Too much of a good thing can be bad, and democracy is no exception, hence the existence of the Judiciary. On that note, one basic and fundamental question that confronts every democracy, run by a rule of law is, what is the role or function of a judge. Is it the function of a judge merely to interpret the law as it exists or to make law? And this question is very important, for it depends on the scope of judicial activism. Black’s Law Dictionary has defined judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.” Essentially what it means is that it’s a dynamic process that makes itself relevant in an ever-evolving world through the discretion of judges as the “judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society.” This exact interpretation has revolutionised the Indian Courts and their activism through various landmark cases.
Taking in light the current Covid situation where higher courts have played more than an active role even at times when the whole country was under lockdown by evolving a new modus operandi i.e. hearing over video conferencing as one of its new standard operating procedure. The judiciary ensuring that justice is not delayed passed necessary orders and judgments for making the lockdown effective by invoking article 142 of the Constitution of India and at the same time directed the responsible authorities that the citizens of this country shall not face any inconvenience as the rights as envisaged under the same constitution have been seized.
From the judgement in Shashank Deo Sudhi vs Union of India and Ors.[i], where the apex court directed to make testing in private Labs of COVID-19 free only for economically weaker sections of the society who are unable to afford the payment of testing fee as fixed by ICMR for COVID-19 to its direction in Jerryl Banait vs Union Of India & Anr[ii]., issuing detailed guidelines 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 PPEs are provided to all health officials after a PIL was filed by a medical professional. This order came in the background of various attacks on medical staff and doctors and also complaints regarding lack of safety equipment. On instances of quarantine facilities being used as detention centres in the case of Mahendra Singh Versus. Commissioner of Police & Ors[iii], Bombay HC directed that “Quarantine facilities cannot be used by the police to keep away people, who according to them, are of nuisance value. Quarantine facilities cannot be used as preventive detention or as a punitive measure.” Taking suo moto cognizance of the inhumane condition of migrants, the apex court directed the Centre to provide means of transport for their rehabilitation and the concerned authorities were asked to withdraw all cases against them for violation of lockdown norms. Furthermore, it also took suo moto cognizance of the issue of overcrowding in prisons In Re: Contagion Of Covid 19 Virus in Prisons[iv], and ordered the State and the Union Territories to constitute committees to determine which categories of prisoners can be released on parole or bail.
More recently, well into the second wave of Covid-19 Delhi High Court finds itself directing the Centre to ensure that the national capital receives its allocated share of 490MT of oxygen stating that “Water has gone above the head. Now we mean business.” It also embracing its activist nature, directed the Delhi government and the Centre to prevent black marketing and hoarding of medicines and medical equipment needed for Covid-19 patients. Additionally, the SC came down heavily on states that had ordered registration of FIRs against individuals appealing for help or sharing grievances on social media or elsewhere during the ongoing Covid pandemic stating that “we will treat this as contempt of our court. Let us hear the voices of our citizens and not clampdown.”
However, courts did fail to maintain a balance between judicial activism and judicial restraint at times for instance in the matter concerning the large-scale migration of stranded migrants, initially, they didn’t act according to the need of the hour; had the Supreme Court or a high court postponed the lockdown for a week or so to allow the administration to arrange the humanitarian relocation of migrant workers, the entire matter might have been settled without any affront to the government. On the contrary, they were quick to order lockdowns in certain places. For example, the Allahabad HC, suo moto declared that five cities of Uttar Pradesh must go into lockdown. The court even went on to stipulate elaborate directions for effectuating the curbs, in doing so it trespassed on the executive ground. Ideally, it should engage in activism only when required and not go after what is often termed as judicial adventurism, as seen in the case of Madras High Court’s remarks against the Election Commission of India, stating “your institution is singularly responsible for the second wave of Covid-19 and should be booked on murder charges probably.” This particular remark is unsubstantiated as cases continued to rise in states such as Maharashtra and Delhi where elections were not even taking place. Another recent instance where the Supreme Court declared Delhi as a “representative of the entire nation” and asked the Centre to supply oxygen to it by whatever means. By such statements is the court implying that the rest of the states in the country aren’t on par with the capital? It could be argued that Delhi has no oxygen-producing units and is in dire need of them but so are other states in the country for example Madhya Pradesh, which is in the same boat.
That’s why excessive judicial activism can be problematic as there are other arms of democracy as well that are managing this crisis, but if we are picking sides between an overly aggressive judiciary and an overly restrained one, most would prefer the former as too little activism produces worse consequences than does too much.
The Judiciary has dealt with various issues concerning Covid-19 and has risen to the occasion to show a humanitarian facet. The importance of judicial activism has shone throughout as observed in the case of State Of Gujarat vs Patel Karsanbhai Madhabhai[v]– “Every proceeding before the Court must reflect judicial initiative, involvement, resourcefulness, concern which can be packed up in one word, namely, the ‘judicial activism’, the moving spirit of justice! In fact, the Judge without judicial activism can perhaps be described as a flower without colour and fragrance and vehicle without fuel and wheels which is unavoidably must for any Court to be known as the Court of justice, substantial justice and the speedy justice! “This pandemic is just like any other problem that we have had to deal with, unfortunately, there will be more unprecedented situations in future that would test our country, more so our Judiciary and what would matter then would be how efficiently we use judicial activism to make requisite amendments and changes to our executive and legislative functioning so as to render effective and necessary justice to the society.
[i] Shashank Deo Sudhi vs Union of India and Ors, 2020 (5) SCC 132.
[ii] Jerryl Banait vs Union of India & Anr., 2020 SCC Online SC 357.
[iii] Mahendra Singh vs. Commissioner of Police & Ors, Writ Petition(Civil)No. 4444/2013
[iv] In Re: Contagion Of Covid 19 Virus in Prisons, Suo Moto Writ Petition (Civil) No. 1/2020; order dated March 23, 2020.
[v] State Of Gujarat vs Patel Karsanbhai Madhabhai (1997) 2 GLR 1224
This article is authored by Abhay Pratap Singh, a first-year law student at National Law University, Delhi. Presently working as a contributing author at The Blue Letters.