Written by S N Aggarwal

The common citizen often overlooks the fallibility of judges. A judge is perceived as supreme, the primus inter pares, and one who gets to have the last word, especially on issues of public importance. Words uttered by a judge are considered pearls of wisdom and more often than not, oral exchanges between the bar and bench become national headlines.

The Constitution of India however juxtaposes democratic value in the Legislature and the Executive as well. Unfortunately, the ongoing adjudication of cases related to Covid management by courts across India has set a worrying precedent of judicial overreach, creating dilution in this basic structure of the Constitution, that is buttressed by the “separation of powers”.

The problematic approach of High Courts in taking stock of the Covid response across India is not solely about overreach in constitutional frameworks. The dearth of steadfastness in judicious application of mind is reflected even more so, when off-the-cuff remarks, blatantly attacking institutions are made by Courts.

Let’s take the recent disparaging remarks made by the Madras High Court against the Election Commission of India, calling the institution, “murderers”, even going so far as to say that it was solely responsible for the spike in Covid cases. Chief Justice Sanjib Banerjee told counsel for the Election Commission, “Your institution is singularly responsible for the second wave of Covid-19 and should be booked on murder charges probably.” I daresay, there is a flavour of non partisanism attributed to such oral remarks (which may have been made offhandedly). The barrage of Covid positive cases continued to rise in states such as Maharashtra and Delhi where elections were not even taking place.

Further to this, even though this exasperation was oral and earmarked an exchange between the bar and bench, the resultant furore caused more harm than good. In appeal, the ECI sought the Supreme Court’s intervention against the remarks, wherein a division bench of Justice D Y Chandrachud and Justice M R Shah emphasised the need for judges to exercise caution in making off-the-cuff remarks, which may be susceptible to misinterpretation. “Judicial language is a window to a conscience sensitive to constitutional ethos. Bereft of its understated balance, language risks losing its symbolism as a protector of human dignity,” the Court noted, adding that language is an important instrument of a judicial process which is sensitive to constitutional values. However, the top court was not in a position to set aside the oral remarks as they never found their way into the written order. This glaring inadequacy must be tackled. High Courts possess one, not two separate jurisdictions, and setting precedents which topple procedures established in law will only lead to chaos and hysteria, however unintended it may be.

Dire straits loom large across many states in India and amid panicked calls for oxygen supply, it is apparent that the shortages were not merely restricted to the capital. Uttar Pradesh, Manipur and Punjab continue to battle for shortages in life-saving drugs and oxygen.

Incidentally, the Supreme Court, while hearing cases concerning management of the Covid crisis at a pan-India level, declared Delhi as a “representative of the entire nation” and asked the Centre to supply oxygen to it by whatever means. Without delving into the extemporaneous comments made by the courts, it remains to be understood why such a privilege was not meted out to other states. Why are courts in Delhi, (in all their propriety), handing out impressions signifying that there is a crème de la crème among Indians and it resides in Delhi? Aren’t these remarks bereft of the aforementioned “understated balance” that judges must hold dear? Perhaps calamities appeal to the senses much more when they are closer to home.

One may argue that this special treatment is being meted out to Delhi because the national capital has no oxygen-producing units.

It is not out of place to mention here that Madhya Pradesh has no oxygen-producing units either. No such entitlement or special privilege was made for the state. In fact, reports suggest that many states have had to deal with shortages due to orders by the courts of diverting supply to the capital.

None of this is to say that the High Courts are not doing their bit to douse the pandemic despair. Last month, the Allahabad High Court entered the executive sphere, suo motu and declared that five cities of Uttar Pradesh must go into a lockdown. The court even went on to stipulate elaborate directions for effectuating the curbs, which were then challenged in the Supreme Court. The top court stayed the order imposing restrictions and observed that the power to declare lockdowns rests with the state and not with the judiciary. The Uttar Pradesh government’s averment rested on judicial overreach into the executive domain by the High Court. It seems reasonable to draw corollaries with the West to understand how courts in other countries, particularly the United States, have dealt with issues surrounding policy and executive decisions in the pandemic era. While the Supreme Court has taken up suits challenging the constitutionality of public health orders, which were enforced in response to the pandemic situation, there is no precedent which stipulates suo motu management of the crisis as was done by the Supreme Court or the High Courts of India.

Another issue, which gains primacy, is the possibility of challenging executive orders for fulfilling political whims in a time of unprecedented crisis. The judiciary must bear in mind that though it must act in public interest, it also has a primary responsibility to safeguard executive powers, before delving into actions or perceived inactions. For only in a utopian world, does every challenge seek strengthening of democracy, without an iota of levitation towards vote bank politics. Courts abroad have treaded carefully in dealing with potential “politically-motivated actors” in an unprecedented crisis and have refrained from plunging into the executive domain.

Yes, the pandemic has hit us hard — there is not an iota of doubt about it. But does that necessarily mean that the only arm managing the crisis is the judiciary? Absolutely not. One may argue that constitutional courts have a duty to protect fundamental rights; particularly in the context of the present unprecedented situation and that the question of overreach and interference does not arise.

However, it remains to be understood why the judiciary, which is so deeply entrenched in being the saving grace of the Indian populace, has an ever-increasing pendency rate? India currently has over four crore pending cases across various courts. It is also not out of place to mention that the Supreme Court has not listed the PIL by a trust which seeks an independent probe into the political violence engulfing the state of West Bengal, allegedly by Trinamool Congress goons on BJP workers. Exchanges about which medicine is life saving and which isn’t have found their way into legal corridors of our courts, while doctors and scientific experts take the lead at the frontlines. Have judges replaced our truly acclaimed scientific community or do they now prefer to don the policy-makers’ hat?

Judicial overreach is writ large with judicial officers and lawyers micro-managing the day-to-day affairs of the Covid crisis in the country. Government officials are having to brief the bench about the prevailing circumstances for hours instead of being allowed to act in real-time. For the courts to continually micromanage the situation and point out inadequacies, without weighing in the outpouring of international aid that India has continually received as it reeled under massive pressure, happens to be a shortsighted and arbitrary approach.

Voltaire said, “With great power comes great responsibility”. It is clear that the responsibility to uphold powers within the constitutional frameworks lies with all stakeholders. However, it remains to be seen if the courts will choose to overlook (politically) motivated fallacies and uphold the Constitution’s vision, which undoubtedly deplores overreach, by all pillars of the constitutional framework.

The writer is former judge, Punjab and Haryana High Court, Chandigarh