Issue I

BENNETT JOURNAL OF LEGAL STUDIES An Annual Journal published by the School of Law, Bennett University, Greater Noida BENNETT Volume 2 Issue I February 2021

JOURNAL SCHOOL OF LAW OF LEGAL STUDIES February 2021 Plot Nos 8-11, TechZone II, Greater Noida 201310 Uttar Pradesh, India. 1800-103-8484 [email protected]

BENNETT JOURNAL OF LEGAL STUDIES |Volume 2 | Issue 1 | February 2021

Special Issue : COVID-19 and Justice Delivery System : Challenges and Way Forward

PATRON Prof. (Dr.) Nuzhat Parveen Khan Dean, School of Law, Bennett University

EDITOR-IN-CHIEF Prof. (Dr.) M. Sridhar Acharyulu Professor, School of Law, Bennett University

EDITORIAL BOARD

Dr. Garima Tiwari Dr. Suvir Kapur Assistant Professor, Assistant Professor, School of Law, Bennett University School of Law, Bennett University

Dr. Manjula Rani Mallepalli, Mr. Jacob George Panickasseril Associate Professor, Assistant Professor, School of Law, Bennett University School of Law, Bennett University

STUDENT EDITORIAL BOARD

Rahul Kumar, IV Year, BBALLB (Hons), School of Law, Bennett University Ayush Srivastava, IV Year, BBALLB (Hons), School of Law, Bennett University Bhavya Bose, III Year, BALLB (Hons)School of Law, Bennett University Priscilla Samuel, III Year, BALLB (Hons), School of Law, Bennett University

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CITATION FORMAT [Volume]BJLS[Page][Year]

TABLE OF CONTENTS

I. Note From Dean’s Desk i

II. Editorial v

1. Impact of COVID-19 on the Justice Delivery System for 01 Legal and Illegal Migrants of Assam Jayanta Boruah & Sarthak Aryan

2. Functioning of Courts and Justice Delivery in India during 19 COVID-19 Pandemic. Kush Kalra & Surya Saxena

3. COVID – 19 Crisis and Digitisation: Towards Revamping the 37 Justice Delivery System Nandini Garg & Vasu Manchanda

4. The Migrant Workers Catastrophe during COVID-19 69 Pandemic : Appraising Governmental Actions and Conceptualising A Plausible Course of Action. Aniket Dutta

5. Virtual Courts: The Forced Evolution of the Indian Justice 85 System Animesh Puneet Gupta & V. Adharsh

6. COVID – 19 and Justice Delivery System: Challenges and 105 Way Forward: Digitization of Indian Courts- A Foreseeable Future. Dr. Kamaraju Chitrapu & Ms. Rituka Mane

7. Application of Virtual Hearing on District Courts of India 125 Teesta Mishra & Laiba Ahsan

8. The Plague of Shadow Pandemic: Analysis of India’s Socio- 133 Legal Obligations K. Prajna Kariappa

9. Impact of Pandemics and Epidemics on Contractual 141 Obligations and Ease of Doing Business in India: A Case Study of COVID-19 Situation Abhyudaya Yadav & Yashika Goplani

10. Enforceability of Lease Deeds in COVID-19 and the Dilemma 165 of Landlords in India Abdul Samad Khan & Raj Nandini Singh

11. The Thin Line of Difference Between Commercial Hardship 181 and Frustration of Contracts: Need for Legal Reforms in Light of Covid-19 Pandemic Ridhi Suri & Vidushi Sinha

ii Bennett Journal of Legal Studies [Vol.2, Iss.1

2021] Editorial iii

Editorial COURTS IN COVID-19: EFFECTIVE JUSTICE IS VACCINE FOR VIRUS OF INJUSTICE

Justice delivery is as important as recovery from the virus. Like medicine, the timely justice is also highly essential. Various angles of justice delivery were deliberated in different articles. During Covid19 lockdown, the justice delivery was truncated, delayed and access to justice became difficult, or sometimes impossible. The pendency and dockets exploded. The courts at higher level functioned like vacation courts, with limited hearings of urgent matters. Video conferencing with e-filing to avoid physical congregation and follow social distancing was adopted. Virtual hearing in place of public hearing has cut down the huge time and travel costs of middle-class & poor clients. Though a great relief, it is associated with many disadvantages such as (a) most of the judges and lawyers are not well acquainted with technique and process, (b) the technical controls in some other’s hands, (c) not verifiable because not recorded and accessible, and (d) if disconnected accidentally, or deliberately, one side may go unrepresented. The virtual hearing is confined to apex court and a few High Courts, not fully extended to all the courts. The Jammu & Kashmir was under double lock-down (Article 370 and coronavirus), the 4G internet service was blocked, because of which Kashmiris could not secure their fundamental rights. This shows that the real control over technology is in the hands of Executive making internet-justice is un-independent. As virtual hearing does not allow people in general to watch proceedings, it will also seriously affect another principle- Openness of Justice or Public Hearing. Government, people and courts also should have considered justice as essential service. Though all services were opened, paradoxically the first to unlocked was liquor flow, and justice was nowhere in the list of priorities

vi Bennett Journal of Legal Studies [Vol.2, Iss.1

Background of virtual courts While 60-day- lockdown rigour being relaxed, justice remained a non- essential service! The Supreme Court and the High Courts are hearing some urgent cases only through video conferencing. District and subordinate courts are mostly closed for two months. Regular justice is not being rendered. Can courts be replaced with virtual court? Is virtual court equal to real public hearing? There are two major challenges to video justice. First, whether justice system sustains basic norm of openness. Second, will it make independent judiciary dependent upon technology, where the Internet is controlled by political Executive and the switch is remotely controlled by non-judicial bureaucracy. This is an attempt to discuss these two threats. On May 3, the Supreme Court, in 38-page note, strongly defended its "virtual courts system", as that was needed to ensure the "administration of justice" does not crumble in the face of a pandemic1. The advantages of the Virtual Court System, especially in terms of time, energy and money saved by the litigants and counsels in ensuring their presence before a court are innumerable and could be game-changers too," it said. Referring to almost 23 countries like the USA, the UK and France, the SC said many nations have been using the virtual courts system, but India has been ahead in terms of the output. "Information available on court and other judicial websites would indicate that in nations hit hard by the COVID-19 pandemic like the USA, UK, EU, France, Italy, Germany, China, Canada, Australia, Singapore etc,

1 Press Trust of India, SC defends ‘virtual courts system’ during COVID-19 pandemic, says it ensured justice, available at https://www.newindianexpress.com/nation/2020/may/02/sc-defends-virtual- courts-system-during-covid-19-pandemic-says-it-ensured-justice- 2138432.html 2021] Editorial vii judicial organs of the state carrying out administration of justice are mostly relying on virtual court methodologies and online case- management in place in their respective jurisdictions," it said. SC does not allow recording or broadcast Many advocates are not comfortable with e-filing. The SC directed the helpline of 1881 to be functional to help advocates in e-filing and virtual hearing. However, the proceedings by video conferencing is not allowed to be recorded or stored or broadcast, in any manner whatsoever, as recording/copying/ storing and/or broadcasting, by any means, of the hearings and proceedings before the apex court are expressly prohibited”. The video hearing has been criticised by some quarters that the system does not adhere to the concept of "Open Courts". Lawyers have complained that they are facing varied problems from sending a PDF file of their applications to convincing the judge of the urgency of the matter and address their arguments through video link. In response this criticism, the SC note said the virtual courts system cannot be said to be negating the principles of fairness that are sacrosanct to the administration of justice nor is it failing to adhere to requirements of an 'open court' system”. Sanjay Hegde, Senior Advocate, SC, in his article2 called Vidyo, as infamous SC videoconferencing app. He narrated the experience and what he witnessed proceeding on migrant labour issue, saying ‘it was simply an isolated court, dealing with the matter in a routine way, a habit learned from a time before Covid-19’. He felt that never SC has socially distanced itself from the powerless. Sanjay narrated a hearing where the microphone of the petitioner lawyer was muted and locked out of hearing. In that PIL about migrant labour, the Bench imposed

2 Social Distancing from the powerless, in the Hindu, dated May 19, 2020, page 6 viii Bennett Journal of Legal Studies [Vol.2, Iss.1 costs of Rs 1 lakh to deter further arguments, later, Sanjay overheard that presiding judge instructed steno to delete costs. How can justice happen if voice is disconnected like this? The Supreme Court in its note disclosed that it would hear urgent and all cases through video allowing the media as representative of the public to access and watch such proceedings. If this kind of video hearing be extended to all other courts, building technological capacity and giving controls over it to Judiciary is essential. Virtual hearing is an alternative during COVID19 type emergencies to maintain social distancing. This should be an additional mechanism if physical or financial distance of justice seeker is obstructing his access. Former Judge of Supreme Court Justice BN Srikrishna advocated use of Article 1413 and 1424 for regularizing virtual hearing. This does not mean sacrificing the basic norm of open hearings. He said that it is time for India to think of virtual courts to take some pressure off the swamped justice system and ensure better outreach to people in far- flung areas5.

3 Article 141 says: The law declared by the Supreme Court shall be binding on all courts within the territory of India. 4 Article 142 of Constitution of India "Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc" (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself. 5 Deblina Dasgupta, Lessons from Covid-19: Time for India to Think of Virtual Courts to Take Pressure off Justice System, Says Justice Srikrishna 2021] Editorial ix

‘Openness’ of Open Trial? Jeremy Bentham said: “publicity is the very soul of justice….. It is to publicity, more than to everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst.6” The principle of openness of judicial proceedings is also internationally recognized, of course, with certain important qualifications. Article 14(1) of the International Covenant on Civil and Political Rights incorporated right of everyone to fair and public hearing. Only on reasons of morals, public order or national security in a democratic society, to the extent necessary the press and public may be excluded from all or part of trial. Australian Law Reform Commission The Australian Law Reform Commission in its Report 1277 on ‘Traditional Rights and Freedoms – Encroachments by Commonwealth Laws’ emphasized that open justice remains one of the fundamental attributes of a fair trial8. It is fundamental rule of the

(11 May 2020) available at https://www.news18.com/news/india/lessons- from-covid-19-time-for-india-to-think-of-virtual-courts-to-take-pressure- off-justice-system-says-justice-srikrishna-2615673.html 6 Garth Nettheim, The Principle of Open Justice; 8 U. Tas. L. Rev. 25 (1984- 1986) available at Justicehttps://heinonline.org/HOL/LandingPage?handle=hein.journals/utas man8&div=9&id=&page= 7 Australian Law Reform Commission, Open Justice, available at https://www.alrc.gov.au/publication/traditional-rights-and-freedoms- encroachments-by-commonwealth-laws-alrc-interim-report-127/10-fair- trial/open-justice/ 8 Open justice is ‘a fundamental aspect of the common law and the administration of justice and is seen as concomitant with the right to a fair trial’: Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-12’ (2013) 35 Sydney Law Review 674. x Bennett Journal of Legal Studies [Vol.2, Iss.1 common law9 that the administration of justice must take place in open court. The rationale of this rule is that the court proceedings should be subjected to public and professional scrutiny and courts will not act contrary to the principle save in exceptional circumstances10. In Russell v Russell, Gibbs J said without public scrutiny, ‘abuses may flourish undetected’. Gibbs further says: Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the authentic hall-mark of judicial as distinct from administrative procedure’. To require a court invariably to sit in closed court is to alter the nature of the court. Jason Bosland and Ashleigh Bagnall have written that this ‘longstanding common law principle manifests itself in three substantive ways’: [F]irst, proceedings are conducted in ‘open court’; second, information and evidence presented in court is communicated publicly to those present in the court; and, third, nothing is to be done to discourage the making of fair and accurate reports of judicial proceedings conducted in open court, including by the media. This includes reporting the names of the parties as well as the evidence given during the course of proceedings.11

9 John Fairfax & Sons Limited v Police Tribunal of NSW (1986) 5 NSWLR 465, [476]–[477] (McHugh JA, Glass JA agreeing). 10 Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378, [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ). 11 Jason Bosland and Ashleigh Bagnall, ‘An Empirical Analysis of Suppression Orders in the Victorian Courts: 2008-12’ (2013) 35 Sydney Law Review 674. 2021] Editorial xi

Exceptions to open court rule At the same time, one should know that it is not an absolute right. This principle may be limited to protect secret technical processes, an anticipated breach of confidence, the name of the victim of black mailer, the name of police informant or the identity of an undercover police officer and national security12. Similar exceptions are prescribed in Article 14(1) of the ICCPR, which says: The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. The real open trial has suffered because of space and security limits. The entry is limited, screened and based on permission of authorities. Still either of the parties, their counsel and witnesses can watch each other’s actions and words. The presence of media or any other person also makes the scrutiny purposeful. When the court switches over to video conferencing between two places separated by distances, there is every possibility of closure of openness. Limited presence of media and others may not make it fully transparent. If remote and virtual hearing is inevitable, only thing that ensures the transparency is live streaming of the proceeding world over.

12 See Hogan v Hinch (2011) 243 CLR 506 French CJ. xii Bennett Journal of Legal Studies [Vol.2, Iss.1

Broadcasting of court proceedings The Supreme Court ruled in 201813 that proceedings of cases of constitutional and national importance should be broadcast to the public. When some petitioners, arguing that such public broadcast would further the principle of open justice and open courts, the Supreme Court agreed and held that the ability to view live broadcasts of the Supreme Court proceedings flowed from the right of access to justice in the Constitution, but said that this right should not be absolute and provided a set of Model Guidelines which should govern the courts’ discretion on when such broadcast should be used14. Right to publish court’s proceedings This is based on another decision of the Supreme Court in Naresh Shridhar Mirjkar v. State of Maharashtra15 holding that article 19 of the Constitution included the right of journalists to publish reports of court proceedings. The SC explained efficacy of open hearing: “20….. It is well-settled that in general, all cases brought before the Courts, whether civil, criminal, or others, must be heard in open Court. Public trial in open court is undoubtedly essential for the healthy, objective and fair administration of justice. Trial held subject to the public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries, and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity, and impartiality of the administration of justice. Public confidence in the administration of justice is of such great significance that there can be no two opinions on the broad

13 Swapnil Tripathi v Supreme Court, https://indiankanoon.org/doc/43629806/ 14 https://globalfreedomofexpression.columbia.edu/cases/tripathi-v-supreme- court-india/ 15 [1966] 3 S.C.R 744 2021] Editorial xiii

proposition that in discharging their functions as judicial Tribunals, courts must generally hear causes in open and must permit the public admission to the court room. Jerome Bentham16 observed: “In the darkness of secrecy sinister interest, and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion, and surest of all guards against improbity. It keeps the Judge himself while trying under trial (in the sense that) the security of securities is publicity” The Supreme Court further said in its 1966 decision: Indeed, the right of access to justice flowing from Article 21 of the Constitution or be it the concept of justice at the doorstep, would be meaningful only if the public gets access to the proceedings as it would unfold before the Courts and in particular, opportunity to witness live proceedings in respect of matters having an impact on the public at large or on section of people. This would educate them about the issues which come up for consideration before the Court on real time basis. Constitutional foundation of open court The Article 145(4) of the Constitution of India says that such pronouncements shall be made in open Court. It says, ‘No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open court”.

16 Scott v. Scott [(1911) All. E.R. 1, 30] xiv Bennett Journal of Legal Studies [Vol.2, Iss.1

The “open Court hearing” can be traced to Section 327 of the Code of Criminal Procedure, 1973 (CrPC) read thus: “327. Court to be open.- (1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them”. This is followed by a provision for exceptions. In Tripathi case, SC said: “Indubitably, live streaming of Court proceedings has the potential of throwing up an option to the public to witness live court proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions of Courts; and would also provide them with a more direct sense of what has transpired”. The Advisory Council of the National Mission of Justice Delivery and Legal Reforms on 26th noted that audio video recording of Court proceedings was proposed in the Policy and Action Plan Document for Phase II for the e-Courts Mission Mode Project. Recording of Courts in foreign countries Australia High Court allows the recordings of all full-court hearings and publishes it on its website, since 2013 retaining. Australia permits photos to be taken inside courtroom, when not in session for private purposes. It’s quite understandable that Australia has expressly banned Audio video recording by private parties and imposed restrictions on re-broadcasting. Access is allowed subject to certain conditions. China allows live streaming and recorded broadcasts of court proceedings across judiciary from the trial court right up till the Supreme People’s Court of China. England’s Supreme Court allows 2021] Editorial xv media to broadcast court proceedings and hearings, which are live streamed and recorded that was a crime of contempt of court till 2005. The ECHR allows for broadcast of court proceedings, as a corollary of its court rules that say all hearings are public. Germany has passed legislation allowing live broadcasting of court proceedings in the Federal and Supreme Courts, although actual instances of such broadcasts are rare because of strict restrictions imposed by that legislation. The ICC allows for live streaming of its proceedings with a 30-minute delay to allow for any necessary redactions of confidential information. International Criminal Tribunal for the former Yugoslavia (ICTY) made Court proceedings available for viewing on their website. Supreme Court of Ireland (Northern), New Zealand, Scotland, South Africa and Israel allows live streaming, but Supreme Court of USA does not. What is to be done? The Supreme Court of India noticed that publication of its court proceedings is a facet of the status of SC as a Court of Record by virtue of Article 129 of the Constitution, whose acts and proceedings are enrolled for perpetual memory and testimony. Finally, the bench of Dipak Misra CJI and AM Khanwilkar approved saying live streaming of court proceedings in the prescribed digital format would be an affirmation of the constitutional rights bestowed upon the public and the litigants without violating the dignity and majesty of the Court. It suggested framing of relevant rules expeditiously. In its recent note the Supreme Court stated that recording of proceedings should be according to court’s own decision and xvi Bennett Journal of Legal Studies [Vol.2, Iss.1 notification. Does it mean that every time the court must spell out reasons for not recording and for not giving access? Live broadcasting or recording with provision of access will ensure transparency that enables public hearings in virtual courts. Transparency through publicity improves the objectivity of video conference hearings. To conclude on the first part of article: a) Replacing the real courts with virtual hearing is not possible and not welcome also. b) There is no constitutional or legal obstacle to adopt video hearing technology. c) Video hearing need to be adopted to avoid injustice resulting from lack of physical access due to expense and distance. d) To avoid complaints, there should be recording of proceedings with access to it for review, if not live-web- streaming/broadcasting of the proceedings. e) The SC should consult experts and stake holders including Bar Council of India to make virtual hearings more open, accessible, web-live-streamed and transparent. Internet and Independence of Judiciary First challenge - whether justice system sustains basic norm of openness was discussed in first part. Second challenge- will it make independent judiciary dependent upon technology, where the switch is remotely controlled by non-judicial bureaucracy is examined in this part. The Virtual Courts in COVID19 days, serious threat to justice through virtual hearings is the real political control over the internet technology. The burning example of the en mass denial of rights through banning the internet in Jammu and Kashmir. 2021] Editorial xvii

If the virtual hearings should happen in every court during and post Covid19 days, all stake holders should have enough bandwidth on internet, besides having proper connectivity. The SC communication on May 3, says that since smooth functioning of the video conference is squarely dependent upon and subject to the connectivity (signal-strength/bandwidth) available at the end of the remote user(s), and hence it is expected that any party joining a video-conference hearing shall ensure robust connectivity and bandwidth are available at their end – in this regard, parties may also ensure that no other device or application is connected to or using the bandwidth when the hearing by video conferencing is progressing on the video enabled computer”. Executive controls While TRAI is a regulator of internet communication, the complete control over technology is in the hands of political Executive, which factor is proved in the present-day status of Jammu and Kashmir. The 4G connectivity of internet is taken away by the Union Government citing the need to control terrorism. With the lack of 4G enabled connectivity, the victims of abuse of power in J & K are not able to seek justice by enforcing Article 32, which is not specifically suspended today. It is not possible to have hearing on their habeas corpus petitions in the Supreme Court from J & K, which is under lockdown since 5 August 2019. This ban on high-speed 4G internet has resulted in additional difficulties in hearing of cases through video conferencing. On April 28, a bench had to adjourn a case “on account of poor connectivity” and “non-availability of proper video conferencing facility17”. Ban

17 Sofi Ahsan, Despite internet issues, court has done well during Covid crisis: Chief justice of J&K High Court, 17th May 2020 available at https://indianexpress.com/article/cities/chandigarh/despite-internet-issues- xviii Bennett Journal of Legal Studies [Vol.2, Iss.1 imposed by the Union government is the real control that could deny the access to justice. Is Article 32 suspended? It is unconstitutional to deny any person from using Article 32. If a Bench of HC or for same reason, if the SC cannot connect to petitioner in Kashmir or his advocate, its serious interference with the judicial functioning apart from denial of constitutional rights of the people without any formal suspension. Its atrocious. Several habeas Corpus petitions and PILs from Kashmir could not be taken up because of this technology denial. Chief Justice of J & K Gita Mittal said in a webinar recently: “Now I had to hear lawyers and parties-in-person sitting in Srinagar as well as in Jammu. So, on any particular day of hearing, I have at least 15 parties in the matter — so I have about 8 people on the screen before me and all the others who have difficulties in hearing are joined either by video call or WhatsApp call or on a landline. I have had to innovate but we have done very well in Jammu & Kashmir”. She also had hearing matters over phone calls. Justice Mittal also said that people also need to talk about trials courts in context of virtualisation of courts. The CJ further explained: “That is where justice has to be delivered and that is where the common man and woman go first for justice. That is where there is a huge infrastructure deficit.18” Thus, political denial and infrastructure deficit stops justice from reaching the needy whether during or after Covid19.

court-has-done-well-during-covid-crisis-chief-justice-of-jk-high-court- 6413540/ 18 Ibid. 2021] Editorial xix

The Supreme Court accepted that the government has violated its order in Anuradha Bhasin case19, but unfortunately did not apply the relevant principles laid down in that case. It has spelt out its decision upon the constitutional validity of the internet suspension but asked a “Special Committee” – composed of members of the executive to take appropriate decision20. Besides the democracy, life, civil liberties, the judicial functioning will also become totally dependent upon the decision of that Government’s Special Committee on internet restrictions in J & K. Two norms of Bhasin case not followed are: a) the minimal requirement for any suspension order to be lawful is that it must list the reasons for imposing restrictions, b) any restrictions on the freedom of speech must satisfy the “proportionality” test – which means the restrictions must be a proportionate response to the aim sought to be achieved through the restrictions. Thus, this is a judiciary vs executive challenge that could prevent ‘independent’ judiciary from discharging constitutional obligation without clearance from the Government. One important state is suffering because of the ban on internet. The Private Schools Association, Jammu & Kashmir (PSAJK) filed a PIL contending that the lack of 4G connectivity for internet in Jammu and Kashmir is infringing the fundamental right to education. The PSAJK is an association of over 2,200 schools and the plea has been preferred challenging Government Orders dated 18.01.2020,

19 Anuradha Bhasin vs Union Of India, WRIT PETITION (CIVIL) NO. 1031 OF 2019 (10 January, 2020) 20 Good Analysis of this judgment can be accessed here: https://indconlawphil.wordpress.com/2020/05/11/the-supreme-courts-4g- internet-order-evasion-by-abnegation/ 11 May 2020 xx Bennett Journal of Legal Studies [Vol.2, Iss.1

24.01.2020, 26.03.2020 and 03.04.2020 which led to the imposition of restriction(s) on Internet Speed21. A web portal news magazine commented: 2G internet was first restored in parts of the region on January 14, but only “whitelisted” sites were permitted to be accessed over the network. The number of whitelisted websites was gradually increased through the seven subsequent orders, until all websites were finally made accessible over 2G on March 4. Is it not similarly possible to selectively allow 4G access to some websites while permitting 2G access to others?22 While this situation is specific to Kashmir, generally the ‘control’ over the technology really decides the judicial process, which is not constitutionally acceptable. The ‘ban’’ has its repercussions in Supreme Court. Even if the apex court lists a PIL or Habeas Corpus petition, it cannot hear because of this denial of internet and the person in illegal incarceration will have no remedy. This atrocious power in the hands of technology is cause of wholesale or bulk denial of human/Constitutional rights of the people in Kashmir. Should we allow internet controller to control the justice delivery? Besides this, non-availability of required broadband speed or band width or 2G or 4G enabled net connectivity will also control the access to justice. Capacity to use technology to access the Supreme Court in Delhi is either deficient or connectivity is distributed across the nation unequally. In February 2018, the average broadband speed of fixed-

21 Monitor News Desk, Lack of 4G internet ‘dismantles’ Right to Education, PSAJK petition in SC(April 10, 2020)https://www.thekashmirmonitor.net/lack-of-4g-internet-dismantles- right-to-education-psajk-petition-in-sc/ 22 Shrutanjaya Bhardwaj, Supreme Court Verdict on 4G in Jammu and Kashmir Undermines the Rule of Law, 14th May 2020 available at https://thewire.in/law/supreme-court-4g-jammu-and-kashmir 14 May 2020 2021] Editorial xxi line connection in India was 20.72 Mbit/s, which is less than the global average download speed of 42.71 Mbit/s23. In terms of mobile internet speed, India performed quite poorly, with average speed of 9.01 Mbit/s when compared with global average mobile broadband speed was 22.16 Mbit/s. As of December 2017, according to Internet and Mobile Association of India, the Internet penetration rate in India is one of the lowest in the world and only accounts for 35% of the population compared to the global average internet penetration is over 54.4%24. Another issue is the digital divide where growth is biased in favour of urban areas; according to December 2017 statistics, internet penetration in urban India was 64.84%, whereas internet penetration in rural India is only 20.26%25. Supplement, should not supplant Even after normalcy in post-Covid19 times, this technology should be allowed to remove disadvantages of geographical distance-based inaccessibility as supplemental tool. At least in substantive number of cases the unending orality should diminish, and new norm of precious written submissions should prevail. By minimizing

23 PTI, India ranks 67th in fixed line, 109th in mobile broadband speed: Ookla ( 26th March 2018) at https://economictimes.indiatimes.com/tech/internet/india-ranks-67th-in- fixed-line-109th-in-mobile-broadband-speed- ookla/articleshow/63471893.cms 24 Surabhi Agarwal, Internet users in India expected to reach 500 million by June: IAMAI ( 28th February 2018) https://economictimes.indiatimes.com/tech/internet/internet-users-in-india- expected-to-reach-500-million-by-june-iamai/articleshow/63000198.cms; Internet Usage in India, https://www.internetworldstats.com/stats3.htm 25 Surabhi Agarwal, Internet users in India expected to reach 500 million by June: IAMAI ( 28th February 2018) https://economictimes.indiatimes.com/tech/ internet/internet-users-in-india- expected-to-reach-500-million-by-june-iamai/articleshow/63000198.cms xxii Bennett Journal of Legal Studies [Vol.2, Iss.1 crowding, wastage and dirt, the courts can reduce the transmission of any infection. Another ground that makes it impossible to replace real with virtual courts is that with the control, the judiciary may have to lose complete independence over its constitutional functions under Article 32. The political bans and restrictions on the internet utility service provision in general, on one hand, and specific power of Court Master or some such officer to control the microphone while hearing the case through video, on the other, will make it impossible to render satisfactory justice to both the parties of litigation. Like a speaker of Lok Sabha or anchor of private tv channel no authority should cut the microphone of a lawyer while arguing his case. In physical hearing of the case, a lawyer can see his rival advocate’s movements, observe modulations, can interfere and high light a point with strong emphasis, which can be easily put off by switching off the entire link. An advocate from Chennai said while he was representing a case in Supreme Court, through video from his office, to defend a favourable order of Madras High Court, the link was snapped at Delhi end. After counsel for one respondent presented his case, others were waiting for their turn, but the judge ‘stayed’ the order, without hearing others, by disconnecting the link. This is the problem, if you switch over to virtual hearing, switch off by someone is the real threat to justice. Such a snap or slap cannot happen in real hearing’. If anchor like Arnab kind puts off the mike of a discussant of a tv channel, who doesn’t agree with his view, damage may not be serious. If an opposition leader’s mike is snapped while he was criticising the 2021] Editorial xxiii

Government, there could be some damage. But if a court’s non- judicious officer snaps the mike, advocacy suffers, and justice denied. Courts should follow the principle of natural justice – audi alterum partem = hear the other side. Virtual Courts are expected to be different from and above the level of a private tv channel. Though hearing through video conferencing is an emergency- substitute to real hearing, if it completely replaces it will rattle with this dependency. Even if it is adopted as a supplement, these threats should be removed. Viral tragedy should not be allowed to make justice a casualty in virtual court. Without freeing internet-bandwidth from clutches of state or private hands, judiciary cannot depend on it. To conclude the second part: a) Virtual hearing cannot replace the court room hearings, without establishing infrastructural equality in terms of internet connectivity and bandwidth, removing the disparity of technology haves and have-nots. b) Hearing through video conferencing could be an additional or supplementary as that cannot supplant existing real process of public hearing. c) Even for hearing through video conferencing, the judiciary must have complete control and it should not be dependent upon the Political Executive for permission or allowance to use technology for access to justice either during normal days or Covid19 days. d) Political ban on internet will seriously undermine judicial independence and deny the people the fundamental right to use Article 32, which is the heart of Indian Constitution and imaginative creation of Dr B R Ambedkar. The ban on xxiv Bennett Journal of Legal Studies [Vol.2, Iss.1

Jammy & Kashmir is a blot on democracy as that snaps several fundamental rights including article 32. e) Non-judicial officer’s control over video conferencing could result in denial of principles of natural justice and end up without hearing the two sides. This has to be completely prevented. If not, it will become ridiculous tv debate where anchor will not allow other point of view, or debate in legislature where speaker prevents opposition from speaking. About this Journal and Contributors When we proposed publishing a journal on impact of Corona Virus on Judiciary during 2020, response from students was good. Following is brief account of authors and their ideas in brief. I appreciate their enthusiasm, hard work and articulation in these articles. Jayanta Boruah and Sarthak Aryan in their article on “Impact of CVOID-19 on the Justice Delivery System for Legal and Illegal Migrants of Assam” attempted to understand efficiency of the justice delivery system in dealing with the plight of such migrant workers and will also try to find out certain possible solutions to this issue. Due to lockdown, these illegal immigrants have lost their livelihood too and with the ever-growing ethnic tensions in Assam, their survival is becoming harder every passing day. After the final citizenship draft, some of them were declared as suspected foreigners and were sent to detention camps where living conditions are alleged to be inhumane. The government of Assam is facing several crises at currently. They suggested: “The government needs to attract more investment and industries from outside by labor reforms, tax benefits, incentives, and reform towards ease of doing business in 2021] Editorial xxv

India26. The rights of the labor and union should also be kept in mind by the government while reforming labor laws.27 Law reforms at both the Center and State level will be required to tackle the labor crisis and immigrants’ issue especially in the case of Assam. Issues of Video Conferencing The Article by Kush Kalra and Surya Saxena “Functioning of Courts and Justice Delivery in India During COVID-19 Pandemic” found the video conferencing is an advancement in science and technology which permits one to see, hear and communicate with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. They wrote: Faced with the unprecedented and extraordinary outburst of a pandemic, it is essential that the courts at all levels react to the call of social distancing and make sure that court premises do not contribute to the spread of the virus. This is not a matter of discretion but a duty. Indeed, Courts throughout the country, particularly at the level of the Supreme Court and the High Courts have employed video conferencing for dispensation of Justice and as guardians of the Constitution and as protectors of individual liberty governed by the Rule of law”. They concluded that while corporations can benefit heavily from private and public online dispute resolutions systems, courts especially at district level still require a breakthrough in making the first point of judicial contact with general public more accessible and seamless during pandemic-like situations.

26 Rishi Ranjan Kala, Thrust continues on ease of doing business reforms, Financial Express (May 18, 2020, 11:44 AM),https://www.financialexpress.com/economy/thrust-continues-on-ease- of-doing-business-reforms/1962262/. 27 Alok Rajan & Ishani Tikku, Labour Reforms Necessary, But Hold No Meaning If They Take Away Labourers' Rights, Outlook India (May 21, 2020, 11:56 AM), https://www.outlookindia.com/website/story/opinion- labour-reforms-necessary-but-hold-no-meaning-if-they-take-away- labourers-rights/353237. xxvi Bennett Journal of Legal Studies [Vol.2, Iss.1

Revamping Justice Delivery In article “COVID – 19 Crisis and Digitization: Towards Revamping the Justice Delivery System” the authors Nandini Garg and Vasu Manchanda wrote that though corporations can benefit heavily from private and public online dispute resolutions systems, courts especially at district level still require a breakthrough in making the first point of judicial contact with general public more accessible and seamless during pandemic-like situations. They suggested that,(1) instead of ADR clause, there could be an ODR clause or a virtual hearing clause for ADR in all contracts – not just commercial one and (2)Unattested affidavits could also be allowed with a condition of submitting the attested one shortly as the situation normalizes, (3) Bar Council of India (BCI) must look forward to provide video conferencing facilities to the lawyers. It must be considered that law colleges, bars and courts have a collaborative role to play. Catastrophe for Migrant workers Aniket Dutta in his article “The Migrant Workers’ Catastrophe during COVID-19 Pandemic: Appraising Governmental Actions and Conceptualizing A Plausible Course of Action”, has dealt with ongoing dilution of the labour laws prompting a critical shift in the manner the situation of the migrant labourers in the foreground of the COVID-19 caused lockdown. He has attempted to critically examine the migrant labourers’ predicament from the constitutional and labour laws perspective and endeavours to provide a practical solution considering the interest of the migrant labourers in resuscitating the economy through an economic analysis. He says: “The COVID-19 pandemic has forced most of the legislations to become obsolete, especially the labour legislation and has put the 2021] Editorial xxvii governing principles of a constitutional democracy like India under grave uncertainty”. Virtual Courts Animesh Puneet Gupta and V. Adharsh in their article “Virtual Courts: The Forced Evolution of the Indian Justice System”, referred to a baffling fact revealed by the Census 2011, every day, 2000 farmers are giving up farming28, and that India is undoubtedly under the need to energise this sector to revive the economy as it strikes at several problems at the same time, being, unemployment, lack of income and food. The authors found one major red flag to online courts presents itself in the form of threat to privacy and data. Mainly dedicated to the use of personal or financial information for personal gain, the number of global identity theft cases is increasing rapidly. The documents and information of any given case are sensitive in nature. Generally, if this information is collected by other actors for a different context, it is subject to protection or confidentiality, they concluded. Digital courts- foreseeable future Dr. Kamaraju Chitrapu and Ms. Rituka Mane in their article “COVID-19 and Justice Delivery System: Challenges and Way Forward: Digitalisation of Indian Courts- A Foreseeable Future” tried to recognize the adversities tormenting the current Indian legal regime and address the absence of measures being implemented to handle the same. This paper highlights the advancements that can be made by the use of technology in the judiciary and the role that has been played by the Supreme Court in adapting to the pandemic, through the utilization of Information

28 Jitendra, How to inspire India’s youth to take up farming? Agriculture, (Jan. 25, 2017), https://www.downtoearth.org.in/news/agriculture/how-to-inspire- india-s-youth-to-take-up-farming-56849. xxviii Bennett Journal of Legal Studies [Vol.2, Iss.1

Technology tools. The authors concluded that Unless the fundamental issues plaguing the judicial system are eliminated, no magnitude of technological influx would prove effective. Technology must constructively be introduced at all the levels of the judicial system, from Trial courts to the Supreme Court, and tribunals to make them easily accessible, affordable and equitable. District Virtual Courts In “Application of Virtual Hearing on District Courts of India” the authors Teesta Mishra and Laiba Ahsan referred to problems of virtual hearing of District Courts, which are not as technologically advanced as the higher courts of the country. Virtual hearings, even though the need of the hour, come at the cost of some fundamental attributes of the legal system. They concluded: “This pandemic acted as a reality check for the judiciary and gave it a chance to assess its position in terms of technological advancement. It is a brave new time for the law, and for lawyers and the entire legal fraternity. Our response to the questions of justice that arise in these testing times could set the tone for justice delivery for the indefinite future”. K. Prajna Kariappa says in “The Plague of the Shadow Pandemic: Analysis of India’s Socio-Legal Obligations” that the domestic violence cases have ‘horrifyingly surged’ in gender-based violence cases all over the world and the United Nations has called for a ‘ceasefire’ to curb its rise.29 As reported by the National Commission for Women, India has also transpired to this violence wave.30 The reason for this rise lies in the root causes of stress, anxiety, distress,

29 U.N., UN chief calls for domestic violence ‘ceasefire’ amid ‘horrifying global surge’, (Jun 22, 2020, 05:21 PM) https://news.un.org/en/story/2020/04/1061052. 30 National Commission for Women, Reports, (July 12, 2020, 10:20 PM) http://ncw.nic.in/publications/reports. 2021] Editorial xxix masculinity and other values that are imbibed in the patriarchal system.31 She suggested monitoring and strengthening the implementation of the Domestic Violence Act by exercising due diligence and respond to the complaints that have been reported. The failure of doing so must result in a penalty or sanction of some form. Covid-19 Impact on Contracts Contractual Obligations In the article “Impact of Pandemics and Epidemics on Contractual Obligations and Ease of Doing Business in India: A Case Study of COVID-19 Situation” Abhyudaya Yadav and Yashika Goplani dealt with the question as to whether the current situation will enable the parties to a contract to alter their obligations with non-compliance of terms neither being regarded as a "default committed by any party" nor a "breach of contract". The authors studied the effect on India’s ranking in “Ease of Doing Business Index” because non-performance of contract seriously affects the order of ranking and its measures to mitigate the risk and in cases it may lower India’s ranking as well. There is a thinking in this paper regarding invocation of Doctrine of force majeure and frustration in this situation along with blurred legal position about concepts of these doctrine under Indian law governing contracts, suggesting that invocation of these doctrines should be a fact specific determination, depending on case-to-case basis”. However, they say, one problem will still remain that in all this chaotic situation India’s performance in Ease of doing business will be compromised because of these commercial disputes. Indian civil courts will take years to resolve this which will severely affect process of contract enforcement.

31 Radhika Chopra, From Violence to Supportive Practice: Family, Gender and Masculinity in India, UNIFEM, SOUTH ASIA REGIONAL OFFICE (2002). xxx Bennett Journal of Legal Studies [Vol.2, Iss.1

Enforceability of Lease Deeds The Article by Abdul Samad Khan and Raj Nandini Singh, on “Enforceability of Lease Deeds in COVID-19 and the Dilemma of Landlords in India” highlights the terms like novation, rescission and alteration in the Indian Contract Act,1872 as an alternative from rent obligation in the midst of the outbreak of COVID-19. The young authors concluded that the doctrines of force majeure clause, doctrine of frustration or doctrine of suspension of rent need to be thoroughly examined before applying them to a contract in terms of Covid19 pandemic. They say the tenant-landlord arrangement can get a relief to sustain in such a pandemic by invocation by novation, rescission and alteration in the lease deeds enshrined under Section 62 of the Indian Contract Act. Novation of contract means to create a new contract while terminating the old one. Writers opined that the newly substituted agreement should be valid and fulfil all the conditions of a valid contract as per Indian Contract Act, 1872. Ridhi Suri ad Vidushi Sinha in their article titled, “The thin line of difference between commercial hardship and frustration of contracts: Need for Legal Reforms in light of the COVID-19 Pandemic” emphasized upon the importance of a clear distinction between an event of commercial hardship or inconvenience in performance of a contract, and frustration of a contract, as the former is not sufficient to dispense the parties from performing contractual obligations, the latter renders the contract impossible to perform. Writers thought about paving path for permitting partial frustration of contracts and lay emphasis on the alternate relief of re- negotiating the contractual terms by parties, in order to cater to the problem at hand and to aid the shift of economy from survival phase to the revival phase. The parties while drafting the clause may seek reference from the ICC Force Majeure Clause, which was designed in 2021] Editorial xxxi

March 2020. Such a clause facilitates the drafting process for companies and their lawyers. It adequately provides a safety net provision and places a distinct criterion for commercial transactions which may classify as force majeure events. The general structure of the clause is to provide contracting parties both with a general force majeure formula as well as with an exhaustive list of force majeure events.32This would enable contracting parties to classify distinct categories of force majeure events and not heavily rely upon courts for interpretation, which is the need of the hour especially for long-standing commercial contracts, they suggested. I hope this journal evokes enough interest and enthuse the young students and faculty members to think about burning issues and come up with research articles. It is for the readers to judge.

