Judicial Governance during Pandemic – Explained, Pointwise


The judiciary is referred to as the custodian of the constitution and protector of fundamental rights. It is the supreme authority responsible to punish the violators of fundamental rights and civil liberties. In this regard, it also has the power to review the decisions of the executive as mandated by Article 13. Further, under Article 142, it can pass any order for doing complete justice.

Both of these have been the source of power for Judicial Activism. It is a philosophy that motivates judges to go beyond the traditional precedents in favor of progressive and new social policies.

This activism has been widely used during the 2nd wave of the pandemic. It was mainly to direct the government towards a more citizen-centric path. However, some experts are calling it an act of judicial governance. In this article, we will describe the pros and cons of judicial governance. Further, some suggestions would be provided to direct the future course of action.

Understanding Judicial Activism and Judicial Governance:
  • Judicial Activism is a “judicial philosophy which motivates judges to depart from the traditional precedents in favor of progressive and new social policies”.
  • It empowers judges to use their powers to correct injustices. It happens especially when the other branches of government do not act to do so.
  • Judicial Governance is when the judiciary assumes the role and functions of the executive and manages governance. Unrestrained activism on the part of the judiciary often leads to judicial governance. 
Judicial Conduct during the pandemic times
  • The Supreme Court’s verdict in the Election Commission of India case is an example of judicial statesmanship. The SC  beautifully dissolved the conflict between EC and the HC, avoiding a positive pronouncement either way. 
  • It has recorded an appreciation of the performance of the EC and nullified the effect of oral observations. As per SC, the observations during the course of the hearing do not constitute a judgment or binding decision.
    • The Madras High court had accused EC of spreading the second wave of pandemic. It further opinionated that its officers should be booked for murder charges.
    • The EC then approached the Supreme Court against such allegations claiming it as an act to undermine its credibility.
  • However, as per some experts, many orders have been passed by courts that extend beyond the boundary of activism and can be called Judicial governance.
    • The Allahabad High Court ordered to fix a “minimum” ex gratia of Rs1 crore for every official who succumbed to the pandemic because of panchayat election duty. Although, the state government had fixed an amount of 30 lakhs.
    • The Kerala High Court ordered a ceiling on charges in private hospitals for Covid-19 treatment. 
    • The Delhi High Court has been almost micromanaging pandemic management, fixing oxygen quota and distribution. It even issued a contempt notice to the Centre on the oxygen issue, which the Supreme Court dismissed. 
    • The Uttarakhand High Court pulled up the state government for allowing the Kumbh Mela to go ahead against scientific advice, and then, for not following standard operating procedures.
Provisions/ Tools allowing the judiciary to do Activism
  • Article 13 of the Indian Constitution read with Article 32 and 226 allows the higher judiciary to review and declare void any law which is inconsistent with the fundamental rights.
  • Article 142 provides that the Supreme Court in the exercise of its jurisdiction may pass such a decree or order as is necessary for doing complete justice.
  • The introduction of PIL (Public interest litigation) has broadened the scope of the judiciary for doing activism.
  • Similarly, there are international statutes like the Universal Declaration of Human Rights that are used by courts for doing judicial activism.
Factors demanding judicial governance
  • Using judge’s wisdom when the law fails: Many sensitive issues need a different perspective and care which laws don’t allow. Judicial activism allows a judge to use his personal judgment in situations where the law fails. This was seen in the triple talaq case.
  • Filling the legal vacuum: It gives judges a personal voice to fight unjust issues which though important but evade the eye of the legislature. For example, SC formulated Vishakha Guidelines for countering harassment against women at the workplace.
  • Check on Legislative and executive: It provides a system of checks and balances to the other government branches. For example, SC laid conditions for the imposition of Governor Rule in states in S.R. Bommai Case. This was aimed to bring objectivity in the application of the rule.
  • Social Engineering: Judicial governance allows judges to adjudicate in favor of progressive and new social policies helping in social engineering. 
    • For instance, in Indian Council for Enviro-Legal Action Case 1999, the SC adopted the polluter pays principle for environment conservation. 
    • It meant that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution.

However, activism must be done cautiously or else it may get converted into judicial governance.

Why Judicial Governance is not good?
  • Against Separation of Power (SOP): Judicial governance destroys the spirit of ‘separation of powers’ between Legislative, Executive, and Judiciary as enshrined in the constitution.
    • SOP is a model that divides the government into separate branches, each of which has separate and independent powers.
  • Expertise in a particular field: The courts don’t have expertise in the field of administration, unlike the administrative authorities. Hence, unnecessary intervention should be avoided.
    • For instance, in one of the orders, a high court insisted on controlled re-opening of the city. And this was without even telling what constitutes ‘controlled re-opening.
  • Impracticable Solutions: The courts lack the machinery to deal with highly sensitive and technical issues. Due to this, they end up giving impracticable solutions. 
    • For instance, the Allahabad High Court’s order to the UP government to consider a state lockdown was returned with the answer that yes, it was considered, but it was not needed.  
  • Disincentivization: Severely critical observations over administrative actions act as disincentive to honest and dutiful officials. They have been working day and night to fight the unpredictable pandemic whose characteristics are not yet fully known to science.
  • Undemocratic Nature: Judicial governance appears as an act of ‘tyranny of unelected’ in a democracy. The executive remains “accountable” to the people through a 5-year election process, but judges exercise self-regulation and are accountable only to themselves.
  • Wastage of court’s time: It is a wastage of the court’s time, which can otherwise be used for adjudicating other important matters relating to public importance pending before the court.
    • For instance in National Anthem Case 2016, the SC mandated all cinema halls to play the National Anthem before a film starts in movie halls. However, this decision was reversed later on, and it consumed a significant portion of judicial time.  
  • First, the adjudication must be done within the system of historically validated restraints and conscious minimization of the judge’s preferences.
  • Second, the decision of the administrators should not be interfered with unless it is clearly violative of some statute or is shockingly arbitrary. In times of Pandemic, the response and strategy of the nation should be driven by expert medical and scientific opinion; not by judicial interference. 
  • Third, the judiciary must resort to self-imposed discipline and self-restraint in order to prevent judicial governance.
  • Fourth, the courts have to be cautious that they do not knowingly or unknowingly become a source of obstruction in the performance of states’ obligations.  

Judiciary should prevent interference in the domain and work of the executive as mandated by the concept of separation of powers. Judicial activism would be counterproductive and would fail in achieving its laudable purpose if it assumes the role of judicial governance. It is one thing to direct the executive to perform. However, it is another thing to say “if you do not do it, we will do it ourselves”.

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