INTRODUCTION

Judiciary has many roles in this context like “Constitutional Morality”, “Constitutionalism”,
“Constitutional Oath” etc. So as one of the most important bodies in the biggest democracy of
the planate, the judicial body of India has a great responsibility in providing the “Social
Justice” and establishing the “Rule of Law”.

Role of the judiciary on constitutional morality during COVID-19 pandemic 

“The Constitution envisions establishing an egalitarian social order rendering to every citizen,
social, economic and political justice in a social and economic democracy of the Bharat
Republic.” The Honorable Supreme Court in its recent judgments has categorically followed
the principle of Constitutional Morality. In the case of the Naz Foundation, the Supreme
Court said that “only Constitutional Morality, not Public Morality should prevail.” In
the Sabarimala case, Honorable SC bypassed the “doctrine of essentiality” to uphold the
Constitutional Morality. So it is well evident that the Constitutional Morality will always be a
paramount reverence for the Constitution and thus the framers of the Constitution wanted to
have a moral binding over the constitution to every citizen of the country and especially over
the judiciary of the nation. The role of the judiciary is to ensure that in any way the
Constitutional Morality gets compromised by the action or inaction of the executives. During
the pandemic of COVID-19, we have seen that many actions like not very well planned
lockdown and in-actions like initially being lackadaisical to the migrant laborers from the
side of both the Central government and State governments has resulted in compromising
with the social, economical, and political justice. In this context, the judiciary should play its
role by monitoring the governments and ensuring its citizen's social, political, and
economical rights.

Role of the judiciary to conserve constitutionalism during the pandemic 

Constitutionalism is “a compound of ideas, attitudes, and patterns of behaviour elaborating

the principle that the authority of government derives from and is limited by a body of
fundamental law”. Constitutionalism is the antithesis of arbitrary power. It balances the
power of the legislature and executive and restrains from getting arbitrary.

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Constitutionalism provides fundamental rights to the citizens and power of judicial review to
the independent judiciary of the country. Now the judicial body of the country must protect
all the fundamental rights of a citizen and restore the Rule of Law in the country.

In the recent pandemic of COVID-19 of we have witnessed several situations where migrant
laborers were returning to their hometown by walking on the roads without having any
money or even food for days. This is clearly against Constitutionalism and the judicial body
of the country had a role to supervise this extremely tragic catastrophe and as a guardian of
the Constitution judicial body should play a role to ensure social, political, and economical
justice.

Role of the judiciary to protect fundamental rights during the pandemic

The Constitution of India has provided various rights like Fundamental Rights and
Constitutional Rights. In Part III of the Indian Constitution, the Fundamental Rights are
provided but all these rights are not absolute so we have witnessed the abrogation of
Fundamental Rights on various occasions like an emergency. Some Fundamental Rights that
has been affected because of the pandemic has been discussed below: 

Equality before law

Article 14 of the Indian Constitution provides that “The State shall not deny to any person
equality before the law or the equal protection of laws within the territory of India.”

Here the article establishes the doctrine of “Rule of Law” and in other ways prohibits the
state from taking any arbitrary action by protecting laws to any person. But during the
pandemic we have seen that governments have failed to establish “Rule of Law” many times
in recent times during the pandemic in terms of injustice to the daily laborers, migrant
laborers, preventing corruption in the ration system, etc.

Right to move freely throughout the territory of India

Article 19(1) (d) provides that the citizen of the country has a fundamental right to move
freely throughout the territory of India. 

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But during the “Janata Curfew” and “Lockdown” period government has taken away the right
provided by Article 19(1) (d) i.e. Right to Free Movement without providing enough time to
get settled down to its large number of poor people and the government has not provided
enough assistance to them.

Protection of life and personal liberty

Article 21 provides that “No person shall be deprived of his life or personal liberty except
according to procedure established by law”.

In the case of Maneka Gandhi v. Union of India, The Honorable Supreme Court interpreted

“Right to Life” as “Right to Life with Human Dignity”. But this dignity has been
compromised during the pandemic by the government various times like death by walking
miles without food during the lockdown, failure in many ways in terms of providing proper
assistance like food, shelter, and more safe arrangements for migration to the needy and
distressed people during the lockdown, etc. 

The above-mentioned rights are not absolute but also can’t be taken away arbitrarily and the
Constitution will lose importance if fundamental rights are not protected. Here comes the role
of the judicial body to protect the Fundamental Rights and restore the “Rule of Law” in the
society. The fundamental Right prescribed in Article 32 empowers the Supreme Court and
Constitutional Right prescribed under Article 226 empowers High Courts of the respective
states to issue a direction, order, and writs for enforcement of Fundamental Rights and other
legal rights. Under Article 131, the Supreme Court of India has the power to take cognizance
of any dispute whether of law or fact where legal right depends. But when all the above-
mentioned fundamental rights were taken away with some arbitrariness the judiciary must
have a function and should play the role of guardian of fundamental rights in every possible
way. Article 142(1) of the Constitution provides power to the Supreme Court to pass any
decree or order to do complete justice. So using these very wide powers the judiciary had the
opportunity to pass orders earlier to provide justice to the citizens of this nation. 