M Sridhar Acharyulu Editor-in-Chief Professor, School of Law, Bennett University

32 ICC Force Majeure and Hardship Clauses, INTERNATIONAL CHAMBER OF COMMERCE, (Nov. 29 2020, 07:47 PM), https://iccwbo.org/content/uploads/sites/3/2020/03/icc-forcemajeure- hardship-clauses-march2020.pdf IMPACT OF COVID-19 ON THE JUSTICE DELIVERY SYSTEM FOR LEGAL AND ILLEGAL MIGRANTS OF ASSAM

Jayanta Boruah & Sarthak Aryan Abstract The entire world is facing several economic and socio- political issues due to the outbreak of the Covid-19 pandemic., India is also facing such issues where the plight of migrant workers across the Nation has led to a huge humanitarian crisis, especially due to the nationwide lockdown. Amongst those migrant workers, a significant population also belongs to Assam. However, unlike the other States of India, the situation in Assam is unique. Assam is a State which has always been known for a huge influx of illegal immigrants across the borders from Bangladesh for which there had been several conflicts with the indigenous population of Assam in the past and due to recent political happenings in the State, such conflicts have again arisen. It was in such a situation that this outbreak occurred for which a huge section of legal migrants, who are Assamese by origin, had to surrender their jobs and were forced to return home. This is likely to increase the economic burden over the State since unemployment rates will go up and subsequently scarcity of resources will increase. Thus, it might not be feasible for the State to meet the demands of both the

 Mr. Jayanta Boruah is the Research Scholar at the North-Eastern Hill University and Advocate, Gauhati High Court and Mr. Sarthak Aryan is the BA.LL.B, 4th semester student at National Law University and Judicial Academy Assam. 2 Bennett Journal of Legal Studies [Vol.2, Iss.1

legal as well as illegal immigrants with the already downgrading economy and as a result of this pandemic which is going to increase tensions and conflicts in the State. This paper will therefore attempt to understand efficiency of the justice delivery system in dealing with the plight of such migrant workers and will also try to find out certain possible solutions to this issue. Keywords Assam; Citizenship; Covid-19; Illegal Immigration; Migrant Workers; Lockdown

INTRODUCTION Due to the outbreak of the Covid-19 Pandemic, there has been a huge displacement of workers from both formal and informal sectors of the economy across the country. A majority of them are getting displaced due to the loss of their jobs for which they are forced to return to their home jobless. During the lockdown, such workers have suffered majorly due to lack of communications and resources thereby making them reach the level of absolute poverty.1 A major portion of such workers has also migrated back to Assam after losing their jobs and services.2All these legal migrant workers coming back to Assam, has itself burdened due to the fact that illegal immigrant workers from Bangladesh have been

1 Evangeline Elsa, Coronavirus: India’s migrant workers suffer without food, money and transport amid lockdown, tweeps highlight their condition, Gulf News (May 07, 2020, 17, 2020, 01:11 AM) https://gulfnews.com/world/asia/india/coronavirus-india-migrant-workers- suffer-without-food-money-and-transport-lockdown-tweeps-highlightstheir- condition-1.1589556921979. 2 PTI, Assam government not to manage transport for migrants returning by road till state border, Indian Express (Jun 01, 2020, 01:11 AM) https://www.newindianexpress.com/nation/2020/may/05/assam- government-not-to-manage-transport-for-migrants-returning-to-home-by- road-till-state-border-2139521.html. 2021] Impact Of Covid-19 On The Justice Delivery System 3

living there since several decades.3 Illegal immigrants who are ostracized in Assam are facing difficulties since the Assam Movement4 and the recently introduced Citizenship Amendment Act, 2019 is alleged to have made survival more difficult for them as it gave more power to the authorities to suppress them. The Covid-19 Pandemic and the subsequent lockdown are acting as a nail in the coffins of illegal immigrants of Assam. Now with the fresh influx of legal migrants into the State, things will get more complicated both socially and economically. All these situations are about to increase the issues relating to unemployment, poverty, law, and order, decreasing living standards, and instability of the State’s economic integrity are the aftermath of Covid-19. As such it becomes an important question that how reforms will be introduced in the legal mechanisms for addressing such vital issues especially for securing the right of livelihood of the majority of the migrant workers who have lost their jobs due to this pandemic which is not yet over? It is also important to draft policies for adjusting such migrant workers within the State through rehabilitation measures since the migration of them will not be feasible in both the present phase and even after the pandemic. Therefore, the authors will also have to understand the extent of reforms required in order to make such adjustments. This Article will therefore make a brief attempt to understand the problems faced by the migrant laborers. It will also try to understand the conditions of illegal immigrants in Assam. At the same time, the

3 Hiranya K. Nath& Suresh K Nath, Illegal Migrants In Assam: Magnitude, Causes and Economic Challenges. Sem.com, (Jun 01, 2020, 01:11 AM) https://www.sem.com/abstract=1750383. 4 Staff, Assam Violence Key Facts about the Bodo-Muslim Conflict, Firstpost (Jun 01, 2020, 01:11 AM) https://www.firstpost.com/india/assam- violence-5-key-facts-about-the-bodo-muslim-conflict-1507865.html. 4 Bennett Journal of Legal Studies [Vol.2, Iss.1 paper will try to find about probable measures that can be adopted by the justice delivery system in India for mitigating such issues with special reference to Assam.

PLIGHT OF MIGRANT WORKERS IN ASSAM Migrant workers are those Indian citizens who travel to some other states in search of employment opportunities for raising their standard of living. Due to a lack of resources, these migrant workers live in temporary huts or Chawls. Poor infrastructure and housing conditions make these Chawls unfit for human habitation.5 During the Covid-19 pandemic, these slums and Chawls have become the cause of concern for the authorities as in such places, coronavirus can spread rapidly due because of overcrowding and lack of social distancing. Like in the case of Dharavi in Mumbai, which is Asia’s largest slum, where the number of cases is rising rapidly, and thus, for the authorities controlling the spread of the virus and maintaining social distancing measures is becoming a difficult task.6 On March 24 when lockdown measures were imposed and everyone was asked to remain inside their respective homes, it was that point from which the real hardship started for the migrant laborers. Migrant laborers are mostly daily wage earners and street vendors, so they are dependent on daily earning to have their ends meet. But due to lockdown, everything was forced to shut, and these laborers became jobless. Due to the pandemic and poor living conditions, these migrant laborers were living under the

5 Priyanka N. Karandikar, Chawls: Analysis of a middle-class housing type in Mumbai, India, Iowa State University, 32 (2010). 6 Jyoti Shelar &Ajeet Mahale, Coronavirus in Dharavi | When a virus finds space in India’s largest slum, The Hindu (May 09, 2020, 09:21 PM), https://www.thehindu.com/news/cities/mumbai/when-a-virus-finds-space- in-indias-largest-slum/article31537623.ece. 2021] Impact Of Covid-19 On The Justice Delivery System 5

constant fear of contracting with the coronavirus. Now this pandemic has made them jobless and left them to starve for food. All these difficulties left the migrant laborers with no option other than to return to their native places, but it was also not possible since strict lockdown was enforced in which movements of people were restricted. All the trains and buses were suspended so it was not possible for these migrant workers to go back home, leaving them with no options than to starve. Such migrant workers thus had to face a serious humanitarian crisis.7 The above difficulties caused a reverse migration of people and due to lack of any mode of transportation , all these migrants set to home on foot. This carried on for a month where these migrants travelled thousands of kilometres by walking, hitching rides, or cycling.8 There were instances where authorities stopped these migrants and sent them back.9 When the migrants started converging at the state’s borders, some of the states arranged buses for them but it was not sufficient as the number of migrants was in Lakhs. As there were inter-state travel restrictions in place, the migrants were not allowed to travel back which led to migrants getting stuck in the middle of their journey. By late April, the central government came up with a protocol for inter-state

7 Coronavirus: India’s lockdown turns into humanitarian crisis, DW (Jun 02, 2020, 02:11 AM) https://m.dw.com/en/coronavirus-india-india-lockdowm- turning-into-humanitarian-crisisa-5337758. 8 Tanushree Venkatraman & Saurabh Chauhan, In long walk back home, migrants battle hunger, scourge of Covid-19, Hindustan Times (May 16, 2020 06:57 PM), https://www.hindustantimes.com/india-news/in-long- walk-back-home-migrants-battle-hunger-scourge-of-disease/story- TizRfUz69osJQ0Uqmm6jZN.html. 9 TNN, Mumbai: Migrant workers returning home on foot turned back by cops, Times of India (Apr 28, 2020, 05:08PM), https://timesofindia.indiatimes.com/videos/city/mumbai/mumbai-migrant- workers-returning-home-on-foot-turned-back-by- cops/videoshow/75428698.cms. 6 Bennett Journal of Legal Studies [Vol.2, Iss.1 movement of migrants through buses but later they realized that buses were not sufficient. So, Shramik Special Trains were started for migrants from May 1, since trains could accommodate a significantly larger number of labourers and were even faster than buses.10 But questions were raised regarding the fares of the trains as migrants were not in a condition to pay for their own tickets. Although the Shramik trains were started, many instead of waiting for the special trains started their journey on foot. But most of them were stopped by the authorities on highways and were left stranded without any food and water. This misery and plight of migrant laborers prompted the Supreme Court to take Suo Moto cognizance on this issue.11 Supreme Court also directed not to charge any fare from the migrants, irrespective of whether they travel by bus or train. It also directed the States and UTs to immediately provide shelters, food, water, and other necessary facilities to such workers.12 According to the data provided by the railways 4,450 Shramik Special Trains took 60 lakh, migrant laborers back to their home States.13 These are the number of those migrants who travelled by

10 Yuthika Bhargava, Coronavirus lockdown | Railways to run ‘Shramik Special’ trains to move migrant workers, other stranded persons, The Hindu (May 01, 2020, 05:13 PM), https://www.thehindu.com/news/national/railways-to-run-shramik-special- trains-to-move-migrant-workers-other-stranded- persons/article31481996.ece. 11 The Wire Staff, Supreme Court Takes Note of Migrant Workers' Problems, Asks Govts to Respond on Steps Taken, The Wire (May 26, 2020, 01:30 AM), https://thewire.in/law/supreme-court-migrants-suo-motu-centre. 12 The Wire Staff, SC Directs States Not to Charge Fares from Stranded Migrant Workers, The Wire (May 28, 2020, 01:40 AM), https://thewire.in/law/supreme-court-migrant-workers-fares-tushar-mehta. 13 60 lakh migrants took 4,450 Shramik specials to reach their home States: Railways, The Hindu (Jun 15, 2020, 01:55 AM), https://www.thehindu.com/news/national/60-lakh-migrants-took-4450- shramik-specials-to-reach-their-home-states-railways/article31834747.ece. 2021] Impact Of Covid-19 On The Justice Delivery System 7

trains whereas many took lifts on trucks and used other means of transport. When these migrant laborers reached their home States, they were put into the quarantine center for 14 days after which they were allowed to go back to their homes. Similarly, a huge number of such migrant workers also reached Assam. For which now the daunting task in front of the Assam Government was to control the spread of coronavirus during the influx of migrant laborers. If the migrant influx was not handled properly it would lead to the spread of the virus to rural areas and it would lead to a surge in the number of cases.14 By May 30, it was reported that around 700 migrants were trapped in the Assam-Bengal Border, Srimapur.15 The migrant workers that came back after a long walk have promised themselves that they are never going back.16 This will lead the factories and other labour dependent industries to face difficulties while resuming their work.17 The overburdened home states of these laborers will also be unable to provide them with employment and a higher standard of living. Even if the State

14 Amitabh Sinha, India coronavirus numbers explained: Migrant workers a worry for Assam too, The Indian Express (May 26, 2020, 11:37 AM), https://indianexpress.com/article/explained/coronavirus-numbers-explained- assam-northeast-6427688/. 15 Bikash Singh, India Lockdown: Many returns to Assam, ET Bureau (Jun 11, 2020, 01:13 AM) https://m.economictimes.com/news/politics-and- nation/many-have-returned-to-assam/articleshow/74878904.cms. 16 Bikash Singh, Most Assam migrants say they will look for jobs locally, The Economic Times (May 18, 2020, 12:01 AM), https://economictimes.indiatimes.com/news/politics-and-nation/most- assam-migrants-say-they-will-look-for-jobs- locally/articleshow/75794859.cms?from=mdr. 17 Megha Manchanda, Manufacturers will struggle to get labour back after lockdown is lifted, Business Standard (Apr 7, 2020, 09:53 PM), https://www.business-standard.com/article/economy-policy/manufacturers- will-struggle-to-get-labour-back-after-lockdown-is-lifted- 120040701620_1.html. 8 Bennett Journal of Legal Studies [Vol.2, Iss.1 government tries to provide them with basic minimum employment then new reforms and measures will be required.

JUSTICE DELIVERY TO ILLEGAL MIGRATION IN ASSAM Before looking into the conditions of illegal immigrants of Assam during the pandemic we need to have a basic understanding about who illegal migrants are and their legal status. Those foreigners that have entered India without any valid document or authority are termed as “illegal migrants”.18 Illegal immigrants in Assam mostly came on a large scale from Bangladesh for several decades and it affected the demographic structure of the state. It was followed by large-scale protest which is also known as “Assam Movement” led by All Assam Student Union (AASU) and in 1985. Assam Accord was signed after witnessing massive violence where nearly 3,000 people lost their lives. This issue of illegal immigration has often been alleged to have led to serious communal disharmonies between the Muslims and Non-Muslims in the land where these communities of people have lived in peace for several centuries.19 The Parliament approved the Citizenship Amendment Act, 2019 which tried to resolve the pending issue of illegal immigrants. There were already protests and confusions going on regarding the Act and the National Citizens Register while in the meantime the pandemic knocked on the door. The state of Assam and all its machinery that was trying to resolve a long-standing issue had to turn its focus towards controlling the spread of the virus. There are 83,008 pending cases of doubtful voters in 100 Foreign Tribunals

18 The Citizenship Act, Sec. 2 (b) (1955). 19 J. Das & D Talukdar, Socio-Economic and Political Consequences Of Illegal Migrants Into Assam From Bangladesh, Omicsonline, Jou. Tour. & Hosp. (Jun 14, 2020, 01:12 AM) www.omicsonline.org/pdfdownload.php ?download=open-access/socioeconomic-and-political-consequences-of- illegal-migrants-into-assam-from-bangladesh-2167-0269- 10000202.pdf&aid=69610, 2016. 2021] Impact Of Covid-19 On The Justice Delivery System 9

(hereby referred to as FTs) in Assam.20 Due to Covid-19 restrictions, these FTs are not able to function properly. The mechanism laid for providing justice and re-checking of rejection orders to excluded people has not been started because all the government officials are occupied in works related to pandemic. Illegal immigrants who were declared as foreigners are housed in detention centers waiting for deportation. Some major issue regarding these detention centers is that of overcrowding, lack of hygiene, and sanitation.21 Now, these individuals who are declared as foreigners are unable to prove their citizens due to poor documentation, lack of resources, or lack of proper legal assistance. Due to pandemic, many individuals are not able to pursue their cases in higher courts and other appeals are still pending. An individual can challenge their exclusion once their rejection orders are issued but due to Covid-19 restrictions, there is a delay on the part of state machinery in the issuance of rejection orders.22 These detention centers could become a potential hotspot for coronavirus which is the reason why the Supreme Court ordered to reduce overcrowding and decongest the jails and detention centers.23 This

20 Assam Foreigners’ Tribunals have 83,000 pending cases, The Hindu (Sep 01, 2020, 23:34 IST), https://www.thehindu.com/news/national/other- states/assam-foreigners-tribunals-have-83000-pending- cases/article32497289.ece. 21 TahminaLAskar, Detention Centres in Assam Are Synonymous With Endless Captivity, The Wire (Feb 07, 2020, 01:24 AM), https://thewire.in/rights/detention-centres-assam-nrc. 22 Coronavirus outbreak | Forum seeks release of ‘declared foreigners’ from Assam detention centres, The Hindu (Mar 25, 2020, 01:10 IST), https://www.thehindu.com/news/national/coronavirus-outbreak-forum- seeks-release-of-declared-foreigners-from-assam-detention- centres/article31163944.ece. 23 Elizabeth Puranam, India releases 'illegal migrants' from Assam detention centres, Aljazeera (Apr 28, 2020, 01:40 AM), 10 Bennett Journal of Legal Studies [Vol.2, Iss.1 will make the State again overburdened with the responsibility of protecting the human rights interests of such detainees. There are cases of many families who are facing difficulties due to a lack of proper justice delivery systems at lower levels. Like Rohim Ali of Bongaigaon district is very worried as he, his father and brother are in the NRC, but his three sisters are not. Ali and his brother are in the NRC through their ancestral documents, but his sisters are out even after using the same documents.24 Lack of proper justice delivery system has led to innocent families suffer and people being declared foreigners in their own country. Looming over Assam is not only under the threat of coronavirus but also of internal disturbance. Whenever there is an influx of migrants irrespective of being legal or illegal, there occurs demographical changes and violence takes place in Assam. For more clarity, we need to go back when there was an influx of illegal migrants from Bangladesh which led to ethnic violence and massacre like the Nellie Massacre where Bengali Muslim migrants were killed in large numbers and it is also described as one of the worst pogroms since the World War II.25 Now the fresh influx of migrant labor from other states can act as a fuel to already burning fire and the recent case being the barbaric daylight killing of Rituparna Pegu. This case has again highlighted the internal ethnic disturbances brewing in Assam where an indigenous youth named

https://www.aljazeera.com/news/2020/04/india-releases-illegal-migrants- assam-detention-centres-200428091840422.html. 24 Abhishek Saha, Year later, NRC in limbo but those out of it paying the price — passports to marriage, The Indian Express (Oct 15, 2020, 00:36 IST), https://indianexpress.com/article/north-east-india/assam/year-after- final-nrc-assam-foreigners-tribunals-covid-pandemic-6576691/. 25 Ratnadeep Choudhary, Nellie massacre and ‘citizenship’: When 1,800 Muslims were killed in Assam in just 6 hours, The Print (Feb 18, 2019, 02:26 AM), https://theprint.in/india/governance/nellie-massacre-and- citizenship-when-1800-muslims-were-killed-in-assam-in-just-6- hours/193694/. 2021] Impact Of Covid-19 On The Justice Delivery System 11

Rituparna Pegu was brutally murdered in front of his family in the state capital.26 A conflict of interest between those who are Assamese migrants and those who are illegal migrants being there but difficulties in staying in Assam is likely to arise when economic necessities will cripple the State and due to limited resources available, it would be difficult for the State to satisfy the interests of the majority of the conflicting groups.

WAY AHEAD: CALLING FOR MEASURES AND REFORMS TO BE ADOPTED BY THE GOVERNMENT FOR PROVIDING JUSTICE When the lockdown was imposed, all the migrant laborers came back to their home states in order to survive. After the long and hard walk back to home, most of them have made up their mind of not going back again. This mindset of laborers is expected to adversely affect the factories and industries that are solely dependent on laborers. As the process of ‘Unlock’ has begun, the factories started facing an acute shortage of laborers as the workers are refusing to re-join the factories.27 This shortage of labor has not only affected big factories but also small industries and shops.28 Now in order to attract these migrant laborers, the industries and factories need to offer them more benefits, incentives, bonuses, and

26 Prashasti Singh, Youth murdered by former colleagues in Guwahati, 5 arrested, Hindustan Times (Jun 14, 2020, 02:20 AM), https://www.hindustantimes.com/india-news/youth-murdered-by-former- colleagues-in-guwahati-5-arrested/story- 52GG7MtZtaW1XAydyLQN2L.html. 27 Prachi Bari, Industries in Pune now short-staffed, but expects worse post- monsoon, Hindustan Times (May 16, 2020, 03:11 PM), https://www.hindustantimes.com/cities/industries-stare-at-labour-shortage- real-crisis-post-monsoon/story-XScLbc8JzKzzFij879fpnO.html. 28 Roli Srivastava & Anuradha Nagaraj, ‘I will never come back’: Many Indian migrant workers refuse to return to cities post lockdown, Scroll.in (May 30, 2020, 03:30 PM), https://scroll.in/article/963251/i-will-never- come-back-many-indian-migrant-workers-refuse-to-return-to-cities-post- lockdown. 12 Bennett Journal of Legal Studies [Vol.2, Iss.1 a higher pay scale. They need to formally contact the home states of the migrant laborers through the State government via State government channels and they have to take the responsibility of these laborers by offering them a fixed and decent pay scale. Like the Punjab government sent buses to Bihar and Uttar Pradesh for laborers who are necessary for the transplantation of paddy. In order to get the permission of laborers from their home states proper registration of the laborers are needed to be done. The Punjab farmers are required to take the responsibility of the migrant and they will have to provide the migrant laborers with sanitizers, masks, and other basic necessities.29 The above measures are for those laborers who have consented to reverse migration but there are many who might not desire to go back. For those laborers, the government of India has recently launched several schemes like 'Garib Kalyan Rozgar Abhiyaan' which is aimed at providing livelihood opportunities to the talented migrant laborers who returned to their villages during the lockdown.30 The government of India has declared 50,000 crores for this scheme which will be implemented in 116 districts of Bihar, Jharkhand, Madhya Pradesh, Uttar Pradesh, Rajasthan, and Odisha. The scheme will be implemented in 125 days and it will focus on 25 public infrastructure works which include the construction of community toilets, rural roads, and mandis, providing drinking water to every household through Jal Jeevan

29 Vibhor Mohan, Punjab farmers send buses to Bihar, UP to get labour, Times of India (Jun 5, 2020, 03:50 PM), https://timesofindia.indiatimes.com/city/chandigarh/punjab-farmers-send- buses-to-bihar-up-to-get-labour/articleshow/76205948.cms. 30 PTI, PM Modi launches employment scheme for migrant workers affected by coronavirus lockdown, Economic Times (Jun 20, 2020, 04:19 AM), https://economictimes.indiatimes.com/news/economy/policy/pm-launches- employment-scheme-for-migrant-workers/articleshow/76479291.cms. 2021] Impact Of Covid-19 On The Justice Delivery System 13

Mission, etc. 31 Similar schemes shall also be declared for the State of Assam. However, the government of Assam has already declared that it will provide food and jobs to migrant workers.32 But the issue will be regarding the actual beneficiaries of such schemes when the conflict between the legal and illegal immigrants will arise due to lack of proper documentation and severe lacunas in the implementation of the legal and institutional frameworks, it is now very difficult to determine the actual illegal immigrants33 who are definitely going to come in conflicts with the interests of the legal migrants. Even though implementing such schemes might be easier for other states but for the overburdened State of Assam, with illegal immigrants and the fresh influx of migrant laborers, a proper distinction is urgently needed for successfully achieving the targets of such welfare schemes. If the state government of Assam wants to provide benefits to the legal migrant laborers and wants to put an end to the issue of illegal immigrants, then taking away job opportunities of the local population then identification and deportation of the illegal immigrants are needed. However, before deportation proper verification of the documents of immigrants is necessary as there are several cases where an Indian citizen is labelled as an immigrant due to simple spelling error. There are many cases like Riyazul Islam where he and his mother were

31 Harikishan Sharma, Rs 50,000-crore scheme to provide jobs for migrants returning home, The Indian Express (Jun 18, 2020, 05:21 PM), https://indianexpress.com/article/india/coronavirus-india-lockdown- migrants-jobs-6464524/. 32 Assam government to provide food, jobs to the returning migrant workers, NDTV (Jun 10, 2020, 11:10 PM) https://www.ndtv.com/india-news/assam- government-to-provide-food-jobs-to-returning-migrant-workers2231130. 33 Arunabh Saikia, Who Exactly is Assamese? A Petition Before the Supreme Court may Change Definition yet Again, Scroll.in (Jun 17, 2020, 11:11 PM) www.scroll.in/article/835523who-is-assamese-a-new-petition-in-supreme- court-may-change-the-definition-yet-again. 14 Bennett Journal of Legal Studies [Vol.2, Iss.1 excluded from the citizenship draft, but his father and other members of the family were included.34 Such error should be strictly avoided as it may ruin the life of the whole family. Indian constitution under Article 21 provides for the Right to life even to foreigners,35 and sending the illegal immigrants to detention centers which have inhumane conditions and leaving them there to die is a violation of immigrant’s basic human rights.36 Therefore keeping such suspected illegal immigrants in the detention centers will also not be in favour of Justice for which immediate steps regarding deportation or proper verification of identification of such people are urgently needed. However, for dealing with the situation of the surplus unemployed labour force, unused and vacant government lands need to be identified and tapped for the use of these migrant laborers in productive activities.37 This unused land can be given back to the farmers from whom they were taken initially and this will also open opportunity for the migrant laborers to get employed in those lands.38 As the soil in Assam is very fertile39 the unused

34 Reuters, In India's citizenship test, a spelling error can ruin a family, Economic Times (Aug 17, 2018, 07:33 PM), https://economictimes.indiatimes.com/news/politics-and-nation/in-indias- citizenship-test-a-spelling-error-can-ruin-a- family/articleshow/65434885.cms?from=mdr. 35 J. Venkatesan, Right to life, liberty available even to foreign nationals, says Supreme Court, The Hindu (Jun 20, 2013, 08:09 PM), https://www.thehindu.com/news/national/right-to-life-liberty-available- even-to-foreign-nationals-says-supreme-court/article4831250.ece. 36 Tawqeer Hussain, 'How is it human? ‘India’s largest detention centre almost ready, Aljazeera (Jan 02, 2020, 06:39 PM), https://www.aljazeera.com /news/2020/01/human-india-largest-detention-centre-ready- 200102044649934.html. 37 Samar Lahiry, Tapping unused government land, Down To Earth (Apr 11, 2017, 08:30 PM), https://www.downtoearth.org.in/blog/governance/ tapping-unused-government-land-57560. 38 Reuters, In rare move, Indian state to return unused land to farmers, Economic Times (Dec 26, 2018, 08:40 PM), https://economictimes. 2021] Impact Of Covid-19 On The Justice Delivery System 15

government lands can also be used for growing cash crops where the State government of Assam can employ the migrant laborers directly for some years after the pandemic gets over. This will allow the State to have some income as well as to reduce the rate of unemployment. The State government needs to properly register the migrant laborers at block and village Panchayat levels. So that skilled migrant laborers can be contacted in case of a request from other States for skilled laborers for specific jobs like Telangana requested Bihar government to send laborers that are specialized in loading and unloading of rice and paddy as the paddy procurement centers and rice millers were facing a shortage of labor.40 Proper registration and listing of migrant laborers will also help in channelizing the benefits to the migrants as it will help in making them aware of the schemes launched by the government and how they can get themselves registered.

CONCLUSION Someone has correctly said that special situations demand special remedies. The Covid-19 Pandemic put forward a special situation for the government machinery to tackle, which is in media terms known as migrant labor crisis.41 Migrants due to lockdown made

indiatimes.com/news/economy/agriculture/in-rare-move-indian-state-to- return-unused-land-to-farmers/articleshow/67261688.cms?from=mdr. 39 Bhupen Baruah & Bhanita Das, Fertility Status of Soil in the Tea Garden Belts of Golaghat District, Assam, India, Journal of Chemistry, (2013). 40 Roushan Ali, Telangana dials Bihar for 20,000 workers, Times of India (May 11, 2020, 11:50 PM), https://timesofindia.indiatimes.com/city/ hyderabad/state-dials-bihar-for-20k-workers/articleshow/75664949.cms. 41 Remya Nair & Shanker Arnimesh, India’s battling its biggest migrant labour crisis. And labour minister Gangwar is ‘missing’, The Print (Nay 20, 2020, 12:07 PM), https://theprint.in/theprint-profile/indias-battling-its- biggest-migrant-labour-crisis-and-labour-minister-gangwar-is- missing/425693/. 16 Bennett Journal of Legal Studies [Vol.2, Iss.1 them lost their livelihoods and they were left with no money to make ends meet, so they started migrating in large numbers to their home states. It was a long and hard journey back home as some of them walked back whereas some waited for trains to resume and in the journey, many migrants even lost their lives.42 After coming back they had made up their mind and are ready to live on salt43 but they are now refusing to go back as they alleged that they were treated like dogs in the cities.44 At least these migrants have a place which they can call home but for illegal immigrants of Assam who are living here as strangers for so many years have no place to go. Due to lockdown, these illegal immigrants have lost their livelihood too and with the ever-growing ethnic tensions in Assam, their survival is becoming harder every passing day. After the final citizenship draft, some of them were declared as suspected foreigners and were sent to detention camps where living conditions are alleged to be inhumane. The government of Assam is facing several crises at currently. On one hand, it has to identify illegal immigrants living in India without any error and on the other hand, it has to check the spread of the coronavirus and after that, they will have to take care of these migrants who have come back home and are looking for livelihood opportunities. When the coronavirus pandemic will be over and normalcy will be reinstated, but the main issue that Assam will be facing is to provide them

42 The Wire Staff, 22 Migrant Workers, Kin Have Died Trying to Return Home Since the Lockdown Started, The Wire (Mar 30, 2020, 12:30 PM), https://thewire.in/rights/coronavirus-national-lockdown-migrant-workers- dead. 43 Neelam Pandey, ‘Will live on salt’ — UP, Bihar migrants refuse to return to cities, say were disowned by them, The Print (May 6, 2020, 12:45 PM), https://theprint.in/india/will-live-on-salt-up-bihar-migrants-refuse-to-return- to-cities-say-were-disowned-by-them/415516/. 44 Nilanjana Bhowmick, ‘They treat us like stray dogs’: Migrant workers flee India’s cities, National Geographic (May 27, 2020, 12:52 PM), https://www.nationalgeographic.com/history/2020/05/they-treat-us-like- stray-dogs-migrant-workers-flee-india-cities/. 2021] Impact Of Covid-19 On The Justice Delivery System 17

with employment opportunities and basic minimum income to survive. The government of India has launched some schemes to utilize the talents of migrant laborers like the 'Garib Kalyan Rozgar Abhiyaan'. But more reforms and measures will be required like tapping the unused government lands and using them for agricultural purposes. The government needs to attract more investment and industries from outside by labor reforms, tax benefits, incentives, and reform towards ease of doing business in India.45 The rights of the labor and union should also be kept in mind by the government while reforming labor laws.46 The government in order to increase employment opportunities can also put import restrictions on non-essential goods and those items whose substitutes are available in India to boost local products.47 Law reforms at both the Center and State level will be required to tackle the labor crisis and immigrants’ issue especially in the case of Assam.

45 Rishi Ranjan Kala, Thrust continues on ease of doing business reforms, Financial Express (May 18, 2020, 11:44 AM), https://www.financialexpress.com/economy/thrust-continues-on-ease-of- doing-business-reforms/1962262/. 46 Alok Rajan & Ishani Tikku, Labour Reforms Necessary, But Hold No Meaning If They Take Away Labourers' Rights, Outlook India (May 21, 2020, 11:56 AM), https://www.outlookindia.com/website/story/opinion- labour-reforms-necessary-but-hold-no-meaning-if-they-take-away- labourers-rights/353237. 47 Asit Ranjan Mishra, Centre gears up to place restrictions on non-essential imports, Livemint (Jan 3, 2020, 12:05 AM), https://www.livemint.com/news/india/centre-gears-up-to-place-restrictions- on-non-essential-imports-11577987657909.html

FUNCTIONING OF COURTS AND JUSTICE DELIVERY IN INDIA DURING COVID – 19 PANDEMIC

Kush Kalra & Surya Saxena Abstract As per the Constitution of India, access to justice is necessary to defend Rule of law in a democratic system. The challenges occasioned by the outbreak of COVID- 19 have to be addressed while defending the constitutional promise to make sure the delivery and access to justice to those who look for it. Modern technology and skill has enabled courts to advance the quality and effectiveness of the administration of justice. Technology has made possible advances in speed, accessibility and connectivity which enables the dispensation of justice to take place in diverse settings and situations without compromising the core legal principles of adjudication. Indian courts have been proactive in implementing improvement in technology in judicial proceedings. The Indian judiciary has incorporated Information and Communication Technology systems through the e-Courts Integrated Mission Mode Project (e-Courts Project) as part of the National e-Governance Plan (NeGP). The vigorous infrastructure in place has reduced conventional impediments and legal uncertainty surrounding the use of virtual courts. ICT enabled infrastructure is accessible across all courts including the district

 Kush Kalra is a Ph.D. Scholar, Sharda University and Surya Saxena is a Ph. D Scholar, G.D. Goenka University

20 Bennett Journal of Legal Studies [Vol.2, Iss.1

judiciary which comprises the original interface of the court system with the citizen. The use of technology found in the judicial acknowledgement in precedent judgement of the Hon’ble Supreme Court in State of Maharashtra v. Praful Desai, (2003) 4 SCC 601. The Supreme Court held that the term 'evidence' comprises of electronic evidence and that video conferencing may be used to record evidence. It is worth to note that the developments in technology have opened up the likelihood of virtual courts which are alike to physical courts. Advancements in science and technology have shrunk the world. They now allow one to see and hear events, taking place from far away, as they are actually taking place. Video conferencing is an advancement in science and technology which permits one to see, hear and communicate with someone far away, with the same facility and ease as if he is present before you i.e., in your presence. Faced with the unprecedented and extraordinary outburst of a pandemic, it is essential that the courts at all levels react to the call of social distancing and make sure that court premises do not contribute to the spread of the virus. This is not a matter of discretion but a duty. Indeed, Courts throughout the country, particularly at the level of the Supreme Court and the High Courts have employed video conferencing for dispensation of Justice and as guardians of the Constitution and as protectors of individual liberty governed by the Rule of law. Keywords COVID-19; ICT; Technology; Justice; Courts; etc. 2021] Functioning of Courts and Justice Delivery 21

INTRODUCTION Access to justice is essential to protect the Rule of law in the democracy as envisaged in the Constitution of India. The challenges occasioned by the eruption of COVID-19 have to be addressed while protecting the constitutional promise to make sure the delivery of and access to justice to those who look for it. Contemporary technology has enabled courts to improve the quality and efficiency of the administration of justice. Technology has made possible advances in speed, accessibility and connectivity which enable the dispensation of justice to take place in diverse settings and situations without compromising the core legal principles of adjudication. Indian courts have been proactive in embracing advancement in technology in judicial proceedings. The Indian judiciary has included Information and Communication Technology systems through the e-Courts Integrated Mission Mode Project (e-Courts Project) as part of the National e- Governance Plan (NeGP). The robust infrastructure in place has reduced conventional impediments and legal uncertainty surrounding the use of virtual courts. ICT enabled infrastructure is available across all courts including the district judiciary which comprises the initial interface of the court system with the citizen. The utilization of technology found judicial acknowledgment in precedent of Supreme Court in State of Maharashtra v. Praful Desai1. Supreme Court held that the term 'evidence' comprises electronic evidence and that video conferencing may be used to record evidence. It observed that developments in technology have opened up the possibility of virtual courts which are similar to physical courts. The Court held that :

1 (2003) 4 SCC 601. 22 Bennett Journal of Legal Studies [Vol.2, Iss.1

“Video conferencing is a development in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e., in your presence.... Except for touching one can see, hear, and observe as if the party is in the same room. In video conferencing, both parties are in presence of each other... Recording of such evidence would be as per "procedure established by law".2 Recording evidence by the video conferencing also assures the object as provided in the Section 273, that evidence is recorded in the presence of the accused. The accused and his pleader can see the witness clearly as if the witness is actually sitting before each other. In fact, the accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her behaviour. In fact, the facility to play back would enable better observation of demeanour. They can hear and rehear the statement of the witness. The Accused would be able to instruct his pleader right away and thus cross-examination of the witness is as efficient if not better. The facility of play back would give an added benefit whilst cross- examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she were in the Court. All these objects would be fully met when the evidence is recorded through the video conferencing.

WELFARE OF LAWYERS IN TIMES OF COVID-19 Since the nation-wide lockdown was declared by the Government of India, the performance of the judicial institution has been affected to the degree. Only matters of evolving nature are being

2 Ibid. 2021] Functioning of Courts and Justice Delivery 23

listed or heard and that too through video conferencing. The lawyers across the nation have been paying welfare amount upon filing of the Vakalatnama each time they enter an appearance and in the unprecedented situation like the present one, in the court. It is incumbent upon all the State Bar Councils to come clean with the sum of funds they have in the welfare account. Most of the lawyers in this nation earn their livelihood on a day-today basis and they are left barely with any savings except a few. Most of the advocate office/ professional offices are there in the city or premises close to the court. Due to the close down none of the advocates were able to work or earn any amount of money during locked down period. It is relevant to mention here that most of the courts were also not functioning during this period.3 . The right to life4 and practise of any profession5 is a fundamental right enshrined in The Indian Constitution. In such a situation which has arisen due to the pandemic and continuation of lockdown, the professionals are forced to vacate the professional premises or pay rents. This would severally impact their constitutional guarantee under the Constitution. Most of the professionals including advocates have paid their individual clerks and office staff during this lock down period to support the families and to avoid any kind of insecurity. It is apparently evident that many of the professionals are using rented premises for their professional activities. Maintaining such premises without any income for months together would be a herculean task for all the professionals in this country. For

3 Times of India, https://timesofindia.indiatimes.com/india/are-we-closer-to- courts-we-dont-have-to-do-the-rounds-of/articleshow/75887816.cms accessed on 29th oct, 2020 4 Art 21 Of Indian Constitution 5 Art 19 (1) (g) of Indian Constitution 24 Bennett Journal of Legal Studies [Vol.2, Iss.1 maintenance of rented premises, there is no as such support or government assistance given to the professionals to survive during such a difficult situation. This would cause a great hardship for them. Even though, different state governments have prepared schemes for which the benefits were extended to different sects/ class of people in the country, but no specific scheme was formulated for advocates or any professionals in this country6. As per the Advocate Act 1961 , it is the accountability of Bar Council of India and as well as the State Bar Councils to make sure the interests of advocates and smooth running of the judicial system in the country and also to assist the needy Advocates. In Bar Associations in every Courts are also operational for welfare of the advocate fraternity and its alliances. The BCI and SBC are the body corporate under Section 5 of the Advocates Act 1961.The provisions made under Section 77 are as prescribed – “7. Functions of Bar Council of India.― 1[(1)] The functions of the Bar Council of India shall be― (a) [* * * * *] (b) to lay down standards of professional conduct and etiquette for advocates; (c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council. (d) to safeguard the rights, privileges and interests of advocates; (e) to promote and support law reform; (f) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar

6 India Legal Live, https://www.indialegallive.com/special-story/impact-of- covid-19-on-the-landlord-and-tenant-issues/, accessed on 2nd Nov, 2020. 7 The Advocates Act 1961. 2021] Functioning of Courts and Justice Delivery 25

Council; (g) to exercise general supervision and control over State Bar Councils; (h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils; (i) to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities 3[or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf]; [(ia) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest; (ib) to organise legal aid to the poor in the prescribed manner; (ic) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate under this Act;] (j) to manage and invest the funds of the Bar Council; (k) to provide for the election of its members; (l) to perform all other functions conferred on it by or under this Act; (m) to do all other things necessary for discharging the aforesaid functions. [(2) The Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of—(a) giving financial assistance to organise welfare schemes for indigent, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf; (c) establishing law libraries. (3) The Bar Council of India may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be 26 Bennett Journal of Legal Studies [Vol.2, Iss.1

credited to the appropriate fund or funds constituted under that sub-section.”8 The State Bar Councils provides the machinery for this purpose under section 6 of the Act 1961. – “6. Functions of State Bar Councils.― (1) The functions of a State Bar Council shall be― (a) to admit persons as advocates on its roll; (b) to prepare and maintain such roll; (c) to entertain and determine cases of misconduct against advocates on its roll; (d) to safeguard the rights, privileges and interests of advocates on its roll; [(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of subsection (2) of section 7;] (e) to promote and support law reform; [(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest; (eee) to organise legal aid to the poor in the prescribed manner;] (f) to manage and invest the funds of the Bar Council; (g) to provide for the election of its members; [(gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of section 7;] (h) to perform all other functions conferred on it by or under this Act; (i) to do all other things necessary for discharging the aforesaid functions. [(2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of— (a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf; [(c) establishing law libraries.] (3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes

8 Section 7 The Advocates Act 1961. 2021] Functioning of Courts and Justice Delivery 27

specified in subsection (2) which shall be credited to the appropriate fund or funds constituted under that sub-section.” There seems to be sufficient funds with the State Bar Councils9. Under Advocate Welfare Fund, it collects the enormous amount during registration of advocates which can be utilized as emergency measures for smooth running of judicial system10. The Advocates and other victims like Munshis / clerks , typist , , peons of advocates staff; Advocate General Office staff ; photocopiers, , computer operators sitting in the court premises are important part of the smooth judicial system and they cannot be ignored and are to be acknowledged as part of the system for the purpose of financial help in this pandemic time.

EQUIP PRISONS WITH TECHNOLOGICAL CAPABILITIES11 As the COVID-19 pandemic advances, prisons in India are becoming hotbeds because of the virus. Overcrowding in prisons is making it difficult to implement social distancing. Further, the abysmal health facilities is making prison inmates and authorities particularly vulnerable to the virus. General neglect, squalor and inadequate budget allocations by the concerned authorities is rendering prisons, unable to handle any public health related crisis on a massive scale. As on 27 May 2020, at least 19 prisons across India have reported COVID-19 outbreak12.

