COVID-19, the novel coronavirus has been the talk of this year. Mankind has come to a standstill with global superpowers losing in the war against our unseen enemy. With no effective measures to contain the raging onslaught, nations have turned to total lockdown as the only possible defensive solution that exists as of now. The results have been positive with nations that have enforced an earlier lockdown, faring better at containing the COVID-19 spread, than those like the U.S.A. which resorted to lockdown as a desperate last measure and hence the high spike in positive cases. Having said this, a lockdown is not a positive measure when we look at it from the economical, social or legal sense. A high cost has to be paid, where every other activity comes to a halt and the masses are left with no choice but to go behind their doors. In an economical sense, this means unprecedented losses. The International Monetary Fund has predicted a 3% dip in the global economy. The human death toll stands at a staggering 3,53,334 deaths with 55,93,631 positive cases(Figures from 28th May 2020). Thus, what exactly is the role of the Judiciary and the Legislative during a pandemic? What will be its role after the outbreak is contained? What is the criticism against these organs of the Government? Have they utterly failed in their duties? Let us analyse in brief.
The Irreplaceable Role of the Judiciary and the Legislative
Before we even look into the ground situation, we need to understand the vitality and importance of the need for the organs of the government, especially the legislative to coordinate and operate in these tough times. Whenever any nation faces a crisis, the legislative is the first organ that comes into action, with its sole aim to devise an action plan and combat the crisis. The present situation is in no way different as mankind wages its war against COVID-19. This crisis is an unprecedented one, calls for immediate action from the legislative.
One of the major duties of the legislative is concerned with the lockdown in itself. With the lockdown and emergency measures being put in, there is an increasing trend on restrictions of all sorts, including those concerning the basic human rights of the citizens of a nation. In the Indian front, this is guaranteed under Article 14 of the Indian Constitution. The need for active legislation and judiciary managing these restrictions becomes the need of the hour.
Secondly, accountability for new laws enacted in this time frame becomes an issue. With most nations looking at passing emergency laws or measures to contain COVID-19 and revive the nation, the accountability for these laws or ordinances becomes a point of concern as most parliaments are not in session or running with a truncated number of parliamentarians.
Furthermore, the need to stabilize the health sector is another key priority. The Health Sector has been at the frontline of the battle ever since the first hotspot emerged in The Republic of China’s Wuhan. As stated earlier, this being an unprecedented, unparalleled onslaught, had caught the global health sector unaware. Subsequently, a huge amount of burden has been placed on the health sector for well over six months now.
Even so-called developed Western nations like the U.S.A., Italy and Spain failed miserably in the battle against coronavirus courtesy of the burden on the health sector and it ultimately breaking down. Furthermore, a study published in The Lancet Journal presented the concerning possibility of the COVID-19 mortality rate being directly proportional to the health-care resource availability. In this bleak situation, the need to effectively stabilize the sector by formulating action plans for the professionals as well the equipment is a major concern. Looking at this issue from the Indian viewpoint, India was not producing a single kit of Personal Protection Equipment up until two months ago. Only after government intervention, today, India is the second leading manufacturer of PPE kits, as confirmed by the Ministry of Textiles. Thus, the abovementioned issues are some of the key ones, calling for active intervention and participation of the Judiciary and Legislative.
Ground Reality and Criticism- Have the Judiciary and Legislature gone silent?
Having discussed at length about the importance and need for the Legislature and Judiciary to step in, we turn our eye towards the ground situation. Right since March, Courts, Parliaments and Government Offices have shut down or have started functioning in a truncated manner, all over the world. This has posed an unprecedented emergency to the legal fraternity and common men alike, as it is the Judiciary, Legislative functions and the Administrative functions in turn, that have come to a standstill across the world. This has indeed posed a dual challenge to all the nation-states around the world. On one hand, there is a raging pandemic, gripping the state, calling for immediate action and co-ordination from all three branches of the government and on the other hand, there are the lockdown measures and social distancing guidelines makes it next to impossible for the legislative or judicial activities to commence in an unhindered manner. At this juncture, with an extremely concerning situation at hand, let us try to look at how different legislatures and judiciaries around the world have been approaching the situation at hand, before looking at the criticism on the same.
A considerable amount of criticism has been placed on the legislatures and judiciaries of various nations for its inefficiency in tackling COVID-19. Taking the first major concern at hand, legal rights in lockdown, a chilling increase in human rights violations can be seen across the world courtesy of the Legislative and Judiciary inaction. India has been the poorest performer in this case, with a large migrant population stuck at various parts of the country, in deplorable conditions, no soul could even imagine of. Though the Government seems to have stepped in as a late resort with its relief packages and other measures, the Indian Parliament has not convened since it decided to shut down on the 24th of March, at a time when all the nations were deliberating on action plans to combat the deadly virus. No efforts whatsoever were taken by the Government to revive and convene the parliament, virtually or physically. Several Senior parliamentarians such as Shashi Tharoor and Trichy Siva have questioned and criticized this lack of interest from the government in ensuring that the legislative process continues.