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Role of the judiciary on COVID-19 testing and providing health facilities

The World Health Organization has advised countries to ‘test, test, test’ for Coronavirus.
Testing aggressively every person especially at the “Red Zone” and “Orange Zone” is a must
to tress all the COVID-19 positive patients which will allow health services to quickly come
into action and start treatment for him and it will also help the surrounding people from
getting infected. In a country like India where the population density is 382 per sq km, the
chances of community transmission get higher so rigorous testing was needed to stop the
community transmission. And this testing was expensive in the private labs of many states of
India. This was a clear violation of Article 14 of the Constitution as this high price of testing
is unreasonable and arbitrary. But in this context Honorable Supreme Court while playing its
role has directed the central government to issue guidelines to make free testing of Covid-19
in the private labs for people belonging to the economically weaker sections. This order of
SC has helped in the restoration of Fundamental Rights of the economically backward
people.

Role of the judiciary to ensure justice delivery during COVID-19 pandemic

“To delay Justice is Injustice”. When justice is not delivered in a timely fashion, then it is
equivalent to injustice. So to ensure justice during the lockdown period Honorable Supreme
Court and High Courts have taken the medium of digital platform. SC holds virtual courts
through videoconferencing to hear urgent matters, even almost all the High Courts of every
state. This is a very positive step towards ensuring the justice delivery system of our country
and the role played by the judicial body is very timely and progressive. But this system needs
to be more disseminated with more accuracy.

Conclusion

The role of an independent Judiciary in a vibrant democracy is one of the most crucial
elements to protect the rights of the people. Dr. B.R. Ambedkar said, “The Judiciary to a very
large extent is not concerned with the executive: it is concerned with the adjudication of the
rights of the Government of India and the Units as such”. The framers of the Constitution of
India wanted the judicial body to supervise action and in-action of the legislature and
executive body and that’s why the Constitution of Indian has provided the Judiciary with a

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very important duty to protect every citizen’s right. Article 142 of the Indian Constitution
empowers the Apex Court to issue any direction, pass any decree, or make any order, as is
necessary for doing complete justice in any case. Article 131 also empowers the Supreme
Court to take cognizance of any dispute involving legal rights. The Heart and Soul of the
Indian Constitution Article 32 empower Supreme Court to issue a direction, order, and writs
for enforcement of Fundamental Rights and Article 226 empowers High Courts of the
respective states to issue a direction, order, and writs for enforcement of Fundamental Rights
and other legal rights. It is evident that the framers of the Constitution have given so much
power to our judicial body and as great powers come with great responsibility the role of the
Judiciary becomes more and more important. Since independence, the Judiciary has protected
people’s rights and established social justice again and again. In this pandemic also we have
seen that the judicial body of the nation has taken many steps like issued notice to the central
government and respective governments of Delhi, Maharashtra, Tamil Nadu, Gujarat, and
West Bengal for the deplorable situation of COVID-19 situation in those states, directed the
center to issue guidelines to make free testing of Covid-19 in the private labs for people
belonging to the economically weaker sections and conducted virtual courts to ensure justice
during the pandemic. Thus the judicial body of the nation has walked in parallel with the
“Constitutional Oath” and has established social justice to some extent. But in some areas
like economical, social, and political rights of migrant laborers, the ineffectiveness of the
executive body in ration distribution and corruption in the public health sector the judiciary
could have taken decisive steps earlier during the complete lockdown to guarantee all the
rights to all its citizens and upheld “Constitutionalism” above all.

References

 Don E. Fehrenbacher, Constitution, and Constitutionalism in the Slaveholding

South (University of Georgia Press, 1989)  Page-1

 Charles H. Mcilwain, Constitutionalism: Ancient and  Modern, 21

 Coronavirus: With no money or food, laborers walk miles to reach hometowns in

the hope of survival”. –India Today. 

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 “Covid-19 crisis and India’s ration story: Mounting stocks and hungry mouths” –
Business Standard.

 “Covid-19: At least 22 migrants die while trying to get home during lockdown” –
www.scroll.in.

 “Constitution will lose importance if fundamental rights not protected, says SC” –
Economic Times. 

 “World Health Organization has called on countries to ‘test, test, test’ for
Coronavirus” –World Economic Forum.

 “Population Density” –www.knowindian.govt.in

 “SC modifies earlier order, says free Covid-19 testing only for poor” –Times of
India. 

 Penn, William (1693), “Some Fruits of Solitude”, Headley, 1905, p.86 

 “Supreme Court explore ways to set up more virtual courts to ensure justice
delivery” –Economic Times. 

 COVID-19 situation in Delhi, Maharashtra, Tamil Nadu, Gujarat and West Bengal
‘deplorable’: SC” –www.healthcareradius.in