In times of a lockdown, why the courts matter
They keep an eye on State forces; review arbitrariness in State action; and are the last refuge of the voiceless
Prime Minister Narendra Modi’s announcement on March 24 to put India under a nationwide lockdown was followed by a notification that contained a list of essential services that would be allowed to operate. One notable exception from this list was legal services.
Nonetheless, the events of the first two weeks under lockdown have made it clear that the courts are an indispensable public service, a vital check and balance on State excesses, especially in a country where executive action is characterised by opacity and a lack of access.
Regardless of the omission, the Supreme Court (SC) and various high courts (with the enthusiastic assistance and cooperation of their respective bars) have improvised and adapted admirably. Video conferences and e-filings have demonstrated that there is an easier (and more efficient) way to do things. Despite being hamstrung by omission from the March 24 list, the courts are attempting to ensure that matters of “extreme urgency” are heard and addressed. They have demonstrated that the value of the courts, especially in times of crisis, cannot be a matter of debate. There are three illustrations from the period under lockdown that support this proposition.
First, the watchmen argument. That, without the fear of review or supervision, certain members of the police force may fall prey to dictatorial tendencies. Images of policemen zealously using lathis or visiting medieval humiliations on violators who have stepped out for legitimate purposes of buying medicines or groceries, have been disturbing. Some states, like Punjab, sought to take immediate corrective action when these incidents were brought to the notice of the state’s leadership, but others offered no apology or explanation. Violence has no place in a civilised society and the boundaries of State power or the interpretation of how elastic the ambit of section 144 of the Code of Criminal Procedure is, cannot be left to the varying consciences of the political leadership in different states.
Second, the courts are the last refuge for the voiceless. In the first week of the lockdown, the SC on its motion passed a far-sighted order, directing the release of undertrials in custody for non-heinous offences. Another example is that of the Delhi High Court directing (two days after the announcement) the free treatment of an 18-month-old child with a rare illness. Ensuring justice when constitutional and statutory rights are especially vulnerable is a principal function of the judiciary.
Third, the review of arbitrariness in State action. In a country as large as India, policy conception often collides with implementation. There is a real temptation on the part of certain officials to choose convenience over constitutional safeguards. This concern is also what preoccupies a large part of the fields of constitutional and administrative law. The lockdown was a measure supported by all political parties, but as issues of migrant and unorganised sector workers grew in size, different states responded with measures that ranged from humane — waiving transport costs and rents and providing food — to the draconian — spraying migrant workers and excessive use of force. The SC passed detailed directions last week (before declining to intervene further in another later petition) to address these concerns, but imagine if it hadn’t. The power to make policy does not exempt the government from ensuring that it satisfies the rigours of Article 14 of the Constitution; that State action must demonstrate the application of mind that it must be free from malice, and above all, must not be arbitrary.
There is an oft-cited caution attributed to Benjamin Franklin, “Those who sacrifice individual liberty to secure a temporary safety, deserve neither.” In a country of over a billion individuals battling an unprecedented epidemic, this might be a tad harsh, but it contains a relevant warning that will have a bearing on the nation that emerges from this crisis. It is not just the State that will be judged by its handling of the crisis, but also the courts whose legacy will be defined by how, even in a crisis, they ensured that the Constitution reigned supreme.
On a separate, but related note, it must also be observed that the rapid Covid-19 response measures introduced by the SC and followed by other high courts have demonstrated that technology renders several of the old formalities obsolete. The SC has also come up with detailed guidelines for this to continue when normal hearings resume. Filing remotely through an online portal addresses excessive paper usage, while helping reduce overcrowding. It is also faster. The proceedings using video conferencing demonstrate the efficiency with which an argument can be concluded. True, this lacks the majesty, the pageantry and the thrill that comes with the prestige of arguing in historic courtrooms.
But it is a swifter route to justice.