9 https://blog.ipleaders.in/financial-aid-to-lawyers-during-covid-19/ accessed on 29th Oct, 2020 10 https://www.thehindu.com/news/national/plea-for-emergency-funds-for- lawyers-bci-should-consider-assisting-its-brethren-says-supreme- court/article31474391.ece, accessed on 30th Oct, 2020 11 Dunbar I. (2000): English Prison Design in Fairweather and Me Conville (eds) Oxford Architectural Press. 12 https://www.humanrightsinitiative.org/content/stateut-wise-prisons- response-to-covid-19-pandemic-in-india, accessed on 29th oct, 2020 28 Bennett Journal of Legal Studies [Vol.2, Iss.1

In March 2020, the Supreme Court of India, in an attempt to contain the spread of the virus in prisons, ordered states and union territories to consider releasing all convicts who had been jailed for up to seven years on parole and under-trials awaiting trial for offences entailing maximum sentence of seven years on bail on the recommendation of a High-Powered Committee (“HPC”)13. The order also directed that the presence of undertrials in legal proceedings be ensured through video conferencing (“VC”). However, the process of the decongestion through bail and parole is a complicated one. Technological constraints like bandwidth availability have restricted the functioning of courts to urgent matters and only a few benches have been able to conduct hearings14. Further, many courts do not consider bail proceedings to fall within the ambit of urgent matters. Hence, even after a nod from the HPC, courts are struggling to decongest prisons. On 3rd May 2020, the Ministry of Home Affairs asked all states to suspend prison visits and limit the mobility of people within prisons. As prison visits remain suspended, some states such as Kerala, Karnataka, Jammu and Kashmir and Chandigarh have asked prison authorities to allow video call (VC) for family interactions. However, VC facility is not available uniformly across prisons in India. These restrictions and the fear of the pandemic has resulted in rising anxiety and isolation amongst inmates. This fear and anxiety have even led to a prison riot in Kolkata15.

13 https://economictimes.indiatimes.com/news/politics-and- nation/coronavirus-sc-directs-states-uts-to-set-up-panel-to-consider-release- of-prisoners-on-parole/articleshow/74771877.cms?from=mdr, accessed on 30th oct, 2020 14 MC Donald D.C. (1995) Managing Prison Health Care and cost Washington (US Department of Justice). 15 https://vidhilegalpolicy.in/blog/equipping-prisons-with-technological- capabilities/, accessed on 1st, nov, 2020 2021] Functioning of Courts and Justice Delivery 29

Phase II of the e-courts project has equipped prisons with VC facility, primarily to record evidence in sensitive cases, expert opinions, and legal aid matters16. This existing facility can be utilised and leveraged to help decongest prisons. VC facilities in prisons should be bolstered to accelerate bail and parole proceedings. All such applications should be addressed by a fast- track court within a limited time-period to effectively reduce overcrowding in the prisons. Further, all prisons should consider making video calls available to prisoners to contact their family members. Such measures are necessary to reduce anxiety and isolation amongst inmates. Additionally, the facility of telemedicine should be introduced in prisons to improve medical care of inmates. Telemedicine uses information and communication technology for medical diagnosis and treatment. Telemedicine has already been implemented in the prisons across Maharashtra to address security concerns during medical visits.17 Such a facility will provide quality medical care to the inmates, limit their movement, and reduce their vulnerability to the virus. The use of existing VC facilities can be leveraged to speed-up the implementation of telemedicine. High Courts should issue guidelines to District Courts under their supervision to conduct fast track hearing through VC facilities for parole and bail applications as per the recommendations of the HPC. The Director General, Prisons should issue directives to prisons to extend the use of VC for family and lawyer interaction18.

16 https://ecourts.gov.in/ecourts_home/static/manuals/ PolicyActionPlanDocument-PhaseII-approved-08012014- indexed_Sign.pdf, accessed on 1st Nov, 2020 17 https://health.economictimes.indiatimes.com/news/health-it/telemedicine- facility-set-up-at-central-jail/48324999, accessed on 1st Nov, 2020 18 https://vidhilegalpolicy.in/blog/equipping-prisons-with-technological- capabilities/, accessed on 1st Nov, 2020 30 Bennett Journal of Legal Studies [Vol.2, Iss.1

The Director General, Prisons should issue directives to make required arrangements for telemedicine facility in the prisons.

PROMOTE ONLINE DISPUTE RESOLUTION FOR LOCKDOWN RELATED DISPUTES The COVID-19 induced lockdown has forced the judiciary to work at sub-optimal capacity exacerbating the access to justice problem. At this critical juncture, it is imperative that the judiciary calls its reliable alter-ego, Alternative Dispute Resolution (ADR)19, into action. A strategic nudge towards ADR mechanisms- negotiation, mediation, and arbitration, for categories of disputes where an upsurge of cases is anticipated will ensure efficient dispute resolution without overburdening the courts. Further, the nudge should not be towards traditional ADR mechanisms, but ADR mechanisms implemented in an online form. In fact, anticipating a similar rise in disputes due to the pandemic, a few jurisdictions have already adopted tailor-made ADR schemes. One such is the ‘COVID-19 Online Dispute Resolution (“ODR”) Scheme’ by Hong Kong’s Department of Justice. Simply put, ODR is ADR enabled by technology20. It completely dispenses with face-to-face interaction and allows for communication that need not happen in real-time, thereby allowing parties to engage in the process at their convenience. ODR can be court-annexed or provided through independent private platforms operating outside the courts. Both these forms are already commonplace in several jurisdictions for consumer disputes, domain name disputes and small cause cases, among others. Along the lines of what has been established in

19 Capper, Phillip, INTERNATIONAL ARBITRATION: A HANDBOOK (3rd ed. 2004). 20 https://trinityflac.files.wordpress.com/2020/09/flac-technology-and-access- to-justice.pdf, accessed on 2nd Nov, 2020 2021] Functioning of Courts and Justice Delivery 31

Hong Kong, the government along with the judiciary, should design a scheme to resolve these specific disputes through ODR.

• The Department of Justice, Ministry of Law and Justice, should formulate a new ODR scheme to resolve COVID-19 induced disputes in the above-mentioned sectors. Such a Scheme should encompass the following features:

• Set up a fund to facilitate legal industry, ADR institutes and centres to procure IT systems and provide training to arbitrators/ mediators and lawyers to conduct remote hearings.

• Co-opt existing ODR platform/s to provide cost and time effective dispute resolution. Over time, court annexed ODR capability needs to be developed. Cap ODR fee and fix timelines based on categories of disputes.

• Tap into private dispute resolution professionals and institutions as well as the court-annexed centres for additional capacity.

• Provide legal aid and a helpline number to assist the parties in effectively participating in ODR processes. Final year law students could be co-opted as paralegals for this purpose21.

CONCLUSION It is important that the courts at all levels respond to the call for social distancing in the face of the occurrence of a pandemic and ensuring that the court premises do not lead to the dissemination of the virus. It is not a question of judgement, but an obligation. Indeed, courts throughout the country have used video conferences for the dispensation of justice and as guardians of the Constitution

21 Heldley, Steve, THE LAW OF ELECTRONIC COMMERCE AND THE INTERNET IN THE UK AND IRELAND, LONDON (2006). 32 Bennett Journal of Legal Studies [Vol.2, Iss.1 and as protectors of individual liberties regulated by the Rule of Law, especially at the level of the Supreme Court and the High Courts. The Supreme Court in exercises power conferred in Article 142 of the Constitution of India, made guidelines in the case of Appellants: In Re: Guidelines for Court Functioning through Video Conferencing22 and held that: (i) The functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful. (ii) The Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies; and (iii) Every High Court is authorised to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies. (iv) The concerned courts shall maintain a helpline to ensure that any complaint in regard to the quality or audibility of feed shall be communicated during the proceeding or immediately after its conclusion failing which no grievance in regard to it shall be entertained thereafter. (v) The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court. (vi) The Court shall duly notify and make available the facilities for video conferencing for such litigants who do

22 SUO MOTU WRIT (CIVIL) NO.5/2020. 2021] Functioning of Courts and Justice Delivery 33

not have the means or access to video conferencing facilities. If necessary, in appropriate cases courts may appoint an amicus-curiae and make video conferencing facilities available to such an advocate. (vii) Until appropriate Rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court. (viii) The presiding officer shall have the power to restrict entry of persons into the court room or the points from which the arguments are addressed by the advocates. No presiding officer shall prevent the entry of a party to the case unless such party is suffering from any infectious illness. However, where the number of litigants are many the presiding officer shall have the power to restrict the numbers. The presiding officer shall in his discretion adjourn the proceedings where it is not possible to restrict the number.23 The above directions by the Supreme Court of India are issued in furtherance of the commitment to the delivery of justice.

23 https://www.multilaw.com/Multilaw/Multilaw_News/Jurisdiction_News /India_COVID19_court_functioning_through_video_conferencing.aspx, accessed on 2nd nov, 2020 34 Bennett Journal of Legal Studies [Vol.2, Iss.1

Suggestions regarding functioning of courts in restricted manner during covid-19 times: 1. Only lawyers having matters in courts be allowed to enter the premises of Supreme Court after proper check and verification. Sanitization of lawyer’s chambers be requested from competent authorities. 2. Clerks and litigants at no cost should be allowed to enter the court premises. 3. At the entry gate a strict checking mechanism for covid-19 should be there for all lawyers entering the court premises. 4. Only vehicles having valid passes be allowed to enter the court premises after strict and thorough check. 5. Sale of cigarettes and tobacco near the court premises should be banned till covid-19 subsists. 6. Daily awareness activities regarding covid-19 can be organized by bar association for lawyers. 7. Availability of ambulance and doctors in sufficient numbers be made available in court premises from the day lockdown relaxations come into effect. 8. Supreme Court museum should not be allowed to function till covid-19 subsists. 9. Only some gates of court premises be opened for entry and exit and not all gates should be opened till covid-19 subsists. 10. For lawyers, booths of doctors and first aids be established in court premises. 11. Proper signage should be put in court for toilets/washrooms and gates so that in emergency no panic is there. 2021] Functioning of Courts and Justice Delivery 35

12. Extra Sanitizers and washing areas be designated in court premises till covid-19 subsists. 13. Files/briefs to be sanitized in registry or any other department by concerned designated person till covid-19 subsists. 14. Entry and exit time for lawyers in courts should be fixed and no lawyer should enter the premises after the designated timings till covid-19 subsist.

COVID – 19 CRISIS AND DIGITISATION: TOWARDS REVAMPING THE JUSTICE DELIVERY SYSTEM

Nandini Garg & Vasu Manchanda Abstract Outbreak of COVID-19 led to economic and political turmoil all over the world. Downsizing, return migration, mental health issues, privacy infringement and data breach concerns, police atrocities and domestic violence along with the other vulnerabilities of the system became evident, with the state and self- imposed lockdown, however, one facet of democracy that cannot take a back seat amid the pandemic is access to justice. The paper discusses various initiatives taken by the Supreme Court of India, social distancing and sanitation measures undertaken by state and district high court judges, and role played by the courts such as virtual courts, video conferencing and e-court services in imparting free and fair access to justice to citizens. Alternate and online dispute resolution (ADR/ODR) systems have become all the more imperative amid and post the crisis. Need for investment outlay, integrated coordination by the Bar Council of India (BCI), courts and Indian Council of Arbitration (ICA) - like arbitration bodies, adequate technological training, ratification of international conventions and legislation of the model law to enforce the mediated-agreement settlements reached through such processes are emphasised. The paper further

 Both the authors are Law Centre II students at Delhi University. 38 Bennett Journal of Legal Studies [Vol.2, Iss.1

highlights the challenges faced by the Indian legal system by the virtue of the exorbitant socio-economic and digital divide, need for upskilling lawyers, magistrates, judges and the court staff and the initiatives undertaken by the e-committee in making justice more accessible and seamless. While corporations can benefit heavily from private and public online dispute resolutions systems, courts especially at district level still require a breakthrough in making the first point of judicial contact with general public more accessible and seamless during pandemic- like situations. Technological advancements are here to stay in the post-COVID-19 era, as a supplement to existing multitier legal system with the adoption of a different set of mindsets comprising dispute containment, dispute resolution, better drafting of contracts, incorporation of virtual hearings in the ADR/ODR clause and enforceability and utility of out- court settlements. Keywords E-courts; Virtual Courts; Online Dispute Resolution (ODR); Arbitration; Mediation; Justice delivery; digital divide

INTRODUCTION The pre-existing justice gaps require the rapid assessment and the lacunae of the justice delivery system to be addressed in order to enhance the accessibility of justice by every individual, organization, society, groups, and others.1 There are several

1 Lateef, Sarwar.India’s Governance Challenges: Why Institutions Matter In India Transformed: Twenty-Five Years of Economic Reforms, edited by 2021] Covid – 19 Crisis and Digitisation 39

constraints being faced by the justice system such as lack of technical knowledge, poor IT infrastructure, diversity, socio- economic differences, poor awareness, vacancies, pendency of cases, etc which are a hindrance to the delivery of justice. This has brought the resilience of justice system into the prime focus. Implementation of legislations in an efficient manner and a broader progress is required to achieve the principles of justice.2 COVID-19 has posed the situation of global emergency across several dimensions such as environmental concerns, criminal justice delivery delays, contractual issues over the agreements, labour laws, and migration issues, amongst several others. The Indian legal system has slowed down, though still continuing through the limited available measures.3 There have been several safety measures taken by advocates, judges, and court staff in the form of limiting the number of people inside the court premises, using masks and social distancing in the courts, through virtual hearings of urgent case matters. Courts are working in a limited capacity using remote technology such as tele- conferencing used by advocates to converse with the inmates and video conferencing is used for court hearings. Considering the spread of pandemic, inmates with health-related concerns or non- serious crimes are being released on bail or probation. Judges and prosecutors are taking into consideration the issues arising out on health or the fact that life of the undertrial

MOHAN RAKESH, 203-23. Washington, D.C.: Brookings Institution Press, 2018 2 Kumar, C. Raj., Legal Education, Globalization, and Institutional Excellence: Challenges for the Rule of Law and Access to Justice in India, Indiana Journal of Global Legal Studies 20, no. 1 (2013): 221-52. 3 Meghna Mishra and Sumit Malhotra, Covid-19, an inflection point for digitization of the Indian legal system, The Daily Guardian, available at https://thedailyguardian.com/covid-19-an-inflection-point-for-digitisation- of-the-indian-legal system/ (last visited on July 21, 2020). 40 Bennett Journal of Legal Studies [Vol.2, Iss.1 prisoners and accused is in jeopardy. However, internet accessibility vis- a- vis justice accessibility has become a growing concern due to the existing enormous amount of digital and social divide.4 Financial constraints are another alarming concern due to which people are finding it difficult to avail the lawyer’s services in order to approach the courts. The pro bono work and legal aid services are taking a back seat due to the restrictions on movement, despite that certain advocates and law firms are found offering their multiple lending programs and payment plan options to the corporations and business houses. Several individuals are being abused by the police authorities and law and order has been found to be compromised in various workplaces. Several others are being exploited by their employer, and employees. People are finding it difficult to avail justice. Thus, delivery of justice system needs to be made as an essential service since the accused are requiring the courts to conduct hearings and personal liberty of citizens is a major cause of concern. Financial infrastructure with the state should not be a constraint to help the people in distress during the ongoing pandemic crisis. It is essential to take into consideration that the current justice delivery system would significantly increase the backlog of the cases in the already overburdened court rooms, which implies an increase in the pendency of the cases further. While, post-COVID- 19, when normalization shall be order of the day, virtual courts would still be the need of the courting-system in order to clear the pending backlog. However, it could be seen that only the High Courts in few states and the Supreme Court have gone digital,

4 Venkatesh, V., & Sykes, T. (2013). Digital Divide Initiative Success in Developing Countries: A Longitudinal Field Study in a Village in India. Information Systems Research, 24(2), 239-260. 2021] Covid – 19 Crisis and Digitisation 41

though trials are continuing to be an issue, since they are not being executed efficiently in the trial courts.5

THE DIGITAL DIVIDE The delay in delivery of justice is enhanced through the digital divide and further escalation in the violation of human rights, legal rights, fundamental rights, and others.6 Also inability to deliver justice and to address the concerns has been further boldening the violators in several ways. The digital divide further places women and children under stress because of lack of connectivity to the virtual and electronic systems i.e., exclusion from digital services which magnifies the concerns of delivering justice to all persons. The barriers concerning identity, lack of affordability, adverse norms are the rising concerns which prevent the reach of justice to the vulnerable individuals. During the COVID-19 crisis, it further becomes imperative to have informational access as well as availability of the support system from the governmental agencies. Unavailability of devices to the groups such as women and children places them on the brink of exclusion from the justice in case of violation of their rights and in case of domestic violence.7 Also, the concerns are looming as this results in barriers placed while accessing remote services which are available through mobile phones, texts, and message applications.

5 DRÈZE, JEAN and AMARTYA SEN. A New India? In An Uncertain Glory: India and Its Contradictions, 1-16. Princeton; Oxford: Princeton University Press, 2013 6 Webb, H., & Munro, M. (2020). Human Rights and Access to Justice During Covid-19. Socialist Lawyer, (84), 5-5. 7 Fais, C. (2008). Denying Access to Justice: The Cost of Applying Chronic Nuisance Laws to Domestic Violence. Columbia Law Review, 108(5), 1181-1225. 42 Bennett Journal of Legal Studies [Vol.2, Iss.1

At the outbreak of the pandemic, the directions issued via health ministry were taken into consideration in lieu of containing the spread. The courts all over the country began observing the norms of social distancing, frequent sanitizing of the court rooms between hearings, temperature measurements of individuals at the entrances, and reduction in the number of lawyers and interns inside the court premises. However, at the onset of lock down declarations throughout the country, concerning the safety of lawyers and judges, courts were shut down completely. Since access to justice is a basic principle of rule of law8, every citizen has a right to access to court.9 In order to ensure the same the Supreme Court switched over to the virtual format of hearings through several technology platforms such Vidyo, Zoom, etc. and directed the suspension of the limitation period under all general and special laws from 15th March, 202010. Considering the cases and matters before the courts, it was observed that the criminal judicial system cannot operate without the courts in place even during the ongoing COVID-19 crisis, since the liberty of accused cannot be curtailed, and the accountability of government, its agencies and the rule of law cannot be done away with. It was on 16th March 2020 that the Supreme Court took cognizance of decongesting the Indian prisons. A decision was taken to call upon the state High Courts and take their opinion on the matter. On 23rd March 2020, the Supreme Court passed an order to set up a high-powered committee consisting of Director General Prison, Principal Secretary and Chairman of the legal services committee of the particular state to determine the class of

8 Raymond v. Honey: 1983 AC 1 (1982 (1) All ER 756) 9 Steyn LJ in R v. Secretary of State for Home Dept, ex p Leech 1993 (4) All ER 539 (CA) 10 Suo Motu Writ (Civil) No. 3 of 2020, https://main.sci.gov.in/supremecourt /2020/10787/10787_2020_1_12_21570_Order_23-Mar-2020.pdf 2021] Covid – 19 Crisis and Digitisation 43

prisoners that could be released either on bail, interim bail, or parole. It held criterion for the release of prisoners such as if the convict has been imprisoned or an accused has been under trial for a sentence for a period lesser than 7 years, age of prisoner, pendency period of appeal, nature and severity of crime, number of years undergone imprisonment, amongst others. It was noted that age cannot be taken as a sole criterion for the release and needs to be taken along with another criterion only. The Supreme Court left the discretion of the decision to be made by the high- powered committee. The committee, thus, came up with the suggestion of furlough, special furloughs, and others. This led to the observation of how personal liberty could be upheld by the Courts even during the lockdown. On the other hand, the Rajasthan High Court passed a direction11 that bail matters would not be of extreme emergence, where Supreme Court immediately intervened and put a stay on the order.12 It was settled that bail matters were to come under the purview of urgent matters before the courts. It was further noted that though the inmates could be released on bail on the recommendation of the committee, they were released only upon the satisfaction of the trial courts, which led to road-block situation. Several problems arose such as the courts did not release them without being sure of the release and attaining surety did not come easy amidst the pandemic. Eventually, the problem was raised before the Delhi High Court which immediately passed an order for the release of prisoners on personal bond to the satisfaction of the jail superintendents. However, it was firmly held by the court that such direction shall not act as a precedent and was

11 Shahrukh v. State of Rajasthan, 2020 SCC OnLine Raj 400 12 High Court of Judicature for Rajasthan v. State of Rajasthan 44 Bennett Journal of Legal Studies [Vol.2, Iss.1 only for an unprecedented and exceptional situation like COVID- 19. Meanwhile, the Supreme Court utilised the crisis time in disposing off the review petitions. The online process started gaining prominence and became seamless in the Supreme Court. Several courts have been able to move themselves online and conduct their hearing is a reflection on the existence of online infrastructure in place though not completely viable and accessible at all the levels of judiciary. A proposal on the module for e-filing of cases was put forth by the Supreme Court via webinar, though the success of the module in incorporating technology is held in the satisfaction of all the stakeholders. The setting up of an adequate and robust infrastructure involves consultation with various stakeholders, expertise in training, platform development and testing of the systems. It was considered that the bar needs to be technically equipped to make technology accessible not only in the metropolitans and urban areas but also in the rural setups. The Supreme Court passed orders under Article 142 of the Constitution of India. Justice Dr. DY Chandrachud constituted a committee of five judges of the heads of IT committees of various High Courts comprising- Justice Satish Sharma from Madhya Pradesh, Justice Arvind Kumar from Karnataka, Rajeev Shabdar from Delhi, Sivanarang from Chennai, and Nitin Zaamdaar from Bombay. They were assisted by Mr. Tarsee Zabaan who is the former judge of the Bombay High Court and has been appointed to be the vice chairperson of the e-committee. The committee developed model, framed video conferencing rules, invited suggestions from all the High Courts and thereafter, rolled out for the acceptance of norms and their implementation by the courts which led to the establishment of a legal regime. This was essential 2021] Covid – 19 Crisis and Digitisation 45

for the creation of standard operating procedure and training manuals for everyone to be updated by the rules of the committee on which it has been working. The e-committee, thence, has been working on four major projects which comprises of laying down the statement of purpose for digitisation and for e-filing across the country, rules for live streaming, dealing with Inter-operable Criminal Justice System (ICJS) platform, and the interlinking of law libraries. According to the National Judicial Data Grid (NJDG)13, the pending cases were 32.45 million all across the country comprising 9.05 million civil cases and 23.39 million criminal cases. The cases less than a year old comprise of 32%, 1-3 years - 28%, 3-5 years -15%, 5-10 years - 15%, 10-20- 7%, 20-30 years - 1.28%, above 30 years - 0.26%. Thus, the focus of e-courts laid on the cases that had 10 years pendency in order to clear the lot. In April 2020, amidst the crisis, through e-filing and otherwise - 3,049 civil cases and 90,742 criminal cases were instituted. Courts have disposed 832 civil cases and 40,095 criminal cases since then. Overall, in 8230 court complexes, there are 133.24 million pending and disposed cases.

VIOLATIONS OF RIGHTS AND CURTAILMENT OF JUSTICE While the health sector and other frontline workers who are important for the response towards pandemic and in mitigating the impact, are forming the epicentre of the COVID-19 crisis and facing several constitutional vis-a-vis non-constitutional challenges14, bringing the delivery of justice into focus. There is an increased discrimination and violation of laws in several forms

13 National Judicial Data Grid, https://njdg.ecourts.gov.in/njdgnew/ (last visited on July 21, 2020). 14 Sinha, S.B. Constitutional Challenges in the 21 St Century. National Law School of India Review 21, no. 1 (2009): 117-32. 46 Bennett Journal of Legal Studies [Vol.2, Iss.1 such as domestic violence, child abuse, sexual abuse, mental harassment etc. which reflects the undermining and weakening of justice delivery.15 The crisis is further deepened since it shall be affecting alimony and child support system with the potential of alteration of decisions in the cases, their management and judgments’ enforcement. As per several reports, it has been seen that the resources have been turned away from the justice delivery towards providing relief measures for COVID-19. Legal aid has been scaled back for several reasons. Court proceedings in several countries went for a complete shutdown while some countries have witnessed new systems in place with innovations which had been long due. There has been a worldwide curtailment of justice as seen in several African and Asian countries.16 Delays have been observed in reporting and addressing the conflicts arising out of violation of rights at home, workplace, and others. Significant repercussions have been met in legal aid and responses by the victims. The cumulative effects of the pandemic reflect the victim’s poor and almost negligible access to justice.17 The case management system that operates remotely through paperwork in most judicial systems has been a cause of worry during the COVID-19 crisis. Gender justice, gender equality, child protection and care concerning the most sensitive and vulnerable groups in the society have been

15 Bernard-Donals, M. (2020), On Violence and Vulnerability in a Pandemic. Philosophy & Rhetoric, 53(3), 225-231. 16 Ghosh, Priyabrata. CIVIL JUSTICE SYSTEM: ITS DELAYS AND SOLUTIONS Journal of the Indian Law Institute 41, no. 2 (1999): 264-71. 17 Justice A.K. Ganguly, Access to Justice, Cuttack Conference, ILI Golden Jubilee 1956-2006. 2021] Covid – 19 Crisis and Digitisation 47

major issues before the delivery of justice with the limited resources amidst the pandemic.18

THE DEVELOPMENT OF E-COURTS E-courts19 project was launched in 2007, and has had two phases which are - Phase 1: (Feb 2007- March 2015) – With an initial outlay of Rs. 935 crores, in phase I of the e-courts project, 14,249 court rooms were prepared to have hardware and software and 13,606 Local Area Networks (LANs) and 13,436 hardware were installed in 13,672 court complexes. Judicial service centres and computer server rooms were readied for computerization of the District Courts and Case Information Software (CIS) was set up to provide case related services to lawyers and litigants. Further software was deployed and infrastructure for video conferencing between courts and jails covering 840 locations was set up. Phase 2: Second phase initiated on August 4, 2015 for the next 4 years or till the project is complete. The amount sanctioned was around Rs. 1670 crores. In this phase, provisions for additional hardware, LANs were made for the court complexes and in order to enhance the capacity building of Judicial Officers and process re-engineering, provisions for Judicial Management System including use of Digital Libraries and integrated Library Management System were made.

18 Sandefur, R., Access to Civil Justice and Race, Class, and Gender Inequality. Annual Review of Sociology, 34, 339-358 (2008). 19 E Courts Services District and Taluka Courts of India, https://services.ecourts.gov.in/ecourtindia_v6/static/about-us.php (last visited on July 21, 2020). 48 Bennett Journal of Legal Studies [Vol.2, Iss.1

Some of the major features of e-courts have been -

• All recourse to video conferencing must be made available to public and the access to public courtroom must be preserved through video conferencing.

• Customization of Operating System (OS) software - Setting up of CIS using an open-source software called Free and Open-Source Solutions (FOSS), thereby saving nearly Rs. 340 crores of the public exchequer since it did not use any licensed software, rather operated on Ubuntu Linux platform.

• Features of Case Information Software (CIS) software - It is an open-source software, bilingual, available in Hindi, Marathi, Kannada, Gujarati, and Tamil. It comprises of a data health card i.e., an inbuilt feature in the CIS to reveal the missing data entry. Another facility is to hide the party’s name, details of the cases where privacy is required whose access should not be given to public, for instance in a child sexual abuse case, matrimonial disputes, private issues related to spouses, etc. CIS as a part of e-court project was developed by National Informatics Centre Pune and is based on the courts periphery model which is installed in all district courts.

• E-court website - Every district court has its separate website where judicial orders are uploaded. Despite of CIS every court has a CNR number attached to a case number record. It is a unique identifier of each case which is pending, and which has been disposed of throughout the country. CNR number can be converted into QR code 2021] Covid – 19 Crisis and Digitisation 49

images and by simply scanning the QR code and users can get the entire case history.

• E-seva Kendras - E-seva Kendras began with establishing one in every High Court at the principal locations and at one pilot location in the districts. The rationale behind setting up of e-seva Kendras is to mitigate the digital divide, to provide services to litigants and clients to access to those services those e-courts extend. The prime features of e-seva include facility of an SMS push, where the status of the case is sent automatically to a registered advocate through an SMS via CIS 3.0. SMS pull facility is enable for litigants who do not have internet connection. Thus, the case details are received via an SMS by sending the unique CNR number. Also, the case details are sent as an automatic reply to the user’s mobile. E-filing module for Supreme Court – The filing of case before the Supreme Court is possible on 24/7 basis. Every case which is filed would undergo an online scrutiny, defects would be conveyed to the lawyer online, scheduling would be indicated, court fees would be paid online, digital signature and lawyers would know their cause list, where docs have been filed by them or are to be filed or against them. Further, cases in draft mode prior to filing and what are cases that are in defect all shall be made available on the server. Another feature of e-filing includes national e-payment, which is in the pipeline to be made available throughout the territory of India. It shall enable online payment of the court fees, fines, penalties, and judicial deposits across the nation. E-payment portal is being integrated by state-specific vendors like SBI e-pay, e-grass, grass, j-grass, and Him-kosh.

50 Bennett Journal of Legal Studies [Vol.2, Iss.1

VIRTUAL COURTS Virtual courts20 are using the remote working system while leveraging technology in the form of software and tools. It aims at eliminating the requirement of physical presence in the court rooms and assist in the adjudication of cases preventing delays due to unavailability of the litigant, client, or court staff during the COVID-19 pandemic like situation. E-courts are a subset to the virtual courts, referring to legal websites, components, AI tools, which shall be used to assist and ensure smooth functioning of the virtual courts. Virtual courts are another facility under the e-courts model, and have been operating in Delhi since 26th July 2019, dealing with petty traffic cases, challans. It could be seen that while twenty judicial officers were working on the traffic cases, and as a result of the virtual courts, they have been replaced by one judicial officer.21 Also, 7,32,061 cases have been disposed since its inception and an amount of 89.5 crores by means of fines have been realised. Recently, phase 2 of virtual courts was released in Delhi High Court in order to retrieve CCTV images of offending vehicles captured by the camera which could be sent directly to the main server. The data is collected and sent to the owner of the vehicle to help one track the offence. The offender has a facility to either pay up the fine online or contest the case in the court. Also, virtual courts have been set up in Pune, Madras and Faridabad. However, concerning the crisis, more virtual courts are needed to address the cases.

20 Virtual Courts, http://vcourts.gov.in/virtualcourt/ (last visited on July 21, 2020) 21 Place judiciary’s tech infra on robust basis: Justice Chandrachud, Outlook India, https://www.outlookindia.com/newsscroll/place-judiciarys-tech- infra-on-robust-basis-justice-chandrachud/1833391 (last visited on July 21, 2020). 2021] Covid – 19 Crisis and Digitisation 51

During lockdown, the Delhi High Court has provided rules for video conferencing. It has laid down rules for the sign language interpreters and special educators which are binding on subordinate courts as well. It is pertinent to note that Persons with disabilities (PWD) face justice delivery issues which raises concerns on their inclusivity.22 Therefore, an initiative has been taken by the e- committee to enable the files and judgments of virtual courts in a machine-readable format. It is essential to consider that e-transcripts in virtual courts are a must and mechanism could be implied as taken from the Canadian virtual courts and Online Dispute Resolution (ODR) systems in order to render the entire system as more inclusive. Also, as per the Rights of Persons with Disabilities Act 2016, access to equal justice has been mandated, not only to the deaf litigant but also to the witness. Committee has also been working on making these courts more accessible to the advocates with disabilities. ICJS looks at live electronic exchange of data between the courts and criminal justice system. The rationale behind setting up an ICJS is to have a platform where all the meta data in relation to the administration of criminal justice becomes readily available and is easily accessible to be traced by all the elements of the system. Thus, from filing of FIR to making of a charge sheet can be tracked on ICJS platform. In a pilot study conducted on ICJS conducted in Telangana, inaugurated on 15th December 2018, it showed that 60% of delay conducted in Indian courts is because of non- service of summons. In order to address the issue, National Service and Tracking of Electronic Process (NSTEP) Application

22 Jain, S. (2017). ICT Access, Disability Human Rights, and Social Inclusion in India. In Lazar J. & Stein M. (Eds.), Disability, Human Rights, and Information Technology pp. 263-278 (2017). 52 Bennett Journal of Legal Studies [Vol.2, Iss.1 has been developed. It is a mechanism that provides a centralised process serving facility. The advantages that could be seen are -

• Virtual courts in India23 help attend different matters in different jurisdictions,

• reduced cost of litigation as it saves travel time and opportunity cost of lawyers,

• reduces disparity as junior advocates would not be intimidated by the senior advocates,

• needless to run from one court room to another to seek adjournment, or wait for a matter till the senior arrives – as everything is accessible at just a click of a button,

• all advocates shall share the equal screen time and arguing time, and

• seniors can be muted if they imply meagre means. The challenges that stand before the virtual courts are -

• the securing of the witness,

• difficulty in cross-examination,

• maintaining confidentiality of the court matters,

• providing an environment for observation of witnesses,

• to ensure that witnesses are not interfered or tutored with,

23 Mittal. S., VIRTUAL COURTS IN INDIA: DURING THE TIMES OF COVID-19 AND BEYOND. http://southasiajournal.net/virtual-courts-in- india-during-the-times-of-covid-19-and-beyond/.(last visited on July 21, 2020)

2021] Covid – 19 Crisis and Digitisation 53

• working on e-filling system in smaller districts and rural setups,

• lack of technical training to the lawyers and magistrates,

• junior associate jobs would get redundant due to reduced need to travel from one court to another,

• increased scrutiny required for video proceedings due to increased chances of hacking and unauthorized access,

• technical glitches or connectivity issues on the part of a party can lead to wastage of time of the court, thereby rendering confusion in subsequent matters,

• many lawyers not being tech savvy might lose cases to those who are technically equipped,

• digital presence shall become the new attraction for clients leading to solicitation and self-promotion on online platforms,

• clients shall no longer be able to see the arguments presented by their lawyer/s,

• interns shall find it hard to observe hearings if virtual courts tend to be a permanent feature and in the absence of live streaming of matters,

• would grant arbitrary rights to the court staff to remove someone from the hearing, and

• Judges might seem to be less divine contrary to the physical courts.

54 Bennett Journal of Legal Studies [Vol.2, Iss.1

THE ESSENCE OF ARBITRATION, MEDIATION AND CONCILIATION The majority of disputes during the pandemic have been concerning the rise in employability issues, concerns of liquidity, labor problems, and rental issues, among others. These are the issues that could be covered by ADR mandatorily. At present, only commercial disputes are being adjudged by ADR. It is noteworthy that post the 2018 amendment to the Commercial Courts Act 2015 that mandated parties to exhaust the remedy of pre-litigation mediation before instituting a commercial suit, success rate of commercial cases solved at pre-litigation stage has gone up by 62 %. Settlements arrived at by mediation are enforceable by law by the virtue of the Commercial Courts (Pre-institution Mediation and Settlement) Rules 2018. Further, the Consumer Protection Act, 2019 also provides for aggrieved parties to first refer the disputes to pre-institution mediation. Opportunities for Mediation – Pre-litigation mediation, in addition to reducing burden of courts, leads to swift justice. It was formally recognized by the Supreme Court in 2013 in the case of K. Srinivas Rao v. D. A. Deepa24 and it is imperative to note that rule of law and maintenance of rule of law hold similar significance in mediation and negotiation, as in other systems. The process needs to be mandated through an ordinance for non-commercial disputes as well. Innovative drafting of exclusive remedy clauses in commercial and non-commercial contracts is required in order to reduce litigation or delays in imparting justice; more time is needed to be invested in drafting future contracts especially for parties who have a tendency to not read contracts before signing them. Further, a preferred and skilled mediator needs to be chosen

24 (2013) 5 SCC 226 2021] Covid – 19 Crisis and Digitisation 55

beforehand to reduce any delay in resolving disputes at pre- litigation stage. Arbitration has robust and inbuilt infrastructure, comparatively faster and logical, efficacious, providing final conclusion as per the Arbitration and Conciliation Act, 1996. The need of the hour demands that it should be result oriented and time- bound to support the limited cash flow of corporations while go for document-based institution. The agreements for arbitrator should involve only sole arbitrator to resolve matters quickly. The need of three arbitrators could be done away with as it causes inconvenience, loss of time and involves huge costs of money. There is also greater uncertainty in organizing virtual meetings with more than one arbitrator as their diaries and dates run full, and thus, justice gets delayed. ADR and courts are basically held to be the same when it comes to disposal of justice. While ADR is more informal, it is easier to adapt to technology as it is involved between private parties and litigation is usually against the government, particularly in India. ADR is increasingly becoming the unprecedented need of the hour, signifying its essence for future. The legal responses are required to be rapid. Courts hold inertia of moving online. While virtual and online dispute resolution system shall take time to adopt throughout the country, ADR infrastructure is quite informal and technically adaptive, which enables it to observe as a prime opportunity to re-imagine the future of justice delivery mechanism. Negotiation and Mediation have been in everyone’s interest as parties aspire for a long-term contract (especially infrastructure/ real estate) to further their professional and business interests. While the economic losses that the companies are facing due to the COVID-19 crisis, nobody would want to sabotage a long- term 56 Bennett Journal of Legal Studies [Vol.2, Iss.1 relationship and start afresh. Thus, parties wish to have less discord, and more inclined towards online means of negotiation and mediation (essentially the big corporations that already have an ADR clause in place), though pre-litigation mediation is already in place for commercial contracts, pre-litigation virtual mediation could be made mandatory in the disputes that are across the border or within the country as quick disposing of the cases and disputes would help in aligning the economy back to normalcy, as the costs and time involved in handling cases in the courts would be reduced to a great extent. Various stakeholders such as arbitration institutions, the government, and courts, needs to come together in such trying times and addressing people’s grievances and resolving problems should be their priority. Greater sensitivity is required in resolving the disputes online. It needs to be considered that not all the cases can be resolved online by a judge or an arbitrator in such trying times. Lawyers need to consider solving certain disputes with the other parties without the need of mediation, leading to an increase in the number of out of court settlements as in the US where about 98% of the disputes get settled out of the courts itself.

A MOVE FROM ADR TO ODR - INTERNATIONAL PERSPECTIVE Online Dispute Resolution, ODR, is much like the ADR, addressing the timing issues, economically beneficial, ensures efficiency of the process, while envisaging a quicker resolution seems to be effective mechanism for resolution of commercial disputes by enabling virtual filing in a more structural manner, in the multi-tier process. It aims at setting up and improvement in the current structure of institutions such as ICA and setting up the standards for arbitrator which require a hybrid and robust system.25

25 Mirèze Philippe, Offline or Online? Virtual Hearings or ODR? Kluwer Arbitration Blog, 2021] Covid – 19 Crisis and Digitisation 57

Only retired judges should not be appointed for arbitration26 in ODR but individuals from non- legal background should also be appointed as arbitrators if they have the right skills and meet the eligibility criteria. This shall make online dispute resolution mechanism more accessible, leading to quick disposal of justice.

• Hong Kong Government enacted COVID-19 ODR scheme27 since it was observed that Micro, Small and Medium (MSME) would not survive for a period that may last for a long period of time without legal recourse. It was considered that ODR is not just ADR going online, rather a technology led dispute resolution mechanism. It was first initiated by E- bay in 2000 when they came up with an in-house ODR system. Their technology and structured negotiation disposed off 60 million cases, where it has been seen that it is not just video conferencing.

• At present, Singapore Convention on Mediated Settlement Agreements28, more formally known as the United Nations Convention on International Settlement Agreements Resulting from Mediation29 is effective from September 12,

http://arbitrationblog.kluwerarbitration.com/2020/04/26/offline-or-online- virtual-hearings-or-odr/?doing_wp_cron=1594913576. 1598250865936279296875&utm_source=Smartech&utm_medium=email& utm_campaign=Online+Dispute+Resolution+will+be+the+new+normal. 26 Clyde & Co., Covid-19 Global: arbitration and court impacts. https://www.clydeco.com/en/insights/2020/05/covid-19-impact-on-courts- and-arbitration (May 1, 2020) 27 Winston and Strawn LLP, Hong Kong introduces COVID-19 Online Dispute Resolution Scheme, Lexology, https://www.lexology.com/library/detail.aspx?g=472b3759-61ea-487f- 92c8-4507e11d1dda. 28 Singapore Convention on Mediation, https://www.singaporeconvention.org/. 29 United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (the "Singapore Convention on Mediation"), available 58 Bennett Journal of Legal Studies [Vol.2, Iss.1

2020. It will enhance cross-border enforceability of settlement agreements resulting from mediation in the same way as an international commercial arbitration award. It shall allow parties to directly seek enforcement of the settlement agreement before the competent authority of a country. It is pertinent to note that though Singapore Convention recognises e-signatures and electronic documents and settlements, it needs domestic laws and institutional rules to support the convention in India. India though a signatory of it, having signed in August 2019, has not ratified it yet. Ratification of the Convention is to be accompanied by the United Nations Commission on International Trade Law (UNICTRAL) Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation30 which provides a template for national legislation through which the Model Law will be implemented. Adopting countries will need to enact legislation and ensure effective implementation of the Model Law to enhance enforceability of mediated settlement agreements.

