- 1 ABSTRACT
- 2 Introduction
- 3 Extraneous Laws Governing Unprecedented Needs
- 4 Tenets of Judicial Activism in India
- 5 Recognizing the efforts of the Indian Judiciary during the Pandemic
- 6 Unaddressed Issues that still warrant Judicial Intervention
- 7 Conclusion
India’s response to the Covid-19 pandemic has been discussed to highlight the growing relevance of Judicial Activism in the novel situation with its imminent needs. The customary role of Judicial Activism in India is asserted to further establish its requirement due to the disastrous effects of the pandemic. Although the executive has taken a front foot in promulgating rules for a nationwide lockdown, it has overlooked its duty towards safeguarding the fundamental rights of its citizens. While acknowledging the progressive decisions already passed by different Courts, the need for judicial intervention into certain unaddressed problems is emphasised. Executive underreaches calls for Judicial Overreach and a dilution of the Doctrine of separation of powers during the exceptional times of a pandemic. In order to deliver effective justice to the society during such a troublesome situation, the need of the hour is amplified judicial intervention to address the plight of the disadvantaged sections of the society on an urgent basis.
The activist role of Indian Courts has been responsible for completely revolutionizing India’s legal landscape. The guiding philosophy of Judicial Activism has allowed Courts’ discretion to pronounce forward-looking, equitable and conscionable judgements as seen in the cases of Kesavananda Bharati v. State of Kerala, Maneka Gandhi v. Union of India, CERC v. Union of India, Chameli Singh v. State of U.P., Selvi v. State of Karnataka, Olga Tellis v. Bombay Municipal Corporation, Vishaka v. State of Rajasthan, M.C. Mehta v. Union of India, Shayara Bano v. Union of India & Others among several others. In the words of India’s Attorney General, K.K. Venugopal, ‘through Judicial Activism the Supreme Court has done a tremendous amount of good, it has practically tried to wipe away every tear of the underprivileged, disadvantaged and illiterate sections of the society’. On the contrary, the critics of ‘Judicial Activism’ constantly point out the few instances where courts have gone beyond the principles of rule of law and indulged in ‘Judicial Adventurism’, thereby contravening the Doctrine of separation of powers. This shortcoming subsists due to the thin line that differentiates ‘Judicial Activism’ from ‘Judicial Overreach’. As explained by Justice Markandey Katju ‘Courts should exercise restraint and avoid the temptation to legislate or exercise executive functions, not only because that is the function of other organs of the State, but also because the Court is not equipped with the technical expertise or resources for this’. To ensure that ‘Judicial Activism’ does not lead to ‘Judicial Overreach’ is immense responsibility on the shoulders of the Indian Judiciary. It is also an undisputed fact that ‘Judicial Activism’ is a necessary pillar of the Indian Judiciary. The impact of the Covid-19 pandemic has put the Indian subcontinent in shambles on the economic, political and social forefront. This widespread disorder necessitates immediate attention which must go beyond the mere objective application of Indian laws to effectively meet the needs of the Indian society. All things considered, this paper attempts to highlight the restrictive application of Judicial Activism during the pandemic while emphasising the role and relevance of the same due to the disastrous effects of the Covid-19 pandemic on the Indian Community.
Extraneous Laws Governing Unprecedented Needs
The need for and relevance of exercising Judicial Activism especially during the Covid-19 pandemic beg two questions. Firstly, whether the measures adopted by the executive by virtue of the existing legislations were inadequate to deal with such a pandemic. Secondly, could the Courts at all have gone into the issues pertaining to policy matters so as to aid the marginalised sections of the society. The Government used its power under the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005 to impose a nationwide lockdown. However, these are generic and broad powers given to the Central and the State Government to issue directions to mitigate the effects of any and all kinds of disasters. These laws do not exist for matters concerning quarantine, lockdown, restriction of movements, business and the implications that follow. Therefore, the question remains whether the imposition of a lockdown and more importantly, its manner of implementation was at all legally founded. The outbreak of Covid-19 was an emergency that allowed the executive to exercise sweeping powers in the absence of proper legislation to deal with such a pandemic. While the Central Government took up an advisory role, State Governments made specific rules suiting their own jurisdictional needs. Certainly, the greatest impact of the lockdown has been on the poor, migrants, children, women, Dalits, transgenders, sex workers and other marginalized groups.
