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ABSTRACT
An ideal citizen centric society wedded to the democratic governance always keeps its laws in motion to build an egalitarian and just order. Aesthetic virtue of law lies in the realisation of justice and the creation of an egalitarian order. Against this backdrop, the present paper aims to examine the approach of the Supreme Court of India (SCI) towards COVID-19 Pandemic through suo motu proceedings from various perspectives of jurisprudence and constitutionalism. The government claimed to have strived intensively with full vigour but the response due tolack of preparedness and intense gravity of the catastrophe, the efforts of the government appeared negligible. It warranted prompt revisit of priorities which compelled the SCI to intervene and evaluate the legitimacy of the executive action. Furthermore, it impelled to examine the role of the SCI in responding to the community’s sense of justice and humanising justice. The paper presents the solution to the paradox generated out of the inherent friction between constitutional authority of judicial review and resistance of judicial review of executive actions by a populist government. The scope of the discussion has primarily been confined to Orders of the SCI in suo motu hearings and examined accordingly.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Dushyant Dave, ‘Missing Parliament and the Judiciary in the COVID Crisis’, Indian Express, April 18, 2020, 7.
2 Roscoe Pound, Jurisprudence – Vol. II (St. Paul: West Publishing Co., 1959), 352–74.
3 O’ Donoghue, ‘The Law Beyond the Law’, American Journal of Jurisprudence 18 (1973): 150.
4 James Madison, The Federalist (Middletown, CT: Wesleyan University Press, 1961), 352, see also, Roscoe Pound, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, Baylor Law Review 8 (1956): 1, 9; Anthony D’ Amato, ‘Rethinking Legal Education,’ MARQ. L. REV. 74 (1990): 1, 35; Peter L. Davis, ‘Why not a Justice School? On the Role of Justice in Legal Education and the Construction of a Pedagogy of Justice,’ Hamline Law Review 30 (2007): 514.
5 H.G. Hanbury, Modern Equity (London: Stevens, 1957), 4.
6 B.S. Chauhan, ‘Courts and Its Endeavour to Do Complete Justice’, http://nja.nic.in/17%20Complete%20Justice.pdf (accessed July 17, 2021).
7 http://www.nja.nic.in/17%20Complete%20Justice.pdf (accessed May 17, 2021).
8 AIR 1998 SC 1895.
9 AIR 2004 SC 3467.
10 In an extra-judicial interview during the first wave of COVID-19, he stated that ‘executive knows best, the courts should refrain from interfering’. Gautam Bhatia, ‘Mouse under the Throne: The Judicial Legacy of Sharad A. Bobde’, April 24, 2021, https://thewire.in/law/mouse-under-the-throne-the-judicial-legacy-of-sharad-a-bobde (accessed July 17, 2021); See also https://thewire.in/law/supreme-court-siddique-kappan-arrest-article-32 (accessed July 17, 2021).
11 https://www.indiatoday.in/india/story/state-duty-protect-right-to-life-bombay-hc-on-oxygen-shortage-goa-1801932-2021-05-13 (accessed July 17, 2021); https://www.indiatoday.in/law/story/maharashtra-aurangabad-patients-oxygen-shortage-bombay-high-court-1805292-2021-05-21 (accessed July 17, 2021); https://indianexpress.com/article/india (accessed July 17, 2021); https://www.thehindu.com/news/cities/Delhi/hc-asks-centre-why-it-should-not-face-contempt-for-failing-to-supply-oxygen-to-delhiasordered/article34481630.ece#:~:text=The%20Delhi%20High%20Court%20Tuesday,Court%20told%20the%20central%20government (accessed July 17, 2021); https://timesofindia.indiatimes.com/india/oxygen-supply-to-national-capital-sc-stays-delhi-high-courts-contempt-notice-against-centre/articleshow/82403793.cms (accessed July 17, 2021); https://www.hindustantimes.com/cities/delhi-news/like-an-ostrich-delhi-high-court-s-contempt-notice-to-centre-on-oxygen-supply-101620134390033.html (accessed July 17, 2021); https://indianexpress.com/article/india/eci-responsible-for-spreading-COVID-19-says-madras-hc-7289824/ (accessed July 17, 2021).