• Virtual arbitrations can be challenged as that is not the procedure agreed on by the parties, rather has been done arbitrarily. It is still not recognised. It needs substantive laws and rules to implement online mediation. Further, entire recording of the virtual hearing can be taken as a printout or

at: https://uncitral.un.org/en/texts/mediation/conventions/international_settl ement_agreements. 30 UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation, 2018, https://uncitral.un.org/en/texts/mediation/modellaw/commercial_conciliation. 2021] Covid – 19 Crisis and Digitisation 59

as evidence in order to go for appeal under Section 34 of the Arbitration and Conciliation Act, 1996.

• A few ODR platforms set up in India to revolutionise the dispute resolution system that have gained momentum amidst the pandemic are – Sama.Live (The platform is started by two National Law University graduates. It is currently used by ICICI to resolve its internal disputes), Centre for Online Resolution of Disputes (CORD) (It is started by an ex-Hebert Smith Freehills Bangalore based lawyer) and Indian Dispute Resolution Centre (IDRC) (inaugurated by Justice Sikri)31, Online Consumer Mediation Centre (by NLSUI Bangalore), just to name a few. Cues in setting up more ODR platforms can be taken from international ODR platforms such as WIPO (World Intellectual Property Organisation) which handles legal disputes online arising out of registration and the use of internet domains; Kleros which is an open source platform which uses blockchain and crowd funding to adjudicate disputes, and the EU ODR platform which is provided by the EU to make online shopping fairer and safer through quality dispute resolution tools.

• It is pertinent to note that banks, non-banking financial institutions, e-commerce portals, and ride-hailing and hotel aggregator and other companies with large scale money recovery issues can be benefitted heavily from such ODR platforms. Individuals will be equally benefitted considering lower litigation charges and efficiency involved.

31 Former SC Judge Sikri inaugurates Indian Dispute Resolution Centre, Outlook News Scroll, https://www.outlookindia.com/newsscroll/fmr-sc- judge-justice-sikri-inaugurates-indian-dispute-resolution-centre/1844664. 60 Bennett Journal of Legal Studies [Vol.2, Iss.1

• Major global arbitration institutions have released various rules to conduct arbitration in a virtual manner and are considering mandating the same in the upcoming time based on the recent ICC guidelines.32

CHALLENGES BEFORE THE E-COURTS AND VIRTUAL COURTS Security breaches and Confidentiality concerns:

• Ensuring confidentiality in the court matters is of prime concern. This could be done by allowing the access to virtual rooms to lawyers, arbitrators, and parties by registering their mobile numbers and email-ids. An OTP could be delivered on the registered number and e-id in order to avoid unauthorized access.

• The provision could also be laid in concern to the signing of settlement agreements online through digital signatures on email-ids and text message via phones.

• A confidentiality agreement needs to be signed by all the parties’ concerned in an ODR such as arbitrators, lawyers, clients, and the third-party technology provider. It is required to be ensured that the parties signing the agreement and documents are the actual parties by enabling the AI-based app through OTP or GPS.

• It needs to be ensured that the party who signs the settlement agreement is actually the party that agrees to the settlement to avoid challenging of the agreement.

32 International Court of Arbitration, ICC Guidance Note on Possible Measured Aimed at Mitigating the effects of the COVID-19 Pandemic, https://cms.iccwbo.org/content/uploads/sites/3/2020/04/guidance-note- possible-measures-mitigating-effects-covid-19-english.pdf. 2021] Covid – 19 Crisis and Digitisation 61

• While signing of affidavit, care should be taken that there is no one else in the room. This could be ensured by the use of 360-degree cameras. Technical challenges - With new technological platforms, there are several technological limitations such as –

• the witness might be in an inaccessible area or might be tutored,

• no scrutiny over witness testimony during trial, • physical separation of legal teams,

• lack of resources for expert witness/lay witness,

• document mismanagement (in online format),

• issues might arise in the future based on current model of dispute resolution, and

• trial length and expense. Infrastructural lacunae -

• infrastructure involves huge costs,

• social digital divide in accessing justice,

• technical infrastructure for legal aid societies,

• lawyers and arbitrators in remote locations find it hard to access justice, and

• fundamental infrastructural issues such as in hilly areas or flood- prone areas, weather changes or thunderstorms switch off the internet. For instance - 2g speed in Kashmir.

62 Bennett Journal of Legal Studies [Vol.2, Iss.1

POLICY RECOMMENDATIONS TO ENSURE ACCESS TO JUSTICE DURING AND POST COVID19 There is an ardent need of innovative social, legal, media and technical protection platforms to combat the injustice prevailing in the society amongst the vulnerable groups such as women, children, LGBTQ+ communities.33 Since the lockdown-imposed restrictions on movement and shutdown of major governance institutions, inclusion of digital services became an indispensable need for social justice 34as well as legal assistance. Artificial intelligence could be incorporated through machine learning programme to examine and court various areas to assist the legal practitioners, researchers, and judicial staff, thereby reducing the manual tasks.35 There needs to be a more dedicated bar for arbitration at High Courts and Supreme Court.36 Also, a gradual shift from virtual courts to actual courts is needed with more availability of lawyers. There holds the scope of two working shifts, morning, and evening, unlike earlier times where all the lawyers had to attend court hearings only during the day. Regional technology hubs could be set up by the courts, institutions, and the courts to dispense justice and ensure quick disposal of the cases.

33 Petherbridge, Danielle, What’s Critical about Vulnerability? Rethinking Interdependence, Recognition, and Power. Hypatia 31 (3): 589–604 (2016). 34 Rizvi, Gowher., Emergent India: Globalization, Democracy, and Social Justice, International Journal 62, no. 4 (2007): 753-68. 35 Chandra, G., Gupta, R. and Agarwal, N, Role of Artificial Intelligence in Transforming the Justice Delivery System in COVID 19 Pandemic. International Journal on Emerging Technologies, 11(3): 344–350, https://ssrn.com/abstract=3617243 (2020). 36 Covid- 19AndTheIndianSupremeCourt.https://www.bloombergquint.com/coronavir us-outbreak/covid-19-and-the-indian-supreme-court(May28,2020). 2021] Covid – 19 Crisis and Digitisation 63

International arbitration must be promoted, and India could aim at becoming an Online ADR hub like Singapore and Hong Kong. Lack of mobility across borders, international travel need not impact international commercial arbitration since it would save time, money, jet lag, while enhancing efficiency, intention to settle the disputes, providing services from the point of view of satisfaction of consumers of arbitration. Numerous consumers need their disputes to be resolved quickly. ODR provides quicker resolution of disputes saving time and money to travel to an international seat. However, every arbitrator needs to be assisted by technologically sound person to ensure that the whole process is conducted efficiently. There could be some structural changes such as necessity to make more contracts ADR bound with sole arbitrator and mandating them. Also, the psychological drift is a prime need. While arguing indefinitely, the mindset needs to change to resolution of disputes as a primary target. Also, India is moving towards being a digital economy. An opportunity to mediate during arbitration could also be assumed as a possibility. Reforms are essential within the approach of counsels, where arbitral tribunal could find a possibility of settling a dispute between the parties, an attempt should be made with respect to Section 30 of the Arbitration Act. “Alternate” from ADR could be removed in the wake of COVID- 19. It could either become complementary or supplementary to the system with respect to all disputes. This shall offload the burden of courts, keep lawyers employed, solve disputes quickly, resolve business disruptions, saves travel time, cost, inconvenience, or opportunity cost that is eventually borne by the client. Thus, cost of arbitration could significantly be brought down. Lawyers and arbitrators must charge proportionally to their reduced expenditure. 64 Bennett Journal of Legal Studies [Vol.2, Iss.1

To ensure quick disposal of the cases and for affordable justice to all, concerns of distance should no longer be relevant. Institutions in India and oversees should disseminate the access to justice, impart legal education, make conciliation as binding, separate legislation like in Singapore and the UK to deal with matters pertaining to COVID-19 should be legislated. Force majeure must be brought in as a statute irrespective of whether the parties agree to it. A common legislation regarding COVID-19 shall help in bringing uniformity with respect to insolvency, rent, construction, moratorium, force majeure disputes. Techniques, skills, and trust needs to be fostered for e-mediation. It is difficult to connect with a new mediator each time, especially in the virtual space. Several issues might arise such as viewing it as a business opportunity, a lot of platforms might emerge, while the requirement could be to put the standards in place, ensuring accessibility, instead of overburdening the parties with higher costs and mobile applications considering not everyone has resources to buy a smart device, microphone, etc. Also, third party unauthorized access needs to be mitigated. Trust through virtual hearings needs to be ensured. The meetings must be held separately, such as muting one party if need be. There needs to be a clear protocol for maintaining confidentiality and keep unauthorized screenshots in check. It must be ensured that parties are not tutored. Mediation legislation needs to be enacted like Singapore convention. At present, a committee has been formed by the Supreme Court to look into the online hassles. The committee needs to formulate and come up with e-mediation legislation and guidelines soon, prior to switching over to virtual mediation. 2021] Covid – 19 Crisis and Digitisation 65

Regulations37 are a must, negotiated mediation needs to be enforceable without looking into part III of Arbitration and Conciliation Act, legislatively ordained mediation, bodies like Bar Council of India must regulate (ascertain qualification, eligibility criteria and training of mediators).

THE WAY FORWARD The government must look forward to ensure the management and implementation of Information and Communication Technologies (ICT) by having a robust infrastructure in place which shall embrace the good governance principles and assist in achieving the policy goals of the government in dispensing justice and making it accessible to all sections in the society.38 Policy coherence for sustainable development of the justice delivery system by having access to the innovations and collaborations is essential and non- negotiable. Some of the suggestive mandates could be -

• Instead of ADR clause, there could be an ODR clause or a virtual hearing clause for ADR in all contracts – not just commercial one.

• Unattested affidavits could also be allowed with a condition of submitting the attested one shortly as the situation normalizes.

37 The Justice system and the covid19 pandemic: resources for policymakers. (April 20, 2020) Available at- https://www.rand.org/blog/2020/04/the- justice-system-and-the-covid-19-pandemic-resources.html 38 Justice quarantined is justice denied., G. L. VERMA | New Delhi). https://www.thestatesman.com/supplements/law/justice-quarantined-justice- denied-1502901085.html(June 18, 2020. 66 Bennett Journal of Legal Studies [Vol.2, Iss.1

The need of awareness programmes -

• According to a survey conducted by Daksh, around 54% of the population has not heard about ADR, let alone ODR.

• It is important to educate and sensitise people about ODR which could be perceived as the only dispute resolution mechanism possible amidst the pandemic.

• Courses should be readily available to educate people about arbitration, mediation, and conciliation processes in India such as MCIA training, lifeline of an arbitration, Indian Institution of Arbitration and Mediation at Kochi, and IMC at Mumbai. A list of other measures that could be taken are - • Training must not be restricted to judicial officers and court staff. It could be made available for lawyers as well. • It must emerge as a collaborative effort on the part of the bar councils, courts, government, institutional bodies, lawyers, and others. • The code of ethics must be laid emphasis on, and no interruption should take place when an individual is speaking. Judges should also be facilitated. Discipline and code to address everyone respectfully must be ensured. • CNR could be attached to all the underlined docs and not only to the case so that litigant has access to all the documents that have been filed in the case. • There must be publication of transcripts of proceedings. At present, only judgements are being uploaded. The transcripts and files could also be made available in machine readable format in public domain. 2021] Covid – 19 Crisis and Digitisation 67

• On similar lines with Swapnil Tripathi v. Union Of India39 where it was held that, there should be live streaming of hearings in all the courts including the Supreme Court of India, a petition40 was filed in Gujarat High Court in order to make the live-streaming of court proceedings being conducted in the Gujarat High Court accessible to the public, given at present, while the courts are closed and are hearing matters only virtually, the set-up of virtual hearings is inaccessible to public at large including media personnel, law students, litigants, among others. Consequently, the court constituted a two-judge committee to work out modalities of live steaming of court proceedings.41 • Country’s first ever E-Lok Adalat was organised by the Chhattisgarh High Court and the State Legal Services Authority on July 11, 2020, which disposed of around 2,270 cases in a day.42 • Bar Council of India (BCI) must look forward to providing video conferencing facilities to the lawyers. It must be considered that law colleges, bars and courts have a collaborative role to play.

39 (2018) 10 SCC 639 40 Pruthvirajsinh Zala v. State of Gujarat, R/WP (PIL) No. 78 of 2019, decided on 09-05-2019 https://images.assettype.com/barandbench/2020- 06/ec92122b-65df-4981-a6bf- d2b447248d37/Pruthvirajsinh_Zala_v__High_Court_of_Gujarat__PIL.pdf. 41 Live-streaming of HC action: panel set up,https://ahmedabadmirror.indiatimes.com/ahmedabad/others/live- streaming-of-hc-action-panel-setup/articleshow/77206349.cms?utm_source=contentofinterest&utm_medium =text&utm_campaign=cppst (last visited July 31, 2020 42 Virtual Lok Adalat organised in Chhattisgarh amid COVID-19 pandemic disposes of 2,270 cases in a day. Available at: https://www.barandbench.com/news/virtual-lok-adalat-organised-in- chhattisgarh-amid-covid-19-pandemic-disposes-of-2270-cases-in-a-day

THE MIGRANT WORKERS’ CATASTROPHE DURING COVID-19 PANDEMIC: APPRAISING GOVERNMENTAL ACTIONS AND CONCEPTUALISING A PLAUSIBLE COURSE OF ACTION

Aniket Dutta Abstract The ongoing dilution of the labour laws has prompted a critical shift in the manner the situation of the migrant labourers has so far been comprehended in the foreground of the COVID-19 caused lockdown. Walking back home from urban and industrial zones, which has been generally called reverse migration, induced the labourers to script themselves once again into the narrative of the country. This crisis is a result of the sudden concern because of the pandemic. Be that as it may, it uncovered long haul patterns and some structural crevices that stayed covered up under the predominant narratives of development as epitomised in political campaign phrases, for example, ‘Shining India,’ ‘Achche Din (More promising times)’ and ‘Sabka Vikaas (Development for All)’. The pandemic has uncovered the constraints to general wellbeing as well as that of the legal, political, and social structures of India. This paper critically examines the migrant labourers’ predicament from the constitutional and labour laws perspective and endeavours to provide a practical solution considering the interest of the

 4th Year, BA LLB (Hons), School of Law, CHRIST (Deemed to be University), Bangalore. 70 Bennett Journal of Legal Studies [Vol.2, Iss.1

migrant labourers in resuscitating the economy through an economic analysis. Keywords COVID-19; Migrant-workmen; Economic analysis; Labour Law; Constitution

INTRODUCTION The sudden lockdown without prior arrangements and facilities have put the lives of the migrant workers at stake. It is making them suffer more by denying their human rights as well as fundamental rights. There have been several petitions filed in this regard seeking the indulgence of the Supreme Court to protect and safeguard the human rights and fundamental rights of the migrant workers by directing the Government to take the appropriate steps such as compensating the injured persons, sufferers, and the families of migrant workers. They lost the breadwinner in the process of walking back to their native places. With the factories closed and industries shut due to the imposition of the quarantine rule, these workers are forced to either stay and starve in their respective places or to escape the worst by walking back to their native’s places.

HISTORICAL BACKGROUND OF MIGRATION OF LABOURERS IN INDIA The concept of migrant labourers is not something modern; instead, it had been theorised right in the 19th Century, in India, particularly, when the British colonial invasion took place. It was planned for meeting the capitalist necessities of advancement in India for the British. The labourers were moved from the hinterland to the locales of mining, ranch, and manufactories. They were selected from the agricultural regions and managed in such a 2021] The Migrant Workers’ Catastrophe During Covid-19 Pandemic 71

way, that there began to start an enormous shift from the primary sector employment to the secondary sector employment and in the long run to the tertiary sector employment. This shift, however, was soon to become a common practice and there are multiple reasons for the same. In developing countries like India, it is the push and pulls factors that influence the migration of labourers. Along these lines, the motive of migration is classified as push factors that emphasise on the circumstance at the origin, that is, the place from where the migration initiated and pull factors that emphasise on the circumstance at the destination. For clarity, push factors incorporate joblessness, drought, earthquake, flood, and other natural catastrophes while, pull factors incorporate fascination of city life, health, education, job opportunities, training facilities and the advancement of the backward community.

COMPELLING REASONS FOR THE MIGRATION OF LABOURERS IN INDIA The issue of the seasonal nature of the agriculture-based industry is very apparent in India. Nonetheless, at this outset, we must comprehend the concept of seasonal factories. A seasonal factory is an establishment where labourers work for greater than half the days of the year. The fundamental element of every seasonal manufacturing unit is that the labourers are still agriculturalists and hence unskilled. Such workers are highly unorganised and will, in general, get meagre wages. Likewise, the migration is, by and large, seen to be from the rural to the urban area. It is so on the grounds that the rural area to a great extent relies upon agribusiness and agriculture relies majorly upon several uncertain factors, for example, precipitation and circulation of precipitation. The inadequacy of precipitation and the subsequent failure of 72 Bennett Journal of Legal Studies [Vol.2, Iss.1 agribusiness altogether decreases the purchasing capacity of this vast section of the populace, and the recurrence of this circumstance prompts drought, which further burdens them. Accordingly, they migrate. The Planning Commission of India in its approach to the 11th Five Year Plan, 2006 released data stating that an estimate showing 27.8% of the population was below the poverty line in 2004-05. States with a poverty of less than 15% were Jammu & Kashmir, Punjab, Haryana, Himachal Pradesh, Delhi, and Andhra Pradesh. States with poverty ratio above 30% were Maharashtra, Uttar Pradesh, Bihar, Jharkhand, Madhya Pradesh, Chhattisgarh, Uttarakhand, and Odisha1. The current reports of migration of labourers even in 2020 justify the data as mentioned above. For instance, according to the 2011 Census report, the states, Uttar Pradesh, and Bihar record the highest number of out-migration population being 20.9 million whereas the National Capital Region and Maharashtra are the ones receiving most of these migrants2.

THE MIGRANT LABOURERS’ PLIGHT DURING THE PANDEMIC The migrant workers primarily engage in unskilled labourer, thereby depending on daily wages. Since 25 March 2020, India went into what has been evaluated as one of the most rigorous lockdowns of physical movement and economic enterprise across the globe because of the COVID-19 pandemic. It has brought about the opening of an alarming window to the extraordinary misery of the migrant workers abandoned by the lockdown and has

1 Dr. W.N. Salve, Labour Rights and Labour Standards for Migrant Labour in India, http://www.oit.org/legacy/english/protection/travail/pdf/rdwpaper22a.pdf. 2 Abhishek Jha & Vijdan Mohammad Kawoosa, What the 2011 census data on migration tells us, Hindustan Times (Jul. 26, 2019, 16:55 IST), https://www.hindustantimes.com/delhi-news/migration-from-up-bihar- disproportionately-high/story-K3WAio8TrrvBhd22VbAPLN.html. 2021] The Migrant Workers’ Catastrophe During Covid-19 Pandemic 73

surfaced all over the country. Unlike other services, these workers mainly depended on the daily wages, and due to the closure of factories and industries engaged in the production of non-essential goods, the source of income of the migrant workers engaged there has been extinguished. The Central Government mounted a gigantic mission called “Vande Bharat” to bring back Indians stranded abroad but has not demonstrated the same enthusiasm for attempting to get the poor migrant worker’s home. Meanwhile, there were a large number of instances regarding accidental deaths, death and injuries of men, women, and children due to walking on the roads. The reports published in various newspapers and electronic media further corroborates the problem of the accident of migrants. There is undoubtedly discrimination caused to these inter-state migrant workers while introducing a mission titled ‘Vande Bharat’ by the Central Government to bring back those stranded in other countries due to the global COVID-19 situation by excluding the inter-state migrant workers from such a mission. The discrimination has also been done with the migrant workers by the Government by adopting ‘pick and choose’ policy to pay compensations on the deaths of the migrant workers. The Government had given compensation on the death of a few migrant workers, only when the Press highlighted it. This action of the Government is unreasonable and arbitrary when put through the test under Article 14 of the Indian Constitution as was held in E.P. Royappa v. State of Tamil Nadu where the court profoundly equated the concept of ‘equality’ with dynamism. It was clarified that equality is antithetic to arbitrariness. Further, in State of West Bengal v. Anwar Ali Sarkar, it was held that classification is permissible under Article 14, but it ought to be reasonable, based on some real and substantial distinction bearing a just and reasonable relation to the 74 Bennett Journal of Legal Studies [Vol.2, Iss.1 objects sought. It cannot be artificial and evasive. There is no denial of the fact that the Government has successfully helped in transporting those individuals who were stranded abroad, but in light of the migrant labourers’ issue, the situation has only gotten worse. It has resulted in the violation of not just the Constitutional provisions, but also several statutory provisions.

THE FALLACY IN THE IMPLEMENTATION OF THE RELEVANT LEGISLATION The coronavirus pandemic has been categorised as a ‘disaster’ under Section 2(d) of the Disaster Management Act, 2005 and the matters concerning the lockdown such as extending relief in the form of food, shelter and water to the individuals belonging to the weaker strata who are deprived of any source of income during the lockdown. The anomaly of the constitutionality of the Disaster Management Act, 2005, is settled and accepted. However, the problem in question pertains to the outcome that the non- availability of the reliefs as mentioned above to those in need would lead to. The right to food3, right to shelter4, right to livelihood5, right to a life with dignity6 and the right to access to clean drinking water7 have been interpreted as being the branches of the right to life envisaged under Article 21 of the Indian Constitution by the Supreme Court in a catena of cases. These rights are indispensable for the sole reason that they ensure the smooth sustenance of human lives. These are not luxuries but the

3 People’s Union for Civil Liberties v. Union of India, Writ Petition (Civil) No. 196/2001. 4 Unni Krishnan, J.P. & Ors Etc. v. State of A.P. & Ors, 1993 AIR 2178. 5 Olga Tellis v. Bombay Municipal Corporation and Ors., 1985 SCC (3) 545. 6 Nilabati Behera v. State of Orrisa, AIR 1993 SC 1960. 7 A.P. Pollution Control Board vs Prof.M.V. Nayudu (Retd.) and Ors, 1994 (3) SCC 1; Bandhua Mukti Morcha v. Union of India and Ors., 1984 AIR 802; Subhash Kumar v. State of Bihar and Ors., 1991 AIR 420. 2021] The Migrant Workers’ Catastrophe During Covid-19 Pandemic 75

basic necessities for human survival and which is why the violation of these rights is being taken seriously by the courts. In the current situation, the infraction of this fundamental right continues to materialise, and the same can be understood when the chronology of events and various pieces of evidence are put together. The Central Government submitted a status report according to the Court’s order to a writ petition filed in pursuance to ensure the welfare of the migrant workers in distress. In the report, the Government highlighted several relief measures extended to the migrant workers specifically. For instance, announcement of the relief package worth Rupees 1.70 lakh crore rupees under Pradhan Mantri Garib Kalyan Yojana, setting up of 21,064 relief camps and providing basic amenities like food, medicine and drinking water8. The report further provided that 6,66,291 persons were provided shelters and 22,88,279 persons were provided food9. How then are the migrant workers still distressed? The answer to this question is the limitation of every other poorly defined policy, and that is its ‘implementation’. The Government failed in ensuring an efficient implementation of the quarantine rules by not resorting to a harmonious appraisal of the related laws concerning the migrant workers’ situation, which are, The Constitution of India, The Disaster Management Act, 2005 and the only legislation at present to deal with inter-state migrants, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (hereinafter referred to as the ISMW Act). The Central Government’s order and the various State Governments’ action of putting the migrant workers on roads into shelter homes have failed tremendously. It has happened because of two reasons:

8 Alakh Alok Srivastava v. Union of India, Writ Petition (Civil) No. 468/2020. 9 id. 76 Bennett Journal of Legal Studies [Vol.2, Iss.1

First, the failure of the administration (the State Governments) in adequately enforcing the provisions of the ISMW Act, 1979, and second, the role of the Chief Labour Commissioner failing to fulfil the duties assigned to him under the ISMW Act, 1979. The Central Government’s directive to impose the nationwide lockdown to prevent the coronavirus from spreading is admitted in its entirety, but at the same time, it is quite essential to evaluate the consequences that such a directive would lead to. With specific reference to the migrant workers vis-à-vis the ISMW Act, 1979, Section 49 of the Act mandates it for a principal employer and contractor, in respect of every establishment, where the migrant workmen are employed, to maintain a ‘register’ containing the records of such workmen. Further, Section 53 provides for the maintenance and preservation of these registers and that the records of the employees (migrant workmen) shall be up to date. The employer has to register the establishments employing five or more inter-state workers10 with the State, and no such establishment could function without getting registered11. Section 13 provides that the pay of the migrant workers shall be the same as applicable to other workers in a similar establishment which is payable in cash. Moreover, there is provision for the payment of displacement allowance to the migrant workmen by the contractor at the time of recruitment itself. In the present situation, the Chief Labour Commissioner’s office was not consulted when the imposition of the lockdown was being planned. Nonetheless, the Chief Labour Commissioner has failed to provide the adequate data required in planning for the lockdown so that the consequences as such could

10 The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, No. 30, Acts of Parliament, 1979 (India). 11 id. 2021] The Migrant Workers’ Catastrophe During Covid-19 Pandemic 77

be foreseen. If there would have been harmony between the various administrative departments and agencies, then the exodus of migrant workers in millions from the urban areas such as the National Capital Region and Mumbai could have been better managed. Another flaw in the whole lockdown policy is the guidelines which were issued in pursuance of implementing it. The Ministry of Home Affairs issued the order dated 24 March 202012 and put in effect from 25 March 2020 providing for measures required to be put into action by various Governmental ministries, departments, and authorities for the containment of COVID-19 pandemic in the nation. Although the guidelines were specific regarding the closure of places and sites where mass public gathering could take places such as temples, restaurants, gyms, educational institutions, airports, railway stations, bus depots or any other public place and even restrictions were put on transportation via airways, railways and roadways; nevertheless, the guidelines did not specify that the individuals could not walk on the highways and along these lines, the migrant workmen walking on those highways could not have been charged under the law as it would then attract violation of their fundamental right to freely move across the Indian domain under Article 19(1)(d) of the Constitution of India. As discussed earlier, to contain the coronavirus from spreading, the Government put a suspension on work, movement, businesses, liberty and more such economic activities. The MHA Order13, however, provided for the exemption to the production of essential

12 Circulars for COVID-19, Ministry of Home Affairs, MHA Order No. 40- 3/2020-D (Mar. 24, 2020). 13 id. 78 Bennett Journal of Legal Studies [Vol.2, Iss.1 goods and services. The COVID-19 pandemic can compel the Government to suspend certain activities; however, the Constitution itself, cannot be suspended. All such regulatory orders and statutory frameworks must conform to the Constitution. While the specified category of activities has been exempted under the Order, notwithstanding, the exemption to legal practitioners has been omitted in the Order. Peculiarly, during the lockdown, the High Courts heard only the urgent matters and the lower courts entertained only the remand cases. Without legal practitioners’ services being classified as essential, fundamental rights of the migrant workers could not have been enforced. It represents yet another shortcoming of the hasty imposition of the lockdown by the Government. Arguendo, the Supreme Court, did take suo motu cognisance of the matter treating it ‘urgent’ and directed the Union Government to present a report of the measures taken in providing relief to the migrant workers and upon serving of such a report by the Solicitor General thereby assuring the court that no migrant worker was walking on the roads attempting to reach their hometown/ village. The court showed satisfaction in the Government’s work stating the same in its order dated 31 March 202014. However, in a subsequent Public Interest Litigation, it was contended that according to the Government’s order dated 29 March 202015 under sub-point (iii) the employer must pay the migrant workers at their workplace. However, the wages to the migrant workmen should be paid at the place where they were presently located, be it at the shelter homes or their home state so that they do not panic and start walking on the roads. However, the

14 A.P. Pollution Control Board Ii vs Prof. M.V. Nayudu (Retd.) and Ors, 1994 (3) SCC 1; Bandhua Mukti Morcha v. Union of India and Ors., 1984 AIR 802; Subhash Kumar v. State of Bihar and Ors., 1991 AIR 420. 15 Circulars for COVID-19, Ministry of Home Affairs, MHA Order No. 40- 3/2020-DM-I(A) (Mar. 29, 2020). 2021] The Migrant Workers’ Catastrophe During Covid-19 Pandemic 79

matter was subsequently adjourned due to non-submission of the report showing the amount of money transferred to people’s accounts. The delay deteriorated the plight of the migrant workers. Many of them died on the way to their homes due to fatigue and starvation16 , which is yet another instance of violation of the right to life under Article 21. At this outset, the role of the judiciary in maintaining the constitutional spirit can be criticised. Instances faced as the present situation call for the exercise of judicial activism more than ever. When the administration has failed to implement the ideals of the Constitution, the Judiciary must intervene and rectify it. However, in the present case, the Judiciary has taken the backstage and has insisted upon the doctrine of separation of powers. In application, the Supreme Court in the order dated 5 May 202017 made it clear that charging 15% of the ticket fare from the migrant workers is not for the court to order and that the authority of implementation of such an order is with the concerned State and the Indian Railways18. The above discussion brings to one question, being, whether the migrant workers' plight is not as crucial for the court to monitor? The migrant workers’ crisis poses a situation of life and death, and yet the court is avoiding any strict orders on the same. All the labour legislations have turned obsolete because of the coronavirus pandemic, and the court has not given directions about it either. If we look at the precedent of Vishakha v. State of Rajasthan19, the court wasted no time to mandate the guidelines for the protection

16 Reepak Kansal v. Union of India & Ors., 2020 SCC On Line SC 405. 17 Jagdeep S. Chhokar & Anr. v. Union of India, Writ Petition (Civil) Diary Nos. 10947/2020. 18 Ibid. 19 AIR 1997 SC 3011. 80 Bennett Journal of Legal Studies [Vol.2, Iss.1 of women at the workplace, which was then made into legislation by the Parliament. Presently, the courts are conducting virtual hearings only on the matters which are deemed ‘urgent’. Therefore, the number of cases with the court is lesser. The court could have utilised this opportunity and given guidelines to cure the lacunae of the heftily poor implementation by the administrative agencies. In so far, the issues and challenges about the migrant workers’ crisis have been pointed out and discussed. However, to solve these issues, more than just guidelines would be required. The need of the hour is to cure the problem at the grass-root level by restructuring the labour legislations, incentivising specific sectors to revive the economy with the participation of these migrant labourers so that the negative impacts of the lockdown can be avoided and ensuring greater accountability on the part of the Government. If it is observed correctly, internal migration is neither the cause nor the effect; it is merely the process. Undeniably, India has an uneven distribution of resources, including the uneven pace of development in different areas. As discussed previously in the paper, the ‘push and pull’ factors are responsible for such an extensive scale of internal migration throughout the country. Given the circumstances, developing the economy would be more stringent than reviving the economy, and along these lines, it is suggestible that the existing sources for the creation of income need to be incentivised uniformly. Even after the upliftment of the nationwide lockdown, maintenance of social distancing measures would be a priority. Thus, the migrant workers who have already reached their villages shall work from there itself. Although once employed in the tertiary sector, the majority of these workers remain unskilled. In India, agribusiness continues to be the source of income for the majority of the 2021] The Migrant Workers’ Catastrophe During Covid-19 Pandemic 81

population. If this sector is incentivised adequately by following a systematic approach and striking a balance between demand and supply then neither the country will go under a deficit for food grains, vegetables and other agricultural products nor will these migrants remain unemployed. Firstly, it is required to understand the need to do the same. It can be explained using the economic model of Production Possibility Frontier, as follows:

The above model is called the Production Possibility Frontier (PPF). The model shows that a single resource can have alternative uses; in the present case, the resource is the human-capital synonymous to migrant workers. The X-axis denotes the human capital engaged in agriculture-sector and Y-axis denotes the human capital engaged in the secondary and tertiary sector after shifting from the agriculture-sector through migration. Point A represents 82 Bennett Journal of Legal Studies [Vol.2, Iss.1 the present situation in which the resources in the urban areas having a vast population of migrant workers are burdened whereas, Point B represents the proposed solution through a trade-off from Point A to B to reduce the burdening of resources in the urban areas. Let us suppose that there are 100 million workers in total as we move along P to P’. The causation of inevitable push and pull factors force most of the workers to migrate to the secondary and tertiary sectors (80 million) thereby leaving only 20 million workers in the agriculture sector, where the resources remain under-utilised (underproductive). Now, considering the recent change of events, the COVID-19 situation has forced the previously migrated workers to return to their villages. The agricultural land can still be utilised. Therefore, to deal with the problem of unemployment and lack of income, the Government can energise the agricultural sector and make these workers join agribusiness in their respective hometowns. Meanwhile, for the workers who belong to sub-urban areas in where agribusiness is not the main source of income and they can be retained to continue working in the factories and other establishments as shown by Point B (60 million workers engaged in the secondary and tertiary sector and 40 million engaged in agribusiness). The donations received under the PM-CARES fund can be utilised for this purpose.

CONCLUSION Extraordinary problems require extraordinary solutions. The COVID-19 pandemic has forced most of the legislations to become obsolete, especially the labour legislation and has put the governing principles of a constitutional democracy like India under grave uncertainty. The coronavirus outbreak has resulted in both positive and negative impacts. The positive impacts include a 2021] The Migrant Workers’ Catastrophe During Covid-19 Pandemic 83

reduction in environmental pollution, and the negative impacts include dismantling of the economy further leading to income and hunger crisis. Among all the other issues prevailing in the country at present, the migrant labourers’ crisis is the most challenging one, for it does involve not only a considerable number of persons but also a threat to the lives and sustenance of lives of those persons. The initial improper implementation of the policies and guidelines has caused a trickle-down effect leading to several other problems of utmost concern, such as economic disruption and the inadequate healthcare system. The Disaster Management Act, 2005 requires the formulation of a disaster management plan for the managing authorities constituted at the district, state, and national level with the advice from various experts in the respective domains. The records of the list with details of all the migrant workers could easily be obtained from the Chief Labour Commissioner if the disaster management plan were formulated beforehand in the required manner. It shows that India is yet to devise a comprehensive strategy to deal with all the problems arisen due to the coronavirus outbreak. The policies were implemented hastily. Therefore, it is significantly necessary that a solution is sought, which could cure more than just one problem. The article has stressed on incentivising the agriculture-sector. According to the Census 2011, every day, 2000 farmers are giving up farming20. India is undoubtedly under the need to energise this sector to revive the economy as it strikes at several problems at the same time, being, unemployment, lack of income and food. Furthermore, the judiciary is expected to step up in situations like this for guiding the Government in all the stages.

20 Jitendra, How to inspire India’s youth to take up farming? Agriculture, (Jan. 25, 2017), https://www.downtoearth.org.in/news/agriculture/how-to-inspire- india-s-youth-to-take-up-farming-56849.

