Monday, August 2nd, 2021 11:19:49

Judicial activism in Covid times

By Pinky Anand
Updated: May 25, 2021 8:41 am

In a nutshell, there is a fine line between domains of the executive, the legislature and the judiciary. A calamity such as COVID-19 and the disaster that it has wreaked on the world needs all institutions to collaborate, cooperate and effectuate all possible measures to mitigate these miseries. The fact is that neither the courts, nor the executive has ever encountered such challenges in living memory, and the means to resolve them and provide relief have to be created out standing on two feet and while the disaster is happening all around. The courts have worked tirelessly for the welfare of people in this horrific time, but on matters of policy and impossibility of compliance, there has to be a restraint in the name of justice.

India functions on a tripartite system of checks and balances. We  have the three pillars of democracy, of which the judiciary is entrusted with guarding the rights that our citizen is entitled to. The Indian courts have always risen spectacularly to the occasion when it comes to safeguarding our life, liberty and fundamental rights. The fundamental rise of judicial activism since 1980s has seen judicial intervention in all spectrums improving the lot of the masses. The age of the pandemic has been unprecedented and the ways to deal with the problems and issues that have arisen during this time. The judicial intervention at this time has been incredible and has provided  succour to the masses, specifically the underprivileged and the poor during Covid times, through the first wave of pandemic and now during the second or third wave. The Courts have been vigilant to ensure the right of life and health to the victims of healthcare workers and migrant workers and has worked tirelessly to further the cause of justice and the rule of justice to people. To my mind the concern of health emergencies such as we have seen in Covid times surpasses all concerns and definitely a different benchmark is needed for the traditional roles in the dispensation of justice. However the buck does stop somewhere.

The order of the Supreme Court on Friday the 21st of May 2021 staying the slew of directions by the Allahabad High Court including directing all nursing homes should have an oxygen facility on every bed, providing ambulances with ICU facilities in all villages, upgradation of medical college hospitals in the state on urgent basis in a time bound manner etc. There is absolutely no doubt as to the intention of the Courts, however the practicality of it is another matter. Judicial intervention, while safeguarding essential rights also has to keep in mind the practical execution of their orders.

The observations of the Supreme Court while staying the High Court’s order observed: “At the outset, we may appreciate the efforts of the High Court of Allahabad as well as various other high courts for taking up the matter for management of it Covid. However while dealing with such matters and the concerns the court may have for patients and general public and anxiety of courts to give utmost relief to those suffering sometimes unwittingly the courts overstep and pass certain orders that are not capable of being implemented… the Doctrine of impossibility is equally applicable to the courts.”

High Court directed closure of all government establishments in Prayag Raj, Lucknow, Varanasi and Gorakhpur. The Supreme Court while hearing the appeal against the order observed: “Accepting that the intention behind the High Court order is laudable and salutary, the High Court has failed to appreciate that it encroached upon the executive domain and passed a mandamus which was incapable of being executed at the present stage and if executed would result in panic, fear and law and order situation in UP.”

While arguing the matter, the learned Solicitor General submitted: “several steps are taken in that direction and we can satisfy the conscience of the court. Some of them, we are already doing and we don’t object to some other. But it may not be the right approach to order lock down in five cities because there are several other factors that need to be considered.” The Supreme Court directed that the “state government immediately report to the High Court about the steps it has taken and proposes to take in the immediate future within a period of one week in view of the current pandemic.”

In a nutshell, there is a fine line between domains of the executive, the legislature and the judiciary. A calamity such as COVID-19 and the disaster that it has wreaked on the world needs all institutions to collaborate, cooperate and effectuate all possible measures to mitigate these miseries. The fact is that neither the courts, nor the executive has ever encountered such challenges in living memory, and the means to resolve them and provide relief have to be created out standing on two feet and while the disaster is happening all around. The courts have worked tirelessly for the welfare of people in this horrific time, but on matters of policy and impossibility of compliance, there has to be a restraint in the name of justice.

 

By Pinky Anand

(The writer is a  senior advocate)

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