This article is written by Niloy Chongdar.

Introduction

“Law & order is the medicine of the body politic and when the body politic gets sick, medicine must be administered”. The concept of separation of power is also applicable in India in the form of Legislative Body, Executive Body and Judiciary and each body has a special function prescribed. In this order Judiciary has a very important duty to check the action and in-action of the executive and Judiciary must ensure not only Fundamental Rights but also all the constitutional rights to the citizens of the country. During the outbreak of COVID-19 pandemic in India many rights including the Fundamental Rights were abrogated by the central and respective state governments. In this context the judicial body of India must check all the arbitrary actions taken by the government.

Judiciary has many roles in this context like “Constitutional Morality”, “Constitutionalism”, “Constitutional Oath” etc. So as one of the most important bodies in the biggest democracy of the planate, the judicial body of India has a great responsibility in providing the “Social Justice” and establishing the “Rule of Law”.

Role of judiciary on constitutional morality during COVID-19 pandemic 

“The Constitution envisions to establish an egalitarian social order rendering to every citizen, social, economic and political justice in a social and economic democracy of the Bharat Republic.” The Honorable Supreme Court in its recent judgments has categorically followed the principle of Constitutional Morality. In the case of the Naz Foundation, the Supreme Court said that “only Constitutional Morality not Public Morality should prevail.” In the Sabarimala case, Honorable SC bypassed the “doctrine of essentiality” to uphold the Constitutional Morality. So it is well evident that the Constitutional Morality will always be a paramount reverence for the Constitution and thus the framers of the Constitution wanted to have a moral binding over the constitution to each and every citizen of the country and especially over the judiciary of the nation. The role of the judiciary is to ensure that in any way the Constitutional Morality gets compromised by the action or in-action of the executives. During the pandemic of COVID-19 we have seen that many actions like not very well planed lockdown and in-actions like initially being lackadaisical to the migrant laborers from the side of both the Central government and State governments has resulted in compromising with the social, economical and political justice. In this context judiciary should play its role by monitoring the governments and ensuring its citizens social, political and economical rights.

Role of judiciary to conserve constitutionalism during pandemic 

Constitutionalism is “a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law”. Constitutionalism is the antithesis of arbitrary power. It balances the power of legislature and executive and restrains from getting arbitrary.

Constitutionalism provides fundamental rights to the citizens and power of judicial review to the independent judiciary of the country. Now the judicial body of the country has a duty to protect all the fundamental rights of a citizen and restore the Rule of Law in the country.

In the recent pandemic of COVID-19 of we have witnessed a number of situations where migrant laborers were returning to their home town by walking on the roads without having any money or even food for days. This is clearly against the Constitutionalism and the judicial body of the country had a role to supervise this extremely tragic catastrophe and as a guardian of the Constitution judicial body should play a role to ensure them social, political and economical justice.

Role of judiciary to protect fundamental rights during pandemic

The Constitution of India has provided various rights like Fundamental Rights and Constitutional Rights. In Part III of the Indian Constitution the Fundamental Rights are provided but all these rights are not absolute in nature so we have witnessed abrogation of Fundamental Rights in various occasions like emergency. Some Fundamental Rights that has been affected because of the pandemic has been discussed below: 

Equality before law

Article 14 of the Indian Constitution provides that “The State shall not deny to any person equality before law or the equal protection of laws within the territory of India.”

Here the article clearly establishes the doctrine of “Rule of Law ” and in other ways prohibits the state from taking any arbitrary action by providing protection of laws to any person. But during the pandemic we have seen that governments have failed to establish “Rule of Law” many times in recent times during the pandemic in terms of injustice to the daily laborers, migrant laborers, preventing corruption in the ration system etc.

Right to move freely throughout the territory of India

Article 19(1) (d) provides that the citizen of the country has a fundamental right to move freely throughout the territory of India. 

But during the “Janata Curfew” and “Lockdown” period government has taken away the right provided by the Article 19(1) (d) i.e. Right to Free Movement without providing enough time to get settled down to its large number of poor people and the government has not provided enough assistance to them.

Protection of life and personal liberty

Article 21 provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

In the case of Maneka Gandhi v. Union of India, The Honorable Supreme Court interpreted “Right to Life” as “Right to Life with Human Dignity”. But this dignity has been compromised during the pandemic by the government various times like death by walking miles without food during lockdown, failure in many ways in terms of providing proper assistance like food, shelter and more safe arrangements for migration to the needy and distressed people during the lockdown etc. 

The above mentioned rights are not absolute in nature but also can’t be taken away arbitrarily and the Constitution will lose importance if fundamental rights are not protected. Here comes the role of the judicial body to protect the Fundamental Rights and restore the “Rule of Law” in the society. Fundamental Right prescribed in Article 32 empowers the Supreme Court and Constitutional Right prescribed under Article 226 empowers High Courts of the respective states to issue direction, order, and writs for enforcement of Fundamental Rights and other legal rights. Under Article 131, the Supreme Court of India has the power to take cognizance of any dispute whether of law or fact where legal right depends. But when all the above mentioned fundamental rights were taken away with some arbitrariness the judiciary must have function and should play the role of guardian of fundamental rights in each and every possible way. Article 142(1) of the Constitution provides power to the Supreme Court to pass any decree or order to do complete justice. So using these very wide powers the judiciary had the opportunity to pass orders earlier to provide justice to the citizens of this nation. 

