Corona Virus (COVID 19) has engulfed the World into an unprecedented crisis
forcing most of the countries to enforce lockdown which appears to be the only
option to control and contain spread of this dreaded virus. In India also this
disease has spread to most parts of the country.
The present circumstances propelled by a worldwide health emergency has
necessitated all in the justice delivery system to look into better use of technology to ensure
administration of justice even at an adverse time, bearing in mind that
maintenance of law and order by Courts is an equally essential service for
smooth functioning of a nation. The Courts all across India have certainly risen
up to the occasion to deal with the sudden vacuum created by the need for an
immediate lockdown in the nation, limiting its functioning to urgent matters
The operation of the Courts has not been formally suspended:
Supreme Court and some of the High Courts have responded to the public health
crisis by suspending regular judicial and administrative work, while making
exceptions for urgent matters. To meet the need for social distancing, courts
are allowing appearances via videoconferencing and e-filing of documents. That
said, however, the Courts are (understandably) functioning at a heavily reduced
capacity, and only extremely urgent matters are meant to be listed during
the lockdown period. However, what constitutes an extremely urgent matter has been
left open to interpretation.
The importance of the judiciary in political construction is rather profound
Today, the Essential Commodities Act, 1955 & the Essential Services Maintenance
Act, 1980 read with Order of Ministry of Home Affairs dated 24.03.2020 - are
guiding us to understand, what are the 'Essential Goods' and 'Essential
Services' in this wake of the novel epidemic, COVID-19.
Pertinently, Essential Commodities Act, 1955 enlists Defence; Hospital &
Dispensaries; Water; Sanitation; and services related to Purchasing,
Procurement, Storage, Supply or Distribution of Food-Grains etc. as 'Essential
Services'. Similarly, the Order of the Government moulds and earmarks several
categories of services as Essential Services and Non-Essential for the
Epidemic. This list prescribes Hospitals & Hospital Support Services, Defence,
Police, Electricity, Water, Sanitation, Bank, Transport Limited To Essential
Goods or related to Fire, Law & Order, & Emergency Services, as Essential
However, these classifications noted in Essential Services Maintenance Act, 1980
and the Order, interestingly, does not provide Judicial Services by the Courts
as an 'Essential Service'.
Though the operation of Court is not enlisted as an 'Essential Service',
multiple reasons can be appreciated for the Government not enlisting and not
suspending the operation of the Courts even in a time of such an Epidemic, which
has called for a complete lock-down, barring above-said Essential Services.
The first reason for the continuance of Court Services may be attributed to them
being a quint-essential in the pyramid of institutions to maintain the 'law and
order' whose maintenance is generally though ascribed to the Police & the
Defence Forces. The second reason is the separation & independence of the
Judiciary from the other two organs of the Government i.e. the Legislature &
Executive, inscribed under Article 50 of the Constitution of India.
empowers the Judiciary to continue serving the people even during any of the
national emergencies. Due to the independence of the Judiciary, unlike
Legislature, the Hon'ble President or and other constitutional dignitary or
organ of the Government, cannot suspend the Judicial Services temporarily or
permanently under the Constitution of India or the Constitution of any
other democratic country of the world, in any such exigency.
Last, it must be noted that the Courts are the watch-towers guarding the
liberty and fundamental rights of the citizens. It is this primary purpose for
keeping the Court Services subsisting even during such emergencies. The Courts
continue to serve and surveil the arbitrariness in the acts of the other organs.
The Courts make other organs work within the bounds of the Constitution of India
and check any transgression on the fundamental rights of the people. Thus, these
are the prime reasons for no direction from the Government concerning
continuation or temporary termination of Judicial Services despite the operation
of the lock-down in the country in wake of the novel epidemic.
However, this does not mean that the Courts for their distinct position can
continue working with the same conglomeration of advocates and litigants and
that no Order or direction from the Government binds the Judicial Services.
The non-operation of the Courts is first called upon, because of the
inter-dependence, inter-obligation, and inter-responsiveness between the organs
of the Government within the constitutional bounds. A complete separation of
power no inter-organ obligation is undesirable, impractical, and would only
prone a system to deadlocks and inefficiencies.
It is this congenial and
compatible interplay between these organs, duty to check and balance the acts of
each other, and the supremacy of human rights which allow and oblige judicial
services to be continued, though only for urgent matters. It would be apposite
to say herein that the Order of the Government governs the Judges as individuals
and not the Judges as a Court. Thus, the Court services are meant to be
perennial in all situations in a democratic country subject and such exigencies
Second, it may be noted that the directions for the hearing of only extreme
urgent matters have been issued under the Supreme Court Rules, 2013, like it,
does for holidays (see Order II). Similarly, the High Courts across India have
regulated their functioning and the functioning of the subordinate Courts under
the exercise of its supervisory jurisdiction under Article 227 and 235 of the
Constitution of India.
The directions have been made by the Chief Justice of the
Supreme Court and Chief Justices of respective High Court who are Administrative
Heads (Para. 13, 14) of their respective Courts, in their administrative
capacities, as ensued by the constitutional mandate and that too, in the longer
and special interest of the society. Thus, because of the deeply embedded
principle of the separation of power, the suspension of non-urgent matters have
been done on the subsequent directions of the respective administrative heads
and not vide straight and specific direction to the Judiciary for the limitation
of their functioning.
Any power in the hands of the Legislature or the Executive to completely cease
the services of the Courts, whether in, temporary or permanent, in any exigency,
will make to revisit Montesquieu's views in his book The Spirit of The Laws
(1748) wherein while enunciating and explaining his theory of Separation of
Power, he observed:
..Again there is no liberty if the judicial power be not separated from the
legislative and executive. Were it joined with the legislature, the life and
liberty of the subject would be exposed to arbitrary control, for the judge
would then be the legislator. Were it joined to the executive power, the judge,
the judge might behave with violence and oppression..
