Indian Courts’ Crusade Against COVID-19 and Executive Underreach

Yashasvi Jain & Hetal Doshi

Supreme Court of India

National University of Study and Research (NUSRL), Ranchi, India

Introduction

This article uses the example of the India’s response to the COVID-19 pandemic to discuss the role of courts when the executive falls short of its duty. We refer to this as an instance of executive underreach. The Constitution adopts a system of checks and balances. That system 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 supremacy of the Constitution of India, 1950 (‘Constitution’) binds together all the three branches of government: the legislature, executive, and judiciary. Every law made by the legislature or the executive has to be made in consonance with the fundamental principles of the Constitution, which is safeguarded by the judiciary. The preamble to the Constitution demonstrates that the Constitution embarks on a journey to ensure social, economic, and political justice to all. The courts are bound to step in as an arbiter when the rights of the citizens are threatened by the executive’s abuse of power.

India’s response to Covid-19 has proved to be one such example of executive underreach. The invocation of Disaster Management Act, 2005 and Epidemic Diseases Act, 1897  has bestowed the executive with wide discretionary powers to take any measure suitable to prevent or control the pandemic. Whilst the central government has taken up an advisory role, state governments are making specific rules suiting their own jurisdictional needs. This has led to chaos with laws lacking uniformity and has encroached into the most fundamental right of ‘Right to Life’. Article 13 of the Constitution prohibits the state from making any law which abridges fundamental rights. The courts are duty-bound to test state action that encroaches upon the rights of the individuals and to determine whether the action has a direct effect on a fundamental right.

As the executive takes a front foot in promulgating rules, its responsibility towards fulfilling people’s socio-economic entitlements cannot be overlooked. To address the stresses upon medical infrastructure or the exodus of migrant workers, states have formulated policies under the pretense of controlling the pandemic which nullifies the aim of a welfare state.

The Supreme Court’s Power To Do ‘Complete Justice’

Indian courts are flooded with petitions (some of these are elaborated later in this article) challenging the constitutional legitimacy of such executive actions. Keeping in mind the system of checks and balances as enshrined in the Constitution, the courts have held in a plethora of decisions that: the judiciary can only interfere with the policy decision of the government if it is found to be arbitrary, unreasonable and bad in law. The present situation raises a pertinent question: ‘Will it qualify as an act of usurpation of constitutional powers if the courts intervene on account of executive underreach in making policy decisions?’ 

Article 142 of the Constitution empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice. In the past, when the legislature and executive has fallen short in their roles, the court has regarded Article 142 as a flaming sword bestowed by the Constitution in the hands of the Supreme Court which can be used in dire circumstances to ensure ‘complete justice’. In the landmark Vishakha case, guidelines on sexual harassment at work place were enacted for the very first time on the direction of the court and states were asked to implement it. In another instance the court awarded compensation to the victims of Bhopal Gas Tragedy in the Union Carbide case by overriding parliamentary laws.

Did the Supreme Court stand by its constitutional duties during the pandemic?

The High Courts and Supreme Court are granted extraordinary jurisdiction to intervene and take suo moto cognizance (when the courts takes action on its own) under Article 32 and 226 of the Constitution. This extraordinary jurisdiction arises where there is an apparent apprehension that an authority has violated a right or breached a duty. The courts may pass appropriate orders in response. In simpler terms, the courts act on their own and not in response to any petition.

India’s sudden lockdown left daily-wage migrants unemployed, leaving them with no other option than to walk thousands of kilometres to reach their native place in search of food and shelter. The Supreme Court’s laxity in addressing such issues was because of its blind reliance on the false assurances given by the government. Several petitions filed before the Supreme court amidst the pandemic, for instance, plea for providing free ration to those who do not have ration cards and to instruct the government to provide minimum wages to migrant workers were dismissed by the court on the reasoning that they were “policy matter” and government should consider taking these matter up. On the other hand, the court took suo moto cognizance in certain matters, for instance, it issued appropriate directions to decongest overcrowded prisons amidst COVID-19, and directed private laboratories to conduct free Covid testing for the poor. As long as the proceedings seek enforcement of a fundamental right, the Supreme Court can exercise its right under Article 32. However, the resistance showed by courts to encroach in executive sphere reflected its oblivious to the plight of the migrants for such an extended period.

