Covid Lockdowns: Why Yogi Adityanath Must Push Hard Against Allahabad High Court Over-Reach

India’s courts have become a law unto themselves. This is largely thanks to articles 142 and 226, which allow the Supreme Court and the high courts respectively to not only function as courts of appeal, but constitutional courts. This means they can not only interpret the Constitution but also make the law, and order governments to do what they think is right.

The latest to cross that fine line between upholding citizens’ rights under the Constitution and deciding how exactly those rights should be protected was the Allahabad High Court. The court ordered a total lockdown in five cities of Uttar Pradesh — Prayagraj, Kanpur Nagar, Lucknow, Varanasi and Gorakhpur — until 26 April.

This is judicial over-reach, plain and simple. High courts cannot simply use their own judgements on whether state governments are doing their best to contain Covid or not when there is no single widely accepted solution to the problem of rising infections. Governments have many ways to tackle the same issue without draconian lockdowns and the jury is still out on whether there is one best way to do it.

If the Allahabad High Court had jurisdiction over Sweden, it would have ordered deadly lockdowns, when the Swedish government and national health authorities believe that promoting safe behaviours is better than shutting down all human activity in the name of containing the virus.

And what will the High Court do if state GDP (gross domestic product) collapses, and revenues dry up? Order the central government and the state to forget about the fiscal deficit and print money?

It is one thing for courts to draw attention to the needs of the poor, quote another to pretend that they have the answers. There is a difference between being called to protect constitutional rights, and pretending that the judiciary has the wisdom to decide how exactly that must be done.

In an order yesterday (19 April), a two-judge Allahabad High Court bench comprising justices Ajit Kumar and Siddhartha Varma made uncalled for remarks about the state government.

LiveLaw quotes the judges as saying: “In any civilised society, if public health system is not able to meet the challenges and people die for want of proper medication, it means there has been no proper development. Health and education go side-by-side. Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people… Before (the pandemic) further spirals to engulf in it the entire population of these badly hit districts, it is necessary to take some harsh steps in larger public interest.” (Italics mine)

The irony in this statement missed the two judges. If a democracy is of, by and for the people, how does an unelected judiciary come in-between? Can unaccountable judges decide what is right in a democracy beyond interpreting the law and the Constitution? If elected representatives are ultimately accountable to the people, the people will get rid of them if they haven’t performed well? Why should the courts decide whether the Yogi Adityanath government has done well or not? And who will decide if the courts themselves don’t do their own jobs well?

The Adityanath government has pushed back mildly against this kind of judicial bullying by pointing out that the government’s mandate is not limited to saving lives. “Along with saving lives, the livelihood of the poor has to be saved. Therefore, there will not be a complete lockdown in the cities. People are automatically shutting down many places willingly,” said a state government statement.

The Adityanath government should push harder, and, if necessary, contest the endless powers being claimed by courts to force elected governments to do something which may – or may – not be in the best interests of their people.

The problem laws in the Constitution are articles 142 and 226. The former relates to the powers of the Supreme Court, and the latter to high courts.

Article 142 has this to say:

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.

( 1 ) The Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe[JR1] .

Put simply, the Supreme Court can make the law just like Parliament can.

Article 226 has this to say:

226. Power of High Courts to issue certain writs.

(1) Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

If the right to life is considered a fundamental right (which it truly is), the high courts can order almost anything. The problem comes when rights are enforced not for specific individuals who claim violations by the state, but when the rights of one are affected by the rights of another.

When it is a judgement call on balancing lives against livelihoods, where the latter too impacts lives, surely the courts cannot decide what elected governments with access to detailed data and advice from experts should be doing.

If the courts believe governments are not doing their jobs, it can direct them to take decisions or make laws in the quickest possible time. It cannot make those laws or order the imposition of its own rules arbitrarily. That would be kritarchy, or rule by the judiciary.

We need constitutional amendments to limit the powers of the higher judiciary to needlessly wander into executive and legislative terrain in the name of doing justice. It is fine for the courts to ask government to fill a gap in the law, or call for a new law; it is not fine for courts to do the jobs of the executive and the legislature.

Adityanath must push back, and push back hard. At the end of the day, the voters of Uttar Pradesh can decide if he is good for them or not. Or whether he handled Covid well or not. It is not for justices Ajit Kumar and Siddhartha Sharma to make that judgement call on Adityanath’s behalf.