Open Access Research Article
The Judiciary: Guardian Of Citizens During A Public Health Emergency (By-Maeen Mavara Mahmood)
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The
Judiciary: Guardian Of Citizens During A Public Health Emergency
“There can be no difference of opinion in the House that
our judiciary must both be independent of the executive and must also be
competent in itself. And the question is how these two objects could be
secured”.[1]
--Dr. B.R. Ambedkar
Authored By-Maeen
Mavara Mahmood
Introduction:
The COVID-19 Pandemic has been the
biggest Health Emergency that the world has come to face. In times like these,
roles of the democratic agencies come to stand the test of times. Health
Emergencies like any other emergency requires quick, prompt and effective
responses to meet the exigency of the matter at hand.
Lawrence Gostin, an American law
professor specializing in public health law, suggests a “Duty-Power-Restraint”
framework for enacting effective legislations in the sphere of public health
law.[2] He
suggests that public health legislations must clearly mandate responsibilities
of the government and public health agencies by imposing positive duties
(Duty). It must also equip the government and the public health agencies with
adequate powers to carry out the necessary steps in order to tackle any public
health emergencies effectively (Power). Lastly, it must lay down provisions of
restraint in the form of safeguards and remedies in order to prevent overreach
and violation of individual rights by the government and its agencies
(Restraint).
Broadly speaking, India lacks the
presence of a comprehensive law solely focusing on public health emergencies.
Due to the absence of such law, it lacks the legal preparedness required in
facing a health emergency effectively. Gostin’s theory along with various
guidelines as suggested by the World Health Organisation (WHO) requires a
public health law to fulfill various legal and executive functions.
However, the existing central and
state laws such as the Epidemic Diseases Act, 1897,[3]
The Disaster Management Act, 2005[4] etc., fail
to fulfill the necessary preconditions.
Hence, interjections by courts to
issue orders that authorize certain actions may be undertaken to protect the
public health. It must perform its functions and apply restraint in matters
where the civil liberties of individuals are being violated with regards to
actions of the public health authorities.
As an essential backdrop, this
article will briefly introduce the basic structure and functioning of the
judicial system in India. It’ll then move on to recognising various powers,
responsibilities and the limitations of the judiciary during a public health
emergency.
Judicial System In India:
The Constitution of India lays down a
single integrated Judicial System with a three tier structure. At the root
level it consists of subordinate courts, at the secondary level the High Courts[5] and the
Supreme Court[6] at the
apex. Articles 32 and 226 confer the Writ Jurisdiction upon the Supreme Court
and High Courts respectively. This allows courts to take suo moto cognizance
for the protection of fundamental rights.
The Constitution provides for an
independent judiciary. It ensures fair adjudication of rights of individuals and
certain rights of the government free from any political or extraneous
influence. The intention of the makers for an independent judiciary is evident
through the constituent assembly debates. Dr. Rajendra Prasad stated, “We have
provided in the Constitution for a judiciary which will be independent…”[7].
Public Health Emergency:
The International Health Regulations
(2005) is a legal framework formed by the World Health Organization (WHO) that
“defines countries’ rights and obligations in handling public health events and
emergencies that have the potential to cross borders”.[8]
An instrument that is legally binding on all 196 countries. These regulations
also outline the criteria to determine whether or not an event constitutes a
“public health emergency of international concern” (PHEIC). It defines a
“PHEIC” as
“an extraordinary event which is
determined, as provided in these Regulations:
?
to
constitute a public health risk to other States through the international
spread of disease; and
?
to
potentially require a coordinated international response”. This definition
implies a situation that: is serious, unusual or unexpected; carries
implications for public health beyond the affected State’s national border; and
may require immediate international action”. [9]
On 30th January 2020, WHO declared
the COVID-19 virus as a “PHEIC”. Since then the world along with India has seen
the worst epidemic to have struck in recent times. Currently the country has an
estimated 33,53,765 active cases as of 18th May 2021.[10]
Since the declaration of a public
health emergency, the country has faced troubles of various kinds. In order to
curb the spreading of the virus, a nationwide lockdown was announced twice and
all citizens were asked to quarantine themselves within their own homes. This
lockdown also meant the shutting down of all businesses apart from essential
services. As a result of this emergency, apart from public health concerns,
various other concerns came to light. Rising unemployment, wage cuts, deserted migrant
workers and labourers, illegal eviction of the poor from residential spaces
etc. were among such concerns.
Recently, due to the sudden rise of
the second wave of the virus, there have been several issues with regards to
non-availability of hospital beds for the sick, shortage of vaccines and oxygen
cylinders, malpractices in the treatment of patients etc. have also been on a
constant rise.
Judiciary
And Public Health Emergency:
The judiciary plays the role of a
guardian of individual’s rights. In performing this role, it has certain powers
which it may exercise, including the power of judicial review, taking suo moto
cognizance, performing its function of interpreting laws and invoking the writ
jurisdiction. These powers help courts to review the actions of the legislature
as well as the executive, in order to ensure that justice is upheld.
If the court concludes that the
actions of the executive or the legislature infringe upon the individual’s
rights then it may declare such actions as unconstitutional and order the said
functionaries to correct their actions.
