The pressing need to frame parameters for “extremely urgent” cases

The onset of the COVID-19 pandemic in the country had led to the Apex Court to act quickly and in earnest even before the lockdown was ordered from midnight of March 24.

The Supreme Court, prior to the lockdown, initiated suo motu actions: (i) to decongest prisons and correctional homes to secure the inmates' safety and (ii) to allow the mid-day meal scheme to function unhindered in providing nutritional food to children and lactating mothers during the period of closure of schools and ‘anganwadis’.

On March 22, the Court notified that two-judge benches would hear extremely urgent cases through video conferencing, and the Standard Operating Procedure for the same was disseminated. Following the Government of India’s call on nation-wide lockdown, the Court on March 26 reiterated its earlier circular to hear matters involving extreme urgency. The above two circulars were superseded by the April 6 circular that spelt out fresh comprehensive guidelines for hearing of cases through video conferencing.

Since the March 31 order of the Court that brushed aside the plight of the migrant workers fleeing to their hometowns as panic triggered by ‘fake news’, there have been several other petitions filed in public interest. These had demanded relief to migrant workers; the payment of at least the minimum wages to workers; payment of full wages to registered MNREGA households without deductions and such other petitions seeking relief under Article 21 of the Constitution.

The Court negated the claims of the beleaguered citizens, which resulted in numerous articles that expressed dissatisfaction at its handling of the humanitarian crisis during the world’s largest lockdown.

This article is not about the inept handling by the Court as alleged by former judges of the Supreme Court and the High Courts, nor is it about the functioning of the virtual courts during the lockdown period. It is about the cases that were decided during the lockdown period and whether they qualified the ‘extremely urgent’ criteria prescribed by the Court.

Judgments during the lockdown period

The Court, until the third lockdown period, ending May 15, had pronounced judgments in 73 cases; 15 cases heard by three-judge benches; 55 cases by two-judge benches and 3 cases by a five-judge bench. Of the 73 judgments, two were COVID-related, while the rest fell under different categories.

While cases relating to COVID-19 and its effects are undoubtedly extremely urgent, an examination of other select cases allow us to wonder if they would indeed qualify under the urgent category.

(i) In Union of India & another v. UAE Exchange Centre, the Court examined the appeal that related to taxation levied on the respondent company that was incorporated in the UAE and which was engaged in offering remittance services for transferring amounts from UAE to various places in India. By its judgment dated April 24, the Court dismissed the appeal as the company was not amenable to tax liability under the Double Taxation Avoidance Agreement between the two countries.

(ii) In Commissioner of Customs (Port) v. M/s Steel Authority of India Ltd (SAIL), the Court examined the appeal that related to valuation under the Customs Act, 1962 of import of certain items made by SAIL under two contracts. SAIL wanted import duty to be charged on the plant and equipment alone and that the price for the equipment included all design and engineering for their manufacture. On April 27, the Court dismissed the appeal and upheld the order of the Tribunal, which held that the drawings and technical documents related to post importation activities for assembly, construction, erection, operation and maintenance of the plant and those items could not be included in the value of imported goods.

(iii) On April 29, the Supreme Court pronounced its judgment in PILCOM v. CIT, West Bengal –VII. PILCOM is Joint Management Committee formed by the Cricket Control Boards/Associations of Pakistan, India and Sri Lanka to conduct the World Cup Cricket tournament in 1996. The case arose out of a tax obligation by PILCOM whereby the payments made to the Non-Resident Sports Associations represented their income which accrued or arose or was deemed to have accrued or arisen in India. Consequently, the appellant was liable to deduct tax at Source in terms of Section 194E of the Income Tax Act, 1961. The Supreme Court dismissed these appeals.

Parameters for ‘extremely urgent’

The above judgments are only indicative of the nature of cases that were decided during the lockdown period as ‘extremely urgent’. The discretion to decide urgency vested with the presiding judge and the lawyer and the litigant had to state the urgency for the case to be listed. There is no record of the number of online petitions that were submitted requesting for urgent hearing.

Every litigant and lawyer is eager to exhibit urgency in her case and is anxious to secure relief for herself or for her client. The rights of adopted children to trace their biological parents and seeking court intervention can be construed as urgent; the claim for a proper and effective investigation and compliance of payment of relief amount under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act and Rules are urgent. But will the courts classify such kind of cases urgent or will costs be imposed for listing them as deemed to be ‘non-urgent’?

One of the criticisms against the virtual court functioning is its opacity. The Bar Council of India (BCI) has addressed a letter dated May 26 to the Chief Justice of India, that not all requests for listing of cases under the ‘urgent’ category are entertained and that there are reports that only two per cent of this category succeeded in getting their matter listed for a virtual court hearing.

As the listings of ‘urgent’ cases are shrouded in secrecy, the BCI Chairperson has stated that only a “handful of a privileged class of advocates are the beneficiaries of the virtual court system”.

For the justice system to be fair, just and equal, it is necessary for all to have easy and equal access to it. It is necessary for the courts to lay down the parameters for a case to be categorised as ‘urgent’ and not leave it to discretion. The lack of transparency is cause for serious misgivings amongst the legal community and it needs to be addressed if we believe in the oft-quoted aphorism, that “justice should not only be done but also seen to be done”.

Can pecuniary interests trump Part III and IV of the Constitution?

All the above three decided cases of the Supreme Court have financial connotations. However, were pecuniary considerations alone sufficient to list these cases during the period when the Court was functioning with minimal strength and time, especially when they have been pending in the court for close to ten years? We can only presume that financial implications could have induced the Court to list the case as ‘extremely urgent’ and decide on them as well.

The above three judgments and a cursory examination of other judgments until the end of the third lockdown period reveal that close to fifty per cent of the decided cases related to commercial and civil disputes.

Conclusion

The current situation may soon change and allow for normal functioning of courts, but it is imperative that norms are laid down as to what constitutes ‘extremely urgent’ matters. This will benefit lawyers and grant litigants access justice in the appropriate manner without having to face the wrath of the Court and perhaps also be targeted with costs.

The norms, when laid down, will also free the Court of disparaging attacks against its conduct. Eyebrows were raised once again when plea for re-naming the country was listed when the ‘extremely urgent’ requirement for listing was still in force.

Undoubtedly, the COVID-19 pandemic has resulted in an unprecedented loss of life and livelihood to all in the country with the poor, vulnerable and marginalised sections of society disproportionately affected. While mechanisms are evolved to mitigate the effects of the pandemic and restore normalcy, the lessons learnt from an unplanned lockdown should be remembered never to be repeated.

Justice SK Kaul, during his recent address on 'Freedom of Expression in times of COVID-19', stated that there is growing intolerance against the judiciary and imputations against it will damage the institution itself. To quell the unnecessary vilification, there is an urgent need to frame parameters for the ‘extremely urgent’ category.

The author is an Advocate practicing before the Madras High Court.