Role of Judiciary During Health Emergency

Author:- Sahil Verma

Emergency Provisions are contained in part eighteenth of Constitution of India. Indian
Constitution deals mainly with national emergency, state emergency and financial emergency
under article 352, article 356 and article 360 respectively. The power to declare emergency is
vested in president of India. Emergency is imposed in that condition when the country is facing
problem related to external aggression, financial problem, Internal problem like inter state
conflicts and health emergency, armed rebellion.

What is Health Emergency?

The pandemic situation where the health of public at mass is at risk. A large number of people
got affected with same disease at same time. It may be due to the negligence of humans but most
of the times pandemic occurs naturally. To deal with such harsh situation health emergency is
imposed. Actually, health emergency is imposed to safeguard the life of public at large. Each
country is required to establish a National International Health Regulations1(IHR) Focal Point
accessible at all times for communications with WHO.2 If any member country of WHO detects
any disease related events occurring in their territory which may constitute a public health
emergency of international concern, it has to notify it to WHO. 3 If the disease is communicable,
the safety measures should be taken to stop its spread.

Current Status of IHR in India

National IHR Focal Point in India is National Centre for Disease Control (NCDC) under the
Ministry of Health and Family Welfare. Objectives of IHR requires an effective system for
mitigation, containment and recovery with a multi-dimensional approach. NCDC has been
working at capacity-building and integration of data. The periodic collection and analysis of
district-wise data from different states is a useful starting point to monitor and report outbreaks.

Power of Judiciary during Health Emergency

1
A rule of order having the force of law, prescribed by a superior or competent authority,
relating to the actions of those under its control.
2
Chapter 11, IHR(2005)
3
Article 6, IHR(2005)
Legislator makes the law and Judiciary takes care of it. If any government policy is violating the
existing law, judiciary comes into action and directs government to ammend its policy. Judiciary
works freely in accordance with the established procedure.

The court or judiciary plays a very important role during health emergency. The court can issue
certain orders in order to protect the action which is passed by the government. Courts may also
intervene to restrain public health actions that are determined to unduly interfere with civil
rights. The court has the power to appoint public health officers in health emergency so that they
can take proper actions. They must be well versed with the law and order related to the health
emergency situations.

An infectious disease outbreak may cause public health officials to subject individuals or groups
to involuntary civil confinement, such as isolation, quarantine, or other compulsory “social
distancing” measures. Right now we are facing a very pandemic situation arises due to COVID
19 or Corona Virus. Government make various guide lines to wear mask, gloves, to maintain
social distancing etc. The court is under obligation to see that the rules are being followed by
people. In present situation we know that Tabligh-e-jammaties played main role in spreading
COVID 19. So, the court has taken action under section 188 of the Indian Penal Code
(disobeying public servant's lawful order) against jammaties. All those who have been directed
by healthcare personnel to remain under strict home or hospital quarantine "shall comply with
the directives failing which they will be liable to face legal action under section 188 of IPC", the
order said. Violation of section 188 attracts jail term of one month or fine up to Rs 200, or both.
If the "disobedience causes danger to human life, health or safety", the person can be punished
with six months' jail term and a fine of Rs 1,000 or both. We can see daily on news channels
about the violation of rules of social distancing. In some parts, police had to resort to lathi-charge
to stop people from violating the lockdown protocol. This power is given by the courts to the
police if the public will not understand politely then they can use reasonable force against them.
The courts remain open during this critical situation.

Responsibilities of Judiciary in Health Emergency

As the judiciary has power to direct the administration during health emergency, it also has
responsibilities too. It is necessary that judiciary should take care of its responsibilities in order
to maintain justice even during emergency. In health emergency or similar situation it is
responsibility of judiciary to take cognizance of public health care matters and to give reasonable
judgements. Judiciary is also responsible to give sociological lawful judgements. The purpose of
pronouncing sentence to someone is to set an example in the society. So, that the same crime
should not be committee again and for this judiciary is required to pronounce the judgement as
soon as possible. Power of “Judicial Review” is conferred to Indian judiciary under article 13,
part III of Constitution of India. The court can review its own decision in case of dissatisfaction.
This shows the great level of responsibility conferred in judiciary to deliver justice. For
conducting the proceeding of court during health emergency, it is required to make a Judicial
Action plan in order to avoid threat calls and videos to Judges, Lawyers and other court staff.
Judicial action plan is also needed to maintain the decorum of court.