12 W.P. (Civil) No. 3/2021.
13 Subash C. Kashyap, ‘Why the Judiciary must Step Back’, Hindustan Times, May 17, 2021.
14 Upendra Baxi, The Indian Supreme Court and Politics (Lucknow: Eastern Book Company 1979), i–iii.
15 WP. (Civil) No. 5/2020.
16 W.P. (Civil) No. 3/2020.
17 W.P. (Civil) No. 3/2021.
18 W.P. (Civil) No. 1/2020.
19 W.P. (Civil) No. 6/2020 clubbed with Bandhua Mukti Morcha v. Union of India and Ors. W.P.(C) No. 916 of 2020 (29 Jun. 2021).
20 Mumabi Kamgar Sabha v. M/s. Abdulbhai Faizullabhai and Others 1976 (3) SCC 832; Fertilizer Corporation Kamgar Union v. Union of India AIR 1981 SC 344; S.P. Gupta v. Union of India AIR 1982 SC 149; Hussainara Khatoon v. State of Bihar AIR 1979 SC 1369, M.C.Mehta v. Union of India AIR 1987 SC 965; Parmanand Katara v. Union of India AIR 1989 SC 2039.
21 Ratlam Municipality v. Vardichand AIR 1980 SC 1622; Rural Litigation and Entitlement Kendra v. State of U.P. AIR 1985 SC 652; Narmada Bachao Andolan v. Union of India and Others AIR 2000 SC 3753.
22 Epistolary Jurisdiction Ms Veena Sethi v. State of Bihar 1982 (2) SCC 583; Citizens for Democracy through its President v. State of Assam and Others 1995 KHC 486, 1995 (3) SCC 743.
23 The Constitution of India, Article 32. Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed;
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part;
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2);
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
24 The Constitution of India, Article 142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc. (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
25 Kharak Singh v. State of U.P. AIR 1963 SC 1295; Sunil Batra v. Delhi Administration AIR 1978 SC 1674; Samantha v. State of A.P. AIR 1997 SC 3297; Akhtari Bi v. State of U.P. AIR 2001 SC 1528; Francis Coarlie Mullin v. U.T. of Delhi AIR 1981 SC 746; People ‘s Union for Democratic Rights v. Union of India AIR 1982 SC 1473; Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802, Olega Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Virender Gaur v. State of Haryana (1995) 2 SCC 577; Consumer Education and Research Centre v. Union of India AIR 1995 SC 922; Parmanand Katara v. Union of India AIR 1989 SC 2039; Mr X v. Hospital Z AIR 1999 SC 495; Maneka Gandhi v. Union of India AIR 1978 SC 597; Joginder Kumar v. State of U.P. AIR 1994 SC 1349; M.H. Hoskot v. Union of India AIR 1978 SC 1548; Justice K.S. Puttaswami v. Union of India C.W.P. 494/2012; Navtej Singh Johar v. Union of India AIR 2018 SC 4321.
26 Navtej Singh Johar v. Union of India AIR 2018 SC 4321.
27 WP. (Civil) No. 5/2020.
28 Krishnadas Rajagopal, ‘Coronavirus-Restrictions on Court Hearings Lawful, Says Supreme Court’, https://www.thehindu.com/news/national/coronavirus-restrictions-on-court-hearings-lawful-says-supreme-court/article31274285.ece (accessed May 17, 2021).
29 Ibid., Paras 3 and 4.
30 https://dakshindia.org/wp-content/uploads/2021/01/Laywer-Survey_06.pdf (accessed May 17, 2021).
31 Ibid.
32 W.P. (Civil) No. 1/2020.
33 Ibid.
34 Arnesh Kumar v. State of Bihar (2014) 8 SCC 273.
35 W.P. (Civil) No. 3/2021.
36 The Hindu, April 19, 2021.
37 V.K. Paul, Member, Niti Ayog, Hindustan Times, May 27, 2021, https://www.hindustantimes.com/india-news/health-is-a-state-subject-centre-defends-vaccine-strategy-in-7-points-101622105429701.html; Krishan Reddy, Union Minister of State for Home Affairs, May 31, 2021, https://www.thehindu.com/news/cities/Hyderabad/healthcare-is-state-subject-says-kishan-reddy/article34693266.ece.