VIRTUAL COURTS: THE FORCED EVOLUTION OF THE INDIAN JUSTICE SYSTEM

Animesh Puneet Gupta & V. Adharsh Abstract Law and Man have coexisted since the time man has lived in a society. But the evolution of man and society have always outpaced the evolution of law and the justice system. This disparity has continued to exist and plagues the Indian justice system to this date. The justice system of India has been heavily derived from the English Common Law system but, the post- Independence India has been slow to evolve its Judicial System. The COVID-19 Pandemic has forced the entire world to come to a stand-still. The global workforce has adapted to the changing times and words like ‘lockdown’ and ‘quarantine’ have become common. In such a scenario, even the Indian Judiciary has been forced to evolve and adapt, leading to a system of virtual court hearings. The courts have heavily relied on the internet for filings and conducting proceedings since the traditional, physical procedures cannot be followed in the prevailing conditions. While the courts have adapted with these changes and have begun to function, there are several challenges that need to be addressed to make justice truly accessible despite the Pandemic. The authors in this manuscript have attempted to analyse the background to the evolution of

 The authors are students of VII Semester at Army Institute of Law, Mohali affiliated to Punjabi University, Patiala. 86 Bennett Journal of Legal Studies [Vol.2, Iss.1

the justice system of India, the status quo, and the challenges that are impeding the success of the virtual courts. Further, the authors have attempted to identify the key aspects in which the successful solutions could be envisioned. Keywords Court; Justice; Evolution; Legal Framework; Accessible; Portal

INTRODUCTION “Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.” - -Barack Obama The system of law and justice traces its origin to the origin of society. Since the time man has lived in a society, a system of providing justice and punishing crimes has also co-existed. However, the growth and evolution of human outpaced the growth and evolution of the justice system he lived by. The justice system did evolve, slowly conforming to the needs and expectations of the society it governed, but by the time the justice system began to cater to the needs of the society, the society had already evolved. This cycle of slow evolution continued for a few millennia and eventually, the protectors of justice, be it the Courts, the Kings, or the Juries, began to realize the importance of flexibility in the justice delivery system and began to adapt to the changing world, allowing society to enjoy rights and justice which could keep up with its own evolution. The European legal and justice systems were especially efficient in adapting to the ever-evolving society. The English and French legal systems have particularly influenced the legal systems of the Modern World. The English Common Law 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 87

System allowed the judges to evolve their own law rather than being bound to follow a legislation written decades back, which may or may not have been able to deliver justice to the evolved society. In India, the modern legal system is a direct product of the British Rule. The British laid down a system of law and justice in India, similar to the English Common Law system, established Courts and hierarchy in the justice delivery system and promoted access to justice. The British left behind a system of justice delivery that could be further evolved and tweaked to suit the needs of India. They facilitated the justice system by drafting laws and laying down the necessary principles of justice. However, post- Independence justice system has been slow to evolve in India. Over 70 years have passed since India gained Independence but, a large segment of laws applicable in India continue to be British in origin, the Criminal Justice System in particular, remains British in essence. It would be wrong and misleading to state that the justice system in India has not evolved. It is conceded that there have been amendments to the law, several provisions have been omitted, amended, added, and limited, however, at its core, the criminal justice system of India remains British. Even the basic procedures of Civil law are British with minor changes by way of omissions, amendments, additions, and limitations. It is reiterated that any statement which suggests that the Indian Justice System has not evolved at all would be grossly false. Indian judges have had various important contributions to jurisprudence. Principles like the ‘Doctrine of Absolute Liability’1, Separation of

1 The Doctrine of Absolute Liability was evolved by the Supreme Court in cases including M.C. Mehta vs. Union of India (AIR 1987 SC 1086), also referred as the Oleum Gas case; Union Carbide Corporation vs. Union of 88 Bennett Journal of Legal Studies [Vol.2, Iss.1

Powers, and the evolution of the Administrative Law in India are products of the ingenuity of the Indian Judges. A major flaw in the Indian judicial system has, however, been in respect to procedure. As stated above, the procedural law in India continues to be British in spirit. This has severely impeded the ability of the Indian Justice system to evolve and adapt to the changing and ever developing Indian society. At the outset of the COVID-19 Pandemic and the ensuing nationwide lockdown in March 2020, the Courts were still functioning, to a large extent, in much the same way as they did twenty years back. While systems such as filing and access to orders and records had begun to become accessible through online modes, the existing framework was clunky, unresponsive, and unpolished. The access to justice, a bedrock of the Indian Justice System, was not fulfilled through this existing framework and the “if you know, you know” nature of the laws and legal system of India continued over to these basic facilities. After the lockdown was announced and the physical functioning of the Courts was put to a halt in March 2020, the Courts were initially suspended altogether. The Supreme Court in the 1979 case of Hussainara Khatoon v Home Secretary, State of Bihar2, for the first time, held that an individual had a fundament right to a speedy trial under Article 21 of the Indian Constitution. The Court understood that it could not delay justice for a long time and decided to adapt to the changing and challenging times. The entire legal system of India was forced to adapt to the new reality. It took its time to adapt and understand the need for evolving a new system to continue the justice delivery mechanism despite the

India (1991) 4 SCC 548, also referred as the Bhopal Gas Tragedy case; and other such judgements. 2 Hussainara Khatoon v Home Secretary, State of Bihar (1980) 1 SCC 98 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 89

Pandemic. The Supreme Court also recognized, in the case of All India Judges’ Association v. Union of India3, that there is a Constitutional obligation of the Court to ensure that the backlog of cases is decreased, and efforts are made to increase the disposal of cases. The Courts which are already over-burdened with empty rosters and heavy boards were faced with an unprecedented challenge and the evolution, which is still underway, leaves much to be desired. The courtroom is the centre of a complex system of information exchange and management. Ultimately, because lawyers and judges deal continuously with 'data', high technology courtrooms exist, and virtual courtrooms are possible.4 The Courts drew inspiration from Arbitrations and other Alternate Dispute Resolution forums which had already been functioning virtually over the past few years. The Court also drew inspiration from the rare instances of recording of statements that had been held through video conferencing in exceptional cases over the past thirty years. The Singapore Supreme Court was another source of inspiration which had set up a ‘virtual courtroom’ as far back as 1999.5

VIRTUAL COURTS: A NEW REALITY “The Judicial system is by far the most important and significant instrument in preserving democracy and the rule of law.” - - PN Bhagwati

3 All India Judges’ Association v. Union of India (2002) 4 SCC 247 4 Fredric I. Lederer, The Road to the Virtual Courtroom? A Consideration of Today’s -- and Tomorrow’s -- High Technology Courtrooms (1999). Faculty Publications, William, and Mary Scholarship Repository, 799 (1999) 5 Chitranjali Negi, Virtual Courtrooms: Concept and Overview, SSRN (2016) 90 Bennett Journal of Legal Studies [Vol.2, Iss.1

While the Courts and judicial fora in India have begun to function virtually as a result of the COVID-19 Pandemic, it is not the maiden attempt for the Indian Justice System to hold proceedings virtually. The new millennium ushered in a digital era and the Courts have succumbed to these technological advancements in rare and exceptional circumstances. The ruling of the Hon’ble Supreme Court of India in ‘Basavaraj R. Patil and Others vs State of Karnataka and Others’6 where the Court noted that in exceptional cases, where the physical presence of a party is not possible due to bona fide reasons, the Court could rely on alternative methods of obtaining statement. The acceptability of electronic evidence in the judicial system was reinforced by the inclusion of S. 65A and S. 65B in the Indian Evidence Act 1872, which laid down the provision of admissibility of electronic evidence. The concept of video conferencing was further developed by the Hon’ble Supreme Court in ‘State of Maharashtra vs. Dr. Praful B. Desai’7 wherein, the Court gave guidelines for recording of evidence by video conferencing, thus opening up various avenues for increasing the access to justice that transcends territorial boundaries.8 In fact, the Praful B. Desai judgement and the guidelines devised therein, continue to be relevant even after seventeen years and act as the skeleton for the guidelines issued by various Courts for conducting hearings through video conferencing during the lockdown. In respect to the ‘Virtual Courts’ during the COVID-19 Pandemic, the Courts have reluctantly begun to evolve to suit the needs and necessities of these unprecedented and inconceivable times. The

6 2000 AIR SC 3214 (India). 7 (2003) 4 SCC 601 (India). 8 Also see, Amitabh Bagchi vs. Ena Bagchi, AIR 2005 Cal 11 (India). 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 91

various Courts and fora have initiated the process of holding hearings through video conferencing in urgent matters. This generally entails the advocates/ parties-in person submitting an application before their respective Court explaining the urgency and need for hearing despite the lockdown. If the Court is satisfied with the reasons behind the urgency, a date of hearing is allotted on the same day or the next day, and the proceedings usually take place via video conferencing mode within a week of acceptance. It has been observed by members of the Bar and Bench alike, that, the proceedings through video conferencing are more efficient and the process of the Court is quicker online. This is in part due to the lack of distractions that is usually side-track proceedings in the physical courts. Further, fixed timings and the role of the control room in managing participants in the video conferencing further aids the process of conducting the proceedings seamlessly and without getting side-tracked. In fact, the success of the hearings through video conferencing has inspired the Courts to allow public hearings to happen virtually with the parties and any other desirous person being allowed to view the proceedings after obtaining access to the virtual court as per the guidelines of their respective courts. The various courts in India are handling through a variety of platforms and processes. The different platforms being used by the Courts include Vidyo, a platform that has been developed by NIC; Cisco WebEx; Blue Jeans by Verizon and many other such platforms.910 Along with this, the Courts have different protocols

9 Aditya AK, ‘Home Ministry division issues guidelines for safe use of Zoom amidst security concerns’ (Bar and Bench, 16 April 2020), https://www.barandbench.com/news/home-ministry-div ision-issues- guidelines-for-safe-use-of-zoom-amidst-security-concerns/. 92 Bennett Journal of Legal Studies [Vol.2, Iss.1 for access to these virtual courts. While some Courts have stipulated that the link will be shared by the appropriate officials prior to the hearing itself, others have provided fixed links on their respective websites. These different protocols have been adopted as per the capabilities and functionality of the different platforms being used and the procedure, therefore, differs for every Court. While these platforms differ across different courts, the video conferencing has proved to be an effective and efficient mode for dispensing justice even during these tough times. The judicial system is already in shambles with the heavy boards and empty rosters and while these cases are a mere fraction of the entire pending litigation in India, every case that is heard, disposed, or dismissed during the Lockdown will help reduce the burden on the Indian Judiciary. The Courts will face an increased burden in respect of the pending matters that have been adjourned due to the lockdown and suspended functioning along with the additional fresh litigation that has arisen over the course of 4 months of lockdown. The lockdown has led to an increase in civil disputes, especially, vis-à-vis contractual obligations. Such a massive backlog of cases along with the anticipated influx of matters has forced the Judiciary to adapt and evolve. The proceedings and hearings are just one aspect of the justice system. The access to justice also means that there is ease in filing the matters, applications, evidence, and any other relevant documents. In view of this requirement, the Government of India in conjunction with the judiciary had already implemented portals for e-filing. However, as mentioned above, these portals are

10 LiveLaw News Network, ‘Plea in SC against use of foreign apps like zoom, skype etc for video conferencing’ (Live Law, 19 April 2020), https://www.livelaw.in/top-stories/plea-in-sc-against-use-of-foreign-based- apps-like-zoom-skype-etc-for-video-conferencing155461/. 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 93

problematic and not user friendly. Therefore, while the new portals are under development, the filings in urgent matters is facilitated over mail. While the solution is working, the system of filing through mail is a band-aid at best. It is not tenable in the long haul and will not be able to support the load of regular court functioning. The new portals that are being developed are in hope to provide a user-friendly, easy to use interface that can support the heavy load of the regular courts. The COVID-19 Pandemic has shown the way in which the justice system could evolve. The Courts are learning new lessons every day and fires are being put out by the Court officials as they rise. These lessons can be applied in the development of the new system of virtual courts. Justice D.Y. Chandrachud, a force of change and growth in the Supreme Court of India, has stated several times since the lockdown began, that the virtual courts are not meant to replace the ordinary, physical courts. The virtual courts are only meant to aid the dispensation of justice without endangering any of the stakeholders in the justice system- the judges, advocates, officials and staff, interns and most importantly, the people of India. However, it would be wrong to assume that the courts will remain physical even the distant future. While the Courts do not seem to be moving towards a digital and virtual presence permanently, at least not in the foreseeable future, the developments in the justice system due to the pandemic will bear fruit even in the era of physical courts. The development of a new unified portal for the e-filing, and access to orders and decrees, will inevitably improve the access to justice and reduce the burden on the Court Registry. Even after physical filing commences, e-filing shall over time become the preferred means of filing of matters, applications, affidavits, and evidence due to the 94 Bennett Journal of Legal Studies [Vol.2, Iss.1 faster and more transparent response system. This will also help the parties become aatmanirbhar to a certain extent since a simplified user interface will allow the party to obtain orders and decreed without having to request their counsel.

CHALLENGES TO THE NEW REALITY “While technology has enabled us to go paperless in many courts and go digital, if not all the way then substantially, in many courts, we now have the benefit of modern artificial intelligence tools that will assist in improving the efficiency of our justice system through sophisticated and contextual automation of existing repetitive non-judicial tasks and functions to reduce pendency, expedite judicial adjudication and create more time for judges to resolve complex cases.” -Justice Sharad Bobde (CJI), 201911 It is important to note that the concept of virtual courts is still developing. While the COVID-19 Pandemic continues to prevent physical courts, the judicial system will be compelled to continue advancing Virtual Courts and it could help ushering in a new era of access to justice in India. The procedures which have been limited to exceptional and rare cases could be more frequently even after the physical courts begin functioning again to facilitate faster disposal and greater access to justice. However, there are certain challenges in the system of virtual courts that needs to be addressed immediately and conclusively.

11 The Print Team, ‘AI can improve judiciary system’s efficiency’ – full text of CJI Bobde’s Constitution Day speech’ (The Print, 27 November 2019), https://theprint.in/judiciary/ai-can-improve-judicial-systems-efficiency-full- text-of-cji-bobdes-constitution-day-speech/326893/ 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 95

The primary challenge to the principle of virtual courts is a distinct lack of legislation to govern functioning of the courts online. The different courts are functioning based on separate guidelines that have been made operational by the Supreme Court for its functioning and High Courts within their jurisdiction. While these guidelines solve the problem temporarily, there is a need for either appropriate amendments to the existing legal framework governing the judiciary in India, or appropriate legislation to govern this new system of functioning of courts through video conferencing. This would allow a streamlined procedure and a uniform system to function pan-India, thereby increasing ease of access to justice and reducing ambiguity and confusion. The lack of uniformity in something as important as the video conferencing platform used by different courts is appalling. It must be noted that while the different video conferencing systems operate in a similar manner and have similar user interface, they may create burden on those advocates and parties that are not technologically gifted. Another major challenge for the justice system of India is in developing a system of virtual courts that lacks ambiguity. Vagueness leads to misunderstanding and results in impeding the access to justice. The current portals for different courts in India are in need for a dire overhaul. The overhaul needs to be more than an aesthetic improvement since the system requires a ground-up rebuild to suit the needs of the new reality. The present system leaves much to the imagination and there is no clarity. Lawyers and advocates that have been practicing for decades have faced difficulty in gaining access to these portals due to the improper maintenance of database. The system of ambiguity, bugs and scabrous user interface must be improved. The authorities behind this overhaul and development must also realize that internet is the information super-highway. Therefore, the new portal must fit into 96 Bennett Journal of Legal Studies [Vol.2, Iss.1 the theme of this super-highway, seamless, fast, and unblemished rather than acting like a Gurugram road in the rains, full of potholes and clogs. Another aspect of uniformity in the legal framework arises from the judiciary and its conduct during the Pandemic. The lack of a fixed, specialized body aimed at the proper implementation of e- courts that can think, plan, and implement techniques to implement technology into the functioning of the courts has been a glaring lapse of the Indian Justice System. In the present times, the temporary solution has been the appointment of an e-committee led by Judges with nominal representation of the registry, for token purposes. The distinct lack of professionals, experts, and representatives from the fields of technology, management, system architecture etc. have led to the chronic problem of inadequacy in the implementation of e-courts. This lends a sense of opacity to the entire system and it feels somewhat non-negotiable and fixed for the various stakeholders. The technological illiteracy in India is another challenge that needs to be tackled to make the system of virtual courts viable in India. At present, many of the advocates practicing across India have matters wherein urgent relief is required but, the technological handicap has prevented them from approaching the Court and seeking urgent disposal. To add to the woes of such advocates, the lack of uniformity in the systems and protocols applicable in different courts diminishes the confidence and the willingness of such advocates in adapting to these changing times. It is essential to translate the rights to equality, inclusion, and non- discrimination, enshrined in the Constitution, into the virtual and digital world as well.12

12 Navtej Singh Johar v Union of India AIR 2018 SC 4321 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 97

Another major impediment to the functioning of courts virtually is access to adequate and proper internet connectivity. As per the TRAI reports13, as of December 2019, there are approximately 1.17 billion internet users in India. However, this includes a vast spectrum of internet users with connectivity and speed ranging from 2G to high-speed Fibre-optics. Even though there is access to high-speed internet connectivity as a result of popularisation of Reliance Jio which had a domino effect resulting in a greater and more wide-spread access to Internet, it cannot be ignored that the limited mobile data is still the primary source of internet for many people in India. Advocates getting disconnected abruptly, disturbances and delay in transmission, and unclear transmission have been major issues that have been observed during proceedings through video conferencing. In a profession that relies on clarity of the spoken word, such predicaments are especially problematic since the poor transmission could end up being a matter of life or death for many clients. The lack of adequate internet facilities, which will ensure seamless and unimpeded transmission of voice and video during a virtual hearing is not guaranteed to all persons. This severely restricts access to justice through virtual courts. A major challenge to this new reality and the concept of virtual courts lies in the unwillingness of the legal fraternity to take up the mantle and adapting to the new reality. The judges have been dismissive towards hearings held virtually. Many lawyers have reported that the judges simply adjourn the matter without giving adequate opportunity to be heard. This poses an immediate and grave concern in the dispensation of justice in India. The adage

13 Telecom Regulatory Authority of India, TRAI Performance Indicator Report Oct. – Dec. 2019, https://trai.gov.in/sites/default/files/PIR_30062020.pdf. 98 Bennett Journal of Legal Studies [Vol.2, Iss.1

“why fix something that isn’t broken” seems to be engrained in the Indian justice system. Many judges rationalise that the physical courts are bound to open at some point of time and then, advocates can present their case in the traditional manner. The judges are reluctant in adapting to technology and have, therefore, been dismissive of such hearings. Further, the technological illiteracy of the Bench should also be taken into consideration, which has prevented them from welcoming this change and evolution unequivocally. However, every coin has two sides. On one side, there is the reluctant Bench, and on the other, an apprehensive Bar. The lawyers have also shown apprehension and distrust towards the virtual courts. The lawyers who lack access to proper access to internet connectivity form a large part of the Bar, especially in the lower courts. Furthermore, many lawyers who rely on the might of their voice to get a favourable order cannot fathom a system where bare logic and law will be considered. Other lawyers are unwilling to adapt to the proceedings being held through video conferencing and even though there are matters which merit urgent disposal, lawyers are not taking up the charge and embracing the virtual court. Like the Bench, these lawyers are also prey to the adage of “why fix something that isn’t broken” and hoping for the restoration of normalcy rather than evolving. Hence, the apprehensive and dismissive Bar and Bench pose a grave challenge to the new reality of virtual courts. One more challenge that must be addressed is that there is a significant difference between online proceedings and in-court testimony, because the latter provides the court with a greater opportunity to evaluate the witness based on the witness and his behaviour. Physical presence can play an important expressive 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 99

function, especially in cross-examination, which will eventually lead to the discovery of the truth. Evidence recorded through a video conference may distort non-verbal cues, such as facial expressions, postures, and gestures. Another problem that arises when recording testimony and conducting evidence through video conferencing is that litigants or witnesses testify in the environment, they consider most comfortable (whether at home or in the office). Article 159 of the Indian Evidence Act allows witnesses to refresh their memories when they are examined, under the permission of the court. The fact that the witness can use materials before him to answer questions during the cross-examination process would destroy the entire purpose of the procedure.14 A major red flag to online courts presents itself in the form of threat to privacy and data. Mainly dedicated to the use of personal or financial information for personal gain, the number of global identity theft cases is increasing rapidly. The documents and information of any given case are sensitive in nature. Generally, if this information is collected by other actors for a different context, it is subject to protection or confidentiality. Therefore, it is vital to protect litigants, lawyers and judges from such illegal actions facilitated using internet for conducting legal proceedings.15

SOLVING THE VIRTUAL COURT CRISIS “When you first start off trying to solve a problem, the first solutions you come up with are very complex, and most people stop there. But if you keep going and live

14 Indian Evidence Act, 1872 15 Pramod Kumar Dubey, Virtual Courts: A Sustainable Option, Bar and Bench (Apr 12, 2020, 11:44 AM), https://www.barandbench.com/columns/virtual-courts-a-sustainable-option. 100 Bennett Journal of Legal Studies [Vol.2, Iss.1

with the problem and peel more layers of the onion off, you can often times arrive at some very elegant and simple solutions”. - Steve Jobs It is beyond any shred of doubt that there are several challenges to the implementation of virtual courts in India. However, it is pertinent that the legal fraternity and justice system are not bogged down by these challenges and rather, discourse takes place, solutions are identified, assessed, and implemented. After all, the status quo is also a solution to the larger challenge of dispensing justice despite the prevailing global conditions, and the lessons learnt from the first solution could pave way for a better, simplified and more elegant justice system for India. A recurring theme in the analysis of the various challenges and the status quo has been the lack of a uniform legal framework. The lack of a Central Legislation has been the root cause for several correlated problems and challenges in the status quo. Therefore, many of the key aspects of virtual courts in India could be addressed by a new legislation that encompasses all courts. The uniformity across the different forums will have multiple advantages. The applicability of the same law across the country will ensure that a uniform platform can be created. Uniformity will ensure that the technologically challenged members of the Bar and the Bench will be able to adapt to the changing justice system with greater ease since they will no longer need to learn different platforms that differ in use and access. In Canada, videoconferencing technology has been used to receive witness 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 101

testimony in civil trials for over a decade16. Further, a simplified user interface will help the parties access the system to get orders and court notifications without the need to contact the counsel. While the court orders and status can still be checked by anyone with the key information, the platform is not identical for different courts, thus making it difficult to find the relevant information. The unpredictability of the Pandemic and ever-deteriorating conditions can be used to evaluate and predict that the functioning of physical courts is not likely, at least for the next few months. Even after the situation begins to normalize, the Courts will try to function virtually, as a preventative measure, for as long as practicable and feasible. In the few months that the judiciary is predicted to function virtually, it is pertinent that a more permanent solution is evolved. Therefore, virtual courts with electronic filing and VC (video conferencing) functions will have to continue to exist with physical courts. Therefore, it is recommended that a steering committee be established to assist the judiciary in determining sustainable solutions to its immediate and long-term needs. Such committees must consider the adoption of strategies, legislative amendments, technical infrastructure, etc. as a whole, which is essential to make judicial access feasible and efficient.17 Another recurring theme in the analysis pertains to the technological literacy of the members of the Bar and Bench. If the issue of technological literacy is solved, a lot of the other issues and concerns will be addressed as well. As stated above, the uniformity of platform will help the technologically challenged

16 Amy Salyzyn, A New Lens: Reframing the Conversation About the Use of Videoconferencing in Civil Trials in Ontario’, Osgoode Hall Law Journal 2012 Vol 50(2) 431 17 Dipika Kinhal et al., Virtual Courts in India: A Strategy Paper, Vidhi, Centre from Legal Policy (May 1, 2020) https://vidhilegalpolicy.in/research/virtual-courts-in-india-a-strategy-paper/. 102 Bennett Journal of Legal Studies [Vol.2, Iss.1 members of the legal fraternity. Further, training sessions to introduce and familiarize the advocates and judges with the new system will help in improving their technological competence and comfort in the use of the tools offered through the virtual court and therefore, relieve the apprehensions and distrust of the members of the legal fraternity on both sides of the Court. As the lawyers and judges become familiar with the use of online tools for traditionally offline procedures, the burden on the justice system will reduce, the judicial process and dispensation of justice will become faster and efficient. Significant investment in infrastructure is essential to ensure that virtual courts have the necessary foundation to be operational in practice.18 In the long term, virtual courts can be made a rule by introduction in a phased manner like in UK, rather than a direct shift. Over time, with the implementation of conducive and pragmatic solutions and application of the various lessons learnt during this unprecedented time, the Courts shall be able to devise a well-oiled machinery and mechanism with the blessings and approval of the legal fraternity.

CONCLUDING REMARKS The Indian Justice System has not been particularly proactive in adapting to change and evolving to keep up with the society. However, in this instance, the prevailing conditions due to the Pandemic have forced the courts to evolve and adapt. The use of technology has found immense importance and courts have become virtual. The capabilities and avenues for making justice accessible to all through technology has helped the Courts in their responsibility of dispensing justice. While the Virtual Courts are not functioning at the same rate or efficiency as the traditional, Physical Courts, the contribution of the Virtual Court is important.

18 Ibid. 2021] Virtual Courts: The Forced Evolution of The Indian Justice System 103

It cannot be ignored that the developments of the past few months will have significant impact on the justice delivery system even after physical courts commence. The ease of access and usability along with faster and more efficient processes will allow the Courts to deliver justice in an expedited manner. It is safe to conclude that the developments in the justice system during the COVID-19 Pandemic offer a consolation that the courts in India will be able to embrace the changing and ever-increasing role of technology in daily life. The role of technology in law has already come a long way, from finding cases in heavy, leather bound journals, we have moved to a click and find method of research with the use of internet. In the same manner, if the justice system is able to fully gauge the numerous capabilities and advantages of the new reality of virtual courts, the limitations of justice delivery system and the hurdles to the access to justice will be greatly reduced.

COVID – 19 AND JUSTICE DELIVERY SYSTEM: CHALLENGES AND WAY FORWARD: DIGITALIZATION OF INDIAN COURTS- A FORSEEABLE FUTURE?

Dr. Kamaraju Chitrapu & Ms. Rituka Mane Abstract COVID-19, an unpredictably volatile and virulent strain that has become a global pandemic has played havoc and continues to do so in the lives of people across the World. Home-isolation to social distancing to work from home regimes, adapting to this new scenario has become the new normal. With an already burden-plagued justice delivery system, the onset of the virus has exhibited challenges, with an opportunity to explore, experiment and adopt the viability of electronic courts. An optimal implementation of sanctioned judicial reforms and digitalization of court procedures would lessen the pendency of cases and allow for an efficient functioning of the courts to dispense justice to all the sections of the society. These reformed measures have been stagnant for years and through the virus outbreak, pushed to be implemented. The principal intent behind this paper is to recognize the adversities tormenting the current Indian legal regime and address the absence of measures being implemented to handle the same. This paper highlights the advancements that can be made by the use of technology in the judiciary and the role that has been played by the Supreme Court

 Dr. Kamaraju Chitrapu is the Principal, IFIM Law School and Ms. Rituka Mane is the 4th year BBA LLB (Hons.) IFIM Law School. 106 Bennett Journal of Legal Studies [Vol.2, Iss.1

in adapting to the pandemic, through the utilization of Information Technology tools. Keywords COVID-19; Social Distancing; Pendency in Litigation; Technology; Access to Justice “In significant ways, what we do today will define the future. Our responses must deal with the present, but the footprints of the pandemic will redefine how we function tomorrow in ways which may not really be apparent today.” – Justice DY Chandrachud.

INTRODUCTION As far as the living memory has witnessed, the Covid-19 outbreak is a threat as well as an opportunity for development and growth. The pandemic has constantly forcing the hand of the society, government, and individuals to adapt to the social distancing protocols and change how they work, analysing the present- dynamic scenario of the exponentially growing world crisis. With guidelines to curb the spread of the virus, the world has come to a standstill affecting several spheres of society: social, economic, legal, and financial. At such a time, with ever-increasing cases, varying degrees of measures have been taken up, from quarantines, work from home regimes to virtual court hearings. Justice and the access to it form the basic cornerstone of the Indian Constitution and the pandemic poses a threat to the existing judicial system. Technology, in this fast-paced world, is an absolute requisite and the outbreak has largely emphasized this spectrum. This article mainly exhumes the challenges of the judicial delivery system and the detrimental effect the outbreak has had on the already poor and 2021] Covid – 19 and Justice Delivery System 107

overburdened judiciary, and the instrumental change that can be brought in, manoeuvring this global crisis. As it currently stands, there is an absolute priority to increasingly acclimate oneself to an innovative judicial system, finding another translation on open-court hearings, cultivating responsibility and transparency, and effectuating the standard of rule of law in a way that the admittance to equity remains unhampered. The article further emphasizes the various pre-existing challenges faced by the judiciary and the underlying hope within the confines of the COVID-19 war.

NOVEL CORONA VIRUS - AN ONGOING WAR COVID-19, an unprecedented and unseen virus burdened with an avalanche of fear and dismay originated in Wuhan, China. A volatile strain that made a shift from animals to humans soon became unpredictable and mutated into asymptomatic carriers, leading to a surge in uncertainty, ambiguity, and fear. Due to globalization, the transmission, and spread of the virus became as quick as accessing the internet, inducing a highly contagious global pandemic which was declared by the World Health Organization on March 11, 2020. The transmission pathways of diseases, such as COVID-19, from animals to humans, highlight the extent to which humans are placing pressures on the natural world with damaging consequences for all.1 Observing the outbreak of the virulent strain, several countries opted for measures such as lockdowns and quarantines in the initial days, which led to an economic recession and massive unemployment. While little is known about the novel coronavirus, just seven months into the pandemic has brought significant changes in how the world

1 A UN FRAMEWORK FOR THE IMMEDIATE SOCIO-ECONOMIC RESPONSE TO COVID-19, Apr. 2020. 108 Bennett Journal of Legal Studies [Vol.2, Iss.1 operates. This pandemic has tapped into the fears of several States as to their functioning and the viability of their Governmental schemes, the lack of medical facilities, professionals, funds, and the ever-increasing toll of infections, leading to the extent of community transmission. The marginalized communities are the most severely affected class of population due to this pandemic, as their entire basis of livelihood has been shaken to the core. Recently, a few reports have remerged with regards to the infection saturating different body parts apart from those that had been assessed earlier and cautioned of to the overall population, which intensifies the ambiguity underlying this fight.2 It is essential to understand that the COVID-19 pandemic is far more than a health crisis, it is a human crisis, affecting economies, and societies at their very core. With cases crossing the 15-million mark, it is imperative to adopt stringent measures and guidelines, with face masks and social distancing becoming a new normal. With such new developments, accessing justice becomes seemingly difficult. Every field, adapting to the dynamic nature of the virus has succumbed to the employment of technology in their day-to-day aspects, leading to an increasing dependence and incorporation of it in every facet of our lives. Similarly, the legal fraternity had to expedite their efforts to adjust their outlook and effectively implement the E-courts project that was initially envisioned by the Apex court in 2005 based on the concept of “National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary – 2005 submitted by the e-committee of the Supreme

2 Symptoms of Coronavirus, CDC. Available at: https://www.cdc.gov/coronavirus/2019-ncov/symptoms- testing/symptoms.html. 2021] Covid – 19 and Justice Delivery System 109

Court.”3 With several phases of this project underway, an unforeseen outbreak of COVID-19 accelerated the wheels to oblige with the needs of the society, in dispensing justice to the public. With an alarming surge of cases and subsisting social distancing protocols, a shift to virtual court hearings and listing of cases was critical to safeguard the access to justice as well as the ones delivering it. In addition to the measures taken by the Government to suppress the number of cases, another extremely distressing outcome is the mass-unemployment of individuals due to the lockdown scenario and economic recession. Moreover, the absence of adequate assets with regards to clinical and technological aspects, stays an emerging test to handle and survive. Even in such troubling times, the Apex Court in an effort towards uninterrupted access to justice, has paved the way via video conferencing, and whether this step, taken in the need of dire circumstances will act as a catalyst to enable the digitalization of the Indian Judicial System remains an optimistically feasible option. COVID-19 remains an aggravating and apprehensive issue to the date and the near future seems bleak with a successful vaccine several months away, which presses the States to restructure and organize the society in a manner to forestall the breakdown of the economy. With daily reports of India jumping leagues in the number of cases, it is indispensable to take steps that lead to a safer society to operate in and restrict the spread of the virus, while keeping in mind the obligations towards the society. This outbreak has proven as a reminder about the intimate relationship between humans, animals, and the environment.

3 National Policy and Action Plan for Implementation of Information and Communication Technology In The Indian Judiciary, E-Committee- Supreme Court of India, New Delhi, 1st Aug 2005, Available at: https://main.sci.gov.in/pdf/ecommittee/action-plan-ecourt.pdf. 110 Bennett Journal of Legal Studies [Vol.2, Iss.1

EXISTING IMPEDIMENTS OF THE JUDICIARY Courts are considered to be the temples of justice, and the hallowed halls, sacred as it is believed to be the only place where justice can be dispensed. Judiciary has a significant role in facilitating justice and Justice is the first virtue that the Constitution seeks to secure for the people of India4, and covers social, economic, and political dimensions. For the very survival of this sacred document, a just social order is mandatory, as has been enunciated under Article 38(1) as, ‘The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.’ The Constitution recognizes and guarantees several fundamental rights that aim at the protection of the social and political justice of the citizens, thereby imposing upon the State, obligations through binding but judicially non-enforceable directive principles that are “fundamental in the governance of a country.”5 To secure social justice, the framers of the Constitution intended the Judiciary as the centre to secure this objective and Art. 32, the heart and soul of the Constitution providing the citizens a right to approach the Supreme Court for the enforcement of fundamental rights. Consequently, if rights are tools to secure justice, then the judiciary can further access to it by enabling effective tools to secure socio-economic and political justice.6 The judiciary provides the fora for the enforcement of such rights or remedies against their infringement, hence enabling effective social empowerment and transformation through law. Therefore,

4 Preamble, Constitution of India. 5 Art. 37, Constitution of India. See: Keshvananda Bharati, para 672, Minerva Mills v. UOI (1980) 3 SCC 625. 6 S. P. Gupta v. UOI, 1981 Supp SCC 87. 2021] Covid – 19 and Justice Delivery System 111

access to justice is intrinsically tied to the vision of law containing an emancipatory potential7, and corrective justice, in a society marked by violence, discrimination, and exclusion, facilitates empowerment, accountability to the public, and an end to the immunity held by constitutional and statutory entitlements. An essential element to accessing justice is the creation of an accessible legal system, furnished with substantive rights that are protected and promoted effectively and efficiently through the application of the law. Thus, access to courts is a mere component of accessing justice. Within the framework, several barriers arise out of a lack of resources and an imbalance of demand and supply of judicial services. In response to this, several judicial reforms were set in place to adapt to the fast-changing legal environment rather than following antiquated techniques.

JUDICIAL OBSTACLES & REFORMS: JUDICIAL APPOINTMENTS TO COURT INFRASTRUCTURE Provision of legal aid clinics was a first, through which legal awareness and aid ought to be extended and such programs were introduced in law colleges to facilitate legal aid on a grass-root level. Efforts were made to reduce delay and arrears in case filings, hearings, transfers by way of diverting cases to recently adopted alternative dispute resolution mechanisms8, documentation & publication of cases9, introducing contemporary court and case management techniques for speedier disposal10, and improving

7 ‘Access to Justice’, S. Muralidhar, "Law, Poverty and Legal Aid: Access to Criminal Justice", 2004. Available at: http://india- seminar.com/2005/545/545%20s.%20muralidhar1.htm. 8 Legal Services Authorities Act, 1987; C.J. Conference Resolutions, 2015. 9 National Judicial Data Grid (NJDG), Available at: https://njdg.ecourts.gov.in/njdgnew/. 10 C.J. Conference Resolutions, 1994. 112 Bennett Journal of Legal Studies [Vol.2, Iss.1 court infrastructure & human resource to process cases faster11. Through these various proposals, was proposed to help and lessen the case load on the courts and eventually lead to efficiency. Nevertheless, this has been to no avail, as the number of pending cases has been at a staggering high. Pertinent aspects such as case disposals, judicial vacancies, lack of infrastructure, and technology have owed to this present state of the judiciary. With cases pending to an insurmountable number of 59,867 cases in the Supreme Court, 44.75 lakh cases in the High Courts, and 3.14 crore cases in the lower courts; district and subordinate levels. These statistics have barely varied since 2014, rather worsened.12 The enormous backlog of cases, with the unfortunate outbreak of the COVID-19, has worsened this scenario, leaving the judiciary at a binary crossroad: one to opt for physical court hearings amid the pandemic or modernize their approach, to which the court has firmly opted for the long-anticipated technological solution. The use of Information Communication Technology (ICT) tools and modern court management systems were first proposed in the CM/CJ Conference of 2006 and in 2011, a National Mission for Justice Delivery and Legal Reforms13 was established under the Department of Justice, Government of India, and a National Court Management System14 in the Supreme Court with the objective to increase access to justice, enhance accountability through structural changes and setting performance standards. Nevertheless, these deliberated reforms remain incomplete, due to

11 C. J. Conference Resolutions; Law Commission of India, 2014. 245th Report on Arrears and Backlogs, New Delhi: Government of India. 12 In 2014, the number of cases pending were 62,791 in the Supreme Court, 41.53 lakh in high courts and 2.62 crore in lower courts. 13 National Mission for Justice Delivery and Legal Reforms, 2011, Available at: https://doj.gov.in/national-mission-justice-delivery-and-legal-reforms. 14 The NCMS Policy and Action Plan, Available at: https://main.sci.gov.in/ncms. 2021] Covid – 19 and Justice Delivery System 113

irregular meetings of the council15, and lack of implementation of envisioned reforms, leading to a heavy backlog of cases. To the credit of the efforts made through these reforms, the courts had developments as to the infrastructure, computerization, and appointment of judges. Through these advancements, however not on par with the global standards, improvements in documentation, and ease of accessibility to case listings and data were persuasive to continue forward on this journey of a technological revolution in the judiciary. These reforms, although good, are ignored by the courts due to the inability to implement it, hence plaguing the judiciary with inefficiency. The Chief Justice of the High Courts and other senior judges oversee all decisions of the subordinate judiciary and are burdened, owing to the lack of skill set and time, hence administrative issues hardly garnering attention. To administer the judicial system, a requisite set of skills such as knowledge and ability of ICT, HRM, qualitative & quantitative analytical tools, infrastructure management, and customer service is pre-emptive. Due to the lack of such, the several policy decisions taken by the higher judiciary and government to improve the efficiency and competence of the lower courts, which make up for the largest chunk in pending cases, have proven ineffective. Regardless, a structure and framework were set in place to analyse the changes that needed to be made and how technology can bring about a change. Through an analysis of the databases set up under the e-court project, the

15 Tarika Jain & Shreya Tripathy, Irregular meetings of advisory council won't help national mission for legal reforms or bring down pendency as cases pile up, Firstpost, February 14, 2019 11:15:03 IST, available at: https://www.firstpost.com/india/irregular-meetings-of-advisory-council- wont-help-national-mission-for-legal-reforms-or-bring-down-pendency-as- cases-pile-up-5946261.html; The last Advisory Council meeting was held in 2016, even after several attempts, a meeting has not been convened successfully for discussion on these reforms. 114 Bennett Journal of Legal Studies [Vol.2, Iss.1 factors affecting judicial efficiency were identified as the lack of judge strength, delayed disposal rates, insufficient budget, administrative inefficiency, and infrastructural deficits amounting to a 6-year pendency in the subordinate courts on an average. There is a probing requirement for an improvement in the systemic efficiency and re-engineering judicial processes, apart from refining the other factors.

The above graph16 depicts the abysmal state of how the reforms have been implemented. As it can clearly be distinguished, the Budget allocation towards the judiciary and the judge vacancies at the High court level remain deficient, adding to the inefficient disposal of cases, thereby increasing the backlog. Keeping these drawbacks in mind, and the National Action Plan regarding judicial reforms, the onset of an unceasing outbreak of COVID-19

16 India Justice Report-2019, Data source: Court News, Supreme Court of India; Combined Finance and Revenue Accounts of the Union and State Governments in India, Comptroller and Auditor General of India Notes: 1. States and Union Territories are arranged in decreasing order of improvement count within respective clusters. 2. Andhra Pradesh and Telangana have been excluded as 5-year data for these states was not available separately. *pre-Budget 2019. 2021] Covid – 19 and Justice Delivery System 115

has made health and safety a primary concern. Consequently, it has left a resounding impact on litigation and arbitration in numerous ways ranging from an increased use of remote hearings to general open-court closures, aiming at minimizing the transmission of the virus. Hence, embracing technology in an inflated manner to ensure minimal disruptions in access to justice. In an effort to effectively strategize and manage litigation, the judiciary embraced mandatory electronic filings, restrictive hearings on an urgent basis only through video conferencing and making every-day efforts to make the process of justice delivery easier and efficient. Minding the most significant hindrance, a technological handicap and lack of proper facilities within the larger expanse of litigants and their lawyers, this shift of outlook can seem like a stretch. Following the guidelines issued by the Government, the Supreme Court vide its order17 dated 23rd March 2020 has suspended physical court hearings and such has been sustained up to July 31, 202018, until further orders. Drastic efforts were taken by the High Courts to ensure smooth functioning amid the combat against COVID-19. Increasing suo-moto cognizance taken by the courts show a proactive role of the judiciary in these trying times observing the impediments persisting within the judiciary. Although efforts made through recent initiatives such as amendments in the SC rules, translation of the SC judgements into vernacular languages, for optimal transparency and openness and setting up of various cells, for a vigilant eye to track the

17 Supreme Court of India, Court Circular, dt. 23.03.2020, Available at: https://main.sci.gov.in/pdf/cir/23032020_153213.pdf. 18 Court Office orders No.373/Estt. /E1/DHC dt. 23.03.2020, No.194/RG/DHC/2020 dt. 25.03.2020, No. R-43/RG/DHC/2020 dt. 15.04.2020, No. R125/RG/DHC/2020 dt. 02.05.2020, No. R- 201/RG/DHC/2020 dt. 16.05.2020, No. R 271/RG/DHC/2020 dt. 21.05.2020, No.1381/DHC/2020 dt. 29.05.2020, No. 1 5/DHC/2020 dt. 13.06.2020 and No.21/DHC/2020 dt. 29.06.2020. 116 Bennett Journal of Legal Studies [Vol.2, Iss.1 performance standards and efficiency, the institution, disposal, and pendency remain dismal. Pendency of cases remains inflated, with a high fragment of cases consisting of pending admission cases, which keep rising to the day. Another issue that remains are the judicial vacancies, ramping up the burden upon each judge to an average of 4419 cases per judge, at the High Court level and 1288 pending at the subordinate levels, based on the Law ministry data.

The onset of COVID-19 has driven courts to assume restricted access to court rooms, operating at a reduced capacity, partial closure of the Registry and virtual hearing of only urgent cases which has led to the pendency of cases at an all-time high, with SC at 60,444 cases as exhibited in the graph below19. Owing to this, the challenges such as transparency, arbitrary listing of cases, lack of technologically empowered provisions under Evidence Act, lack of ease of access to the marginalized community, attorney-client privilege, public accountability, and the lack of an established system for tracking cases at the subordinate level outlines the fear of functioning virtually.

19 Supreme Court of India, Summary of Pending matters as of July 2020, Statistics. 2021] Covid – 19 and Justice Delivery System 117

APPROACHES TAKEN AROUND THE WORLD In these terrible times, upholding the principle of rule of law, liberty and justice, Judicial systems all over the world have responded responsibly to COVID-19, moulding themselves to function accordingly. The phrase, “The price of liberty is eternal vigilance” has gained significant importance in the present times, and any responses and restrictions by the Executive cannot risk undermining the role of judiciary. In the United Kingdom, the Lord Chief Justice suspended jury trials and a new bill, namely ‘Corona Virus Bill’ provided for greater use of video and audio hearings for criminal and magistrate trials, postponing non-urgent matters and warnings against delay in e-filing of cases. In France, essential litigation was given precedence including people in custody, urgent matters relating to children and violent partners. In the US, where the virus has spread drastically, postponed, or cancelled jury trials as well as obligatory filing of paper copies of documents, and according to the Action Plan, remotely scheduled hearings virtually/ orally. In the Mainland China, Supreme People’s Court ordered all the courts to function online and promoted ‘mobile micro court’ usage to conduct internet trials. As for Arbitration matters, all filings were mandated to be done electronically and encouraged to use virtual ADR service portals to reduce travel and in-person meetings/hearings.

