LOCKDOWN ORDER OF ALLAHABAD HC : TO CHEER UP OR TO RETHINK

Lock Down Order : Judicial Activism or Over-reach? 

Dr Anurag Deep, Associate Professor, ILI

In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive v. State of UP, April 19, 2021  

101 years ago Benjamin N Cardozo in his time honoured work wrote that "I take judge-made law as one of the existing realities of life." The DB of the HC of Allahabad has proved it right. It has directed lockdown in 5 cities in UP.  The order is in 23 para and has 12 directions. In obiter the HC has desired that complete lockdown be considered. They warned that if it is not done and situation so demands, the HC will do it. [Pl see original order here,  http://anuragdeepili.blogspot.com/2021/04/allahabd-high-court-lock-down-full-order.html]     

 The concern of the HC is praiseworthy. The judiciary is the strongest means of check and balance. HC (Allahabad) has shown more sensitivity than other HCs. The decision to lockdown is an executive decision but the govt in almost all states are avoiding it so that there is no repetition of the huge migration, and sudden unemployment. It seems the HC has not considered this situation. There are remarks like negligence by Govt but no reason has been given why the HC feels the Govt is negligent. Are all govt negligent? The HC must ve dilated on this part. My feeling is that all govts are trying their best bcz it is a matter of survival for humanity and any negligence will lead to downfall of the govt. The HC has pointed out that election was conducted and health was overlooked. This may be a strong point. The elections of Panchayat in UP could be postponed for six months. On this point I think there was a judgement error by the UP govt. But the same cannot be conclusively stated about State elections bcz putting off elections of State would ve created a constitutional crisis followed by art 356, which would have gone in favour of NDA govt. The order of the HC of Allahabad is very attractive but is a clear verdict on the policy and executive decision making. Both are not holy cow. Policy and non action by executive on vital matters of public interest and fundamental right to life can be a matter of judicial review. Judicial legislation in exceptional case can be tolerated. There is a reasonable possibility that the Govt of UP (and other govts ) also wanted the lockdown order. But the Govt was not able to take bcz of financial constraints, law/order issue etc. The order of the HC will help the govt to fight the pandemic. It will also help the frontline warriors like the medical practioners, the Police etc.   Is there anything to cheer up? Such orders are governance by judiciary. It makes the judiciary more powerful. If the Govt fails to contain the impact of pandemic, the govt will be answerable in 2022. The people will throw them out. If the Judicial order leads to more problem who will be accountable. The Judiciary must have directed the Govt to do something for daily wages workers, those working in Malls, in hotels. The order of the HC, even if it has been issued with very good intentions, has potential to deprive the right to livelihood of one crore people. (the joint population of five cities). 

What are the options for the govt. 

1. The govt can go for an immediate stay on HC order from a higher authority. This can be done within 24 hours. A couple of remarks by the HC will make the Govt uncomfortable. As the elections are going on this order will be used politically by the opposition. There is nothing for the UP govt to lose.  This suggests that the Govt of UP will go for appeal.   

2. The govt accepts the order as this will help the govt. 

3. The govt seeks some clarification from the HC, on the matter of chances of migration  and right to food of poor people. It may also seek to reconsider certain remarks made by the HC. 

In my opinion the UP govt should not make this a prestige issue. Elections are almost over. This decision can have little impact on elections. The govt should accept the verdict of the HC and plan a relief package with the help of central govt, NGOs and the people of India. This order of the HC may trigger other HCs to issue similar orders. The only danger is that the judiciary sometimes does not know when to stop interfering in executive domain. This order can be treated as a necessary evil in this extremely difficult time.