In a public health emergency the
legal environment is bound to change. Priorities may change to cater to the
urgent matters at hand. Hence, it is the responsibility of courts to ensure justice
is served fairly and is not delayed. In an emergency, courts actions could include, affirming and
enforcing an order to a public health official as a proper exercise of
discretion, overturning an order of a public health official for lack of
statutory authority, or striking down a public health law or order for unduly
interfering with an individual’s constitutional right to liberty.
In a recent order, In Re: Distribution of essential supplies
and services during the pandemic[11],
the SC took suo moto cognizance. The Chief Justice of India led bench declared
it to be a national health emergency and ordered the government to respond on
several questions regarding, vaccinations, free oxygen supply, availability of
beds etc. and went on to state, ” prima facie, we are inclined to take the view
that the distribution of these essential services and supplies must be done in
an even handed manner according to the advice of the health authorities which
undoubtedly take into account relevant factors like severity, susceptibility,
the number of people affected and the local availability of resources. We
expect the Central Government to place before this Court a national plan for
dealing with the above services and supplies during Pandemic”.[12]
Similarly, the Gujarat High Court has
registered a suo moto PIL with regards to deterioration in public health
services in the state during the pandemic, citing media reports.[13]
In the current public health
emergency the common man has suffered the most.
Many such difficulties faced can be
traced down to poor governance, the reason for which can be led back to absence
of laws and regulations in place to effectively solve concerns that continue to
rise in these unprecedented times.
In times like these, the importance
of the judiciary’s role is enhanced during this emergency.
For instance, after the announcement
of the first nationwide lockdown in the early months of 2020, the hardest hit
community were the migrant workers and labourers. Several migrant workers were
left stranded and jobless to contain the pandemic. As a result, several migrant
workers were left to walk back to their native places due to denial in or
non-availability of residential spaces and transport. Upon failure of the
central and state governments to adequately handle the matter, the Supreme
Court In Re: Problems and Miseries of Migrant Labourers[14] took suo moto cognizance
and ordered the central and state government to provide food and shelter to 100
million migrant workers free of cost. This was one of the landmark judgements
passed by the Supreme Court during the pandemic.
Similarly, courts have adjudicated on
several matters such as proper treatment of COVID-19 patients and dignified
handling of dead bodies[15], directions in the interest of
children falling within the ambit of Juvenile Justice Act, 2015[16]
etc.
The Supreme Court also used its power
of interpretation and observed
that the “right to health is a fundamental right guaranteed under Article 21 of
the Constitution of India. Right to health includes affordable treatment.
Therefore, it is the duty upon the State to make provisions for affordable
treatment and more and more provisions in the hospitals to be run by the State
or local administration are made”.[17]
Through
the various judgements passed during the COVID-19 pandemic, the judiciary
has effectively exercised its powers of
judicial review and interpretive functions granted under the Constitution and
fulfilled its role as the protector of individual rights and guardian of
constitutional values.
Limitations:
One of the biggest limitations that
can be faced by the judiciary during the public health emergency is the health
emergency in itself. For instance, in order to contain the COVID -19 pandemic,
during the first lockdown, the judiciary suspended all judicial and
administrative work keeping an exception of urgent matters. To meet the needs
of social distancing rules, the courts depended on appearances via video
calling and e-filing of documents.
Data from the National Judicial Data
Grid (NJDG) estimates that due to the suspension of judicial work, the pendency
of cases rose by 10.35% in the Supreme Court, 20.4% in the 25 High Courts and
by 18.2% in the lower courts over a one year period between 2020-21.[18]
Another limitation the courts face is
in the actual adjudication of matters. In the COVID-19 pandemic courts were
open to adjudicate on urgent matters only. Therefore, as mentioned earlier, a
public health emergency naturally changes the environment of legal services.
The judiciary was to give importance only to matters that were urgent and
related to the emergency. Adjudication of matters not related to the emergency
were left unattended and justice was delayed.
However, a situation of emergency
calls for certain sacrifices and flexibility in law in order to cater to
matters having a greater impact on the whole society.
Conclusion:
In a health emergency such as the
current COVID-19 pandemic, the weakest and most vulnerable would be the common
man. The citizens depend upon governments to equip them with necessary
essentials to combat the consequences of the health emergency. In this situation,
accountability of the executive organ can only be ensured by the judiciary.
The existing laws are ambiguous and
incomplete as they do not provide specific regulations and procedures to follow
in a public health emergency. For instance, the archaic Epidemic Diseases Act,
1897 does not even define the term “epidemic”.They are not sufficient in
helping to curb a fast growing pandemic
like the COVID-19 virus. In the absence of a law and the lacunae in existing
laws, legal intervention is inevitable. Due to this, the role of the judiciary
to protect constitutional values such as rule of law and act as guardian of
civil liberties, becomes paramount during a public health emergency.
Article Information
The Judiciary: Guardian Of Citizens During A Public Health Emergency (By-Maeen Mavara Mahmood)
Authors: Maeen Mavara Mahmood
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/10/13
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
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