Role of judiciary on COVID-19 testing and providing health facilities

The World Health Organization has advised countries to ‘test, test, test’ for Coronavirus. Testing aggressively each and every person especially at the “Red Zone” and “Orange Zone” is must to tress all the COVID-19 positive patients which will allow health services to quickly come into action and start treatment for him and it will also help the surrounding people from getting infected. In a country like India where the population density is 382 per sq km the chances of community transmission gets higher so rigorous testing was needed to stop the community transmission. And this testing was expensive in the private labs of many states of India. This was the clear violation of Article 14 of the Constitution as this high price of testing is unreasonable and arbitrary in nature. But in this context Honorable Supreme Court while playing its role has directed the central government to issue guidelines to make free testing of Covid-19 in the private labs for people belonging to the economically weaker sections. This order of SC has helped in restoration of Fundamental Rights of the economically backward people.

Role of judiciary to ensure justice delivery during COVID-19 pandemic

“To delay Justice is Injustice”. When justice is not delivered in a timely fashion, then it is equivalent to injustice. So to ensure justice during the lockdown period Honorable Supreme Court and High Courts have taken the medium of digital platform. SC holds virtual courts through videoconferencing to hear urgent matters, even almost all the High Courts of each and every state. This is a very positive step towards ensuring the justice delivery system of our country and the role played by the judicial body is very timely and progressive. But this system needs to be more disseminated with more accuracy.

Conclusion

The role of an independent Judiciary in a vibrant democracy is one of the most crucial elements to protect the rights of the people. Dr. B.R. Ambedkar said “The Judiciary to a very large extent is not concerned with the executive: it is concerned with the adjudication of the rights of the Government of India and the Units as such”. The framers of the Constitution of India wanted the judicial body to supervise action and in-action of the legislature and executive body and that’s why the Constitution of Indian has provided the Judiciary with a very important duty to protect each and every citizen’s right. Article 142 of the Indian Constitution empowers the Apex Court to issue any direction, pass any decree, or make any order, as is necessary for doing complete justice in any case. Article 131 also empowers the Supreme Court to take cognizance of any dispute involving legal rights. The Heart and Soul of the Indian Constitution Article 32 empowers Supreme Court to issue direction, order, and writs for enforcement of Fundamental Rights and Article 226 empowers High Courts of the respective states to issue direction, order, and writs for enforcement of Fundamental Rights and other legal rights. It is evident that the framers of the Constitution have given so much power to our judicial body and as great powers come with great responsibility the role of Judiciary becomes more and more important. Since independence, the Judiciary has protected people’s rights and established social justice again and again. In this pandemic also we have seen that judicial body of the nation has taken many steps like issued notice to central government and respective governments of Delhi, Maharashtra, Tamil Nadu, Gujarat and West Bengal for the deplorable situation of COVID-19 situation in those states, directed the center to issue guidelines to make free testing of Covid-19 in the private labs for people belonging to the economically weaker sections and conducted virtual courts to ensure justice during the pandemic. Thus the judicial body of the nation has walked in parallel with the “Constitutional Oath” and has established social justice to some extent. But in some areas like economical, social and political rights of migrant laborers, ineffectiveness of the executive body in ration distribution and corruption in the public health sector the judiciary could have taken decisive steps earlier during the complete lockdown to guarantee all the rights to all its citizens and upheld “Constitutionalism” above all.

References

• Don E. Fehrenbacher, Constitution and Constitutionalism in the Slaveholding South (University of Georgia Press, 1989)  Page-1

• Charles H. Mcilwain, Constitutionalism : Ancient and  Modern, 21

• Coronavirus: With no money or food, laborers walk miles to reach hometowns in the hope of survival”. –India Today. 

• “Covid-19 crisis and India’s ration story: Mounting stocks and hungry mouths” –Business Standard.

• “Covid-19: At least 22 migrants die while trying to get home during lockdown” –www.scroll.in.

• “Constitution will lose importance if fundamental rights not protected, says SC” –Economic Times. 

• “World Health Organization has called on countries to ‘test, test, test’ for Coronavirus” –World Economic Forum.

• “Population Density” –www.knowindian.govt.in

• “SC modifies earlier order, says free Covid-19 testing only for poor” –Times of India. 

• Penn, William (1693), “Some Fruits of Solitude”, Headley, 1905, p.86 

• “Supreme Court explore ways to set up more virtual courts to ensure justice delivery” –Economic Times. 

• COVID-19 situation in Delhi, Maharashtra, Tamil Nadu, Gujarat and West Bengal ‘deplorable’: SC” –www.healthcareradius.in

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: