The severity of the corona virus impact in India has not only jolted the health sector but also brought forth several doubts about the effectiveness of “good governance” claimed by the Indian government. The political complacency and lack of thoughtfulness by policy makers left the judiciary with no option but to step in.
When the executive’s fairness and actions can’t be trusted, judicial activism comes into play.
Before the discussion and justification on the topic is put forth, an important caveat merits a mention. Understanding of judicial activism can be developed with Black’s Law Dictionary’s definition, “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies“. What judges ought and ought not to do, in a given time and place, is a matter of ethics and politics, a question of power and authority of the community of adjudicators in relation to the other center-state powers held. The morality and the relevance of each decision taken by the judges has to be questioned in order to create a free and fair society and state.
With many arguing against the need for judicial activism as it underestimates the need for checks and balances and results in the judiciary overstepping its jurisdiction, it is not an easily accepted practice. As Justice AH Ahmadi posited “judicial activism is a necessary adjunct of the judicial function because the protection of public interest, as opposed to private interest, is the main concern of the country”.
Many parts of the globe were already reeling under the covid virus attack before it entered Indian borders and what India may have learned from the other countries was neither completely applicable nor implementable given the population density, governance and infrastructure. Though the government tried its best to handle the situation, it could not keep up to the expectations. The judiciary was closely watching the scenario and had to intervene at appropriate intervals.
Instances of Judicial activism during the First wave of Covid pandemic in India (March 2020- October 2020)
At the beginning of the first wave of Covid-19 in India, on 24th March, a nationwide lockdown was imposed by the Indian Prime Minister without much planning or prior notice and preparation. Thousands of migrant laborers lost their livelihoods as most of them worked as daily wagers and the lockdown caused them to travel back to their hometowns on foot which cost hundreds their lives. The poor handling of transfer of migrants by both the center and state government was a clear show of social, political and economic injustice and abrogation of fundamental rights. The Supreme court passed various orders to alleviate the problems and miseries of migrant labourers and Delhi High Court directed the government to create a mechanism for registering all migrant workers keeping all state governments on board so that their ingress and outgress could be properly recorded.
According to a report by The World Justice Project, Muslims in India were blamed for spreading the virus, post the Tablighi Jamaat in March 2020 and subjected to violent assaults, harassment, and discrimination. It was also pointed out by UN High Commissioner for Human Rights, Michelle Bachelet during the 44th session of the Human Rights Council. By doing so, the Indian government violated Articles 25 and 26 (Indian Constitution guarantees Right to Religion as a fundamental right under Articles 25 and 26) which ensures the of the country and prohibits the government from discriminating against any religion. The Delhi High Court had to intervene and instruct the Union of India to report on better facilities for shifting foreign nationals who participated in Tablighi Jamaat.
In India, women are at a high risk of facing domestic violence, and while many report such cases, a lot more have to suffer through this behind closed doors. The unplanned lockdown resulted in women being trapped with their abusers which led to a significant spike in the number of calls to women’s helpline numbers. An independent research reported that the Ministry of Women and Child Development was silent on the issue of domestic violence and also had not taken any action to provide medical or other support to women migrant workers nor did any political leader make statements regarding stopping violence or providing support to women in need.
High Courts of various states stepped in on the matter. In the wake of increasing number of cases, on one hand, the Delhi High court, on a petition filed by an NGO, directed the government to take measures and effectively implement the Protection of Women Against Domestic Violence Act, 2005 and on the other, the Jammu and Kashmir High Court took suo moto cognizance and suggested designating informal spaces like grocery stores and pharmacies, for women to report abuse without alerting the perpetrators, and creation of special funds to support them.
Additionally, in order to facilitate more testing and discourage private laboratories from charging as per their whims, the Supreme Court of India ruled that Covid-19 testing should be made free to economically weaker sections and suggested a cap on the price of testing.
Approach taken by judiciary to intervene governmental policies during the Second Wave (April 2021-Present)
The second wave of coronavirus struck hard and fast in India. While India reported the highest daily count of cases and crematoriums ran out of space to bury bodies, the government was bent on maintaining its political stance and a strong front. It continued with election rallies in various states and the famous Kumbh Mela was given a go-ahead. This devastating response from the Union and State governments caused India’s High Courts to address the government’s handling of the crisis. Multiple courts issued orders in the face of a shortage of oxygen and vital medication and took a collective step towards holding the national and state governments to account for their woeful response.
Whether it be the Bombay and Delhi High Courts intervening to tackle overcharging by private hospitals and clinics, ensuring the supply of oxygen to hospitals, and the availability of antiviral drugs or the Supreme Court intervening to direct Prime Minister Narendra Modi’s government to completely audit the system and develop a universal vaccine policy, the number of cases being reported have reduced due to the active measures of the Indian judiciary. To protect the migrant workers’ right to livelihood and free Medical aid, the Delhi High Court directed the Delhi government to form a structured Scheme for Unorganized workers.
After a huge surge in the covid cases and inaction by the state government, the Allahabad high Court ordered the UP government to declare lockdown in 5 cities of Uttar Pradesh, an Indian state with a population as large as Russia. Later, a stay order was given by Supreme court stating that judicial orders to government on lockdown may not be the correct approach
The country’s judiciary had to take collective steps towards holding national and state governments to account for their woeful response to the COVID pandemic and fill in the governance vacuum created by them.
The combination of judicial restraint and judicial activism goes hand in hand for it to be efficient and ensure that while it keeps other organs of the government in check, it doesn’t exercise arbitrary power either. At such times when policymakers are not able to comprehend the impact of the policies they pursue and the abuse of constitutional powers overweighs the national and citizens’ interests, the hammer of activist judicial intervention is required to be used. Judicial activism, therefore, cannot be eliminated from the justice system as social activism always makes room for judicial activism.
Although some might argue that independence of every organ of the state and separation of powers is required in a democracy, but in such cases, the judiciary should play an active role, not one of an onlooker, to ensure that the government is performing its required duties and more importantly, to protect the citizen’s rights. During the pandemic, the court made some important rulings as stated above and taking executive action in their hands was the most appropriate course of action, not only to ensure safety of each citizen but also to reduce the government’s burden and overwhelmingness.
ABOUT THE AUTHOR
Tanya Vig is a senior student at Lotus Valley International School, Gurgaon. She is keen to pursue law and has participated in various MUNs and Moot Court Competitions.