This talk was delivered online on 16 May 2020 by the Constitutional lawyer, Adv. Prabhakaran Ramachandran on “The Rule of Law during the Corona Pandemic” at the Amity University.
“For the rule of law to prevail, we need to have a legal system in place. What would be the position of a country or territory in the absence of any laws? A famous jurisprudential expert, Thomas Hobbes, in his book Leviathan, imagines such a scenario. And he comes up with an answer, that you need to have a legal system in place because man is such a cruel, nasty and brutish animal in nature. He says that if you do not have a legal system in place, man’s life will be short and nasty. In order to enforce the rule of law, we need to have the concept of law.”
“In the days before the advent of the Anglo-Saxon jurisprudence in our part of the world, justice, was delivered by the King himself. He not only administered his country but also delivered justice. Once upon a time, a cow went to the King’s palace and rang the doorbell to complain that the prince had killed her calf by his chariot. The King ruled that his son, Neethivendan, should also be killed in the same manner as a punishment so that the King himself would undergo the pain and agony of losing an offspring. Such was the rule of law. Justice was rendered similarly in another situation also. King Pandian Nedunchezhiyan delivered a wrong judgment and punished Kannagi’s husband, Kovalan. When she came to the throne and challenged the King, he realized his mistake and gave up his life for delivering a wrong judgment.”
“At the time of enactment of the Constitution, the people were made the supreme power, the sovereign, and people alone could exercise the power and not the government. So when the powers are given to the people at large, they act as sovereign masters to protect the interests of the public. Immediately after the outbreak of the Pandemic, India followed the entire globe because of the threat and fear psychosis. It became a question of life versus livelihood. And there emerged two theories: a section of the people said that we should not have a blanket ban and another section supported the ban by saying that it was a question of saving lives. A big debate ensued thereafter.”
“If you look at our constitution in particular, it only talks about the security of the State. It does not even talk about other eventualities such as a global Pandemic. In case of a forest fire, for example, you do not have the time to debate and discuss things. You have to take some stringent action immediately and it could be justified to an extent. But this Corona virus seems to be an epidemic in nature and it could continue for months and months. And the World Health Organization has just announced this novel Corona virus may mutate and continue to haunt us in perpetuity.”
“Are we then going to restrain or curtail the rights of individuals in every sphere of life forever? This is the question which everybody has to think about. The issue of sanitation and health is included under the state schedule. But disasters are managed by the National Disaster Management Act and it talks about specific areas of disaster. When the Pandemic is spreading like a wildfire, are we supposed to apply the same act and implement uniform standard throughout the country? If you analyse statistical data such as the morbidity, death rate and so on in various geographic locations, it doesn’t seem to be uniform. The central and state governments themselves have identified red zone, yellow zone, green zone etc. