NEED FOR JUDICIAL RESTRAINT DURING PANDEMIC

    The Covid-19 pandemic had a significant negative impact on people across the world, a widespread of such level was never anticipated. This pandemic hit the lives of millions of people around the globe. A paucity of medical facilities, infrastructure and doctors has been witnessed worldwide. The economy, industry and trade both at global and local levels have abruptly collapsed and the leaders are baffled by what may come next.

    INTRODUCTION

    There are numerous roles which the judiciary needs to play. One of the major and the biggest responsibilities of the judiciary is to provide social equity and establish standards of law. Judiciary has an obligation to keep a check on the activities of the executive and ensure that the citizens of the country have their opportunity to enjoy the fundamental rights and all other constitutional rights which are referenced in the Constitution of India.[1]

    The state of law and the judiciary is not working properly due to this pandemic. In these times,  when lives are shattered, the courts have been shut down for an unknown period of time with the issues of the public left unresolved unless they are  highly urgent. This huge judicial infrastructure, which was highly overused has become unusable in just a flick. Whether a pandemic or not, social disputes and conflicts between the citizens and the State never stopped, but in these times, there is no such body where one can ask for justice.

    The Indian Constitution did not state that for the failure of other organs of the center the one bearing the crown would be the judiciary that would act for all of them. Therefore, it is important whichever organ is failing to carry out its duties firmly should be managed in order to prevent breakdown of the government. The Constitution has not come up with arrangements requiring the judiciary to assume the reins in the event of failure of other organs to carry out their functions, requisite steps must be taken to diligently manage their duties. For this, the idea of Judicial Restraint was introduced to restrict the formation of government of judges. The Judicial mechanism possesses powers to ensure that legislature and executive act within the boundaries of the power as specified in the constitution. It is meant to prevent the despotism of one over the others. In other words, Judicial Restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power.

    Now coming to the concept of judicial activism, when the Supreme Court issue an order or a decree which leads to the expansion of judicial power, it is known as Judicial Activism. [2] Judicial restraint on the other hand, restricts judiciary to make different decisions which are constitutional in nature unless it is extremely necessary that such a decision must be made, which makes it totally opposite from the concept of Judicial activism. The concept of Judicial restraint was introduced because of the ideology of  separation of powers that enumerates that the power to make laws is in the hands of the legislature and not in the hands of the judicial system.

    IMPACT OF COVID-19 ON JUDICIAL SYSTEM

    Since the first lockdown in March, 2020 which is due to Covid-19, there have been many instances of deprivation of basic human rights, either legitimately or in a roundabout way. The courtrooms have been flooding with Public Interest Litigations and citizens are demanding justice.

    Majorly travelers or the migrant workers are getting affected due to this pandemic. Other problems are wages for the cardholders of MGNREGA, free or sponsored testing of Covid-19, waving off credits of ranchers, calling off the Indians dwelling abroad, house-to-house testing, loan moratorium, personal protective gear for doctors, health workers and sanitation workers, nationalization of health sector, evacuation of Indians from foreign countries, and many more. There has been a great impact on the judicial system due to the outbreak of this COVID- 19 pandemic. The hearing process is in operation only for  cases which are urgent in nature.

    One of the biggest impacts on the Indian Judiciary is the large number of cases that are pending in  courts in India. Agreeing to a report prepared by the National Judicial Data Grid[3]  expresses that general pendency of cases has expanded essentially in the most recent decade. From 2006 till now, there has been a general increment by 22% in the pendency of cases over all courts in the country. As of August 2019, there are over 3.5 crore cases forthcoming over the Supreme Court, the High Courts, and the subordinate courts. Of these, subordinate courts represent over 87.3% pendency of cases, trailed by 12.5% pendency under the steady gaze of the 24 High Courts. The staying 0.2% of cases are forthcoming with the Supreme Court. This number is persistently expanding and  shows the deficiency of the legal framework. Presently the test before  Indian Judiciary is to settle upon the forthcoming cases by all accounts, which becomes more troublesome in the midst of the flare-up of COVID-19.  The procedures in numerous councils have stopped during the lockdown, which has affected the judicial system of India.

    Right to  Speedy Trial is an essential aspect of the standards of fair trial but due to this pandemic no one can avail his or her right of speedy justice, many prisoners are confined to jail only, as they cannot be released until the case comes to a definite conclusion.

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    CONCEPT OF JUDICIAL RESTRAINT

    Judicial Restraint is a procedural or meaningful way to deal with the exercise of judicial review and it initially leads to avoiding the legal issues, even if it is important for the resolution of the disputes.

    In State of U.P. v. Jeet Singh Bisht[4], J. Katju remarked that the Judiciary must show self- restraint and forgo going into the areas of legislature and executive. Judicial Restraint ensures the freedom of Judiciary.

    Judicial activism can turn into an unguided rocket if not pointed accurately. Article 142 provides the power to the Supreme Court that they can pass any order or decree for doing complete justice in any case.

    Judiciary, in many of the cases, has applied Article 142, for example, the Taj Trapezium case[5], where appropriate measures were enforced to prevent the weakening of Makrana white marble of Taj Mahal by expulsion of Mathura refinery, block furnaces and different industries from the region. In the same way, Article 142 of the Constitution has also been invoked in the Union Carbide case[6]. In this case, the court granted a pay of 470 million to the victims, stating that to do justice it can supersede laws made by parliament. It was restrained in Supreme Court Bar Association v. Association of India[7], where it was held that Article 142 can only be used to supplement the law and not supplant the existing law.

    In a no. of cases, for example, State of Tamil Nadu v. K. Balu[8], in which alcohol shops were banned within the radius of 500 meters of National highways which resulted in lack of employment for many people, also in the coal block allotment case, coal blocks conceded from the year 1993 were cancelled in 2014 with a punishment of Rs 295 per ton of coal mined.

    After that, in K. Puttaswamy v. UOI [9], which includes Right to privacy under Article 21, recommending guidelines for BCCI and so forth, the Supreme Court has abused its powers under Article 142. It can be seen that such activism has neglected to maintain harmony in different parts of government. Because of which the Supreme Court requests the courts to curb Judicial activism as it disturbs the harmony between the organs. Judicial Restraint has been introduced to restrict the formation of government of judges and this was introduced because of the doctrine of separation of powers.

    NEED OF JUDICIAL RESTRAINT DURING COVID-19

    Judicial restraint encourages the judiciary to consider or agree with the laws and the rules that are passed by the representatives which are elected by the citizens, as the rules and the laws made by them are needed at the hour and the judiciary needs to respect their decision.  During the COVID-19 pandemic,  we have seen that there are many actions which took place and were not planned such as the lockdown and problems related to migrant laborers from the side of both, the Central government and State governments which all has resulted in compromising with  social, economical and political justice. In this context, the judiciary should play its role by monitoring the governments and ensuring its citizens social, political and economical rights.

    Lawmaking is not the job of the judges, but of the legislature. Hence, judges should be restrained and not be activists in their approach.

    CONCLUSION

    Judges can’t tackle all the issues in the society and they cannot perform all the functions and the duties of the legislative and executive. There is a doctrine of separation of powers and the judiciary must work according to it. Judges can no doubt, intervene in some outrageous cases, yet else they neither have the power nor assets to tackle serious issues in the public arena.

    But during this Covid-19 outbreak, the judges can’t check upon the activities of the executives and ensure that the citizens of the country have their opportunity to enjoy the fundamental rights and all other constitutional rights which are referenced in the Constitution of India because it is the kind of emergency where there are many other different problems which are also to be considered and judiciary must restraint themselves to their powers only.

    REFERENCE

    [1] The Constitution of India, 1949, art.13.

    [2] The Constitution of India, 1949, art.142.

    [3] Bhavna, “Impact of Covid 19 on the Judicial System”, August 18,2020, available at http://probono-india.in/blog-detail.php?id=155 (Last visited on November 10th, 2020).

    [4] (2007) 6 SCC 586.

    [5] M.C. Mehta v. Union of India, 1987 SCR (1) 819.

    [6] Union Carbide Corporation v. Union of India, 1990 AIR 273.

    [7][1998] INSC 225.

    [8] (2017) 2 SCC 281.

    [9] (2017)10 SCC 1.


    BY AKSHITA BANSAL | UNIVERSITY OF PETROLEUM AND ENERGY STUDIES, DEHRADUN

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