Tenets of Judicial Activism in India
When the actions of the executive are inadequate to address the needs of such groups, the judiciary does need to step into the shoes of the executive. The Indian Constitution, the grund norm of India, and the various other statutes and legislations have not been formulated with the sole purpose of binding the Courts. Rather, these archaic legal principles and provisions must be read by Courts with the aim to decipher the intention of framers in the given situation and context. Judicial Activism has been defined by the Black Law’s Dictionary as ‘a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usually with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent’.Justice Benjamin Cardozo explains the need for such activism because he believes the functions of the Apex court is not limited to binding all its subordinate courts but goes way beyond it. In his words, the words of Courts must give the constitution ‘a continuity of life and expression’ because vocalizing the ideals of a democracy periodically is necessary to ensure that they don’t end up being mere dormant assertions of the Constitution. Due to the fact that India is a complex civil society governed with several formal and informal relationships, any event out of the ordinary, the Covid-19 pandemic in the current times, demands prompt legal attention due to the inevitable unrest and disorder. If the Courts are unable to safeguard the interests of the disadvantaged in such a troublesome situation, the Judiciary can hardly be said to be delivering justice. Indeed, the Judiciary has to abide by the Doctrine of separation of powers, however, this cannot excuse or justify its total failure to assist the helpless. Rather, when the judiciary does not intervene, it reflects an unhealthy complete surrender to the executive which is not only an institutional failure, but also a personal failure on the part of non-activist judges.
Recognizing the efforts of the Indian Judiciary during the Pandemic
Former Supreme Court judge, Ananga Kumar Patnaik said that ‘judges must be active, overactive to ensure economic justice and protect democratic rights during the Covid-19 pandemic and amidst restrictions which have affected people’s livelihood.’ These restrictions have indeed led to unanticipated situations where judicial activism is necessary. In India, the Courts have largely taken note of matters that require judicial attention and intervention through issues raised by Public Interest Litigations or by taking Suo Moto cognizance of relevant matters in order to adequately meet the needs and the interests of marginalized and under-represented communities. While the entire nation was witnessing a complete lockdown due to the Covid-19 pandemic, the Indian judiciary had opened a new dimension for delivering justice. A bench comprising Chief Justice of India Bobde, Justice DY Chandrachud and Justice Rao issued directions to grant uninterrupted access to justice via video conferencing and e-filing of complaints. These guidelines were issued by invoking Article 142 of the Constitution of India, as an extra-ordinary jurisdiction. Certainly, this move was quintessential during a time where Covid-19 restrictions had invited a host of litigations demanding Judicial Activism. Predominantly, the judiciary was given the daunting task to see whether the lockdowns are so severe as to deprive a person of the right to occupation, trade or business guaranteed by the Constitution of India under Article 19.