118 Bennett Journal of Legal Studies [Vol.2, Iss.1

ACCESS TO JUSTICE, A PRIVILEGE? The most notable case in history of a flawed decision that should never have been was ADM Jabalpur20, which threatened the innate rationale behind rule of law and the rights enshrined under our Constitution. In K.S. Puttaswamy21, The SC rectifying this grave error overruled the ADM decision and echoed in majority that the fundamental rights, life, and liberty of a citizen cannot be suspended during an emergency, and COVID-19, though not expressly declared as a National emergency plays out as a modern one. Therefore, access to justice cannot be interrupted. With modern technology facilitating and enabling courts to enhance the quality and effectiveness of administering justice, the ICT enabled infrastructure has been made available across all courts including the district judiciary that stands as the initial front of the court system with the citizens. Use of technology, first found judicial recognition in Praful Desai case22 and ever since, it has been an endeavour to advance the legal system. Faced with the extraordinary outbreak of COVID-19, ensuring that the court premises do not contribute to the virus spread, it is the duty of all the courts to take cognizance of the measures needed to be employed for smooth functioning of the courts. The Apex Court, in order to maintain the status quo of the courts, exercised its powers under Art. 142 of the Constitution of India to make necessary orders to discharge complete justice.23 The SC and HC were delegated to adopt suitable measures to ensure robust functioning of the judicial system through the use of video conferencing

20 ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521. 21 K.S. Puttaswamy v. UOI, AIR 2017 SC 4161. 22 St. of Maharashtra v. Praful Desai, (2003) 4 SCC 601. 23 Suo Motu Writ Petition (Civil) No. 5/2020, In Re: Guidelines for Court Functioning Through Video Conferencing During COVID-19 Pandemic, Apr. 6, 2020. 2021] Covid – 19 and Justice Delivery System 119

technologies. Considering the peculiarities of judicial systems in every State and ecstatic outspread of the virus, the HC’s are authorized to make the transition to VC efficient and smooth, and oversee the facilities required to incorporate VC at the District level in every State. With the groundwork established and running, guidelines have been passed through multiple High Court orders, however, there remains a lack of consistency in the mechanisms being adopted to tackle the pandemic. This haphazard approach reveals an administrative void in the higher judiciary, leading to scepticism and doubt in the minds of the litigants, lawyers, judges and public alike. With Court hearing matters on an ‘urgent basis only’ and there not being any criterion that encompasses what an urgent matter entails, there is no clarity with regards to that, which leaves the common lawyer and litigant at a disadvantage, no matter how urgent the matter. At the district level, owing to the infrastructural handicap, there is a higher risk of spreading the virus and regardless of the efforts made by the higher courts, the gap appears to be widening and access to justice, becoming a privilege. The marginalized and poor are at the rear end in this ladder to access justice in these trying times, which disgraces the purpose of the justice system. Presently, cases of discretionary urgent nature are being heard, whereas other cases at the subordinate levels are being adjourned, building up the backlog immensely. There is a dire need to re-calibrate the judicial system through a digital platform and educate the stake-holders vis-a-vis the utility of technology in ease of accessing justice. According to a Constitutional provision under Art. 145(4), “No judgement shall be delivered by the Supreme Court other than in an open court, and no report be made unless in accordance with an opinion delivered in open court. Additionally, open court hearings are also mandated in all criminal and civil cases under Sec. 327 of Cr. PC and Sec. 120 Bennett Journal of Legal Studies [Vol.2, Iss.1

153-B of CPC. An ‘open court’24 is defined as a court to which the public has a right to be admitted, with the objective of building public confidence in the administration of justice. This is based on the philosophical connotation, ‘Not only must justice be done, but it must be seen to be done’ which rings all across the remote virtual courtroom hearings, where public access is restricted only to the hearings of the Supreme Court. This poses a serious threat to the accountability and transparency of justice and confronts the mandate provision of an open court. Nevertheless, an equipped system and the bandwidth to implement and conduct virtual hearings would tremendously assist access to a substantial reach of the public, aiding the openness and transparency of court hearings. Another drawback of an in-court hearing, and an advantage of a virtual hearing is that the infrastructure is space-bound and accessible to a set amount of people, where in contrast, a virtual hearing is a much more convenient, secure, and cost-effective method which reduces the burden on the budget allocation and allows for a better disbursement on technological advancement. As alluded earlier, the technological handicap plaguing and causing dismay in the non-tech savvy generation remains a concern, albeit initially with the e-cause lists25, a similar reservation against it was expressed by lawyers citing lack of computer literacy, but it has boded well and soon became a part of our system. The issues being cited, such as internet bandwidth and connectivity, glitches, echoing, irregular recording of hearings among others are teething problems, but in the long term lies a

24 Black’s Law Dictionary. 25 ‘Can we think of e-courts if lawyers aren’t ready for even an e-cause list?’, The Hindu, dt. 6-4-2013, available at: https://www.thehindu.com/news/national/karnataka/can-we-think-of- ecourts-if-lawyers-arent-ready-for-even-ecause-list/article4585515.ece. 2021] Covid – 19 and Justice Delivery System 121

great opportunity to turn the justice delivery system around. Thus, inescapably, a change in the mindset and attitudes of the litigants, lawyers, judges, and public with the assistance of the judicial reforms in place and suitably moulding the legal education to equip the students of the next decade to be adept with the revamped and efficient justice delivery system.

ROLE OF JUDICIARY IN THESE STRENUOUS TIMES During a time where social distancing protocols and home quarantines are being emphasized as the only way to reduce the spread of COVID-19, the wraith of crowded court premises is the last exploit required. The Apex court taking a proactive stance to handle this scenario, have regularly been making orders for the ease of access of justice to all the stakeholders. Suo-Motu cognizance by the courts has seen an uprising during the pandemic, and duly to the rescue of the marginalized and poor communities. The Courts have passed orders to the Government to ensure the welfare of the migrant labourers26, setting up High Powered committees to recommend concerning under-trials and convicts, due to contagion of the virus in prisons- decongestion of jails and other correctional homes27, Contagion of virus in children protection homes28, free of cost private lab testing to those covered under the Ayushman Bharat Scheme29, Intervention in access to the mid-day meal schemes30, setting up helpline numbers to

26 Suo Motu Writ Petition (Civil) No(S). 6/2020 In Re: Problems And Miseries Of Migrant Labourers. 27 Suo Motu Writ Petition (Civil) No.1/2020, In Re: Contagion Of Covid 19 Virus In Prisons. 28 Suo Motu Writ Petition (Civil) No. 4/2020, In Re: Contagion of COVID-19 Virus in Children Protection Homes. 29 Shashank Deo Sudhi v. UOI and Ors, Writ Petition No. Of 2020 (D. No.10816/2020), Free Testing Modification Order. 30 Suo Motu Writ Petition (C) No(S).2/2020 In Re: Regarding Closure Of Mid-day Meal Scheme. 122 Bennett Journal of Legal Studies [Vol.2, Iss.1 mitigate the problems arising from the transition to virtual hearing and the extension of limitation period to file cases31. From setting up video conferencing norms, official mobile application for easier access and relaxation of stringent rules regarding employment restrictions to lawyers to reduction of printing charges in cases filed through e-filing and allowing notice through WhatsApp, there has been an immense shift in the functioning of court and their adaptation to the dynamic scenario. Safeguarding the torch of justice and keeping it burning is the duty of the judiciary. COVID-19, although an unfortunate circumstance, stands as a test of the strength of the judiciary to adapt and develop, and steps have been eagerly taken in order to achieve a stronger, safer, and efficient judicial system. Though, several matters still remain uncertain due to a lack of sufficient and proactive judicial probe and review in matters relating to the poorest of the poor, who do not have the ability or resource to approach the courts, causing injustice. The Supreme Court has heard 593 matters and delivered a judgement in 215, where the Delhi HC has heard 3787 and the subordinate courts over 18000 cases, with Madras HC disposed of 446 cases and subordinate courts over 10206 cases, virtually. Though astounding, the question regarding efficiency remains as of now. Being cognizant towards the lack of understanding of technology and lack of facilities or inability to afford, does not dismiss the notion of a digitalized justice delivery system, as in the long run these factors can be improved and measures taken appropriately, leading to a speedier disposal rate. The Apex Court has been reshaping history through their judgments and a technologically adept system would help preserve these in posterity. Video conferencing also offers a

31 Suo Motu Writ Petition (Civil) No(S).3/2020 In Re: Cognizance For Extension Of Limitation. 2021] Covid – 19 and Justice Delivery System 123

secure way to obtain evidence from vulnerable or intimidated witnesses, furthering our stance in the witness protection programmes. It is also a recognized criticism that litigation is only for the rich, and for a poor litigant residing in a remote corner of the country, he/she is discouraged from appealing as it would be financially draining. Incorporating technology inclusively would empower the litigant and the lawyer, alike by making courts accessible, affordable, and leading to fewer visits. As reiterated earlier, then open courts are the backbone of the justice delivery system and cannot be completely replaced by virtual courts right now, but an increasing digitalization of the courts is mandatory here on forward. This would ultimately prove to be cost-effective, eliminate the huge numbers of hard-copy petitions, and establish an efficient e-filing system to make the judicial system paperless. It is also imperative to increase the sanctioned strength of Judges at all the levels of the justice delivery system, with workshops regarding case management techniques and performance standards. Lastly, but most importantly, a requisite network infrastructure must be arranged across the country to tackle internet bandwidth issues and to equip even the Magistrates of the lower judiciary, appointed with the requisite skill set to adapt flexibly.

CONCLUSION Unless the fundamental issues plaguing the judicial system are eliminated, no magnitude of technological influx would prove effective. With the aggravating numbers of COVID-19 cases and the pending cases in the judiciary, it is crucial that steps be taken to reduce the backlog, decongest courts and accelerate the pace at which technology can be adopted by the judiciary at all levels. The pandemic, presently a grave threat to the race of humanity has forced the hand of the society and government to change, and the 124 Bennett Journal of Legal Studies [Vol.2, Iss.1 adoption of technology in dispute resolution will significantly reduce cost for the parties and allow the judges to tend to more matters, thereby allowing a wider audience to study the data. Therefore, digitalization of courts is the way forward and encompassing the justice delivery system with the reforms in place, with a change in mindset, would allow for a smooth and effective functioning of Indian courts, eventually to have a perfect blend between e-court rooms and physical courts for speedier disposal of justice to all the sections of the society, and encouraging the younger generation of lawyers to look at litigation as a viable career option. With respect to the challenges plaguing the Indian judiciary at the moment, Digitalization and induction of ICT tools can help lessen the load and create an efficient system that can be used to widen the outreach of our justice delivery system exponentially. Technology must constructively be introduced at all the levels of the judicial system, from Trial courts to the Supreme Court, and tribunals to make them easily accessible, affordable, and equitable. APPLICATION OF VIRTUAL HEARING ON DISTRICT COURTS OF INDIA

Teesta Mishra &Laiba Ahsan Abstract The unforeseen circumstances looming over the world in the name of COVID-19 have stirred the normal functioning in all ways, and Judiciary could not stand aloof. With the shift from real to virtual, there are many hurdles to overcome, many changes to make. The problem increases manifold for the District Courts, which are not as technologically advanced as the higher courts of the country. As is said, modern problems require modern solutions, and the first step to eliminate the problem is to diagnose it. Virtual hearings, even though the need of the hour, come at the cost of some fundamental attributes of the legal system. The foremost may be Open Court hearing, which is recognized worldwide as an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. There is also technological inadequacy in the judiciary, and the problems that might incur in the trials. However, technology is here to stay, and the role it would play in the coming future is irrefutable.

 Teesta Mishra is a third year B.A.LL.B student and Laiba Ahsan a second year B.A.LLB. student at University School of Law & Legal Studies, Guru Gobind Singh Indraprastha University 126 Bennett Journal of Legal Studies [Vol.2, Iss.1

Keywords Virtual Hearing; COVID-19; District Courts; freedom of expression This note aims to enumerate the issues that the Districts Courts would face, while attempting to make a transition to virtual hearings, and is an earnest attempt to provide solutions for the same. The pandemic is a reality check for the judiciary, and the response made today would shape the future of our legal system for times to come. The moment an advocate enters the pristine building of the Court, his face gleams with pride; the pride of being the messiah of the distressed. He is all set to charm, not just the judge, but the entire courtroom, with his command over the various nuances of his craft. The valour of his voice is reflected in the glimmer of his eyes. But today, his laptop fails to evince the demeanour of the courtroom and his fervid arguments are lulled by the low network bandwidth of his internet connection. COVID-19 has taken the entire world by a storm. Life has come to a halt, confining all within the four walls. Even when the doors of Gods were shut, the doors of Justice kept welcoming the needy. When the citizens could not move to the Courts, the Courts came to their rescue through a virtual window. However, this juggle caught the judiciary off guard with regard to the integration of technology into its routine functioning. While the Apex Court and the High Court somehow managed to keep afloat through the available technology, all the subordinate courts had to be shut down, due to the scantiness of the apposite digital infrastructure. District Courts, being the first step on the ladder to justice, cannot be kept away from the people for too long. 2021] Application of Virtual Hearing on District Courts of India 127

In the future, we are bound to seek refuge in technology, therefore, this article aims to outlay the existing issues and devise a plan for gradual integration of technology, especially at the district level. We have zeroed in on the following issues:

INADEQUATE INFRASTRUCTURE If technology is to stay for the longer run, it has to be compatible with principles of law, especially ‘Access to Justice’. Internet access is unevenly distributed throughout India, owing to affluence, education, and connectivity. According to the “Indian Telecom Service Performance Indicators, 2019”, published by TRAI, Urban India has 104.25 Internet subscribers per 100 people, however, rural India stands only at 27.57 in 2019.1 This makes it a metro-centric exercise, rather than a pan-India application. To add to miseries, not many advocates are geared with the relevant and updated technological means. That, accompanied with outworn digital infrastructure of the courts, makes the switch to the virtual setup onerous. The absorption of technology at all levels cannot be instant, leaving the justice system and its seekers crippled. Therefore, technological advancements need to walk hand in hand with digital literacy. Inclusive growth demands equal access to all social groups. Judges, advocates, court staff and even, public should be provided with training modules so as to facilitate a smooth transition. It is imperative to ensure that the infusion of technology in our Courts increases the efficiency rather than making the process tedious. To illustrate the inefficiency, the filing procedure during this pandemic at Supreme Court incurs an additional 1.5 Rs. for the

1 Telecom Regulatory Authority of India, INDIA TELECOM SERVICE PERFORMANCE INDICATOR, at 33 (2019). 128 Bennett Journal of Legal Studies [Vol.2, Iss.1 printing cost, so as to be submitted to the Judge in hardcopy. Therefore, it has failed to serve as completely paperless filing.

OBLITERATING THE OPEN COURT PRINCIPLE Openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.2 In R. vs. Secy. of State for Foreign and Commonwealth Affairs3, Lord Judge, C.J. held that the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Thus, all trials should be held otiis apertis, i.e., with open doors. This term envisages not just the right of the litigant, but also of those who may be affected by it and provides a safeguard from judicial caprice and vagaries. In India, it is capsulized in Article 145(4) of the Constitution4, cocooned by Article 19. It is further reiterated in Section 327 of CrPC5; and Section 153(b) of CPC6. This principle gets greatly undermined in virtual court hearings, as the window to attend the hearing is open only to the advocates representing the concerned parties, unlike a regular courtroom, which is open to all. To address this concern, a parallel may be drawn to the United Kingdom's Coronavirus Act, 2020 that empowers the courts to broadcast proceedings, both in criminal and civil matters, thus allowing public access to the ongoing proceedings.7 The Supreme Court has categorically laid down guidelines on the same in the

2 Naresh Sridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744 (India). 3 Secretary of State for Foreign and Commonwealth Affairs (2018) UKSC 3. 4 INDIA Const., art. 145, cl. 4. 5 The Code of Criminal Procedure, 1973, No.2 Act of Parliament, 1974 (India). 6 The Code of Civil Procedure, 1908, No.5 Act of Parliament, 1908 (India). 7 Coronavirus Act 2020, c.7 (Eng.). 2021] Application of Virtual Hearing on District Courts of India 129

case of Swapnil Tripathi v. Supreme Court of India8, which may be referred to.

TRIAL AND ERROR Litigation, as we know it today, is not conducive to ‘work from home’, especially due to the many intricacies involved in a suit. Districts Courts, unlike the Supreme Court, or even High Courts in most cases, are trial courts and thus a lot procedural in nature. Without proper training, it would be difficulty to conduct the entire trial virtually, without acute chances of glitches and misreporting of submissions in terms of documentation and filing. Further, while recording Evidence in a virtual setting, gestural cues such as facial reactions, speech modulation or other intricate details, which are of immense help to the judge, may get distorted. Moreover, in an IT- enabled setup, assurance of no duress will be pyrrhic as the entire process is depersonalized. There will also be noticeable challenges while cross examining the witnesses who will now testify from the comforts of their homes. The chastity of the cross will be reduced as there would be no means of finding out if the information sought is directly coming from the witness or being prompted to him or being read. One way to do away with this problem is a perused categorization of cases, depending on the nature and gravity of the offence, thereby meaning that select cases, requiring testimonies and cross examinations should be prioritized for in-person hearing, while petty offences such as challan cases could be resolved virtually. A committee of experts should be constituted to come up with a well devised plan to deal with electronic evidence and record keeping, in order to have a systematized digital library which is accessible

8 Swapnil Tripathi v. Supreme Court of India, (2018) 10 SCC 628 (India). 130 Bennett Journal of Legal Studies [Vol.2, Iss.1 to all. Therefore, a hybrid system of virtual and physical court can do a lot in the way of reducing pendency while also ensuring fair trials.

LIMITED PRACTICAL LEARNING A novice picks up some stated and many unstated norms even while walking in the court corridors. Mounds of legal energy remain unspent without the daily quota of the courtroom drama. A switch to the digital mode brings along a loss of practical learning opportunity for budding lawyers and interns. Internships, as a part of the academic curriculum, hold huge significance, especially in the legal field, as the textbooks provide only half knowledge, unless one does not learn its application in real life and ingrains new skills in the process. Being a trial court, the District court allows a student to witness all the bits of a proceeding, from filing to delivering of the judgement. There is no better learning for a law student than visiting the courts, witnessing the ongoing proceedings first-hand. This also introduces him to the court procedures, requisite demeanour, and the physical and mental patience the profession requires one to possess. An amateur lawyer would miss out on these experiences of learning the basics of the art of advocacy in a virtual setup. The importance of witnessing court proceedings to gain a better understanding of the nuances was also emphasized upon by Justice Deepak Gupta in his farewell address, wherein he motivated young lawyers and students to sit in courtrooms to learn Court craft from senior advocates. This virtual setting provides meagre opportunities for internships and even those have little to offer.

2021] Application of Virtual Hearing on District Courts of India 131

CONCLUSION Though the response of the judiciary in the pandemic was actually a testament to quick delivery of justice, an abrupt shift from an adversarial system running on ways of frontal cross-examination to an online window is bound to have technical hiccups. However, no matter how much we escape, technology has crept into all facets of our personal as well as professional life. In the long run, the advantages of virtual court are bound to outweigh its demerits, which requires a balance to be brought in the entire system. Hence, the purpose of identifying the prevalent issues is to make the necessary adjustments, so as to create a transparent, efficient, accountable, and intelligible process. Justice D.Y. Chandrachud, while addressing law students spoke about the relevance of technology in providing justice in the coming times. He said, “Whether we like it or not, technology has come into every aspect of our existence...and technology will play a far greater role in easing up the process involved in the judicial system to make justice delivery much speedier.” This pandemic acted as a reality check for the judiciary and gave it a chance to assess its position in terms of technological advancement. It is a brave new time for the law, and for lawyers and the entire legal fraternity. Our response to the questions of justice that arise in these testing times could set the tone for justice delivery for the indefinite future.

THE PLAGUE OF THE SHADOW PANDEMIC: ANALYSIS OF INDIA’S SOCIO-LEGAL OBLIGATIONS

K. Prajna Kariappa Abstract The Corona Virus outbreak has been a predominantly socio-economic-political crisis that plagues the world at large today. At its very outset, States have promptly resorted to implore lockdown measures to prevent its rapid spread. One of the key areas of concern arising from this is that of a glaring rise in domestic violence against women. Such violence “both violates and impairs or nullifies the enjoyment by women of human rights and fundamental freedoms.”1 The ‘Shadow Pandemic’2 that has emerged in the times of the Novel Coronavirus outbreak has coerced States in the global domain to reconsider the effectiveness of domestic violence prevention mechanisms in their local jurisdictions.3 A large contributing factor to the same has its foundations built in the various international conventions and obligations that govern States in the International arena. India, in accordance, with its

 The author is a Fourth Year, BBA LLB (Hons.) student at School of Law, Christ University 1 U.N., Declaration of Elimination, G.A. Res. 48/104, U.N. GAOR, U.N. Doc. A/RES/48/104 (1993) 2 U.N., Policy Brief: The Impact of COVID-19 on Women, (Jul. 12, 2020, 11:53 AM) https://www.un.org/sites/un2.un.org/files/policy_brief_on_covid_impact_on _women_9_apr_2020_updated.pdf 3 U.N. Women, Facts and Figures: Ending Violence Against Women, (Jul. 10, 2020, 12:21 PM) https://www.unwomen.org/en/what-we-do/ending- violence-against-women/facts-and-figures 134 Bennett Journal of Legal Studies [Vol.2, Iss.1

obligations under these international frameworks has previously taken effectual measures in curbing domestic violence. However, in the times of a rushed National Lockdown4 with a well-reasoned cause, the conspicuous gap of neglect of personal protection and that of social health is being blatantly ignored. The article seeks to address the current situation pertaining to the same and gainsay difficulties by suggesting reformative measures. Keywords Domestic Violence; COVID-19; Shadow pandemic; international conventions

THE RISE IN DOMESTIC VIOLENCE CASES AND ITS DYNAMIC IMPLICATIONS IN INDIA Domestic violence refers to the personal harm, abuse and injury that is inflicted in a familial household (includes marriage and cohabitation). Domestic violence is not limited in its scope to women alone but also includes violence inflicted on children, parents, and the elderly of the house. Section 3 of The Protection of Women from Domestic Violence Act defines domestic violence to cover a wide array of forms of violence including mental, physical, and emotional abuse. The passing of this Act was viewed as a step to revolutionise the system that earlier incorporated domestic violence claims solely under the purview of criminal law.

4 Ministry of Home Affairs, Indian Government, Press Information Bureau, Government of India issues Orders prescribing lockdown for containment of COVID-19 Epidemic in the Country (Jun. 2, 2020, 10:12 PM) https://www.mha.gov.in/sites/default/files/PR_NationalLockdown_2603202 0_0.pdf 2021] The Plague of the Shadow Pandemic 135

Domestic violence cases have ‘horrifyingly surged’ in gender- based violence cases all over the world and the United Nations has called for a ‘ceasefire’ to curb its rise.5 As reported by the National Commission for Women, India has also transpired to this violence wave.6 The reason for this rise lies in the root causes of stress, anxiety, distress, masculinity and other values that are imbibed in the patriarchal system.7 Additionally, the barriers to justice due to the curbed movement disrupt the coordination between the judicial and enforcement systems. The Ministry of Women and Child Development has also failed in materialising efforts that reach out to victims to render them with a helping hand. All sects of women are affected by this shadow pandemic – irrespective of social status and backgrounds. The mental burden is further accentuated by the lockdown owing to yet another patriarchal notion of the responsibility of household care and comfort falling on the shoulders of the women of the house. Reproductive health and abortions8 of pregnant women are particularly risk prone. Women may fear to reach out for help at the risk of being subject to aggravated anger and violence by their abusive husbands or fathers. In the absence of cases being reported by victimised women, the statistics are inefficient in determining the actual damage that is occurring. Weaker economic sections of the society lack access to

5 U.N., UN chief calls for domestic violence ‘ceasefire’ amid ‘horrifying global surge’, (Jun 22, 2020, 05:21 PM) https://news.un.org/en/story/2020/04/1061052. 6 National Commission for Women, Reports, (July 12, 2020, 10:20 PM) http://ncw.nic.in/publications/reports. 7 Radhika Chopra, From Violence to Supportive Practice: Family, Gender and Masculinity in India, UNIFEM, SOUTH ASIA REGIONAL OFFICE (2002). 8 U.N. Women, Violence against Women and Girls: The Shadow Pandemic, (Jul 4, 2020, 12:45 AM), https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile- violence-against-women-during-pandemic 136 Bennett Journal of Legal Studies [Vol.2, Iss.1 resources that help in reporting of such incidents. Online communication may also prove to be detrimental to its cause in such instances. The police forces are further overstretched as they are required to be working on the front lines, thereby rendering prompt response to reported domestic violence cases difficult.

INTERNATIONAL OBLIGATIONS OF INDIA In historic times, domestic violence was not considered to be a violation of human rights as it was committed against a private party and not against the State itself and was therefore considered to be ‘private’.9 With the rise in women movements, the international community was sensitised to the violence that women faced and has over time, culminated in the form of International Conventions and Declarations. Domestic violence as a violation has also come within the ambit of customary international law,10 making this obligation an inescapable one, even for the States that are not parties to the conventions.11 India is subject to obligations embodied in various international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW),12 U.N. Declaration on the Elimination of Violence Against Women,13

9 Dorothy Q. Thomas & Michele E. Beasley, Domestic Violence as a Human Rights Issue, 58 ALB. L. REV. 1119 (1995). 10 United Nations, Economic and Social Council, Report of The Special Rapporteur on Violence Against Women at 27 B.1, U.N. No. E/CN.4/1998/54 para 8 (1998). 11 Barbara Stark, Domestic Violence, and International Law: Good-Bye Earl (Hans, Pedro, Gen, Chou, etc.), 47 LOY. L. REV.255 (2001). 12 U.N., Convention on the Elimination of All Forms of Discrimination Against Women, (Jun 23, 2020, 08:10 PM) https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx 13 U.N., Declaration of Elimination, G.A. Res. 48/104, U.N. GAOR, U.N. Doc. A/RES/48/104 (1993) 2021] The Plague of the Shadow Pandemic 137

U.N. Resolutions,14 U.N. Declaration of Human Rights (UDHR)15 etc. and associated optional protocols. These Conventions provide a wholesome framework that proliferate the exercise of human rights by women in all capacities. Articles 2 (a), (b) and (e), 5(a) and 16 of CEDAW mandate effective protection from violence of any form. In ignoring this obligation, India will be “passively neglecting its ‘positive’ obligations under the Convention and thereby support the continuum of domestic violence.”16 Articles 1, 2 , 3 and 5 of CEDAW provide for positive action to be taken by the State party to secure the victims right to life and personal security. Article 3 of the UDHR, Articles 9 and 6 of the International Covenant on Civil and Political Rights (ICCPR),17 and the General Recommendations No. 12, 19 and 2118 all advocate to detention of offenders, adequate prosecution, maintenance of accurate statistics and exercise of due diligence in the interest of protecting the human rights and dignity if the victim. International law recognises the torture of women to be a fundamental violation of their human rights.19 While India has taken measures towards to curb these gross violations, these measures fall short in the light of a pandemic.

14 U.N. Commission on Human Rights, Human Rights Resolution 2005/41: Elimination of Violence Against Women, 19 April 2005, E/CN.4/RES/2005/41, (Jul 22, 2020, 02:45 AM) at: https://www.refworld.org/docid/45377c59c.html 15 U.N., Universal Declaration of Human Rights, (Jul 10, 2020, 01:25 PM) https://www.un.org/en/universal-declaration-human-rights/. 16 A.T v. Hungary, UN Committee on Elimination of Discrimination against Women, Communication No.: 2/2003(2003). 17 U.N., International Covenant on Civil and Political Rights, (Jul 26, 2020, 4:54 PM) https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. 18 U.N., CEDAW General Recommendations, (Jul 23, 2020, 06:24 PM) https://www.ohchr.org/en/hrbodies/cedaw/pages/recommendations.aspx. 19 Amnesty International, Broken Bodies, Shattered Minds, Torture and Ill- Treatment of Women, ACT 40/001/2001, https://www.amnesty.org/ download/Documents/120000/act400012001en.pdf 138 Bennett Journal of Legal Studies [Vol.2, Iss.1

India has incorporated within its legal system, both civil and criminal remedies to address the situation. These include the Protection of Women from Domestic Violence Act as iterated earlier along with provisions in the Indian Penal Code20 and Criminal Procedure Code.21 India has presently established 24/7 helpline numbers to be contacted by victims in times of distress, video conferencing mechanisms to deal with complaints that are surfacing and has closely tied up with child protection units and boards to address the issue. The Delhi High Court has taken cognisance of the overgrowing domestic violence issue in India by virtue of its order dated 24.04.202022 on the basis of a petition filed by the All-India Council of Human Rights, Liberties and Social Justice (AICHLS). The Hon’ble Court has issued notices to the Ministry of Women and Child Development, National Commission for Women and four other respondents to implement the suggestions of AICHLS by way of convening a meeting. After discussion and deliberation regarding the measures that are already in place and suggestions to the Respondents, the Court decided that it need not delve into the matter further but reiterated the importance of curbing this shadow pandemic. While these measures are step forward, they fail to produce the desired change in the society at large.

SUGGESTIONS The following suggestions may be incorporated in India to effect positive change to break the shackles of domestic violence during the COVID-19 pandemic:

20 The Indian Penal Code of 1860, Section. 498 A. 21 The Criminal Procedure Code of 1973, Section. 125. 22 All India Council of Human Rights, Liberties and Social Justice v. Union of India & Ors. W.P.(C) 2973/2020 (2020).

2021] The Plague of the Shadow Pandemic 139

(a) Monitor and strengthen the implementation of the Domestic Violence Act by exercising due diligence and respond to the complaints that have been reported. The failure of doing so must result in a penalty or sanction of some form. (b) Collaboration with established NGOs with adequate credentials in the field must be resorted to. These NGOs should be given autonomy and freedom to remedy the situations that are brought before them, within the bounds of governing rules and regulations. Financial resources may be allocated as a part of the self-sufficiency program issued by the Government on 12.05.2020. (c) Enhanced coordination among different Departments and Boards that primarily focus on domestic violence should be ensured. All the levels of the justice system must cooperate to protect the safety of the victims. (d) A widespread campaign must be launched that educates the society regarding the law enforcement procedure pertaining to domestic violence, with particular emphasis on the consequences of inflicting harm on another person. (e) The relocation of offenders may be implemented with adequate facilities and resources. The victims cannot be effectively relocated owing to the overcrowding of shelters on a normal basis. However, alternative informal safe houses may be allocated to house the victims if necessary. These safe houses can also be used as places where women can report domestic violence. (f) Follow-ups and checks may be made at households that victims reside in and have earlier reported instances of such domestic abuse to prevent the danger of continued 140 Bennett Journal of Legal Studies [Vol.2, Iss.1

violence. The aid of the NGOs may be taken for such endeavours. (g) Usage of internet and tele-communication methods to counsel women and girls facing abuse. (h) Lawyers and lady constables may be designated as Protection Officers under the Domestic Violence Act for added protection and enforcement. Mediators may step forth to offer their services pro bono to reconcile differences that are at a nascent stage. (i) Additional hospitals may be designated solely for women and children victims of abuse where they are treated for their wounds. Reproductive health can also be taken into consideration via a similar approach.

CONCLUSION The suggestions presented above may serve to be of foundational value in ensuring that fundamental human rights of women are not ignored in view of the precedence that is given to other rights and notions of the society. The mental, physical, and reproductive wellbeing of women must be taken into account while formulating guidelines for future lockdowns to ensure that women flourish. The shadow pandemic of domestic violence plagues society in a larger risk associated with the resilience and risk of family well-being during the times of COVID-19. The judgment propounded by the Delhi High Court in AICHRLS v. Union of India23 showcases the progressive outlook that the judiciary is advocating for in these troubled times. While these efforts are notable, the implementation and resultant implications must be studied carefully to ensure desired results.

23 The Criminal Procedure Code of 1973, Section. 125. IMPACT OF PANDEMICS AND EPIDEMICS ON CONTRACTUAL OBLIGATIONS AND EASE OF DOING BUSINESS IN INDIA: A CASE STUDY OF COVID-19 SITUATION

Abhyudaya Yadav & Yashika Goplani Abstract Epidemics and pandemics are adversely affecting human life since time immemorial. The advent of COVID-19 in world caused a serious global health crisis, as a result of which lockdowns have been imposed all around the globe. These lockdowns have curbed human movement which have caused delay in economic transactions and contractual performances. This research paper strives to find out the impact of COVID-19 on contractual performance in India by giving special reference to common law doctrines i.e., Doctrine of frustration and doctrine of supervening impossibility, and civil law’s concept of Force majeure along with section 56 and 32 of Indian Contract Act wherein in such cases, the abovementioned concepts pave the way for just consequences of unfortunate events which had happened without any fault of contracting parties. The question as to whether the current situation will enable the parties to a contract to alter their obligations with non-compliance of terms neither being regarded as a "default committed by any party" nor a "breach of contract" is answered and reasoned in this paper. The paper is also dedicated to

 The authors are 2nd year and 1st year students respectively, BA.LLB., Dharmashastra National Law University, Jabalpur (M.P.) 142 Bennett Journal of Legal Studies [Vol.2, Iss.1

find out the effect on India’s ranking in “Ease of Doing Business Index” because non-performance of contract seriously affects the order of ranking and its measures to mitigate the risk and in cases it may lower India’s ranking as well. Doctrinal research methodology has been devised to research on the areas discussed. Keywords COVID-19; Frustration; Force Majeure; Ease of doing Business; Contract Enforcement

INTRODUCTION The advent of COVID-19 has led to serious public health emergency.1 The consequences of such a deadly epidemic resulted into catastrophic impact not only at national level but at global level too. After the declaration made by World Health Organization that COVID-19 has become a global pandemic2, various nations throughout the world took necessary steps to kick out the adverse effect of this novel corona virus, hereinafter referred as COVID-19. First case of COVID-19 was found in India at the end of January.3 After that this virus has spread throughout

1 World Health Organization, Rolling updates on coronavirus disease (May 4,2020),https://www.who.int/emergencies/diseases/novel-coronavirus- 2019/events-as-they-happen 2 World Health Organization, Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV), https://www.who.int/news- room/detail/30-01-2020-statement-on-the-second-meeting-of-the- international-health-regulations-(2005)-emergency-committee-regarding- the-outbreak-of-novel-coronavirus-(2019-ncov) 3 Vasanthi Vara, Coronavirus in India: how the COVID-19 could impact the fast-growing economy(April 30, 2020) https://www.pharmaceutical-technology.com/features/coronavirus-affected- countries-india-measures-impact-pharma-economy/ 2021] Impact of Pandemics and Epidemics on Contractual Obligations 143

the territory of India within a span of one and a half month causing national health emergency. As result of which, nationwide lockdown, as a preventive measure, was declared throughout the territory of India which caused adverse impediment in the running of economic activities of the state.4 In the last week of March, Government of India declared nationwide lockdown and issued ‘N’ number of circulars and executive orders for closing industrial units, stock market, national and multinational companies, domestic markets etc.5 In addition to this, all the international borders were also sealed6, hence international trade also became stagnant. During the lockdown period people are forced not to leave their home. In this condition almost all the contractual obligations could not be fulfilled. From construction contracts to manufacturing contracts and supply agreements, the variety of contracts which are likely to be affected by the spread of COVID-19 is undoubtedly humongous.7 But the question here arises whether the devastation caused by COVID-19 is included in force majeure event or whether we have to invoke section 56 of Indian contract act which has a wider ambit than force majeure event.

4 World's biggest lockdown may have cost Rs 7-8 lakh crore to Indian economy (April 13,2020), https://economictimes.indiatimes.com/news/economy/finance/worlds- biggest-lockdown-may-have-cost-rs-7-8-lakh-crore-to-indian- economy/articleshow/75123004.cms 5 Ministry of Home Affairs, India, Circulars of COVID-19, https://www.mha.gov.in/notifications/circulars-covid-19 6 Coronavirus outbreak: India seals its borders as covid 19 scare turns into pandemic (March 12, 2020), India TV News Desk, https://www.indiatvnews.com/news/india/india-seals-coronavirus-border- covid-19-scare-turns-into-pandamic-597351 7 Madhu Sweta and Shivangi Khanna, Impact Of COVID-19 On Indian Commercial Contracts (April 4,2020), https://www.mondaq.com/india/litigation-contracts-and-forcemajeure/912876/impact-of-covid-19-on-indian-commercial-contracts 144 Bennett Journal of Legal Studies [Vol.2, Iss.1

The concern is that courts are not functioning and in the cases of disputes like deliberate refusal of the fulfilment of contractual obligation when the obligation can be fulfilled even though the lockdown is in operation. Because in such cases a person victimized by the breach of contract will not be able to obtain a decree of specific performance under specific relief act. And this will result into busting of litigation process in civil courts in India where already millions of cases are pending. Government of India has brought an amendment in Specific relief act, 1963 in 2018 which made the mandatory grant of decree of specific performance.8The purpose of this amendment was to improve the ranking of India in “Ease of doing business index”9 so if the courts are not functioning and a person cannot approach the court to get the effective remedy it will defeat the purpose of the amendment. So, in this research article all these questions are meticulously discussed with a view to find out whether the situation caused by COVID-19 will fall under section 56 of Indian contract Act and if yes then in what kind of contracts and its impact on “Ease of doing business index” ranking.

IMPACT OF NATIONWIDE LOCKDOWN ON CONTRACTUAL PERFORMANCE Ministry of Home Affairs in India released an order dated 24th march, 2020 declaring nationwide lockdown along with exhaustive guidelines cited with certain exceptions like Rations shops, medical shops, vegetable markets etc. In this order, government clearly stated that all commercial and private establishments,

8 Specific Relief Act 1963 § 10 9 Nilima Bhadbhade, The Specific Relief (Amendment)Act 2018, a Hurried Legislation, (October 9,2018),https://www.barandbench.com/columns/specific-relief-amendment- act-hurried-legislation 2021] Impact of Pandemics and Epidemics on Contractual Obligations 145

industrial establishments, transport services, educational and research institutions and theatres shall remain shut till further notice.10 The reaction of all these restrictions resulted into serious impediment in economic activities of state consequently delays or non-performance in matter of contracts and transactions was caused. So now the question here arises that whether the current situation will enable the parties to a contract to alter their obligations with non-compliance of terms neither being regarded as a "default committed by any party" nor a "breach of contract"?11 Now the actual concern of my paper starts that if this is the geo- political situation of the country, where people are forced to stay in their houses and not to roam on roads and non-compliance of which will result into serious penalties12, so now in such circumstances a question arises that whether a person is able to perform his contractual obligation even after being at home? Can he invoke force majeure clause of his contract and if not so, can he invoke Section 56 of Indian Contract Act? Whether the situations like these will be covered under doctrine of frustration and supervening impossibility or not? There is no doubt that there are going to be cases in which one party will deliberately refuse to perform his part of contract after

10 Ministry of Home Affairs, India, Circulars of COVID-19, https://www.mha.gov.in/notifications/circulars-covid-19 11 Ranjana Roy Gawai, Coronavirus impact: Can't fulfill your contractual obligations? May the Force Majeure be with you(April 17, 2020), https://www.businesstoday.in/opinion/columns/coronavirus-impact- contracts-force-majeure-material-adverse-effect-clauses- corporates/story/401341.html 12 Lockdown violators should be booked under IPC, DM Act (April 2,2020), https://economictimes.indiatimes.com/news/politics-and-nation/lockdown- violators-should-be-booked-under-ipc-dm-act-home-secy-to- states/articleshow/74949308.cms?from=mdr 146 Bennett Journal of Legal Studies [Vol.2, Iss.1 taking the excuse of Lockdown and COVID-19. So, if a contractual performance is performable and still the person is refusing to perform it, the person suffering breach of contract will have no remedy because due to lockdown all the courts are also not functioning. And in all these litigations one argument of party committing breach will be common, that is the ground of frustration and supervening impossibility. All these are serious issues because the sanctity of the contract must be preserved. The law will not permit a person of full age and understanding who failed to read the contract or to appreciate its full import and effect to escape from the contract.13

RELEVANT LEGAL PROVISIONS UNDER THE INDIAN CONTRACT ACT 1872 : AN ANALYSIS OF JURISPRUDENCE In the current situation, the legal provisions of Indian Contract Act,1872 and Specific relief act,1963 will be attracted along with some common law doctrines which are as follows,

SCOPE OF SECTION 56 OF INDIAN CONTRACT ACT, 1872 Section 56 of Indian Contract Act, 1872 talks about discharge of contractual obligations due to initial or subsequent impossibility which renders the performance of contract impossible and hence the liability of the party, whose performance is pending, is excused.14 There are some common law doctrines which are the base of this provision and are also recognised under law of contracts in India through various judicial pronouncements15 and they are,

13 WILLIAM ANSON, ANSON’S LAW OF CONTRACTS8 (Sir Jack Beatson, Andrew Burrow and John Cartwrighted, 28 ed., Sweet and Maxwell 2016). 14 Indian Contract Act 1872 § 56 15 Satyabrata Ghose v. Mugneeram Bangur & Co., AIR 1954 SC 44 2021] Impact of Pandemics and Epidemics on Contractual Obligations 147

DOCTRINE OF FRUSTRATION A contract can be discharged on the ground of frustration when something occurs after the formation of the contract which renders it physically and commercially impossible to fulfil the contract. As per Black’s law dictionary the literal meaning of the term ‘Frustration’ is “The prevention or hindering of the attainment of goal”16 but in contractual sense. The origin of this doctrine can be traced from landmark judgement of English court named Taylor v. Caldwell17.Though the doctrine of frustration was firmly established by subsequent judicial pronouncements, but juristic basis still remained uncertain. By further judicial pronouncements some of the illustrative cases came into picture which can fall under the category of frustration and the contractual obligation in such cases could be excused such as subsequent illegality18, outbreak of war19, cancellation of an expected event20 or delay21. In all these cases, if due to the reason of any of these events’ impediment is caused in the performing of the contractual obligation the person performing the obligation will be excused. The illustration aforementioned is not exhaustive but illustrative one which has been gradually developed through case laws. There can be other instances also where this doctrine can be operationalized. But whether the impugned pandemic falls under this category or not will be discussed later on. Hence, if after the formation of the contract, an event has occurred without any fault

16 Frustration, Black's Law Dictionary (10th ed. 2014) 17 (1863) 3 B & S 826 18 Baily v De Crespigny, (1869) LR 4 QB 18 19 Esposito v Bowden, (1857), 7 El. & Bl. 763 20 Krell v. Henry, (1903) 2 K.B. 740 21 Pioneer Shipping Ltd v B.T.P. Tioxide Ltd (The Nema), (1982) A.C. 724 148 Bennett Journal of Legal Studies [Vol.2, Iss.1 of either of the parties, which renders the performance of the contract by one or both parties physically and commercially impossible then the person performing will be excused and discharged from his further liabilities.