38 W.P. (Civil) No. 1/2020, para 13 (i).
39 Ibid., para 13 (ii).
40 Ibid., para 13 (iv).
41 Ibid., para 13 (v).
42 Ibid., para 8–11.
43 W.P. (Civil) No. 6/2020.
44 ‘The Failure of Supreme Court to Rescue the Migrant Workers’, Countercurrents, https://countercurrents.org/2020/05/the-failure-of-supreme-court-to-rescue-the-migrant-workers/ (accessed July 20, 2021).
45 Swami Agnivesh and Another v. Union of India decided on April 20, 2020; Aruna Roy and Anr. v. Union of India, decided on April 8, 2020 – Both available at https://www.barandbench.com/columns/homecoming-the-worst-migrant-crisis-of-the-nation (accessed July 20, 2021).
46 W.P.(C) No. 6/2020.
47 https://www.barandbench.com/news/litigation/suo-motu-migrant-crisis-supreme-court-directs-implement-one-nation-one-ration-scheme (accessed July 17, 2021) and it was clubbed with Bandhua Mukti Morcha v. Union of India and Others W.P. (C) No. 916/2020.
48 Payoshi Roy, ‘The Injustice to Stan Swamy’, Indian Express, May 27, 2021, 9. Ricardo Da Silva, ‘Father Stan Swamy has Died of COVID-19, still in the Custody of the Indian Government’, https://www.americamagazine.org/politics-society/2021/07/05/stan-swamy-jesuit-dies-COVID-india-240982 (accessed July 5, 2021).
49 https://www.telegraphindia.com/india/if-meals-are-given-why-do-they-require-wages-supreme-courts-query-during-coronavirus-lockdown/cid/1762977 (accessed July 17, 2021).
50 B.S. Nirwan, ‘Parliament versus Judiciary’, in Relations in Working of Legislature, Executive and Judiciary – An Introspection and Prospective Vision, ed. J.K. Chauhan (Faridabad: ALA, 2007), 26.
51 Martin Luther King, Jr., ‘Where Do We Go From Here?’ Annual Report Delivered at the 11th Convention of the Southern Christian Leadership Conference, August 16, Atlanta, GA, 1967, http://www-personal.umich.edu/~gMarchkus/MLK_WhereDoWeGo.pdf (accessed July 27, 2021).
52 Indian Express, ‘Govt. Migrant response “unpardonable”, Says SC, sets deadline for ration plan- court seeks central portal for migrants, tell states to supply dry rations, set up community kitchen’, June 30, 2021, 1.
53 Indian Express, ‘NDMA failed in its Duty: Bench-SC: Kin of COVID Victims entitled to relief, so frame guidelines’, June 30, 2021.
54 Indian Express, ‘Reconsider even symbolic Kanwar Yatra, health important: SC to UP’, 17 July 17, 2021, 1.
55 Upendra Baxi, ‘Rekindling Our Institutions; Any Reform of the Judicial System will have to Come from Within the Court’, Indian Express, July 16. 2018.
56 Upendra Baxi, ‘A Constitutional Renaissance: SC’s Delhi Verdict Affirms: Constant Repair and Renewal of Constitutionalism is the Prime Function of Adjudication’, Indian Express, July 16, 2018.
57 N.V. Ramana, ‘Rule of Law vs Rule by Law’, Indian Express, July 2, 2021, 9.
58 Dushyant Dave, ‘Missing Parliament and the Judiciary in the COVID Crisis’, April 18, 2020, 9.
59 K. Iyer, Justice at Crossroads (New Delhi: Deep and Deep Publications, 2019), 17.
60 Balram K. Gupta, ‘Judicial Review or Confrontation’, in Relations in Working of Legislature, Executive and Judiciary – An Introspection and Prospective Vision, ed. ed. J.K. Chauhan (Faridabad: ALA, 2007), 11.
61 State of Karnataka v. Shri Ranganath Reddy and Anr. (1977) 4 SCC 471.
Additional information
Notes on contributors
Tarun Arora
Dr Tarun Arora serving as a Professor and Dean of School of Legal Studies at Central University of Punjab, India. Also associated with United Nations Development Programme as an Expert on International Biodiversity Law and Life Member, Indian Institute of Public Administration, New Delhi. His areas of expertise are Environmental Law, Constitutional Law, Jurisprudence and Human Rights. Involved in research on Climate Change and Energy Law, Rights of Indigenous People, Human Rights and published number of papers thereon.