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This article is written by Gitika Jain pursuing BBA.LLB (Hons) from Amity University, Kolkata. This is an exhaustive article which deals with the need for judicial restraint during COVID-19.


“Constitutional morality”, “Constitutionalism”, “Constitutional oath”, etc, these are some amongst the many roles which the Judiciary has to play. Therefore the greatest responsibility in providing social justice and establishing the rule of law, the judicial body of India plays an important role. Judiciary in India has the concept of separation of powers in the form of a legislative body, executive body, and judiciary and each body has different purposes and functions. In this regard, Judiciary has a duty to check upon the actions of the executive and make sure that the citizens of the country have their freedom to enjoy the fundamental rights and all constitutional rights mentioned in the Constitution of India. Most of these fundamental rights during the outbreak of the COVID-19 pandemic have been abrogated by the State and Central Government. The courts are closed during the pandemic unless and until it is an “urgent matter”.

Thus, this means that the person in jail can continue to be in jail because it is not a matter of emergency or urgency? The judicial system during the pandemic will satisfy itself with the fact that workers are getting enough food to eat without considering the fact that is related to their payment of wages or other entitlements. Is it not necessary for the judiciary to think about matters like these? 

Concept of judicial restraint

To understand the concept of judicial restraint it is first important to understand the meaning of judicial activism. In judicial activism, the judges exercise their power of creating or introducing changes in the areas circumscribing the protection of civil rights. In most of the cases, this is interpreted in a negative sense.

Article 13 of the Constitution confers upon the judiciary to review any law or act that seems to violate the fundamental rights guaranteed to the citizens of India. The origin of this seamless power is with the case of IC Golak Nath & others v. State of Punjab, 1967, where the Supreme Court of India gave a judgment that the fundamental rights as guaranteed by the Constitution cannot be overridden by the legislature. 

Over time, this power of the judiciary increased and is now given the term judicial activism which is conferred upon the Judiciary under Article 142 of the Constitution which provides that while exercising its jurisdiction Supreme Court may pass orders as it finds necessary for providing justice in any circumstances or matters that are pending before it. But at the time when Article 142 was evolved the general public and lawyers petitioned the Supreme Court to put efforts for providing justice to various deprived sections of the society. Judicial restraint, on the other hand, is the exact opposite pole of judicial activism. It restricts the judiciary in its power to make decisions that are constitutional in nature unless it is extremely necessary that such a decision must be made. To make laws is the job of the legislature, not judges. This is the idea that propels the need for judicial restraint. This philosophy promotes the ideology of non-intersecting the domains of the legislature, executive, and the judiciary i.e. separation of powers.

Practical instances

Cleansing of the Taj Mahal whose marble was turning yellowish because of the fumes that were released from the surrounding factories can be taken as an example where Article 142 was enforced. It is because of the efforts the court had put over a period of years that our heritage Taj Mahal has been restored to its original beauty. A similar example of Article 142 could be the punishment which undertrials were experiencing in jail for a period greater than the maximum punishment because their existence was totally forgotten by the criminal justice system was revoked by a single stroke of a pen and thousands of such people were released. There are even innumerable instances to justify the miraculous changes brought by our Judiciary system to the lives of ordinary people especially those who were subject to poverty, illiteracy, and ignorance and were unable to ask for remedies from the courts. 

One of the most important instances amongst all was Union Carbide Corporation v. UOI which was related to the victims of Bhopal gas tragedy where the need to differ from existing laws and provide relief to thousands of people affected by the leakage was felt by the court and in the judgement Supreme Court awarded the compensation of $470 million to the victims and even declared that whatever it takes to provide justice to the people affected by leakage would be done even if it takes over writing the laws already made by the parliament. This statement by the Supreme Court, in this case, placed it above the laws made by the Parliament or state legislatures. 

The statement by the Supreme Court was, however, taken down in the Supreme Court Bar Association v. Union of India where it was held that Article 142 can only be used to supplement the law and not supplant the existing law. But still, there are several judgements of the Supreme Court where it can be made out from the actions of the court that it has been forcing in two areas which were originally forbidden by the parliament with the reason backed by separation of powers which is the basic structure doctrine of the constitution. Some of these judgements have made controversy about the discretion which have been placed upon the Supreme Court by Article 142 where even fundamental rights of the citizens are being ignored. The judgment of these cases by the Supreme Court has led to deprive the rights of various individuals who were not before the court at the time of that judgment but the judgments were taken with a view to providing justice in that particular case. Some of the instances of those cases can be:

  • The coal block allocation– In 1993, there was permission to allocate coal blocks which were cancelled in 2014 without laying down proper guilt of any wrongdoing. The cancellation of the grant even carried with it a punishment of rupees 295 per ton of coal that were already mined over the past few years. The individuals were not given the right to be heard whereas only the associations were heard. Article 142, in this case, had necessarily to be involved.
  • Ban on sale of alcohol on state and national highways– Supreme Court in this case by invoking article 142 put a ban of a distance of 500 metres where the notification passed by the central government prohibited the opening of liquor stores along the national highways only. In addition to that, the court even extended the ban to state highways as well as a result of which thousands of liquor stores, bars, restaurants, and hotels were forced to be shut down which resulted in a loss of employment and money. On the one hand, the Supreme Court itself stresses the basic right to employment which is close to the right provided under Article 21 and on the other hand gives contrary judgements. 
  • Babri Masjid demolition case– In this case, an order was passed by a two-judge bench which was earlier a three-judge bench decision of the Supreme Court. After the decision of the larger bench was put forward the court again invoking Article 142 in view of the long pendency of the case for 25 years directed another retrial which was transferred from Raebareli to Lucknow. The judgment supplanted the law and did not supplement it which is the basic nature of the passing of laws. 

