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Judicial Activism as a Tool to Maintain Public Order amid COVID19

Updated: Sep 28, 2020

By

Ms. Gauri Gupta

Vivekanand Institute of Professional Studies, GGSIPU

The outbreak of COVID 19 has created a global health crisis which has had a deep impact on how we perceive the world and our everyday lives. India, like the rest of the world has been adversely affected by the pandemic. Due to the onset of the global health crises, the Central Government announced a nationwide lockdown on 22nd March 2020. The Indian Authorities were quick enough to recognize the spread rate in the region and thus, announced the lockdown to ensure social distancing. The global pandemic has been posing some severe challenges and difficulties before the country and its citizens. The crisis has compelled the government to suspend work, movement, businesses, services among others. However, the supreme law of the land, the Constitution of India, cannot be suspended. This article looks at the response of the judiciary to the current situation on both the judicial and administrative sides.

During this time, when the civil society is finding ways to deal with the pandemic, the judiciary has come up with different mechanisms to ensure its support to the litigants, lawyers and most importantly, the justice delivery system. Let us look into some of the measures undertaken by the judiciary amid pandemic 2020:

  1. Relief to the litigants: The Hon’ble Supreme Court of India took Suo Motu cognizance of the challenges faced by the litigants in filing petitions/applications/suits/appeals etc. within the limitation period prescribed under the general or special laws, passed directions for extension of limitation period, w.e.f. 15th March 2020 till further orders. Courts have passed orders in matters relating to the law of extension, arbitration, stay on auction of properties during the lockdown, stay of demolition of properties during among others.

  2. Embracing of Technology by Courts and Tribunals: Various High Courts, subordinate courts and tribunals during the spread of the pandemic had issued advisories to lawyers as regards to maintaining social distancing and minimizing the presence before the courts, restricting the hearing to only the urgent matters. The Apex Court taking Suo Motu cognizance, passed directions for adoption of measures required to ensure the functioning of the judicial system through video conferencing. Post this direction, all the courts of law have put in place the mechanism for filing online cases and conducting the hearings through video conferences.

  3. Force Majeure: The Hon’ble High Court of Delhi observed that the outbreak of COVID 19 is a Force Majeure event, however, at the same time it was held that every breach or non-performance cannot be justified on the excuse of COVID 19 as a Force Majeure condition. The Hon’ble High Court of Bombay has taken a similar view and stated, that in spite of the pandemic, the protection would be governed by the provisions of the relevant contract.

  4. Stay of auction/demolition/eviction/dispossession: Some of the High Courts have either extended the interim orders or decree for eviction/dispossession/demolition which has been passed subsequent to the original order or passed interim orders for stay of auction of mortgaged properties by banks during the lockdown period.

By the virtue of the model and theory of the judicial activism, which denotes that the judges use their judicial vista to correct injustices, especially when the other branches of the government do not act to do so or fail to undertake such adventure, the judiciary has been adjudicating the disputes of the individuals as well as of the society more crucially. During the course of lockdown, the evolution of the modus operandi undertaken by courts - hearing over video conferencing as one of its new standard operation procedures which has made judicial procedure possible in this crisis.

Even during the global pandemic, the courts did not pause their functioning, rather, modified the working as per the existing pandemic situation. The judiciary ensuring that justice is not delayed, passed necessary orders and judgements for making the lockdown effective and at the same time directed the responsible authorities that the citizens of this country shall not face any inconvenience.

During the times of pandemic, panic always prevails in the ambush of rumours. However, our judiciary has played a crucial role by exercising judicial activism. During the prevalent times, the wagon of Public Interest Litigation is playing a prominent role. Many orders and directions pertaining to the social issues have been passed either by the suo motu cognizance of the courts or in the PILs instituted before the courts highlighting the concerns and requirements of the society.

Some of them are as follows:

  1. Specific orders have been passed by the courts while directing that no person is to be allowed in the premises without masks while ensuring all the methods to arrange social distancing and sanitization in different courts.

  2. In time of harsh situations, the Hon’ble Judges have been regularly presiding in the courtrooms to adjudicate the matters which are urgent in nature.

  3. There have been directions by various courts to render help to the advocates who are troubled with the prevailing circumstances and are suffering financially

The two most crucial judgements passed by the Supreme Court while dealing with the pragmatic situation and pandemic are as follows:

  1. Jerryl Banait v. Union of India and Anr: The Apex Court issued detailed guidelines and directions to the Union of India to safeguard and protect the medical professionals and make necessary suggestions in the ‘Rational Use of Personal Protective Equipment’ guidelines so that the PPEs are provided to all health officials, as stated above, who are working in Non COVID treatment areas.

  2. Shashank Deo Sudhi v. Union of India and Ors.: The order dated 08.04.2020 which made testing in private labs of COVID 19 free for all strata of the society was modified to make testing free only for the economically weaker sections of the society who are unable to afford the payment of testing as has been fixed by the ICMR for COVID – 19.

It is pertinent to quote the observation qua judicial activism as made by the Hon’ble Delhi High Court while adjudicating DLF Universal Ltd. vs Greater Kailash II Welfare Association, reported in 127 (2006) DLT 131, that “We hasten to add that it is 'not our opinion that Judges should never be 'activist’. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court, vide Brown v. Board of Education (1954) 347 US 483, Miranda v. Arizona (1966) 384 US 436, Roe v. Wade, 410 US 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to in exceptional circumstances when the situation forcefully demands it in the interest of the nation, but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary.”

`Since, modern problems need modern solutions, the current times require modern adjudication to deal with the current problems and therefore, it is required that judicial activism in the times of the pandemic bring about the requisite amendments and legislations. Judicial Activism has a very important role to play in making the judicial system pandemic proof. It escalates the judicial system to be more effective in delivering justice and also for balancing the society.

I believe that in our enthusiasm to embrace technology, many of us have side lined that the Indian Judiciary still operates with various limitations. Technologically, systems are not in place, even though the E-court project has been around for years.

The judiciary also needs to shed concerns over security matters. Virtual hearing is a great tool to introduce transparency, after all courts embody the idea of ‘open justice’

In the near future the judicial forums will have to develop, adopt and adapt new patterns of work culture. Technology would have to substitute manpower and court tourism of few chronic litigants would have also have to be curtailed.

It is important that all actors, especially the government takes necessary steps to maximize the available resources in order to ensure the availability and accessibility of proper technology and safety and security measures. During the prevalent times, strict rules and regulations are to be made in order to ensure that all the safety measures are adhered to while visiting the courts of law. Restricted entries to all courts and judicial premises would help in reduce overcrowding. Hygiene and sanitation of the premises would also be a priority for the judicial administration and should be strictly adhered. Moreover, we need to take lessons from the prevailing pandemic situation and bring the necessary changes in our lives in order to adapt to the ‘new normal.’

It is the question that I try to ask to the judicial branch of the state that whether we would learn from this pandemic and raise ourselves as a better system for administration of justice or are we going to miss this opportunity too?

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