If we look at some of the cases in ongoing pandemic, irresponsibility of judiciary can be

encountered. (1) Delhi police booked two students under the Unlawful Activities (Prevention)
Act, in a case related to communal violence in Delhi over the Citizenship (Amendment) Act of
2019. Article 22 of the Constitution guarantees every individual the right to consult and to be
defended by a legal practitioner of their choice upon being arrested or detained in custody by the
state. While arrests by the police are rampant, legal protection has almost vanished on account of
non-functioning lawyers and courts.4 (2) Videos of police forcing persons to perform push-ups
and squats and vandalising vegetable carts are evidence of arbitrariness. The ease with which we
have given up on the principles of rule of law is deplorable. 5 (3) National Commission for
Women has reported an increase in domestic violence.6 To stop these unlawful things, A
comprehensive response should have outlined the minimum judicial infrastructural requirements;
priority of cases; enforcement of physical distancing guidelines; personal permitted to enter
court, police station, prison etc. Justice must not become a casualty to the pandemic.7
Limitations of Judiciary During Health Emergency

4
www.thehindu.com
5
Nationalpost.com
6
www.deccanherald.com
7
Thehindu.com
Power of the court is limited. The court cannot act “Ultra Vires”. The court cannot act beyond its
legal authority. The court can only stop the worng policies of government and can only suggest
them about their wrong policies. The court is not authorized to enact its own policies instead of
government policies. The court can deal only those cases with Disaster Management Act, 2005
which satisfies the definition of disaster given in section 2(d) of the act.

The chief justice has authority to declare a judicial emergency when there are emergency
circumstances affecting one or more court facilities. Provides the order declaring a judicial
emergency shall be limited to an initial duration of 30 days, but may be modified or extended for
additional 30-day periods.

During the health emergency the courts cannot ammend the basic structure of the constitution,
although it has the power to give a better definition of fundamental rights as already provided in
the constitution according to the present need of the society. The courts have very well
interpreted article 21 to include Right to Health in cases of emergency. The power of court is
also limited in the aspects of emergency medical care. In the case of Parmanand Katara v.
Union of India8 is the first of the case dealing with emergency medical care. A case which was
filed by a human right activist seeking directions against Union of India that every injured citizen
brought for treatment should be instantaneously given medical aid to preserve life and thereafter
the procedural criminal law should be allowed. There is no legal impediment for a medical
professional when he is called upon or requested to attend to an injured person needing his
medical assistance immediately. Every doctor whether at a Government hospital or otherwise has
the professional obligation to extend his services with due expertise for protecting life. No law
or State action can intervene to avoid delay and discharge of the paramount obligation upon the
members of the medical profession. The limitation on judiciary is not to intervene in discharge
paramount duty of medical professionals.

It is duty of the state to ensure supply of good quality drugs during health emergency. In the case
of Vincent Panikurlangara v. Union of India9, In this case a public interest litigation was filed by
Mr. Vincent Panikulangara, a lawyer for seeking a ban on the import, manufacture, sale and
8
AIR 1989 SC 2039
9
AIR 1987 SC 990 ; (1987) 2 SCC 165
distribution of drugs which have been recommended for banning by the Drugs Consultative
Committee. The Supreme Court agreed that the issues raised in the petition were of vital
importance to the citizens. But it said: “Having regard to the magnitude, complexity and
technical nature of the enquiry involved in the matter and keeping in view the far reaching
implication of the total ban on certain medicines, we must at the outset clearly indicate that a
judicial proceeding of the nature initiated is not an appropriate one for determining such
matters.” The technical aspects which arise for consideration in a matter of this type cannot be
effectively handled by the court.

Conclusion
The judiciary has power to decide disputes related to public health. public health officials should
work with courts to develop contingency plans for resolving the issues. Judges and public health
officials can cooperate to ensure that actions taken to protect public health have a solid legal
foundation and respect the rights of individuals. Each individual violating the protective rules
must be punished. Courts are responsible to pronounce the sentence as soon as possible to
maintain the sociological aspect of punishing an offender. During health emergency courts
should deal only with important cases related to domestic violence and other cases occurring in
the present society. Judiciary cannot give judgements beyond its legal authority. Limited power
of judiciary appears in the case of Parmanand Katara v. Union of India and Vincent
Panikurlangara v. Union of India. Over all it can be said that judiciary means protector of
individuals right in all situation.