It is crucial to highlight some of the judgements passed by different Courts of the country while keeping the concerns of democracy at the highest priority. The sudden nationwide lockdown had left thousands of daily wage migrants unemployed. While the Supreme Court initially showed laxity in addressing these issues due to blind reliance on the false assurances given by the Government, it subsequently redeemed its image by taking suo moto cognizance of the inhumane conditions of migrants. It directed the Central and State Governments to send all migrant workers to their native places within 15 days and formulate employment schemes to rehabilitate them. It also directed the Centre to provide additional trains for the travelling of migrants. Nonetheless, the concerned authorities were asked to withdraw all cases against migrant workers for alleged violation of lockdown norms. The Kerala High Court while hearing a petition challenging the State Government’s decision to defer payment of salaries to Government employees during Covid-19 ruled that the right to receive salary is vested in every individual by virtue of Article 300A. Similarly, in K. Amsa Kannan v. Chief Secretary, Government of Tamil Nadu, the plea for a reduction in salary of Government servants was dismissed. An activist judge will always exercise judicial creativity to serve the needs of the marginalized especially during the troublesome times of a pandemic. With lack of efficacious reliefs by the executive, the most remarkable form of judicial activism was seen in the case of Shashank Deo Sudhi v. Union of India and Ors. wherein it was held that testing in private labs of Covid-19 was to be made free for economically weaker sections of the society.  The Supreme Court also issued guidelines to the Union of India to safeguard and protect medical professionals and make provisions for optimum usage of PPE kits to all health officials.  Furthermore, In Re: Contagion of Covid-19 virus in Prisons, the Supreme Court took suo moto cognizance of the issue of overcrowding in prisons and ordered both the States and the Union Territories to constitute High Powered committees to determine which categories of prisoners can be released on parole or interim bail.
Unaddressed Issues that still warrant Judicial Intervention
While the issues discussed above were handled by the courts commendably, there are still certain unaddressed matters that require attention and consideration from an activist judiciary. The Covid-19 pandemic has compromised various fundamental rights in the Indian society that merits immediate attention from State authorities, in this case, Indian courts.
Right to Education: The distance education scam for the disadvantaged
Right to education for children is a recognized fundamental right under Article 21A of the Indian Constitution.This objective of imparting education which has also been mentioned in the Directives Principles of State Policy, is facing severe setbacks due to the Covid-19 pandemic. The pandemic compelled all educational institutions to stop in-person operations temporarily and to move to an online education format until normalcy is restored, which still seems like a distant dream. The reach of ‘free education’ through the online mode is very questionable since all students are not equally placed socially or economically. It is safe to say that the effect of factors such as financial instability, gender-based discrimination, caste-based discrimination & class inequality among other factors have heightened due to the pandemic. All in all, the basic principles of this right that have been previously established and the obstacles that have been attempted to solve are under a massive threat due to this pandemic. Although the government has taken a few measures such as the PM e-VIDYA platform, Diksha Platform, e-Pathshala, Atal Innovation Mission among other initiatives, to mitigate the impact of the pandemic on education, compromised intervention from courts can be a step in the right direction.
Right to Health: The Covid-19 Pandemic tests India’s healthcare system
The realities of India’s Public healthcare system have been brought to the forefront due to the ongoing Covid-19 pandemic. Article 47 of the Indian Constitution imposes a primary duty on the State to ‘raise the level of nutrition and the standard of living of its people and the improvement of public health’. Furthermore, the Supreme court has also imposed a constitutional obligation on the State to impart adequate healthcare under ‘Right to health’ within Article 21 of the Constitution. For the purpose of protecting this right and adequately handling the ill-effects of the pandemic, given the capacity of the Indian public healthcare system, the Government has claimed to divert the majority of its efforts and finances towards this issue. Even so, there are stark differences between the realities of different States due to varying policy decisions. In such a scenario intervention of the Judiciary to meet the State’s constitutional obligations is essential for expedite redressal.
Right to Life: In the Context of Migrant Workers
One of the most affected sections of the Indian society are the migrant workers, whose entire livelihoods were uprooted since they are daily-wage workers who were stranded in areas away from home. The tragic incident that occurred in Aurangabad, where sixteen migrant workers who were returning to their hometown on foot were run over by a goods train, is one of the many incidents that indicate the extreme plight of migrant workers in India due to the Covid-19 pandemic. Of the many rights violations, the migrant workers’ ‘Right to Food’ necessary for survival and for maintaining a minimum standard of nutrition is still under impending danger. Since they earn their wages on a day-to-day basis, lack of regular income has severely affected their ability to provide for basic necessities for their families. In addition to this, the Public Distribution System has been facing major implementation issues thereby contravening the rule laid down in PUCL v. Union of India which guaranteed one’s Right to Food. The absence of a Below Poverty Line card, since migrant workers do not have a permanent address, and pending ration cards have further worsened the situation for a few because these individuals cannot gain the benefits of the Public Distribution System. When the Supreme court has asserted that Right to Life includes within its ambit a life with dignity and not a life that is merely limited to an animal-like existence, it is necessary to create a healthy environment for workers belonging to the informal sectors in order to give them a dignified life based on national and international human rights standards.
