In India, there is a division of power between the legislature, executive and judiciary and each of these have their fixed roles and duties towards citizens of the country. Recently the overzealous orders of various high courts and the Supreme Court of India responding to public interest litigations relating to the Covid-19 pandemic — amounting to judicial overreach — can be viewed as undermining the separation of powers.
When the courts are already complaining about being overburdened with cases and can’t do justice to lakhs of people trapped in the ‘tareekh pe tareekh‘ loop, why should it waste its time in doing what is the job of the executive? On the one hand, for the past year, most pending cases went unheard and are adjourned en bloc; on the other, the same courts hurriedly conducted Covid-19 related cases and did not shy away from regularly ordering how to manage the Covid-19 crisis. The Madras High Court went a step ahead and castigated the Election Commission for the spread of the second wave of Covid-19 in India. It did not stop there, it even remarked that the Election Commission could be slapped with a charge of murder. In the situation where even researchers and scientists are evaluating various factors and trying to grasp the reasons for the widespread Covid-19 cases all over the world, how could court hold only one institution responsible for the spread of infections?
Courts can issue orders of lockdown or supply of oxygen and likes, but they cannot actually go on the ground and implement such orders. Such policy decisions should be taken by the executive for the purpose of better implementation. If a state is not prepared for a lockdown, a sudden court order will only add to the current situation of chaos. Similarly, if every state’s high court orders the union government to supply a fixed amount of oxygen to that state, pandemic management at the national level will become absolutely unworkable. Before entertaining petitions on an equitable allocation of oxygen, the courts must think that the country is facing one of the worst pandemics ever. In such a situation, if we promote disputes for resources, it will definitely lead to a disaster.
When a quota of 700 metric tonnes of oxygen was fixed by a court for the Delhi government, it led the states of Tamil Nadu and Karnataka to knock the doors of their respective high courts for the allocation of quotas. This clearly gave out a message to other states that one who would go to court would get oxygen in the volume demanded. Later, the Supreme Court instituted a 12-member national task force to coordinate oxygen allocation and distribution across the country. This created another layer of bureaucracy, further stretching the officials who were already working overtime to secure supplies from overseas. When the fight is against time and every moment is important to save more lives, it is imperative that we reduce bureaucratic monitoring, which will ultimately delay the relief.
Without a doubt, the present Covid-19 situation has levied an extra burden on courts for striking a balance between economic policy and social justice. Of course, courts will face petitions that seek measures of relief but with this greater burden comes greater responsibility. The courts have to be extra cautious while passing orders involving policy measures. In any case, it is absolutely necessary to check the extent of the negligence of the states, whether there indeed exists some lacuna in providing the relief sought. All circumstances need to be looked into before deciding that a particular situation warrants judicial intervention. Such short-sighted orders can cause embarrassment to the court.
Loathed to interfere in what seems to be a state policy, the courts’ intervention began as a response to an immediate problem. Over time, however, the courts have found themselves in a territory where they have neither scientific nor administrative expertise. There has been a situation where lawyers, and not medical experts, were comparing the benefits of dexamethasone over remdesivir! Supreme Court judge KS Radhakrishnan rightly said, “Administration is the job of the elected government. The Supreme Court cannot deal with highly sensitive and technical issues as it does not have the machinery for it.”
One might argue that when there is non-governance and failure of the executive, the courts have to step in for the greater good. But by trying to micromanage the situation and yet not providing real solutions to the issues, the courts are actually impeding the pandemic management. For example, recently the Delhi High Court ordered the stopping of black marketing of ‘life-saving’ (essential) drugs. Now courts have not set up any mechanism to check such black marketing. Ultimately, it’s a law and order issue that must be dealt with by the government.
Judicial activism is not novel in India. Through judicial activism, the Supreme Court has given many landmark decisions to safeguard the fundamental rights of the citizens. The philosophy of judicial activism has actually allowed courts to give forward-looking judgments. However, there is a borderline difference between judicial activism and judicial overreach, Judiciary cannot step into the shoes of the executive and decide the course of public policy.
There must be a difference between judicial intervention for social justice and judicial overreach. The role of courts is to do justice and watch if provisions of the constitution are properly abided by, but courts must stay away from governance. Enacting legislation is the function of the legislature, Governance and public policy is the subject matter of the executive and providing justice to people is the role of courts or judiciary.