Judiciary’s Response to Covid: Justifiable or Overreach ?

By Aditya Pratap, Lawyer in Bombay High Court

Allahabad  High Court’s order directing the Uttar Pradesh government to impose lockdown in 5 selected cities   till April 26 (which has now been stayed by the Supreme Court) and Delhi High Court’s order to ban industrial use of oxygen may invite questions over the validity and binding value of such orders.

The Powerful Tool of Public Interest Litigation:

The above two actions were a result of Public Interest Litigation or PILs. PIL is a powerful tool developed by our judiciary during the 1980s with the view of providing representation to the marginalised section of the society  and was developed opposed to the rule of locus (Under which a person has to prove personal interest in the case).

Justice P.N. Bhagwati evolved the concept of “public injury” and allowed a public spirited citizen to approach the court for redressal of public injury relating to the environment, human rights, administration of justice, arbitrary action of the executive, investigation of cases involving persons occupying high-public offices, etc.

Despite wielding such great powers, the process to initiate a PIL is quite simple. Sometimes a Private Plea can be turned into a PIL or even a letter can be an initiation of a PIL.

as observed in Sunil Batra v. Delhi Administration.

There are various areas where a PIL can be filed. For example:

  • Violation of basic human rights of the poor
  • Air or water Pollution
  • Implementation of a Law
  • Content or conduct of government policy
  • Compel municipal authorities to perform a public duty.
  • Violation of religious rights or other basic fundamental rights.

The Power of Judicial Review:

The Supreme Court and High Courts have power of judicial review which empowers them to declare any law passed by the Parliament or action by the executive in contravention of Fundamental Right to be invalid and strike down such law or the  part of law which infringes upon the fundamental rights of citizens or persons. The remedies are available under Article 32 and Article 226 in the form of writs. Article 144 embodies an express obligation on civil and judicial authorities in India to act in aid of the Supreme Court.

It has been held that writs mentioned under article 32 and 226 are illustrative in nature and the courts are fully authorised to issue such orders and directions as they deem necessary for proper administration of justice fitting  to requirements of each case.

This power is mainly exercised by a very potent tool forged by the Judiciary, which is, Public Interest Litigation or PIL.

Exercise of Judicial Review:

Judicial review generally speaking is in three specific areas:

  1. Judicial review of legislative action;
  2. Judicial review of executive or administrative action;
  3. Judicial review of judicial action.

India forms a Federal structure of governance of which separation of powers of different governing bodies is a prerequisite. Though the nature of judiciary causes it to have a final say when it comes to interpretation of the constitution and derived statues. The previous statement makes amply clear that this power can cause Judiciary to overpower other two components that are Legislature and Executive.

 What is Judicial Activism:

Separation of power is the basic and unshakable tenet of Federalism. The concept ‘Judicial Activism’ owes its origin to Judiciary’s exercising its power of Judicial review especially its adjudicatory powers under article 32 and 224.

The issue arises because even though all three domains of the State are superior in their own sphere, it is only the Judiciary that can scrutinise the work of other two branches but no one is authorised to scrutinise the work  of  Judiciary.

Judicial activism in general terms is the process of judicial decision making based on personal social or political ideology. It generally involves judicial participation in law making processes or matters relating to policy issues, sometimes leading to overruling of existing law and creating new legal doctrines.

Due to its  nature, power of the Supreme Court is in favour of a democratic set up if Courts were to be cautious and exercise Judicial restraint so as not to tread in the realm of Judicial adventurism.

As of now, the balance has been maintained between the three branches except in the to and fro between the Judiciary in the legislature caused over amending powers of the legislature under Article 368 which started with Shankari Prasad v. union of India and ended with Keshvanand Bharti v. state of Kerala.

Judicial Legislation:

There are very few instances of Judge made laws in India and Jurisprudentially speaking

The validity of Judge made laws remains in question as, in legislating, judiciary oversteps its boundaries. One of the famous example is the case of Vishkaha v. the State of Rajasthan, under which the Supreme Court drew guidelines to deal with sexual harassment of women at workplace.

View of the Executive:

In a recent reply by the government to the Supreme Court enquiring about production of vaccines and why it cannot be ramped up the government assured the Supreme Court that the production is being gradually ramped up and added “the executive functioning of the government needs discretion to formulate policy in larger interest.” and “ in the view of the unprecedented and peculiar circumstances under which vaccination drive is devised as an executive policy, the wisdom of the executive should be trusted”

With increased filing of PILs and in turn increased questioning of the government by the Judiciary has created a schism between the two organs.


The main thrust of the criticism is that the judiciary by its directives to the administration is usurping the functions of the legislatures and of the executive and is running the country and, according to some, ruining it. What these critics of the judiciary overlook is that it is the tardiness of legislatures and the indifference of the executive to address  itself to the complaints of the citizens about violations of their human rights which provides the necessity for judicial intervention.

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Aditi Dixit.

Cases argued by Aditya Pratap can be viewed here.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.

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