There are three great instrumentalities which have to make the profound promise
i. e Justice, Liberty, Equality and Fraternity an authentic reality. The three
major pillars which support the constitutional cathedral are the Legislature,
the Judiciary and the Executive. Constitutional comity expects institutional
harmony, so that the great vision of the Founding Fathers about a creative
social order may fulfill itself without contradiction, contretemps and conflicts
marring the national march in governing the life of the people.
makes laws, the Executive implements them or issues commandments until laws
replace them and the Judicature interprets and adjudicates so that the
Constitution-in-action may fulfill the dreams and aspirations of the Founding
Fathers who sought to express in powerful words, the paramount purposes of the
vast masses of Great Republic of India.
The doctrine of separation of powers implies that each pillar of democracy – the
Executive, Legislature and the Judiciary – perform separate functions and act as
separate entities. The Executive is vested with the power to make Policy
Decisions and implement Laws. The Legislature is empowered to issue
The Judiciary is responsible for adjudicating disputes. The
doctrine is a part of the basic structure of the Constitution of India, even
though it is not specifically mentioned in its text. Different agencies impose
checks and balances upon each other but may not transgress upon each other’s
functions. Thus, the Judiciary exercises Judicial Review over Executive and
Legislative action, and the Legislature reviews the functioning of the
The State has a paramount duty for nutrition security, the standard of living,
and improvement of public health under Article 47 of the Constitution of India.
The Supreme Court in Municipal Council, Ratlam Vs Vardichan, AIR 1980 SC 1622
ruled that in the exercise of such power, the judiciary must be informed by the
broader principle of access to justice. The Court relied on egalitarian values
from Article 38 of the Constitution of India. Nevertheless, the Courts have the
right to intervene on the ground of reasonableness and procedural preparedness
before enforcement by the State.
In light of the above-said, it is the sense of security, an obligation of the
Courts towards the society, the inter-organ obligation and pertinently, by the
direction of the respective afore-noted Court administrators, empowered under
the Constitution of India vide the Rules drafted thereunder by themselves which
has made the Courts suspend their working, except, for urgent matters. It is the
duty of the Courts due to sacrosanct standing they hold in a democratic set up
to continue operating for extremely urgent matters and check the Government's
arbitrariness and transgression on the fundamental rights of the people in times
of all exigencies.
The performance of this constitutional obligation of the Courts in the present
exigency may be briefly appreciated in the light of the herein discussed
directions and orders in different petitions. Amid the epidemic, the Supreme
Court recently directed the States to consider the release of
under-trials prisoners in wake of the epidemic. The Supreme Court also directed
the Government to take steps to combat fake news and miseries of migrant
On another instance, the Court refused to allow prior censorship from
the Government for news relating to COVID-19. Similarly, different High Courts
like Rajasthan High Court issued notice to the State Government for immediate
measures for the rehabilitation and food for a daily wage and migrant workers.
The Karnataka High Court issued directions to the State Government
for refrainment from lathi-charge or police excesses, food for the poor, and
decongestion in the jails.
The Kerala High Court directed release of
under-trials prisoners facing up to seven years of imprisonment. Alike, in civil
matters, the Karnataka High Court stayed the auction of properties by the banks
till lock-down order is revoked. Similarly, the Bombay High Court ordered
an ad-interim injunction on the sale of pledged shares. Similar directions and
orders have been made by nearly all High Courts across the nation.
The Jammu &
Kashmir High Court sought a detailed account of financial and administrative
intricacies involved in the shifting
of the capital from Jammu to Srinagar (Darbar Move), amid the impending threat
of COVID-19 pandemic.
However, Law is what Law does and the Court is no salient sentinel but an active
engineer of social rights. In this sense, access to Justice acquires a new
dimension and invests a wide judicial vision resulting into 'social action
litigation'. Thus, as may be noted, the Courts are continuing to provide and
secure justice even at the time extreme exigency in extreme urgent matters. The
Courts are operating or adapting to operate the hearing through e-modes to serve
the society to the possible extent.
Though, in the present situation where many non-essential services have been
suspended and people are facing variant challenges which could be addressed by
and remedied, yet, the functioning of the Courts makes us realize the primacy to
the right to life and liberty of all the people, including prisoners, under the
Constitution of India. Further, it makes the Court's role as guardian of the
fundamental rights of people in all situations, and its essence of existence to
check and balance the acts of the Government.
This makes us appreciate the
distinct service of the Judiciary to society and a need for their continuance at
all times, be it epidemic, emergencies, or war. In a Writ Petition, the Kerala
High Court while imposing a fine of Rs. 50,000 for a frivolous application noted
that the citizenry ought to realize that the restrictions imposed by this Court
on the filing of cases is with a view to ensuring that their fundamental rights
as citizens, for access to justice, is guaranteed to the extent possible, even
at the cost of exposing the Judges, lawyers, clerks and staff of this Court, to
the risk of viral infection.
Thus, though the Judicial Services may not be not part of the Essential
Services under the afore-said Act or the Order, yet, the continuation of the
Judicial Services is fundamental and quint-essential in all the emergencies,
including, the present epidemic. It can neither be suspended by the Government
nor by the Courts itself considering them being so vital and indispensable in
the democratically structured set up of our country.
The importance of the
Judiciary for being too profound at all time, and so is the inter-dependence and
inter-organ obligation for efficient working of a country. The Judicial Service
is thus deemed 'Essential Service' in all exigencies in a society. The wheel of
Justice is deemed to continue to roll, though on a narrow road.
Dinesh Singh Chauhan, Advocate -
J&K High Court of Judicature, Jammu.