Additionally, to protect and deliver prompt social justice, Public Interest Litigation (‘PIL’) has turned out to be an excellent medium to safeguard the rights of public at large. Not only the aggrieved individual but even a group can initiate proceedings under PIL where public interest is at stake. Multiple PILs were filed petitioning the Court to direct the government to make good its policies for the welfare of the migrants. Those petitions were hastily dismissed by the Court, which considered those matters to be a matter of policy and not require judicial intervention. To supplement PILs, the epistolary jurisdiction also allows the courts to initiate proceedings on the basis of letters and newspaper reports addressed to it, which again the court failed to take into account. PILs have often led to dilution of functional boundaries of different organs by the courts which has stained the credibility of this judicial function. On the other hand, the courts have become more cautious in entertaining PILs which may have been frivolously filed in private interests. The abuse of this remedial function of the court has become more extensive than its very purpose.

After facing constant criticism on its failure to judicially review the executive action during the pandemic, the Court redeemed its image by taking suo motu cognizance of the inhumane conditions of migrants. The Court directed the centre, states and union territories to ensure the safe travel of, and basic necessities for, the migrants.

Proactive Action Taken By High Courts

The High Courts played a proactive role in reviewing the accountability of state government enacted rules. The High Courts do so by issuing directives under Article 226 for enforcement of not only fundamental rights, like the Supreme Court, but also for enforcement of any legal right. Some instances have included:

• Government order prohibiting private hospitals tossed aside

A judgment by the Telangana High Court struck down a state government order that compelled patients to seek diagnosis and treatment for Covid-19 only at designated government hospitals. Calling it unconstitutional, arbitrary, and unreasonable, the court highlighted that the pandemic cannot be termed as a “medical emergency” which can trample on citizens’ fundamental rights.

• ‘Dungeon Hospital’ and the hapless migrants

The Gujarat High Court took suo motu cognizance of the shabby conditions of Gujarat’s hospitals and issued directions concerning, amongst other things, the efficiency of doctors, quarantine facilities, testing kits and PPE kits. On the issue of the migrants who could not travel to their villages due to their inability to pay, the Court directed the railway authorities to waive charges for one-way travel, or for the Gujarat state government to bear such charges.  

• The Karnataka High Court’s intervention compelled the state government to pay for the travel of migrant workers

The Karnataka High Court directed the central and state government to make immediate decisions regarding payment of migrant workers’ railway fare, where those workers wanted to travel back to their states but were unable to pay. The Court found that it was the central and state governments’ constitutional obligation to mitigate the suffering of those migrant workers. Initially, the state government decides to pay only for migrants who want to come back to Karnataka and not for those migrants who want to travel outside the state. The legality of classification on the basis of migrants’ origin state was questioned by the court which ultimately led the state government to bear the cost of travel for all stranded migrants irrespective of their origin state.

Conclusion

The government’s response to the Covid-19 pandemic stood in stark contrast to Dr. B.R. Ambedkar’s dream of having an egalitarian society. Any action by the executive should be directed towards a legitimate aim and satisfy the tests of proportionality and reasonable procedure. Any action taken in the public interest should not impose unreasonable restrictions on the exercise of fundamental rights. This is the litmus test for every court to pass as the custodian of constitutional values. In doing so, the courts must stay wary of overstepping their powers and encroaching into the domain of other organs. The Supreme Court’s lack of responsiveness during times of crisis has wobbled the faith of people in the constitutional ethos. The orders passed by the High Courts are an exemplary illustration of judicial intervention that holds state government to the highest standards, where those states failed in meeting their constitutional goals. This provided yet another occasion for courts to remedy executive underreach.

Ms. Yashasvi Jain is currently working as a Law Clerk-cum-Research Assistant to Justice U.U. Lalit, Judge, Supreme Court of India. She graduated in law with a specialization in Criminal Law. She can be reached at yashasvijain05@gmail.com.

Ms. Hetal Doshi is a law student at National University of Study and Research (NUSRL), Ranchi, India. She has a profound interest in Insolvency and Corporate law. She can be reached at hetaldoshi.hvd@gmail.com.

Suggested Citation: Yashasvi Jain and Hetal Doshi, ‘Indian Courts Crusade against Covid and Executive Underreach’ (7 July 2020) https://blog-iacl-aidc.org/2020-posts/2020/7/7/indian-courts-crusade-against-covid-19-and-executive-underreach