It is important to assess India’s response to Covid-19 in the national context in which it occurred. India adopted measures that are recognisable to Europeans from their own governments’ actions. The Covid-19 related problems that the Indian courts and legal profession have faced have been faced by courts and lawyers around the world.
However, the Indian context is, in some respects, unique. It is a country of around 1.3 billion people.
It is a democracy and its legal system is based on the principles of the rule of law. However, it has significant structural problems. It does not have a strong administrative State that reaches every part of the country. Its constitution is federal with a patchwork of laws, some of which date from colonial times. Its legal system does not have the capacity to provide access to justice for all.
India does not have a national public healthcare system with the capacity to treat the whole population. It does not have a welfare system that has the capacity to provide for the needs of the many sick or disadvantaged. The Indian exchequer could not provide appropriately comprehensive financial assistance in the way that, for example, the UK Treasury has.
India has significant development problems. Wide disparities in standards of wealth, health and education. It has substantial divisions based on ethnicity, social class, region and religious affiliation. Many lower paid workers travel large distances to find work.
The requirements of dealing with Covid-19, which include shutting down any activity that involves social contact, requiring people to stay at home, limiting economic activity to that which can be conducted electronically and taking whatever measures are necessary to protect the capacity of the healthcare system, were always going to have a disproportionately detrimental effect in India.
The legislative and administrative response
The legal basis for India’s lockdown is in administrative measures taken under the federal Disaster Management Act 2005 or by states under the colonial Epidemic Diseases Act 1897 - neither are a Covid-19 specific act. These give governments wide powers and have permitted the legislatures to be bypassed. Although many of the administrative measures are time-limited, there does not appear to be any parliamentary check on their duration.
The lockdown, which included a comprehensive transport ban, was announced only hours before it came into effect. It left many millions of people stranded, without work and without any replacement support to survive. The restrictions were sometimes brutally enforced by the police. Names and other personal details (including what we would classify as ‘sensitive personal data’) of those with the disease were published which led to community tensions. There have been reports that the measures have been used to strengthen existing discrimination against minority groups.
There have been complaints that the Court system is not efficient enough to be an effective check on abuses of power. Opinion is divided about the ‘hands off’ approach taken by the Supreme Court in one Covid-19 case that came before it (which concerned the payment of wages to migrant workers who were ‘trapped’ by the measures).
For the structural reasons given above, the government’s subsequent attempts to deal with the humanitarian effects of these policies could never be adequate. As mentioned, the administrative and financial capacity of the State could not hope to provide the kind of comprehensive support that European states have managed.
India does not have the capacity to support its lockdown with sufficiently comprehensive public health measures (such as testing and tracking). These are of course measures that Britain has also struggled to implement effectively. India has introduced a mandatory contact-tracing app for government employees (which has been adopted as mandatory by parts of the private sector). It has been criticised for its lack of protections of users’ privacy (it tracks location, for example). A challenge to the mandatory nature of the app for government employees was rejected by the Kerala High Court.
Part III of India’s constitution contains civil and political rights (such as Article 19 (dealing with freedom of movement and settlement), Article 21 (personal liberty) and 22 (protections in relation to arrest and detention)). Part IV contains unenforceable ‘Directive Principles of State Policy’ (such as Article 38 (social order and welfare of the people), Article 39 (adequate means of livelihood), Article 39 A (access to justice and legal aid) and Article 41 (effective public financial assistance)). A number of these provisions are engaged by what has happened. However, given the unique nature of the Covid-19 crisis and the structural problems in India that pre-date it, it is not possible to assess the extent of any breaches in an article such as this.
The courts and legal profession
The lockdown has had a significant effect on the Indian courts and legal profession. The courts have not had the resources to conduct remote or virtual hearings widely. There have been some such hearings in the Supreme Court and in various High Courts. The Commonwealth Human Rights Initiative has pointed to the lack of equipment and training of court staff and to poor internet connectivity. The Bar Council of India has estimated that a significant proportion of lawyers and judges in India are ‘unaware about the technology’.
This has meant that important hearings such as bail and other criminal hearings have simply not happened. It has also meant that advocates have not been able to work in any meaningful way. As in England and Wales, the plight of the young members of the profession is particularly severe. There have been attempts made by bar associations to provide some support. The Supreme Court Bar Association is providing an interest-free loan of Rs 25,000 repayable in 2 years. State bar associations are devising their own programmes.
As regards prisons, visits have been banned and communications are confined to land-line calls for which there is a long waiting list. The federal government has directed states to release remand prisoners where the offence charged carries less than 7 years in prison. This has been extended to convicted prisoners in several states for the same category of offences.
The backlog of cases is large. Al Jazeera has reported that there are 36 million cases pending in India. The number of physical hearings taking place at the moment is tiny. In the Mumbai High Court a much reduced court only sits between 12 and 2 pm for two days a week. There is no guidance as to the basis for listing a matter. In Kolkata the High Court is now sitting from 11 to 1 pm and then from 2pm to 4 pm because it has video-link facilities. However, the cases are being heard in strict chronological order by date of filing rather than urgency or importance. Several bar associations have written to the Chief Justice of India calling for a return to physical courts.
It is also to be remembered that all this is taking place in an international context in which there have been tensions between India and Pakistan and India and China.
It is impossible to provide a comprehensive assessment of India’s response to the crisis in a short article such as this. Newspaper reports this week suggest that the effects of the pandemic in India are still unfolding. The pandemic has tested the capacity of most states to cope. India is no exception. It is too early to do a comprehensive or fair analysis of the country’s response overall.
David O’Mahony, barrister at 7BR Chambers and member of the Bar Council's International Committee