The Judiciary has also come under severe criticism from the legal fraternity in this regard. The migrant crisis and the violation of their basic human rights in many cases have gained widespread international attention with cues echoing from all corners of the world. The latest critic of the Judiciary in this regard came from Senior Advocate Dushyant Dave who went on to term the judiciary’s response as a virtual silence and that “it had left citizens to fend for themselves”.
He then went on to elucidate that every citizen of a nation was, in fact, a grandchild of the Supreme Court of India. Only after such strongly-worded criticism on all corners, the Judiciary stepped in with a Suo moto cognizance of the migrant worker crisis and passed on various orders to the Centre and the States, asking them to food, transport and shelter to the migrant workers and to ensure that their rights are not violated in any aspect whatsoever. Thus, in this regard, we might be forced to believe the alternative that the Judiciary has failed to step in as a crusader for rights, when it was needed the most, in a pandemic situation.
Looking at the accountability debate, the criticism has been based on the legal backing of the legislation, especially the emergency ones that are being put forward by legislatures across the world. One that aroused sharp criticism was the white paper issued by the Government of U.K. regarding the time-limited Coronavirus Bill. The same talks about using emergency powers to control the COVID-19 situation. The Bill is expected to have a period of two years and is expected to contain provisions that allow all four governments of the UK to enforce emergency measures in place or withdraw the same based on the advice given by the Chief Medical Officers of all the four nations. While the same is justified in an emergency, various legal jurists have expressed their concerns over the same. Dr Roman Cormacain, a Senior Research Fellow at the Bingham Centre for the Rule of Law, has expressed similar concerns and quoted as follows, “While no one can doubt the need for the use of emergency powers to protect lives in the face of such an unprecedented public health emergency, the Bill will still need scrutiny.”
Analysing the ground situation concerning stabilization of the health sector, there are shocking discoveries regarding the legislative and administrative inaction to the plight of the healthcare workers. The legislature has failed in its duty as a welfare state in various nations. One such instance was the Downing Street silent protest organised by Dr Meenal Viz against the UK government and its inability to provide essential personal protection equipment to the frontline doctors. Besides, a crowd-funded initiative, seeking judicial review of the same was initiated. In the Indian perspective, the pandemic did expose fatal flaws in the public healthcare system, as private hospitals took a careful stance at inducting COVID positive cases. The latest quarantine guidelines issued by the centre and certain states have been receiving sharp criticism as the Doctors went on a black band protest all over the nation on the 22nd of May. Such healthcare workers’ protests echoing around the world stand as a proof for legislative inaction and failure to stabilize the healthcare sector.
Thus, based on the above-presented data, it is evident that the legislature and judiciary has had a fair share of disowning responsibilities when the situation demanded the most. On and extended note, the bulk of the responsibility was transferred to the executive which has certainly not lived up to the expectations, with only the elected part functioning, that is the cabinet, functioning as the sole decision-making authority. The bureaucrats are being tasked with responsibilities beyond their threshold limit and one certainly cannot shift the blame game on them.
While the western nations seem to have flattened the curve and are working on a reopening, countries like India have seen a sharp spike in case count. However, the nations have to open up at some point and for this to be successful, all three organs of the government will have a major to play in the same. As quoted by various world leaders, the pre-COVID -19 and post COVID-19 world is never going to be the same. The nations must, therefore, look at all the possible ways to ensure the full-fledged functioning of its legislature and the judiciary. Nations such as Canada have come out with innovative measures such as the virtual convening of the Parliament. This will ensure that the legislative process stays unhindered. E- courts and video conferenced hearings have also become the order of the day. A quick fact! A Singaporean court was the first to pass a capital order via video conferenced hearings.
On an endnote, the legislative and judiciary ought to understand that escapism is certainly not the right response to an emergency. Law is not irrelevant even in the case of a public emergency. In saying so, the author is resonating with the views of eminent jurist Lord Justice Keene, which were conveyed by him on the titular Lions or Squeaking case. The same is a critic of the disuse of constitutional and legal rights by a vast majority of parliamentarians, jurists and bureaucrats of UK during the World War II period. Thus, beyond the rulebook, empathizing with the masses is highly crucial for any state to ensure successful instilling of normalcy in the post-COVID-19 world.
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