DOCTRINE OF SUPERVENING IMPOSSIBILITY The textual basis of both these doctrines i.e., frustration and supervening impossibility can be traced under section 56 of the Indian Contract Act. Under English law generally doctrine of frustration is applied whereas in India both of these doctrines can be applied. The doctrine of frustration is an aspect and also the part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done, and hence comes within the purview of this section.22 Superficially both of these doctrines signifies same thing but academically the ambit of doctrine of frustration is wider than doctrine of supervening impossibility. As observed by English court in the case of McNair23, it is now customary to treat supervening illegality as an instance of frustration. Section 56 of Indian Contract Act states that a contract to do an act becomes unenforceable24 (a) If the act becomes impossible; or (b) For reasons of some event which the promisor could not prevent. Superficially there is no difference because the scope of both the doctrines under the purview of Section 56 is same. For the sake of understanding I will read them together because the aim of this

22 Satyabrata Ghose v. Mugneeram Bangur & Co., AIR 1954 SC 44 23 60 L.Q.R. 160 24 Indian Contract Act 1872 § 56 2021] Impact of Pandemics and Epidemics on Contractual Obligations 149

paper is to find out whether the situation of COVID-19 comes under the purview of this section or not and not to find out academic distinction between frustration and supervening impossibility.

APPLICABILITY OF DOCTRINE OF FRUSTRATION AND DOCTRINE OF SUPERVENING IMPOSSIBLITY IN CURRENT SITUATION Application of Section 56 of Indian Contract Act or Doctrine of frustration or Doctrine of supervening impossibility cannot be invoked with an automatic effect. If there is already a Force majeure clause in the agreement or contract, it has to be governed that way. The application of force majeure clause will be discussed later in this paper. A person alleging that the event has become impossible has to prove it.25 But the main concern is that how can one prove that the situation of COVID-19 is impossible and falls under the head of doctrine of frustration. A contract is not frustrated just because its performance has become more onerous or burdensome26; namely, because of abnormal rise or fall in prices, a sudden depreciation of currency; or an unexpected obstacle to the execution of the contract;27all these are ordinary risks of business. For that purpose, an objective test has been derived by the honourable Supreme court, there are some essential requirement that one has to fulfil for the application of Section 56 , those requirements28 are following :- (i) A valid and subsisting contract between the parties.

25 Harischandra Dwarkadas Cloth Market v. Firm Murlidhar Chironjilal, AIR 1957 MB 53 26 Alopi Parshad& Sons Ltd v UOI,2 SCR 793, AIR 1960 SC 588 (1960) 27 Id. 28 Industrial Finance Corp of India Ltd v Cannanore Spinning and Weaving Mills Ltd, (2002) 5 SCC 5 150 Bennett Journal of Legal Studies [Vol.2, Iss.1

(ii) There must be some part of the contract yet to be performed; and (iii) The contract after it is entered into becomes impossible of performance. Until and unless these three requirements are fulfilled one cannot invoke section 56 for the purpose of discharging his contractual obligation. Here the third pre-requisite is quite ambiguous and subjective because for one individual it might be impossible and for another it might not be. And also, what is the scope of the term “impossibility”? To throw some light on that aspect Supreme court has observed in the case of Satyabrata Ghose v Mugneeram Bangur& Co29 that,” The word “impossible” has been used in the section not only in the sense of physical or literal impossibility of performance, but also covers cases where the performance may be impracticable and useless from the point of view of the object and purpose, which the parties had in view.” As authors have already mentioned some of the illustrations like subsequent illegality30, outbreak of war31, cancellation of an expected event32 or delay33 where contract was frustrated. But the main thing is that Section 56 or doctrine of frustration will not be applicable automatically but the person claiming relief must prove that due to these unforeseeable events impossibilities aroused which caused serious impediment in the performance of contractual obligation and rendered it impossible to perform. Mere

29 AIR 1954 SC 44 30 Baily v De Crespigny, (1869) LR 4 QB 18 31 Esposito v Bowden (1857) 7 E. & B. 763 32 Krell v. Henry [1903] 2 K.B. 740 33 Pioneer Shipping Ltd v B.T.P. Tioxide Ltd (The Nema) [1982] A.C. 724, 752 2021] Impact of Pandemics and Epidemics on Contractual Obligations 151

existence of any such event which could possibly cause serious impediment in performing contractual obligation is not sufficient. The spread of COVID-19 may come under the head of doctrine of frustration like war and subsequent illegality, but one has to prove it. It is not necessary that in all the cases, contract will be frustrated. In the abovementioned illustrations also, the judgement differs from case to case. Classic example of preceding proposition is the case of Cricklewood Property and Investment Trust Ltd v. Leighton’s Investment Trust Ltd.34 This doctrine was evolved in Britain and there the outbreak of war renders illegal all intercourse between British subjects and alien enemies.35Consequently all contracts which involved such intercourse automatically came to an end by the outbreak of war, or the party thereto becoming an alien enemy.36 But in the case of Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd37the lessee was under a 99-year building lease claimed that wartime building restrictions had frustrated the lease but the house of lords held that there was no frustration since the time period of the lease is about 90 years to run when the war broke out, it was unlikely that the war would last that long. Different approaches of the court can be seen regarding different situations under the same head. The case goes same with the current pandemic. It has to be considered according to the cases provided. ‘The data for decision are, on the one hand, the terms and construction of the contract, read in the light of the then existing circumstances, and on the other hand the

34 [1945] A.C. 221 35 Robson v Premier Oil and Pipeline Co Ltd [1915] 2 Ch. 124 36 Esposito v Bowden (1857) 7 E. & B. 76 37 [1945] A.C. 221 152 Bennett Journal of Legal Studies [Vol.2, Iss.1 events which have occurred.’38 Hence it depends on the basis of construction of contract, rights, and obligation of the parties along with the nature of the performance. If there is an international sale agreement between two parties belonging to different countries, then the matters are decided according to rules framed under International Convention CISG and under Article 79 of the said convention in which the reference to doctrine of frustration has been made. So, if due to the impediments caused to the performance in those cases included like refusal by state officials to permit importation of the goods into the buyer’s country,39 then we can very well discharge the obligation of the parties and in such cases, contract will be frustrated. Whereas on the other hand if there is an agreement between two multinational companies under which one company agrees to design website for another then in such cases even after nationwide lockdown due to COVID-19, this doctrine cannot be invoked because in such cases the contractual obligations can be fulfilled. Currently at global level the mechanisms like “Work from home” is pretty much prevalent, so in such cases fulfilling contractual obligations cannot be said to be impossible because the complete procedure of designing of a website is done on Laptop or PC, which is in no way restricted in the current situation. Though there will be some hardships in fulfilling those contractual obligation but what we call as commercial hardships or commercial impossibility is not included under of Law of

38 Denny, Mott & Dickson Ltd v James B Fraser & Co Ltd [1944] AC 265 39 Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce, Russian Federation, 22 January 1997 (Arbitral award No. 155/1996), Unilex 2021] Impact of Pandemics and Epidemics on Contractual Obligations 153

Contracts in India40, so even if during the lockdown the employee of a company went on strike, still in such conditions the contract will not be frustrated. Because Bombay High Court has observed that a strike of workmen employed in executing work under a contract does not itself make performance impossible for the purpose of this section and obligations cannot be discharged.41 Hence it is not conclusive that in all kind of contracts the doctrine of frustration can be applied. It has to be considered on the basis of cases and surrounding circumstances. It is a fact specific determination by answering one simple question whether the supervening event is actually causing impossibility in fulfilling contractual obligations?

SCOPE OF SECTION 32 OF INDIAN CONTRACT ACT, 1872 Section 32 of Indian Contract Act, 1872 talks about “Enforcement of contracts contingent on an event happening”42 the civil law doctrines like Force Majeure is governed under this section, so the basic premise of this doctrine and its application is following :-

FORCE MAJEURE “Force Majeure” is a French term which means “Superior Force”. To successfully invoke a defence of force majeure the promisor must show that performance has been made impossible and not merely more onerous or burdensome. The concept of force majeure is an alien concept to common law although it is an established doctrine in French law, which relieves a promisor from

40 Energy Watchdog v Central Electricity Regulatory Commission, 2017 (SCC) SC 37 41 Hari Laxman Joshi v Secy of State, AIR 1928 Bom 61 42 Indian Contract Act 1872 § 32 154 Bennett Journal of Legal Studies [Vol.2, Iss.1 responsibility of non-performance in certain circumstances.43Force majeure is an exception to the foundational contract law principle of pacta sunt servanda, if it happens that certain specific circumstances arise.44French law considers only physical or legal impossibility but not impracticality unlike Common law. Though there is no general doctrine of force majeure in English law, parties often use the words force majeure in their contracts. Legally speaking, the doctrine of Force Majeure usually distinguishes between events of force majeure caused by natural causes and those caused by human intervention.45 Thus the expression Force majeure have been held to have more extensive meaning than act of god and to include the things which are generally not included in “Vis major” and includes the events like strikes and break down of machinery46, shortage of supply owing to war47, war-time difficulty with shipping48, refusal of export license49. In the context of above legal proposition whether epidemic falls within the ambit of force majeure event is a question of fact? In one such English case it was held that epidemic falls within the ambit of Force majeure event50. It must also be kept in mind that Epidemics and pandemics could either be caused naturally and also by human intervention (like in the forms of Bioweapons). But

43 EWAN MCKENDRIK, FORCE MAJEURE, AND FRUSTRATION OF CONTRACT 5 (2ed, Sweet and Maxwell 2016) 44 Id 45 Shisham Priyadarshini and Ritika Modee, The importance of Force Majeure clause in contracts, RAJANI ASSOCIATES (July 9,2012), http://www.rajaniassociates.net/media/de-jure/De-jure-Force-Majeure.pdf 46 Lebeaupin v Richard Crispin & Co, [1920] 2 K.B. 714 47 Tennant (Lancashire) Ltd v CS Wilson& Co Ltd, (1917) AC 495 48 Peter Dixon & Sons Ltd v Henderson, Craig & Co Ltd, (1919) 2 KB 778 49 Walton (Grain and Shipping) Ltd v British Italian Trading Co Ltd., (1959)1 Lloyd’s Rep 223 50 Lebeaupin v Richard Crispin & Co, [1920] 2 K.B. 714 2021] Impact of Pandemics and Epidemics on Contractual Obligations 155

again, whether human caused epidemics falls within the ambit of force majeure event or not, it has still not been conclusively decided by any court if we are taking about legal proposition, hence it does not fall within force majeure event. So, whether COVID-19 falls within the ambit of force majeure event or not is again a question of fact?

FORCE MAJEURE CLAUSE While it is true to say that English law does not recognise doctrine of force majeure as such, without any iota of doubt it is also true that force majeure clauses have become an increasingly significant component of many commercial contracts and that such clauses have played an important role in cases which have recently been litigated in the English and Indian courts.51 When a force majeure event is relatable to an express clause in a contract, it is governed by section 32 of Indian Contract Act and if the event occurs de hors the contract, it is dealt with by a rule of positive law under section 56 of the same act.52 In the case of Alopi Prashad & sons Ltd. V. Union of India53 it was held that the act does not enable the party to contract to ignore express covenants. The effect of this clause is to reduce the practical significance of the doctrine of frustration because, because when an express provision is already made in contract itself for the event which has actually occurred, then the contract is not frustrated.54 Hence when the ambit of the contractual clauses is wider and parties to the contract makes an exhaustive compilation of right and liabilities in

51 EWAN MCKENDRIK, FORCE MAJEURE, AND FRUSTRATION OF CONTRACT 33(2ed, Sweet and Maxwell 2016) 52 Energy Watchdog v Central Electricity Regulatory Commission, 2017 SCC SC 37 53 AIR 1960 SC 588 54 Joseph Constantine S.S. Line Ltd v Imperial Smelting Corp Ltd, (1942) A.C. 15 156 Bennett Journal of Legal Studies [Vol.2, Iss.1 the case of happening of any such activity which is beyond reasonable control, the practical scope of doctrine of frustration gets narrower.55

APPLICABILITY OF FORCE MAJEURE CLAUSE Force majeure clauses are of two types i.e., Close end and Open end. Close-ended clauses specify the exact events that constitute force majeure whereas open-ended clause, the parties simply narrate what generally constitute force majeure situations and Add “and such other acts or events that are beyond the control of parties”.56 In modern commercial contracts the drafters of contract have created hotchpotch because in almost all of these draft contracts they have mixed the concept of ‘Force majeure’, ‘Hardship clauses’ and ‘Vis major’. They have included the things ,which must be inserted in ‘Vis Major clause’, into ‘Force Majeure Clause’ which creates further ambiguity in the understanding the nature of terms of contract. The classic example of abovementioned statement can be seen in landmark judgment of SC in the case of Energy watchdog V. CERC57 where the entire jurisprudence of doctrine of force majeure in Indian context was discussed. But still one aspect which is very relevant to this paper was not even mentioned. In the above case, under the contract there was a force majeure clause. In this force majeure clause a distinction was made between two categories i.e., Natural force majeure and Non-natural force majeure, here the exact meaning of Natural force majeure category

55 Total Gas Marketing Ltd v Arco British Ltd, [1998] 2 Lloyd's Rep. 209 56 Pioneer Shipping Ltd v B.T.P. Tioxide Ltd (The Nema) [1982] A.C. 724, 752 57 2017 SCC SC 37 2021] Impact of Pandemics and Epidemics on Contractual Obligations 157

is attributable to Vis major or act of god, which means that they have equated the Natural force majeure clause to Vis major clause which is academically per se wrong. Because if we trace the history of both the doctrines there was a clear-cut distinction between these two. Till now no Indian court has discussed this aspect of law. So due to ignorance of practicing lawyers in India this distinction has been blurred. But still Indian courts give ruling on these clauses because it is not a common law concept. There are two possible instances under which we can say that COVID-19 is covered under force majeure clause. Firstly, when the contractual definition of force majeure events or list of specific events expressly includes epidemics or pandemics and secondly, when force majeure clause includes the catching words like “any other extra-ordinary circumstance beyond reasonable control” and if then it will be factually determined that whether the circumstances caused by the pandemic are beyond reasonable control of the affected party. If it falls otherwise it will be dealt as per the provisions of section 56. Whether a person can claim benefit of force majeure clause in the case of COVID-19? This question again rests on the fulfilment of one simple answer that whether a contract specifically provided the situation of COVID-19 either expressly or impliedly in the contract or not? Epidemics generally falls within the category of ‘Natural calamity” or “act of god”, hence in the above blurred legal position they will fall under force majeure events because most of the draft agreements includes “Act of god” or “vis major” as force majeure event. If the COVID-19 falls under Force majeure clause then the future liabilities of the promisor depends on the way that particular contract is drafted. If contract provides for suspension till the event 158 Bennett Journal of Legal Studies [Vol.2, Iss.1 it will be suspended, or if it provides for immediate termination of the contract at the occurring of that event it will be terminated or even an alternate mode for fulfilment of contractual performance can also be provided and future obligations of the parties concerned will depend upon that way. In the case of express force majeure clause also there will not be automatic applicability of the clause, but other party must show that the performance has become impossible not merely onerous. Hence whether a party can be discharged from a contractual obligation on account of COVID-19 being declared a pandemic is a fact-specific determination that will depend on the nature of the party’s obligations and the specific terms of the contract.58

LEGAL IMPLICATIONS OF COVID-19 AND ITS EFFECT ON EASE OF DOING BUSINESS The legal implications of COVID-19 on contract enforcement is adverse along with this it will also adversely affect India’s ranking in Ease of doing business index. Because after the end of this lockdown there will be a tsunami of litigations in civil courts for contract enforcement and disputes, which will further lower down India’s global ranking in Ease of doing business index. Currently India’s ranking in Ease of doing business index is 63rd which is much better than the previous years.59 In determining the rankings, there are 12 indicators which are analysed, under these

58 Bharat Vasani, Molla Hasan, Samiksha Padnekar, Esha Himadri, Coronavirus Force Majeure and Impact on Commercial Contracts(March 23,2020).,https://www.bloombergquint.com/coronavirus-outbreak/covid- 19-coronavirus-force-majeure-and-impact-on-commercial-contracts 59 The World Bank, Doing Business 2020:Reform’s Boost India’s Business Climate Ranking; Among Top Ten Improvers for Third straight year, October 24,2019)https://www.worldbank.org/en/news/press- release/2019/10/24/doing-business-india-top-10-improver-business-climate- ranking 2021] Impact of Pandemics and Epidemics on Contractual Obligations 159

12 indicators “Contract enforcement” is also included.60 Under this head they measure the time and cost for resolving a commercial dispute through a local first-instance court and the quality of judicial processes index which evaluates whether each economy has adopted a series of good practices that promote quality and efficiency in the court system.61 Whereas there is substantial growth of India in some of them last year, but India still lags way behind in contract enforcement and ranked around 163rd.62 Government of India introduced many policy changes in business environment to improve India’s ranking. These policies considerably improved indicators like construction permits, trading across borders, resolving insolvency63 but improvement in contract enforcement remained unchanged. In the year 2018, an amendment was brought in the Specific relief act, 1963 regarding mandatory grant of specific relief and injunctions. The ultimate aim of this amendment act was to enhance the standing of India in the ‘ease of doing business’ ranking.64

60 The World Bank, Ease of Doing Business Index, https://data.worldbank.org/indicator/IC.BUS.EASE.XQ 61 The World Bank, Enforcing Contracts,https://www.doingbusiness.org/en/data/exploretopics/enforcing- contracts/what-measured 62 Peter Dixon & Sons Ltd v Henderson, Craig & Co Ltd, (1919) 2 KB 778 63 Business Today, Ease of Doing Business: What policies have helped India march forward in World Bank's ranking?(October 24, 2019) ,https://www.businesstoday.in/current/economy-politics/ease-of-doing- business-what-policies-have-helped-india-march- forward/story/386455.html 64 Nilima Bhadbhade, The Specific Relief (Amendment)Act 2018, a Hurried Legislation (October 9,2018),https://www.barandbench.com/columns/specific-relief-amendment- act-hurried-legislation 160 Bennett Journal of Legal Studies [Vol.2, Iss.1

So here the question arises that what will happen in the cases related to impossibility affecting the part of contract during this pandemic? Section 12 of the said act provides for specific performance of the part of contract.65 Under which if a part of a contract has become impossible or frustrated then the part which can be performed, the person victimized by the breach of contract can claim for the specific performance of the remaining part of contract.66 But the actual concern is that for the grant of decree of specific performance one has to go to courts and due to lockdown, all courts through the territory of India are closed. Only Supreme court and High courts are open for urgent hearings that too with limited judges. So, after the lockdown is over there will be a burst of litigations related to specific performance, compensation for breach of contract, disputes regarding force majeure clause and doctrine of frustration, which will take further years to get resolved. Among 9,038,967 pending civil cases these chunks of cases are going to contribute to the figure.67 And at certain extent it will also undermine the purpose of the amendment in Specific relief act. Government of India with its ministries released notifications regarding covering of COVID-19 situation as a Force Majeure event.68 But government has also blurred the distinction between force majeure event and vis major. The possible reason for such a notification is to clarify the standing of the current circumstance in law because after that notification pendency of litigations can be

65 Specific Relief Act 1963 § 12 66 Id. 67 National Judicial Data Grid (District and Taluka Courts of India),https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard 68 Ministry of Finance, Force Majeure clause, Office Memorandum, February 19th ,2020 2021] Impact of Pandemics and Epidemics on Contractual Obligations 161

reduced to certain extent and also to reduce timing of litigations that would arouse in future regarding COVID-19 and contractual performance, so as to ensure proper contract enforcement in India.

CONCLUSION COVID-19 has seriously affected every aspect of human life be it social, political, biological, or economic. Along with this, it also caused serious impediments in economic activities of the state like delays in economic transactions and contractual performance. A discussion was held in this paper regarding invocation of Doctrine of force majeure and frustration in this situation along with blurred legal position about concepts of these doctrine under Indian law governing contracts, which is concluded by one simple statement that,” Invocation of these doctrines is a fact specific determination. Hence it depends on case-to-case basis”, but one problem will still remain that in all this chaotic situation India’s performance in Ease of doing business will be compromised because of these commercial disputes. Indian civil courts will take years to resolve this which will severely affect process of contract enforcement. Even after a lot of policy changes by government for improving India’s global position in ease of doing business index, India is not yet ready to tackle every kind of situation which can affect contract enforcement like COVID-19. And this is the reason why Indian’s global position in contract enforcement is deplorable. First policy change which this paper can recommend is that government must give greater emphasis to mechanisms like E- Alternative Disputes Resolution. The mechanisms like Arbitration, Mediation, Negotiations, and conciliations are always undermined in India. ADR is something which functions in every kind of 162 Bennett Journal of Legal Studies [Vol.2, Iss.1 situation.69 Speedy remedy and low cost to resolve a dispute are its main advantages which are also calculated in determining the indicator, i.e., Contract enforcement, under the heads of Ease of Doing Business Index. Now days some foreign companies have started cyber-ADR system which is of two types i.e., fully automated Cyber ADR and Cyber-ADR using Sophisticated Software and a Neutral Third-Party facilitator through emails, video-conferencing and online chat rooms. This could be possibly best solution in the present situation because this process can be done even when both contracting parties are physically present.70 Secondly, the judicial system needs to be reformed. Efficient judicial system is the key to enforcing contracts. In an inefficient judicial system, it is obvious that pendency, delays, and injunctions are overburdening courts and severely impacting the progress of economic cases.71 Economic survey report 2017-18 also acknowledged that the next hurdle to overcome in the ease of doing business “is addressing pendency, delays and backlogs in the appellate and judicial arenas”. So, in the present situation proper establishment of E-courts is must. Because E-court management system is a mechanism through which citizens can avail of at judicial service centre or access the information at any time and from anywhere.72

69 Abhijit Kumar Dutta, Efficient judicial system key to enforcing contracts (October 30, 2019), https://www.moneycontrol.com/news/business/companies/policy-efficient- judicial-system-key-to-enforcing-contracts-4585151.html 70 Joseph W. Goodman, THE PROS AND CONS OF ONLINE DISPUTE RESOLUTION: AN ASSESSMENT OF CYBER-MEDIATION WEBSITES, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context =dltr 71 Id. 72 Akhila Pai H., EVALUATION OF INDIAN E-JUDICIARY SYSTEM (IJRAR Volume 5 Issue 3), https://ijrar.com/upload_issue/ijrar_issue_20542960.pdf 2021] Impact of Pandemics and Epidemics on Contractual Obligations 163

Thirdly, a proper legal regulatory framework is required where smart contracts and blockchain arbitration are duly recognized and regulated. Blockchain arbitration has been developed as the dispute resolution mechanism of choice for disputes arising from smart contracts. In smart contracts, blockchain automatically executes or enforce obligations.73 Hence low risk of contractual dispute and contract enforcement will be there.

73 Derric Yeoh (SchellenbergWittmer), Is Online Dispute Resolution The Future of Alternative Dispute Resolution? KLUWERARBITRATIONBLOG (March 29,2018), http://arbitrationblog.kluwerarbitration.com/

ENFORCEABILITY OF LEASE DEEDS IN COVID-19 & THE DILEMMA OF LANDLORDS IN INDIA

Abdul Samad Khan & Raj Nandini Singh Abstract Chinese health authorities reported an outbreak of pneumonia of unknown origin in the Hubei Province of Wuhan city in late December 2019. It gradually became a major global health concern due to its pathogenicity and soon the World Health Organization (WHO) announced the spread of the coronavirus (COVID-19) as a global pandemic. Coping with the unexpected issues caused by the COVID-19 has taken a tremendous toll on people worldwide. To deal with the spread of COVID-19 and promote social distancing successive series of four nationwide lockdowns took place in India where relaxations were given only in certain essential services which in turn led to the loss of businesses draining hence the paying capacity of people. The outspread has left economies across the globe estimating costs and contemplating what stabilization could look like. The 'rent payment' continues to be 'the obstacle' for commercial organizations, businesses, and the ordinary man in this difficult time. This paper has attempted to throw light on how COVID-19 restrictions have affected many aspects of landlord and tenant relationships and studies the unusual situation from a legal perspective. It also explains the various legal

 Abdul Samad Khan is a III year BBA LL.B, III year Student and Raj Nandini Singh is a II year BBA LL.B, student at Symbiosis Law School, Noida. 166 Bennett Journal of Legal Studies [Vol.2, Iss.1

aspects such as force majeure, the doctrine of frustration, and the doctrine of suspension of rent analysing whether these principles can be used as an excuse for the obligation of rent payment. Along with these legal principles, it also discusses the steps and rent relief measures taken by the state governments in India, and other nations as well as the clarification given by the courts in the matter. On a concluding note, it highlights the terms like novation, rescission, and alteration in the Indian Contract Act,1872 as an alternative from rent obligation in the midst of the outbreak of COVID-19.

INTRODUCTION The coronavirus disease came to light in December 2019, when China reported a number of pneumonia cases of an unexplained cause in Wuhan City, to the World Health Organization.1 The virus eventually spread to other Chinese provinces, as well as to the rest of the nations. The virus was identified as SARS-CoV-2, and this disease is now known as COVID-19. On 11 March 2020, the World Health Organization (WHO) announced the spread of the coronavirus (COVID-19) as a global pandemic.2 In India, the first case of coronavirus disease was reported in the state of Kerala on 30 January 2020. On 24 March 2020, when India had nearly 500 incidents, India's government ordered a 21-day nationwide

1 Timeline of WHO’s response to COVID-19, WHO (June 30, 2020), https://www.who.int/news-room/detail/29-06-2020-covidtimeline 2 WHO announces COVID-19 outbreak a pandemic, WHO (Mar. 12, 2020), https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus- covid-19/news/news/2020/3/who-announces-covid-19-outbreak-a- pandemic? 2021] Enforceability of Lease Deeds in Covid-19 167

lockdown to promote social distancing.3 Later the nationwide lockdown was extended, and India continued to have a total of four nationwide lockdowns. The lockdown prevented individuals from leaving their houses. Most of the transport services were halted though the transportation of essential goods, and emergency services such as police were exceptions for that period. Schools, colleges, hotels, salons, malls, movie theatres, and other public places were shut down. Lockdown had a drastic effect on the economy. There was unemployment, salary-cut, losses in the businesses, and other economic problems faced by the majority of individuals. As per statistics from the Consumer Pyramids Household Survey (CPHS) of the Centre for Monitoring Indian Economy (CMIE) the unemployment rate in India reached 23.8%.4 Now the capacity of people to spend money is not what it used to be. It also had an effect on landlords and tenants. In nearly all the major cities where there is comparatively more density of migrant workforce, boiling unrest and dissatisfaction is noticeable among tenants and landlords for not paying rent. Workers, who were certainly the first to be impacted by the government's half measures, are also joined by students now. Students living in different cities have to face a barrage of telephone calls, followed by threats, from landlords due to pending monthly rents.

3 Government of India issues Orders prescribing lockdown for containment of COVID19 Epidemic in the country, Ministry of Home Affairs, Government of India, (Mar. 24, 2020), https://www.mha.gov.in/sites/default/files/PR_NationalLockdown_2603202 0_0.pdf. 4 Mahesh Vyas Hope in desperate situation, Centre for monitoring Indian economy Pvt. Ltd., (Apr. 28, 2020), https://cmie.com/kommon/bin/sr.php?kall=warticle&dt=2020-04- 28%2010:29:55&msec=990. 168 Bennett Journal of Legal Studies [Vol.2, Iss.1

Hundreds of tenants cannot currently pay rent, as their paying capacity has been drained. As a result of the pandemic, a lot of people face economic deprivation. It is getting very difficult for the tenants to pay rents, but it is equally difficult for the landlords. Economic hardships are affecting everyone including both tenants and landlords. There are landlords whose survivals are completely dependent on the rents. Renters are trying to seek a rental waiver because they are unable to access their property or even because their income has been greatly affected. Not receiving rent also disturbs the economic conditions of landlords. This cycle of economic difficulties is affecting both parties. Tenants have been seeking invocation of the doctrine of force majeure and other legal concepts such as the doctrine of frustration as legal recourse for failure to fulfil their contractual obligations. India's Ministry of Finance has regarded COVID-19 as a natural disaster and a force majeure event.5 The ministry has also considered it to be a force majeure event in many states under Real Estate (Regulation and Development) Act, 2016 (RERA).6

AID BY GOVERNMENT: RELIEF FOR TENANT-LANDLORD ARRANGEMENT OR A MERE CLAIM With the subsequent lockdown, demand has been made to landlords by tenants to waive off rent for a month or two. The state governments are ‘ordering’ or requesting landlords to excuse rent on the basis of the Disaster Management (DM) Act of 2005; claims

5 Ministry of Finance, Government of India, Document No.F. 18/4/2020- PPD, (Feb. 19, 2020), https://doe.gov.in/sites/default/files/Force%20Majeure%20Clause%20- FMC.pdf. 6 Ankit Sharma, Treat Covid-19 as 'Force Majeure' under RERA: Finance Ministry, Economic Times (May 13, 2020), https://realty.economictimes.indiatimes.com/news/industry/treat-covid-19- as-force-majeure-under-rera-finance-ministry/75718131. 2021] Enforceability of Lease Deeds in Covid-19 169

have been made by the state government of NCT Delhi that if the tenants flailed to pay the rent, the same would be paid by the government.7 The Uttar Pradesh government is also suggesting tenants to delay rent collection by one month and ordered that if landlords are found pressuring the tenants for rents, they will be sentenced for up to a year in prison or a penalty might also be imposed.8 The notification has been issued by Maharashtra State Housing Department to postpone rent transactions for at least three months following the COVID-19 crisis.9 To safeguard the interest of the tenants the Ministry of Home Affairs as per its order dated March 29, 202010 issued guidance for rent to be waived off for the workers by landlords for the duration of one month but no relief claim has been offered for commercial lease contracts. This has led to confusion for postponement or waiver of lease rentals for commercial lease agreements entered into for the purpose of businesses. The claims by the states and central government have left the dispute between the tenant and the landlord unresolved. There is no clarity by the governing bodies regarding the rent disputes; neither these political claims have been backed up by any

7 ANI, Government to pay rent if tenants fail to do so: Delhi CM, Business Today 9 (Mar. 30, 2020), https://realty.economictimes.indiatimes.com/news/residential/government- to-pay-rent-if-tenants-fail-to-do-so-delhi-cm/74881255. 8 Ashish Pandey, Coronavirus outbreak: Is it fair to ask landlords to skip rent? Business Today (Apr. 2, 2020), https://www.businesstoday.in/current/economy-politics/coronavirus- outbreak-is-it-fair-to-ask-landlords-to-skip-rent/story/399891.html. 9 Sharad Vyas Do not collect rent for three months, govt. tells landlords, The Hindu (Apr. 18, 2020), https://www.thehindu.com/news/states/do-not- collect-rent-for-three-months-govt-tells-landlords/article31371418.ece. 10 Ministry of Home Affairs, Government of India, Document No. 40-3/2020- DM-I(A), (Mar. 29, 2020), https://www.mha.gov.in/sites/default/files/PR_MHAOrderrestrictingmovem ent_29032020.pdf. 170 Bennett Journal of Legal Studies [Vol.2, Iss.1 ordinance or temporary measures. Unlike India, Singapore has come up with the COVID-19 (Temporary Measures) Act, 2020 which provides for rental relief for tenants with commercial properties11. Not only Singapore, but the Czech Republic has also passed an act on certain measures to mitigate the effects of the SARS CoV-2 coronavirus epidemic on tenants of business premises12 and the Coronavirus Act 2020 has been enacted in the United Kingdom.13 However the Government of India is silent on introducing any temporary ordinance or Act to back the relief claims and to curtail the unanswered question among the tenants- landlords arrangement which has led to a dispute among them.

WHAT IS FORCE MAJEURE? A LEGAL CONCEPT IN CONTRACTS EVERYONE SHOULD BE AWARE OF IN COVID 19 CRISIS A force majeure is an event that relates to happening of an occurrence that is beyond the reasonable control of the party and that deprives the party from fulfilling its contractual obligations. It is a contract clause that prevents the fulfilment of obligations as per the contract because of the certain situations which arise beyond the control of the parties, making performance impossible. Black’s Law Dictionary14 describes Force Majeure as ‘(a)n incident or event which is not foreseeable or controllable. It is a statutory clause administering the chance of loss if fulfilment of obligation is unlikely or infeasible, in particular as a consequence of an occurrence that the parties fail to anticipate or control.’

11 COVID-19 (Temporary Measures) Act 2020 (Singapore). 12 Impact of COVID-19 pandemic on rights and obligations under lease agreements, Eversheds Sutherland (Apr. 23, 2020), https://www.evershedssutherland.com/global/en/what/publications/showne ws.page?News=en/czech-republic/en/Impact_of_COVID- 19_pandemic_on_rights_and_obligations_under_lease_agreements. 13 Coronavirus Act, 2020 (U.K.). 14 Bryan A Garner & Henry Campbell Black, Black's law dictionary (8th edition). 2021] Enforceability of Lease Deeds in Covid-19 171

The term ‘force majeure’ has not been referred to as such in the Indian Contract Act. As per the Indian statutes this concept has neither been described nor accurately dealt with. Nevertheless, it is evident from Section 32 of the Indian Contract Act which deals with the contingent contracts, the legislators have to some extent acknowledged this concept. Justice Nariman of the Supreme Court of India outlined the whole jurisprudence relating to Force Majeure in Energy Watchdog vs. CERC15. In this case the court also held that in any case wherein a contract includes a force majeure clause section 56 cannot be applied. It is crucial to define what kinds of situations will come under the force majeure provision. Provisions include natural calamities such as hurricanes, floods, earthquakes, and sometimes referred to as ‘Act of God’. The concept is used as a suitable excuse to relate to a required potentially disastrous condition or unforeseeable superior force preventing someone from performing their part of the contract. Force majeure is a more extensive concept than vis major it covers unforeseen natural and artificial occurrences, while the latter merely relates to unavoidable natural incidents. The Supreme Court in Dhanrajamal Gobindram v. Shamji Kalidas & Co16 recognized the difference between the two concepts. It was stated that it is without doubt a concept of wider significance. There have been difficulties in the past about what might be legally included in force majeure. Judges concluded that strikes, a malfunction of machinery and, what is usually not considered the part of vis major is included in force majeure. The review of the decisions on which it is not essential to act in this situation suggests that, when recourse to force majeure is made, the intention is to shield the

15 Energy Watchdog v. Central Electricity Regulatory, (Civil Appeal Nos.5399-5400) (2016). 16 AIR 1961 SC 1285. 172 Bennett Journal of Legal Studies [Vol.2, Iss.1 performing side from the impact of events when it has no ability to do so. McCardie, J. in Lebeaupin v. Richard Crispin and Company17 said that in each case, the force majeure clause must be constructed carefully with the words preceding or following it and taking carefully into account the nature of contract and general contractual terms. The result of the clause will differ according to each instrument. Usually, a force majeure clause in a contract may contain a comprehensive description of incidents such as acts of God, war, disasters, floods, fires, burning, or epidemics or a non- exhaustive description under which the parties merely state what necessarily constitutes force majeure incidents and then incorporate 'all such events or occurrences beyond the control of the parties.' If the occurrence claimed to have prevented contractual performance is expressly stated in the force majeure clause and the incident happens then the parties involved can be relieved of the obligation to perform. The phrasing in the clause in the agreement will determine whether or not a single incident comes under the force majeure provision and the implications it will have. If a force majeure clause is stipulated in the contract it must be expressly and precisely established, as well as the court cannot amend or insert into the clause what is not expressly stated. In Satyabrata Ghose v. Mugneeram Bangur & Co.18, the Supreme Court stated that the courts do not have any such general authority to free a person from the obligation of its part only because its performance became difficult due to an unexpected turn of events. Tenants are seeking to use the force majeure clause as a legal defence against failing to meet their contractual obligations. A lot

17 [1920] 2 K.B. 714. 18 AIR 1954 SC 44 2021] Enforceability of Lease Deeds in Covid-19 173

of big corporations are also trying to use the clause of force majeure as a legal defence. India’s largest multiplex chain, PVR has also decided to invoke this clause and announced that they will not be paying rents for the entire period of lockdown.19 The standard for invoking of an event as a force majeure is well understood to be very limited. It has to be specifically mentioned in the agreement between the landlord and the tenant and also the notice has to be given beforehand for this clause. In Maruti Clean Coal And Power vs Power Grid Corporation Of India20 it was held that if there is a certain clause for the event of force majeure in the contract then the invocation/notice has to be according to the terms thereof. The agreement itself shall be considered to be contingent on the happening or non-happening of an event, that is, if a single incident such as a pandemic or earthquake happens, the parties decide beforehand that their contract will be suspended or revoked. In case the tenant does not issue a notice on time but does so later, he will only be permitted for the waiver of the rent for the term after the period of the notice. It is still a debate whether COVID-19 can be considered to be anticipated or not. In the past, there have been other such events like SARS and H1N1 pandemics. The courts have still not specified if the current pandemic has to be identified as a force majeure event. The claim of tenants of not being able to use their premises cannot be the sole reason to use this concept as a defence as the tenants are physically not present on the property but they

19 D Govardan, PVR, Reliance Retail invoke 'Act of God', won't pay rent, Times of India (Apr. 1, 2020), https://timesofindia.indiatimes.com/city/chennai/chennai-pvr-reliance- retail-invoke-act-of-god-wont-pay-rent/articleshow/74923522.cms. 20 Maruti Clean Coal and Power v. Power Grid Corporation Of India, Petition No. 79/MP/2016. 174 Bennett Journal of Legal Studies [Vol.2, Iss.1 are still using it to keep their furniture, goods in the shops and for other uses as well. The Delhi High Court in Ramanand & Ors vs Dr Girish Soni & Anr21 observed that ‘for each form of agreement the issue of waiver, termination or other exemption of the rental payments will differ. Where a contract exists, if it is a force majeure clause or some other provision that may allow exemption or suspension of the decided monthly rent, the contractual conditions will apply.’ Nevertheless, if there is no contract at all or if there is not a clause for force majeure in the contract, then the concerns will be decided in compliance with applicable law or by invoking the fair jurisdiction of the court on the pretext of temporary non-use of the place. The Court observed that the arrangement between a landlord and tenant is regulated as per the conditions of their respective agreements and that the issue of concession, termination or other exemption of rent payments will act in accordance with the terms and conditions of each lease.22

DOCTRINE OF FRUSTRATION: AN EXCUSE TO DISCHARGE THE CONTRACT OF LEASE The Indian Contract Act, 1872 interprets the term Contract as ‘An agreement which is enforceable by law’.23 In other words, a contract is an agreement between two or more than two parties which create obligations that are enforceable by law. However execution of obligations may not be feasible all the time because of

21 Ramanand and Others v. Dr. Girish Soni and Another, RC. Rev. 447/2017. 22 Aditya Mehta, Arjun Sreenivas & Swagata Ghosh, To Pay Rent or Not To Pay Rent? The Delhi High Court rejects plea for suspension of rent during lockdown, India Corporate Law, (June 5, 2020) https://corporate.cyrilamarchandblogs.com/2020/06/to-pay-rent-or-not-to- pay-rent-the-delhi-high-court-rejects-plea-for-suspension-of-rent-during- lockdown/. 23 The Indian Contract Act, 1872, Section 2(h). 2021] Enforceability of Lease Deeds in Covid-19 175

supervening or unforeseen events which releases the parties from fulfilling their obligations.24 The impossibility to perform the obligations makes the contract frustrated; it is a special case of discharge of contract because of the impossibility to perform it25 and such ‘doctrine’ was named ‘doctrine of frustration’ after instances of cases where people failed to fulfil their obligation under the contract due to the impossibility to perform their legal obligation.26 The Black’s Law Dictionary describes the term frustration in relation to contracts as ‘the doctrine that if a party’s principal purpose is substantially frustrated by unanticipated changed circumstances, that party’s duties are discharged, and the contract is considered terminated’.27 The Indian Contract Act,1872 does not expressly define the doctrine of frustration but its essence can be seen with regard to Section 56 where an agreement that is impossible to be performed or a contract to perform an act that is unlikely upon conclusion of the contract, because of the event which the promiser could not stop from happening, then such an act is concluded to be impossible or unlawful and becomes void. A contract would fall within the scope of Section 56 even when it is not entirely impossible, but the contract has structurally changed, which is something the parties did not consider during the time of conclusion of the contract.28 Moreover, impossibility

24 Dhruv Dev Chand v. Harmohinder Singh, AIR 1968 SC1024. 25 Joseph Constantine Steamship Line Ltd v. Imperial Smelting Corporation Ltd, [1942] AC 154. 26 Krell v. Henry, [1903] 2 KB 740. 27 Bryan A Garner, Black’s Law Dictionary (9th ed., West Group 2009). 28 Satyabrata Ghose v. Mugneeram Bangur & Co & Anr, AIR 1954 SC 44. 176 Bennett Journal of Legal Studies [Vol.2, Iss.1 contemplated by this section is not restricted to an event which is natural.29 Before the 17th Century, the English contract law was considered as an absolute and a rigid one where the obligations of the contracts had to be fulfilled regardless of the events and impossibility was not considered as an excuse to fulfil the obligation of the contract or discharge of the contract.30 There could not be a discharge of contract merely because of the reason that it has become impossible because of some supervening events. However, this rigidity lost its strength in Taylor vs. Cardwell31 which states that there could be an impossibility to perform the contract because of supervening occurrences which are beyond the control of both the parties and the parties to contract may discharge the contract arising out of such impossibility to perform. This clarifies that relying upon fulfilment of such performance would be unfair. It is worth to mention here that due to the occurrence of COVID19, the Prime Minister of India declared a nationwide lockdown on March 24th as a measure to prevent and contain the spread of coronavirus, and it is preconceived notion that due to lockdown which is considered as a supervening or unforeseen incident the performance under the lease agreement seems impossible, and thus the application of doctrine of frustration. In a lease agreement the transfer of possession, use and enjoyment of the property shall take place for a specified term in return of regular payment of a stipulated price.32 The Supreme Court has that while dealing with Transfer of Property Act and the Contract

29 Sushila Devi v. Hari Singh, (1971) 2 SCC 288. 30 Paradine v. Jane, [1647] EWHC KB J5. 31 Taylor v. Caldwell, [1863] EWHC QB J1. 32 Undercofler v. Whiteway Neon Ad, Inc., 114 Ga. App. 644 2021] Enforceability of Lease Deeds in Covid-19 177

Act, the former will prevail over the latter.33 The doctrine of frustration definitely extends to all contracts, but a lease agreement is more than just a simple contract and Section 56 of the Act does not apply where the rights and obligations of the parties occur in accordance with a transfer of property under a lease34. In order to incorporate section 56, the essential conditions need to be fulfilled and the following are: 1. There must exist a valid contract, 2. A part of the contract must be there which is yet to be performed, 3. There is impossibility to perform the contact. There is transfer of property under the lease agreement and once the lessee gets the possession there is nothing yet to be done. Therefore, since condition (2) is not getting fulfilled, as there is nothing yet to be done by either party, Section 56 would not apply, and the doctrine of frustration cannot be applicable in the case of lease deeds.35 On the other hand a contract of lease can be frustrated if the transfer of possession of the property did not take place36 or the premises or part of the property is entirely destroyed by fire, storm or flood, or by force of an army or mob, or other overwhelming force.37 However, the discharge of the contract does not extend when the property has not been destructed or is not permanently unfit for the use for which the contract was enacted and the lessee

33 Kidar Lall Seal And v. Hari Lall Seal, 1952 SCR 179. 34 Raja Dhruv Dev Chand v. Raja Harmohinder Singh, 1968 SCR (3) 339. 35 Airports Authority of India v. Hotel Leelaventure Ltd., O.M.P. 1206/2012. 36 Sushila Devi v. Hari Singh, 1971 AIR 1756, 1971 SCR 671. 37 Transfer of Property Act, 1882, Section 108. 178 Bennett Journal of Legal Studies [Vol.2, Iss.1 cannot avoid the performance of the contract because the lessee is unable to use the property he has rented.38

THE DOCTRINE OF SUSPENSION OF RENT: A POSSIBLE ADVANTAGE FOR TENANTS? The doctrine of suspension of rent is a concept that has originated from common law as implemented by English courts which enables a tenant in some circumstances to suspend payment of rent to the landlord. As per this doctrine in the event of the tenant being evicted from the demised land, the tenant shall be granted suspension or partial revocation of the rent.39 In Katyayani Debi v. Udoy Kumar Das40 the Privy Council held that the doctrine of suspension of rent was relevant if part of the premises leased to the tenant had not been taken in possession. The scope was later expanded when the tenants were allowed to invoke the suspension of rent, during a lockout by the employees of landlord due to which tenants did not have the access to the property.41 The applicability of the doctrine of suspension of rent depends on many factors and a factual assessment is needed in each case to determine if a tenant would really be allowed to suspend the rent payment.42 The doctrine has been applied by courts in various cases but the circumstances of its applicability were largely limited to instances where the lessor had wilfully tried to interfere with the tenant's possession or where due legal process was not ensured. Recently the Delhi High Court refused the applicability of suspension of rent on the grounds that, it was evident by the

38 Raja Dhruv Dev Chand v. Raja Harmohinder Singh, 1968 SCR (3) 339. 39 PK Roy v. Bimala Mukherjee [(1976) ILR 2 Cal 306] 40 Katyayani Debi v. Udoy Kumar Das, [AIR 1925 PC 97]. 41 Budge Budge Co Ltd. v. Jute Corporation of India Limited, [2001 (2) RC R (Rent) 485]. 42 Surendra Nath Bibra v. Stephen Court Ltd, [(1966) 3 SCR 458]. 2021] Enforceability of Lease Deeds in Covid-19 179

applications that the tenants do not wish to surrender the premises and it mentioned that due to the lockdown any delay or relaxation in the payment schedule could be provided by the Landlord.43 The court also stated that if the contract includes a provision allowing for some sort of waiver or suspension of the rent, only then the tenant may claim the same. In most of the applications claiming waiver during lockdown, there is no wilful interference or tortious activity by the landlords which is restricting the tenants to use the property, and which is one of the reasons why this doctrine cannot be invoked in such cases.

