WHILE we as part of a global community have come together to fight the Corona Virus pandemic, the public health emergency should not become an occasion for bargaining away our fundamental rights.
Our public health policy must respect our human rights bearing in mind the proportionality of the restrictions we put in place and the restrictions must have a shelf life, an exit option. More importantly, our fundamental rights cannot be restricted or taken away by courts under Article 32 and 226 of the Constitution but by the law made by Parliament, which can then be tested in court for their validity. Courts exist to hold power within constitutional boundaries and not the other way round- executive power holding courts in an echo chamber of its own making. The legitimacy of the courts comes from the people and not from Governments. The courts must be aware that they are likely to lose that legitimacy, which will be the true end of the rule of law.
The vulnerable need courts the most, the unemployed, the migrants, and the toiling masses. They have neither private jets to fly them across state borders nor the money to bribe their way to a loaf of bread. They have only the law to use and the courts must stand by them. We, lawyers, are also front line defenders of the rule of law just as much as Doctors and health workers are front line defenders of the right to health.
By a strange quirk of fate, the Courts have become accessible to the remotest parts of the country through video conferencing and we must use this facility to defend the right to life and liberty in the time of the Coronavirus pandemic.
I am reminded of Justice V R Krishna Iyer who had said: “Gandhi, not Maxwell must be used for interpretation of statutes.” When in doubt, think of the last man, the poorest of the poor, that is the measure of justice that we seek.
Now is the time to stop all forms of vigilantism and reinstate the rule of law, which was getting slowly eroded through the back door of the Constitution so to say, under the watch of the Supreme Court of India.
We must respond not just as lawyers or judges but also as human beings first. The image of the Supreme Court’s judge Justice S Ravindra Bhat distributing food packets to migrant workers affected by lockdown on a highway shows us the way forward. Justice is as Justice does literally.