Article 142 has been involved in the above judgments for the intention of doing good to a large section of people and even to the nation as a whole but the Supreme Court took this article too seriously which resulted in judicial activism and now it is time to include checks and balances in those unlimited powers provided under this Article. 

Putting limitations to Article 142

One cannot lose sight of the fact that today to deliberate on the legal issues of the day we have a court of 31 judges where there are 13 divisions of 2 or 3. There are various courts and each bench is independent of the decisions of one another. Therefore it is important that the cases which invoke Article 142 should be referred to at least five-judge bench for that matter so that there is a mitigation in the unfettered exercise of discretionary powers because of the different outcomes of 5 independent judicial minds. In all the cases where ever Article 142 is invoked all the pros and cons after the judgement has been pronounced should be noted down before finalising and choosing to invoke Article 142 in the particular case. It is high time now to introspect on the fact whether the use of Article 142 should be regulated under strict guidelines or not. 

Impact of Covid-19 on the Judiciary system

That said, let’s see how this judicial restraint fits into the current scenario of the global pandemic. Ever since the first lockdown owing to the Covid-19, there have been innumerable cases of deprivations of human rights, either directly or indirectly. The courts of law have been overflowing with Public Interest Litigations for circumnavigating the traumatizing situation.

The biggest hit amongst all was that of the migrant labourers. Others included wages for the cardholders of Manrega, free or subsidised testing of Covid-19, waving off the loans of farmers, calling off the Indians residing abroad, and many more.


The unnecessary consequences of a necessary lockdown

Due to the coronavirus pandemic maybe the lockdown was absolutely necessary but it was necessary to be mindful of the consequences for the majority of the backward sections of India post lockdown. The unmindful decision of announcing lockdown had its consequences where the majority of the poor were compelled to reach home by walking on railway tracks and facing deaths. The right to life may be a guaranteed right under Article 21 but the same right extinguishes when it comes to the suffering of the poor. There is no one to be held responsible or accountable for such consequences and even if there was someone to be accountable for it, it would not have made a huge difference because life once gone, is gone forever. In the worst-case scenario, they themselves are to be blamed for attempting to return home and not abiding by the rules of the state of being a part of the ‘plan’ of the government. If this continues to happen the day is not far away when the tired labourers themselves and their family members have to pay damages for being guilty of being negligent i.e. falling asleep on the railway track while covering the distance to their home or villages. During the pandemic senior advocate, Harish Salve forced the Indian citizens to cooperate with the government and the Judiciary for entertaining all the PILs. 

The Apex Court left it to the discretion of the states to deal with the problem of the plight of the workers asking “How can we stop people from walking?”  It said that it cannot pass any order just based on the media reports. The Supreme Court also denied the payment of base wages to the labourers as being mandatory on the grounds that if the workers are already being provided food, why would they need money for food? This disappointed advocates like Dushyant Dave, who thought that the judiciary failed in its functioning by not imposing a check on the deeds and misdeeds of the executive. He questioned the honourable and outstanding judges as to what was stopping them from lifting up these crucial matters suo moto based on media reports rather than waiting for cases to be filed and listed.

Solicitor General Tushar Mehta had been in limelight for some of his insensitive comments for a while, criticizing the High Courts for having run a “parallel government” and the journalists, for their ground reports covering the hardships of the workers, calling them “vultures”. He was of the opinion that the government officials should not be unnecessarily pressurized and that they should be allowed to work and perform their duties as they thought right. The Supreme Court with CJI SA Bobde, deciding not to intervene in the way the government was working, refused to direct the payment of remunerations to the workers.

This action seems to be disheartening as ensuring the basic rights to the poor and downtrodden has been the obligation and duty of the state. Denying the right to food and livelihood is a sheer slaughter of human rights. The courts should have seen that the lives of people are in threat.

Another instance of the consequence of lockdown on poor people was the clarification issued on 3rd May by the Ministry of Home Affairs that migrant workers who were talked just before the lockdown were only allowed to go back to their respective homes and not the workers generally residing there. It is where there arises a need to question the difference between migrant labourers who came a week before lockdown and labourers who already stay there for their jobs and now because of the pandemic have lost their jobs. This question was even raised by the Supreme Court but the outcome of the judicial system cannot be predicted beforehand even though this includes a fundamental right to freedom of trade and movement and cannot be excluded even on the ground of emergency. 


This has developed a fear among the citizens that the upholders of law, courts, will come to our rescue if the Executive fails in its functioning. Thus it has become important to set a bar on the judiciary and public authorities and curb their misuse of power during this hard time.


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