CONCLUSION In the light of the aforesaid, it is concluded that in the midst of the outbreak of COVID-19 the lease agreements cannot be evaded by application of force majeure clause, doctrine of frustration or doctrine of suspension of rent. However, the tenant-landlord arrangement can get a relief to sustain in such a pandemic by invocation by novation, rescission and alteration in the lease deeds enshrined under Section 62 of the Indian Contract Act. Novation of contract means to create a new contract while terminating the old one. In novation of contract the existing contract is substituted with a new one whereas rescission of contract means to cancel or revoke. Rescission under contract law means a party to the contract can cancel or terminate the contract and in alteration of contract and there is no substitution of a new contract, only certain terms, and conditions of the contract changes. Furthermore, the newly substituted agreement should be valid and fulfil all the conditions of a valid contract as per Indian Contract Act, 1872. However, a party cannot on its own change the terms of the contract both the parties should agree to substitute, rescind, or alter the existing

43 Ramanand & Ors v. Dr Girish Soni & Anr, (RC. Rev. 447/2017). 180 Bennett Journal of Legal Studies [Vol.2, Iss.1 contract with a new one bilaterally44 and that the terms of a contract cannot be varied without the mutual agreement of the parties.45

44 Citi Bank N A v. Standard Chartered Bank, Civil Appeal No. 7941 of 1995. 45 Polymat India P. Ltd. & Anr v. National Insurance Co. Ltd. & Ors, Appeal (civil) 4366 of 1999.

THE THIN LINE OF DIFFERENCE BETWEEN COMMERCIAL HARDSHIP AND FRUSTRATION OF CONTRACTS: NEED FOR LEGAL REFORMS IN LIGHT OF THE COVID-19 PANDEMIC

Ridhi Suri & Vidushi Sinha Abstract Law of contracts is considered to be a child of commerce. However, owing to the dynamic nature of commercial transactions, there is a need to blow fresh air into the 148-year-old legislation- Indian Contract Act, 1872 (hereinafter referred to as “Act”), the makers of which could not have contemplated all the commercial difficulties that would arise with respect to its performance, especially in a situation such as the current pandemic due to which economy is crippling under a major financial distress. The enactment, while making contractual obligations binding on the parties, has failed to lay down common metrics to ascertain the standard of difficulty, which might be caused by a supervening event, dispensing the parties from performance of contractual obligations. To highlight this concern, the authors aim to emphasize upon the importance of a clear distinction between an event of commercial hardship or inconvenience in performance of a contract, and frustration of a contract, as the former is not sufficient to dispense the parties from performing contractual obligations, the latter renders the contract impossible to perform. The article, while

 The authors are students at Amity Law School Delhi (Guru Gobind Singh Indraprastha University). 182 Bennett Journal of Legal Studies [Vol.2, Iss.1

elucidating the difference between the two, presents arguments for need of judicial decisions or a uniform law to settle the issue. The article, for this purpose, highlights the reforms undertaken by other countries in the contractual jurisprudence in light of the COVID-19 pandemic The article further paves path for permitting partial frustration of contracts and lay emphasis on the alternate relief of re-negotiating the contractual terms by parties, in order to cater to the problem at hand and to aid the shift of economy from survival phase to the revival phase. Keywords Commercial Hardship; Frustration of Contract; Uniform Law

INTRODUCTION Contractual obligations fall under the ambit of private law. Upon the formation of a contract, parties become legally bound to perform their respective obligations. On offer being accepted, it becomes a promise, which gains legal enforceability on fulfilment of conditions provided in the Act.1 Therefore, acceptance of an offer results in a contract.2 In the words of William Anson, “Acceptance is to offer what lighted matchstick is to a train of gunpowder.”3 To have an enforceable contract there must be an offer and unconditional acceptance.4Hence, once the offer is accepted and contract is formed, parties cannot retract from performing their obligations under it. Regrettably, sometimes parties encounter unforeseen and unanticipated events which

1 The Indian Contract Act, 1872 § 10 (1872). 2 Beriwala v. Sanyal, AIR Cal. 44,47 (1988). 3 WILLIAM ANSON, ANSON’S LAW OF CONTRACT 55 (23RD ED. 1971). 4 Pillai v. Madras, AIR Mad 366 (1947). 2021] Commercial Hardship and Frustration of Contracts 183

impede the performance of contractual obligations. This article aims at highlighting the distinguishing factor between an event when the performance of obligations under a contract are impossible5 to perform, and when they are not impossible per se, however are not commercially efficient or practicable6 for the parties due to changed circumstances. In the recent times, parties to contracts have started taking precautionary measures in the form of clauses such as the force majeure clause7 in order to protect them from any unprecedented loss arising on account of these changed circumstances.

IMPOSSIBILITY TO PERFORM AND RELATED CONCEPTS Impossibility to perform contractual obligations is based on the maxim “lex non cogit an impossibilia” which translates to- “law does not recognize what is impossible”. Section 32 of the Act relates to ‘contingency’. The enforcement of such a contract depends on happening or non-happening of event collateral to the contract. If such an event makes the contract impossible to perform, the contract becomes void. Furthermore, according to Section 56 if a contract becomes impossible or unlawful, its performance could be dispensed. The initial impossibility envisaged by Section 56 is that “an agreement to do an act impossible in itself is void”8. This initial impossibility contemplated by law arises in situations when the

5 Ghose v. Bangur, SCR 310 (1954). 6 S. S. Rana & Co. Advocates, Doctrine of Commercial Impracticability, MONDAQ (Oct. 17, 2020 at 05:09 PM), https://www.mondaq.com/india/contracts-and-commercial- law/881552/doctrine-of-commercial-impracticability. 7 Naheed T. Carrimjee, Will ‘Act of God’ Clauses in India Inc Contracts Help Restart the Economy? THE WIRE (Oct. 17, 2020 at 05:09 PM), https://thewire.in/law/force-majeure-india-economy-covid-19-lockdown. 8 Indian Contract Act, § 56. 184 Bennett Journal of Legal Studies [Vol.2, Iss.1 promisor has knowledge that performance under a contract is impossible or unlawful, but the promisee may not. The provision further envisages the concept of subsequent impossibility, which has a string of commonality with the concepts of frustration as well as instances which might be used to invoke the force majeure clause. The Act states that “a contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful”9. Therefore, such an event, arises at a later stage when the contract is not per se void when it was entered into, however ‘by reason of some event which the promisor could not prevent’ becomes void or unlawful. In Punj Sons Pvt. Ltd. v. Union of India10, the efforts taken by the promisor to obtain release order of the Director General of Supplies and Disposals for the necessary quota of tin ingots, were unsuccessful. In this case, it was held that the performance of the contract became impossible due to the non-availability of tin ingots and the contract became void due to impossibility of performance. The promisors could not be made liable to pay damages for the breach of contract. Impossibility may be physical11, like the destruction of the subject matter of contract, or death or disability of either party where the contract is of such nature that it can only be performed by the contracting parties. It also includes cases where contract is capable of being physically performed, however the main object behind performance of contract has failed. In the English landmark

9 Id. 10 Puni Sons v. Union, AIR Delhi 158 (1986). 11 G. E. Devenish, Inconvenience and Mental Distress in Contract - An Addendum, 94 S. African L.J. 280 (1977). 2021] Commercial Hardship and Frustration of Contracts 185

judgement of Krell v. Henry12, plaintiff and defendant entered into a contract for the defendant to rent a premise to watch the procession of the King, which was later called off. In such a scenario, where performance of the King’s coronation formed the basis of the contract, it was held that its cancellation amounts to frustration of real object of the contract. Hence, the plaintiff was not entitled to recover the balance rent. Furthermore, the concept of legal impossibility13 is also contemplated by Section 56 of the Act. In accordance with the same, any subsequent change in the law, rendering the performance of contract unlawful, would frustrate the contract. In case of Man Singh v. Khazan Singh14, a contract for cutting down trees became frustrated by subsequent law prohibiting such cutting of trees. Another tangent of practical impossibility15 was added by the case of Satyabrata Ghose v. Mugneeram Bangur16, in which B.K Mukherjea J. rightly observed that “the performance of an act may not be literally impossible, but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can be very well said that the promisor found it impossible to do the act which he promised to do”.17 Therefore, events which strike at the basis of contract so as to frustrate its practical purpose may often lead to practical impossibility.

12 Krell v. Henry, 2 KB 740. 13 G. E. Devenish, Inconvenience and Mental Distress in Contract - An Addendum, 94 S. African L.J. 280 (1977). 14 Singh v. Singh, AIR Raj. 277 (1961). 15 Ghose v. Bangur, SCR 310 (1954). 16 Ghose v. Bangur, SCR 310 (1954). 17 Id. 186 Bennett Journal of Legal Studies [Vol.2, Iss.1

Thereby, an expansive approach has been provided for the term ‘impossibility’. However, the landmark case of Puravankara Projects Limited v. Galaxy Properties Private Limited18 clearly lays down that “it is settled theory of frustration or impossibility of performance of contract cannot be applied to cases of commercial transactions. In other words, the impossibility referred to in Section 56 is not commercial impossibility.” Thus, trails of a restrictive judicial approach are also found. The legal perspective and judicial precedents give a fair idea of the Indian position. However, to provide further clarity, it must be understood that terms such as frustration and impossibility are used interchangeably as is seen in Puravankara Projects Limited19. The reason is that the English doctrine of frustration contains the undertones of the impossibility stipulated in the Act. Mukherjea, J. in the Supreme Court decision of Satyabrata Ghose v. Mugneeram20 explains the doctrine of frustration in the following words: “The essential idea upon which the doctrine of frustration is based is that of impossibility of performance of the contract; in fact, impossibility and frustration are often used as interchangeable expressions. The doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of section 56 of the Contract Act.” It is pertinent to note that in the commercial world, the Force Majeure clause is a standard clause forming part of almost all contracts globally. Such a clause may provide further clarity on the stance of impossibility or frustration in particular contracts. The

18 Puravankara Projects v. Galaxy Properties, Mad. O.P. No. 433 (2017). 19 Id. 20 Ghose v. Bangur, SCR 310 (1954). 2021] Commercial Hardship and Frustration of Contracts 187

Indian Contract Act, 1872 does not define or expressly refer to Force Majeure. However, Section 32 and Section 56 can be referred to throw light upon the subject. Force Majeure has been defined in Black’s Law Dictionary, as ‘an event or effect that can be neither anticipated nor controlled. It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.’ The purpose of a force majeure clause is to cater to circumstances arising after formation of contract due to no-fault of either party and rendering the performance of the contract impossible. . They not only serve as a precaution against the risks posed by certain economic, political, and natural disaster events,21 but also reflect a situation wherein no alternative was left with either party22. These unexpected events are beyond the control of the parties like a strike or lockdown or viz majeure, i.e., Act of God such as earthquake or any other natural calamity. While considering the situation of COVID-19 as a Force Majeure event, the Hon’ble High Court relies on the Energy Watchdog case23and notes that “there has to be a ‘real reason’ and a ‘real justification’ that the Court would consider in order to invoke a Force Majeure clause”.24 Therefore, in order to invoke force majeure clause, it is necessary to prove that the non- performance of the contract is a real impossibility to act owing to the pandemic situation. For instance, a business involved in essential services, whose activities were not suspended during the

21 K.P. Berger, “Renegotiation and Adaptation of International Investment Contracts The Role of Contract Drafters and Arbitrators", TRANSNATIONAL DISPUTE MANAGEMENT, www.transnational-dispute- management.com/article.asp?key=305, (2020). 22 Oil and Natural Gas Corporation v. Dowell, S.A. 1 CALLT 486, (1997). 23 Energy Watchdog v. CERC, SCC 14 80 (2017). 24 M/s. Halliburain Offshore Services Inc. v. Vedanta Limited, O.M.P. (I) (COMM) & I.A. 3697/2020 63, (2020). 188 Bennett Journal of Legal Studies [Vol.2, Iss.1 lockdown, might find it more onerous to invoke force majeure clause to excuse non-performance of its contractual obligations. In Standard Retail Pvt. Ltd vs GS Global Corp.25, High Court of Bombay refused to grant prayer to restrain the Respondent-Bank from encashment of Letters of Credit citing prevalence of force majeure conditions, inter alia, on the ground that there was not a real impossibility to act as Petitioner’s business activities were not curbed by virtue of the lockdown and held :that “there are no restrictions on its movement and all ports and port related activities including the movement of vehicles and manpower, operations of Container Freight Station and warehouses and offices of Custom Houses Agents have also been declared as essential services”.

COMMERCIAL HARDSHIP: HOW IS IT DIFFERENT FROM IMPOSSIBILITY? The necessity to establish the differentiation in the concept of impossibility and commercial hardship emanates from the fact that there is a huge reliance placed upon the binding nature of a contract which is highlighted by the International Institute for the Unification of Private Law (hereinafter referred to as “UNIDROIT”) in UNIDROIT Principles of International Commercial Contracts that states, “Where the performance of a contract becomes more onerous for one of the parties, that party is nevertheless bound to perform its obligations subject to the following provisions on hardship.”26 It is seen that even though courts recognize an array of ‘impossibilities’ for the performance of a contract, the general stance is that if there is a viable

25 Standard Retail Pvt. Ltd vs GS Global Corp., Comm. Arb. Petition (L) No. 404/2020, (2020). 26 UNIDROIT Principles on International Commercial Contracts§ 6.2.1 (2016). 2021] Commercial Hardship and Frustration of Contracts 189

alternative to the impossibility, it does not classify as an impossibility at all, it is rather termed as a commercial hardship and further, the party is bound to perform its obligations. In his treatise on Impossibility of Performance, Roy Grenville Mc. Elroy, under the heading ‘Commercial Impossibility is not Frustration’ states: “So far as economic authorities go, no change in the economic conditions, however serious, and however deeply it may affect the contract, can by itself amount to impossibility such as to avoid it. There is no implied condition as to commercial impossibility.”27 Further, a landmark French case highlights that “No one can tell how long a spell of commercial depression may last; no suspense can be more harassing then vagaries of the foreign exchanges, but contracts are made for the purpose of fixing the incidence of such risks in advance, and their occurrence only makes it the more necessary to uphold a contract and not to make them the ground for discharging it.”28The term hardship is defined as occurrence of such circumstances which “fundamentally alters the equilibrium of contract” according to the UNIDROIT Principles of International Commercial Contracts.29 It further illustrates upon the concept of hardship as an event by virtue of which, the cost or expense of performance of contractual obligations, has increased, or which has diminished the value of performance the party receives; and a) Such event comes to the knowledge of the disadvantaged party after the contract is concluded, and

27 ROY GRENVILLE ME. ELROY, IMPOSSIBILITY OF PERFORMANCE 194 (1941). 28 Larringa v. Society France, Paris 29 Com. Cases. 1, 18, 19 (1924). 29 UNIDROIT Principles on International Commercial Contracts§ 6.2.1 (2016). § 6.2.2 190 Bennett Journal of Legal Studies [Vol.2, Iss.1

b) The event could not have been reasonably considered by the disadvantaged party at the time of conclusion of contract, and c) The risk of the event could not have been reasonably assumed by the party at disadvantage, and d) Such event is beyond the control of disadvantaged party.30 In accordance with the UNIDROIT Principles, the Act attaches great sanctity to a contract, which becomes legally binding once the offer is accepted and conditions of section 10 of the Act are fulfilled. Section 37 of the Act attaches liability for breach of contract. Hence, once contract if formed, it has force of law and its performance cannot be dispensed with due to mere difficulty in performance. Due to this overpowering effect of the binding nature of a contract, great emphasis is placed upon the performance of obligations by the parties and the supremacy of a contract before any contract is considered void. However, the above definition of hardship is of general nature, different from the precise and elaborate clauses often contained in the contracts.31 Nonetheless, specific features of the definition could be adopted by the parties while devising ‘force majeure’ or ‘commercial hardship’ clauses in their contract. The judicial view is that when the main essence of a contract is frustrated then there remains no scope for performance of a contract. In the case of Nandkishore Lal Bhai Mehta v. New Era Fabrics Pvt. Ltd.32, contract for sale of residential property was contingent upon conversion of an industrial land into residential

30 Id. 31 UNIDROIT Principles on International Commercial Contracts§ 6.2.1 (2016). § 7. 32 Nandikishore v. New Era Fabrics, AIR SC 3796 (2015). 2021] Commercial Hardship and Frustration of Contracts 191

property, which was the subject matter of contract. The Respondents were obligated under the contract to receive approvals for the said conversion. However, the authorities did not grant approval, due to which subject matter of contract was killed. The apex court observed that “if any of the conditions are not fulfilled, the Respondents were not bound to complete the sale and the Appellant was only entitled for return of the money”.33 Hence, the contract was held to be frustrated. Further, even in Gian Chand &Ors. V. York Exports Ltd. and Ors.34, the contract to set up an industry was contingent upon necessary approvals from the State Government. Even though permission for the whole area of land was not granted, the remaining area, as observed by the Hon’ble Supreme Court, was “sufficient to set up the industry for which purpose the agreement was entered into”.35 Hence, the contract was held to be not frustrated. Although there was need of approvals in both the abovementioned cases, the difference lies in the question: whether contractual obligations were still capable of being performed or not? In the first case, the core requirement of the contract was the conversion of industrial property into residential property which could not be fulfilled due to lack of necessary approvals, thereby frustrating the basic essence of the contract. In the second case, there was a requirement of approval for setting up the industry. However, approval of certain part of such land was considered sufficient to set up the said industry. Therefore, the basic foundation of the contract was preserved regardless of the hardship of establishing the industry in the limited area.

33 Ibid. 34 Gian v. York Exports, AIR SC 3584 (2014). 35 Ibid. 192 Bennett Journal of Legal Studies [Vol.2, Iss.1

On the basis of the above, it can be established that if an alternative is available, then that must be resorted to. Therefore, the first determinant of the differentiation of impossibility and hardship lies in the question, whether there exists an alternative means of performance of contractual obligations. If the answer is in the affirmative, then a case of commercial hardship is made out and not of impossibility or frustration of the contract. Even though commercial difficulty may cause financial or other hardships which might make performance of contractual obligations commercially onerous or dilatory for the party, the apex court ruling seems to be in consonance with the UNDROIT Principles. In Alopi Parshad & Sons Ltd. v. Union of India36the Hon’ble Court while dealing with whether a party could be absolved from performance of its contractual obligations on it becoming onerous due to certain uncontemplated turn of events, observed: “A contract is not frustrated merely because the circumstances in which it was made are altered. The courts have no general power to absolve a party from performance of his part of the contract merely because its performance has become onerous on account of unforeseen turn of events” A landmark decision in this regard was delivered by Division Bench of Supreme Court in the case of Energy Watchdog v. Central Electricity Regulatory Commission37, while dealing with classic doctrine of frustration or impossibility of contracts in light of the complex and dynamic nature of present-day commercial hardships. In this case, Gujarat Urja Vikas Nigam Limited issued a public notice inviting proposals for supply of power for the Mundra Ultra Mega Power Project to supply power to at least three

36 Alopi v. Union, AIR SC 5883 (1960). 37 Energy Watchdog v. CERC, SCC 14 80 (2017). 2021] Commercial Hardship and Frustration of Contracts 193

states- Gujarat, Haryana, and Rajasthan. In the competitive bidding process, the bidders had flexibility to opt for escapable or non- escapable tariff. The Adani Enterprises Consortium was selected as a successful bidder since they quoted non-escapable tariff on account of the long-term supply agreements, they had with coal mines in Indonesia for fuel supply at fixed rates. Accordingly, Power Purchase Agreements were entered into. However, the power procurers suffered a major setback due to change in Indonesian law which aligned export price of coal to international market price instead of what was prevalent for the past 40 years. This implied that the price to procure fuel from the Indonesian mines had drastically increased, thereby making the tariff at which these price producers sold power to the power procurers completely infeasible. The court ruled that the doctrine of frustration has no application in the present matter as the basis of the contract remains unaltered. While quoting non-escapable tariff, power producers were well aware of the risks involved and yet quoted it to cut through the competition. From this case, it can be inferred that price spike or other similar commercial hardship is not recognized as a means to discharge parties from performance of contract. The decision of the Hon’ble Supreme Court has brought a lot of clarity on the subject, requiring parties to advertently assess the risks involved before establishing contractual relations. Therefore, a perusal of these cases highlights that as long as the crux or essence of the contract subsists and is capable of being performed, the stage of impossibility has not been entered into. If all the alternate means of performance of contract have been explored and still party is unable to perform its contractual obligations owing to unforeseeable circumstances, it would amount to impossibility. However, if there are certain other means to 194 Bennett Journal of Legal Studies [Vol.2, Iss.1 perform the obligations irrespective of whether it would cause financial or other suffering to the party, the contract is capable of being performed and thus fully enforceable and binding.

COMMERCIAL APPLICABILITY & INTERPRETATION OF CONTRACTS BY COURTS: COMMERCIAL HARDSHIP A third party can not interfere with the agreement between parties. However, commercial documents are sometimes expressed in language which does not, on its face, bear a clear meaning.38 The efforts of the courts is to give a meaning, if possible.39 This ‘freedom of contract’ gives rise to the question whether courts are empowered to read into the terms of a contract. The principle of true construction of contract requires the court to interpret terms of contract by determining the intention of parties and the same cannot generally go beyond the express terms. In Adani Power (Mundra) Ltd. v. Gujarat Electricity Regulatory Commission40, Hon’ble Supreme Court rightly observed that an unexpressed term may be implied only if the Court finds that the parties must have intended that term to be a part of the contract. Otherwise, the express provisions of the instrument are to continue to operate undisturbed.41 In Samuel Fitz & Co v Standard Cotton Co.42 the defendants agreed to purchase tapestries from plaintiff to further sell them in Australian market, however, government banned the import of such goods due to which defendants cancelled the order. The court held that that ability of defendant to resell goods in Australian market was not a condition precedent for

38 Dhanrajamal v. Shamji, AIR SC 1285 1291-92 (1961). 39 Hillas v. Arcos, UKHL 2 (1932). 40 Adani v. GERC, AIRSC3397 (2019). 41 Nabha Power Ltd. v. Punjab State Power Corporation Ltd., 11 SCC 508 (2018). 42 Samuel v. Standard Cotton, 2 MLJ 24 (1945). 2021] Commercial Hardship and Frustration of Contracts 195

enforcement of contract. It was further held that such term cannot be implied by courts. Therefore, Judges shall give effect to plain, literal, and grammatical meaning of the clauses used in contract. The doctrine of business efficacy empowers a Judge to imply a term if it is necessary in the business sense to give efficacy to contract. Courts apply ‘reasonable man’ hypothesis, depending on the facts of each case, but courts show reluctance towards discharging a contract as frustrated. The courts exercise such power to rather give effect to the terms of the contract, than to kill it. In Union of India v. D.N Revri& Co.43 it was observed that a contract, being a commercial document, must be interpreted in a way to make it efficacious and not to invalidate it. This can be explained by the observation of the court in the leading English law case The Moorcock44, where it was held that: “In business transactions, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are businessmen; not to impose on one side all the perils of the transaction, or to emancipate one side from all the chances of failure but to make each party promise in law as much, at all events, as it must have been in the contemplation of both parties that he should be responsible for in respect of those perils or chances.” Hence, the doctrine is more a rule of equity, as it requires the courts to appreciate the risks arising out of a contract and which party is responsible to bear them. The maxim “he who seeks equity must do equity” requires the contracting parties to incorporate equitable terms into a contract, and the party seeking enforcement of such terms beneficial to him shall not cause disadvantage to the other party in this process. It can be said that in event of commercial

43 Union v. Revri, AIR SC 2257 (1976). 44 Moorcock, LR 14 PD 64 (1889). 196 Bennett Journal of Legal Studies [Vol.2, Iss.1 hardship, court would lean towards devising means to give effect to the contract to ensure equity, than to render it frustrated.

WAY FORWARD Commercial hardships have not been mentioned anywhere in the Act and are not explicitly mentioned in many judicial precedents either in the Indian scenario. However, a pressing need for the same can be recognized especially in the pandemic-hit distressed economy. The China Council for the Promotion of International Trade, a quasi-governmental organization, has already issued more than 1600 force majeure certificates covering contracts worth more than $15 billion that shield companies in 30 sectors from legal claims.45 In order to ensure businesses such as e-commerce and essential services or those that may be conducted electronically do not make use of the broader clauses of force majeure, an attempt to stabilize the economy can be made. In order to ensure that all contracts are not repudiated on the basis of force majeure events, the Indian parties must encourage the use of alternate reliefs. The same have been greatly elucidated in the UNDIROIT Principles of International Commercial Contracts46 as well. A few of these reliefs may include- a. Re-negotiation between the parties Party suffering from commercial hardship may even request the other party for renegotiations. Such request must - (i) be made without undue delay, and (ii) specify the grounds on which it is based. On failure to reach such negotiation, either party may

45 Jingzhou Tao, Breaking contracts over coronavirus is harder than it sounds, FINANCIAL TIMES, https://www.ft.com/content/8e644cbe-5719-11ea-abe5- 8e03987b7b20, Accessed on April 8, 2020. 46 UNIDROIT Principles on International Commercial Contracts§ 6.2.1 (2016). 2021] Commercial Hardship and Frustration of Contracts 197

approach the court, which on applying the reasonable man test may: (i) terminate the contract on such terms as it deems fit, or (ii) adapt the contract in order to restore its equilibrium.47 b. Partial Frustration of a contract The second alternate relief is a partial frustration of a contract. There is a need for present legal system to devise legislation which allows parties to settle on partial frustration of the contract, which parties with no force majeure clause in their contracts may rely upon. In fact, in the American regime, there exists theory of impossibility or impracticability. It allows contracting parties to be excused from performance, where it stands ‘impracticable’ due to occurrence of an event48, non-occurrence of which was the basic assumption on which contract was built. Professor Llewellyn coined the word “commercial impracticability” with a view to extricate the courts from traditional restrictive concepts of excuse.49 This theory of ‘impracticability’ requires lower degree of proof and is more flexible than the common law concept of ‘impossibility’, as it discharges disadvantaged party from performance of contract on it becoming exponentially costly. In other words, the contract is capable of being performed, but under conditions different from those prevalent at the time of conclusion of contract.50 Such impracticability includes hardship for one party.51 This flexibility in the American legal system is quite remarkable. This concept of

47 UNIDROIT Principles on International Commercial Contracts§ 6.2.1 (2016). § 6.2.3. 48 U.C.C. § 2. 49 A. Nakazato, Uniform Commercial Code Section 2-615: Commercial Impracticability from the Buyer’s Perspective, 51 TEMPLE LAW QUARTERLY 518 (1978). 50 J. POOLE, TEXTBOOK ON CONTRACT LAW, (8TH ED.2006). 51 RESTATEMENT (SECOND) OF CONTRACTS 261 (1981). 198 Bennett Journal of Legal Studies [Vol.2, Iss.1 commercial hardship as a means to be absolve disadvantaged party from performance of contractual obligations is based on the legal maxim “clausula rebus sic stantibus” which allows a contract to be unenforceable due to substantial change of circumstances. Further, as per the French Civil Code52, where unprecedented supervening events render the performance of contract excessively onerous for one party, such party may request the other party to renegotiate the terms of contract. If no agreement is reached, one party may claim amendment or termination of contract in court. The Code empowers judge to order for renegotiation of contractual terms. Similar terms must be recognized in the Indian regime as well since a contract circumscribes many rights and obligations of a party, the mere impossibility to perform one of the same should not be a ground for discharge of all other obligations listed in the contract as well. c. Judicial dealing of such a case Meanwhile, courts may resort to common law norms of equity and justice to loosen its pedantic approach while dealing with such cases. Courts have been reluctant in granting relief on such premises. In In M/s Alopi Parshad & Sons Ltd. v. Union of India53 , the Apex Court, while dealing with Section 56 of the Act, disregarded the role of equity in construction of contracts and held that “The Indian Contract Act does not enable a party to a contract to ignore the express covenants thereof, and to claim payment of consideration for performance of the contract at rates different from the stipulated rates, on some vague plea of equity”. The Courts need to drift away from its rigid approach and may allow

52 French Civil Code§ 1195(2016). 53 Alopi v. Union, AIR SC 5883 (1960). 2021] Commercial Hardship and Frustration of Contracts 199

parties for partial frustration on such terms as it deems fit unless a uniform legislation is enacted for this purpose. d. Need for a uniform provision There is a need for one consistent central law on the subject of commercial impracticability vis a vis the concept of impossibility. There is a great degree of propensity of confusion that may arise on account of differing opinions and interpretations of different High Courts. A well settled rule shall ensure that such disputes do not arise in the first instance. A specific provision for commercial hardship shall go a long way in ensuring that there is no ambiguity in law. Further, for specific circumstances such as the current COVID-19 situation, tailored laws may be formed. For this purpose, lessons can be drawn from laws of different countries reeling under the same situation. One such example is Coronavirus Act, 202054enacted by the parliament of United Kingdom. It came into force on March 25, 2020 to deal with the contingencies arising from the pandemic. The Act’s Preamble reads “An Act to make provision in connection with coronavirus; and for connected purposes”.55It stipulates certain circumstances that shall amount to an event of force majeure. For instance, Schedule 82 and 83 of this Act deals with the protection provided to the tenants from landlords' right to re-entry or forfeiture of commercial premises on account of non-payment of rent during the relevant period. The relevant period in this Act, is stated to be the day following the day when the Act came into force till June 30, 2020 or such later date as may be specified by the relevant national authority in regulations made by statutory

54 Coronavirus Act (2020). 55 Id. 200 Bennett Journal of Legal Studies [Vol.2, Iss.1 instrument. These Schedules are applicable on England, Wales, and Northern Ireland. Similarly, on April 7, 2020, Singapore enacted the COVID-19 (Temporary Measures) Act 2020 to “provide temporary measures, and deal with other matters, relating to the COVID-19 pandemic”56. As the statement of objects of the Act suggests, it is enacted to provide temporary relief to certain scheduled contracts which were entered into before 25 March 2020, with contractual obligations to be performed on or after 1 February 2020. These contracts include, and are not limited to, contract for the grant of a loan facility by a bank, an agreement between a developer and a purchaser for the sale and purchase of housing accommodation, leases or licenses for non-residential immovable property, construction or supply contracts, performance bonds, contracts for the provision of goods and services for events and tourism-related contracts. It aims to afford extensive protection, and for this purpose it prohibits the continuation or commencement of any statutory legal proceedings under such contracts. It prohibits enforcement of security over properties used for trade or business, arbitration or insolvency proceedings, executions of judgements, orders, or arbitral awards with respect to such scheduled contracts.57 The Singapore Act envisages a simple procedure to obtain such relief when a party is unable to perform its obligations due to coronavirus. The Act merely requires the party to apprise the counterparty and notify it of its failure to perform the contract. This is as simple as a supplier of goods addressing an e-mail to the

56 COVID-19 (Temporary Measures) Act (2020). 57 Id. 2021] Commercial Hardship and Frustration of Contracts 201

buyer stating that it is unable to perform the contractual obligations due to the disturbance in the supply chain. In India, the Government has been notifying the reliefs in the form of circulars and notifications in a piecemeal manner with no proper regulations, landing the majority of population in a state of confusion. For instance, vide a notification58 released by the Ministry of Finance, it was clarified that the disruption of supply chains caused by spread of coronavirus amounts to a ‘case of natural calamity’, and force majeure clause may be invoked where appropriate. The said notification, while allowing for invocation of force majeure clause, makes it more tedious for the parties to do so as it categorizes such event as a natural calamity. However, vide a subsequent notification59 released by Ministry of New & Renewable Energy, the present pandemic situation was classified as a ‘force majeure event’, and an extension of time was granted in the commissioning date of the renewable energy projects considering the disruption of supply chains due to the spread of COVID-19. Moreover, another notification was released by Ministry of New & Renewable Energy, where it was reiterated that occurrence of COVID-19 is a force majeure event, and sufficient evidence shall be adduced by the parties seeking extension of time for renewable energy projects.60

58 Ministry of Finance, Office Memorandum: Force Majeure Clause (FMC), Government of India (Feb.19, 2020), New Delhi; https://doe.gov.in/sites/default/files/Force%20Majeure%20Clause%20- FMC.pdf 59 The Ministry of New & Renewable Energy, Office Memorandum: Time Extension in Scheduled Commissioning Date of RE Projects Considering Disruption of the Supply Chains Due to Spread of Coronavirus in China or any other Country as Force Majeure; Government of India (March 20, 2020), New Delhi; https://mnre.gov.in/public-information/current-notice 60 Office Memorandum, Time-Extension in Scheduled Commissioning Date of Renewable Energy Projects Considering Disruption Due to Lockdown Due 202 Bennett Journal of Legal Studies [Vol.2, Iss.1

In the absence of such clarity and with no comprehensive law to deal with the situation, litigants are congesting the courts for legislative clarifications. In such a situation of uncertainty, lack of proper guidelines has added to the burden of the courts with litigants approaching them to interpret such regulations.

CONCLUSION The situation of hardship or impossibility depends on the facts of the case and largely revolves around the question that “whether such hardship has collapsed the foundation upon which the contract is structured?” In the process of carrying out a contract, the arising of an untoward event that the parties would not have reasonably anticipated may be dealt with even before the entering of a contract by devising a liberal force majeure’ or ‘commercial hardship’ clause. If the parties may devise their force majeure clauses judiciously with a clear bifurcation between hardship and impossibility in performance of contractual obligations, such an event, where the line between commercial hardship and impossibility is to be laid down, would not arise in the first instance itself. Although force majeure clauses are pleaded during the breakdown of contracts, these clauses are not given the attention they deserve during the formulation of the contract.61This might lead to problems if a force majeure event later materializes.62 To avoid the same, the construction of such clauses judiciously becomes imperative.

to COVID-19, No. 283/18/2020- GRID SOLAR, Ministry of New and Renewable Energy, Government Of India, 13 August 2020. 61 3 KARL HEINZ BOCKSTIEGEL, ADAPTATION AND RENEGOTIATION OF CONTRACTS IN INTERNATIONAL TRADE AND FINANCE 159 (Nobert Horn Ed., 1985) 62 For example, the model force majeure clause promulgated by the International Chamber of Commerce in 2003. See ICC Force Majeure 2021] Commercial Hardship and Frustration of Contracts 203

The parties while drafting the clause may seek reference from the ICC Force Majeure Clause, which was designed in March 2020. Such a clause facilitates the drafting process for companies and their lawyers. It adequately provides a safety net provision and places a distinct criterion for commercial transactions which may classify as force majeure events. The general structure of the clause is to provide contracting parties both with a general force majeure formula as well as with an exhaustive list of force majeure events.63This would enable contracting parties to classify distinct categories of force majeure events and not heavily rely upon courts for interpretation, which is the need of the hour especially for long-standing commercial contracts.

Clause 2003, International Chamber of Commerce, ICC Publication 650 (2003). 63 ICC Force Majeure and Hardship Clauses, INTERNATIONAL CHAMBER OF COMMERCE, (Nov. 29, 2020, 07:47 PM), https://iccwbo.org/content/uploads/sites/3/2020/03/icc-forcemajeure- hardship-clauses-march2020.pdf