Aarogya Setu: Potential Privacy Concerns for Indians
Furthermore, the way the Indian Government has been conducting itself recently by releasing the personal information of the Covid-19 affected individuals and the use of the Aarogya Setu App can subsequently raise privacy concerns in the future in light of the Supreme Court judgement of Justice K. S. Puttaswamy v. Union of India. The Court in S. Rangarajan & Ors v P. Jagjivan Ram ruled that the Central and State authorities must be dynamic and responsive to changes in the society. However, when the executive and legislature fail to meet the immediate needs of the society, the Judiciary must intervene to compensate.
The expectation for proactiveness from the Judiciary in the above-mentioned matters is subject to judicial actions that are well within their boundaries. It is a well-established principle that there exists a thin line between Judicial Activism and Judicial Overreach. Certainly, when the Judiciary oversteps the powers given to it, it interferes with the proper functioning of the legislative and executive organs of the Government in a democracy. Judges need to ensure a careful balancing act in exercising activism so as to not violate the spirit of the Doctrine of separation of powers. However, a crisis situation such as the Covid-19 pandemic calls for a dilution of this Doctrine. The balancing act needs to be slightly done away with. When the outbreak has practically altered the lives of 70% of the population of India, the Constitution along with its mechanisms to enforce is tested. As a result, the role of the Judiciary becomes more important than ever. However, at the same time, the Judiciary should be extremely careful to make sure that it is not unwittingly falling into the trap of politically motivated pleas. It should not begin with the assumption that the other wings of the Government must have faltered. The High Court while adjudicating DLF Universal Ltd. v. Greater Kailash II Welfare Association held that ‘Judicial Activism should be resorted to in exceptional circumstances when the situation forcefully demands it in the interest of the nation, but always keeping in mind that ordinarily, the task of legislation or administrative decisions is for the legislature and executive instead of the judiciary.’ It is pertinent to highlight here that the Indian judiciary is not finding opportunities for Judicial Activism, Adventurism or Overreach. It is compelled to do so due to executive underreach during an emergency situation. The Constitution of India provides for the Judiciary to exercise its power of Judicial Review and act as a watchdog for the protection of fundamental rights, preventing either the legislative or executive branch from overreaching or underreaching in their constitutional roles.
The aforementioned instances are conclusive proof of legislative and executive inaction that deprives citizens of their basic fundamental rights guaranteed by the Constitution of India. The lack of proper policies, incompetency to implement laws and the absence of capable authorities are reasons why the Court needs to overstep their power. The Judiciary has dealt with the various issues concerning Covid-19 and risen to the occasion to show a humanitarian facet. Even before the lockdown became a reality, the judiciary was far-sighted to implement precautionary measures, much before the executive could foresee such a situation. However, the duty of the Judicial machinery still remains unfulfilled in light of the anomalous needs of current times. In times like that of a pandemic, it is the need of the hour that Courts categorically deal with the unprecedented situations that we are witnessing today. Nonetheless, there are also going to be a plethora of events faced by the society post the pandemic which is now too far-fetched to be anticipated. Given the laxity of the executive and legislative organs, coupled with the uncertainty of situations, this would again require Judicial Activism on a case by case basis. Therefore, it is extremely important in modern adjudication to introduce changes and amendments through Judicial Activism so as to render effective and necessary justice to the society during these challenging times of a pandemic.
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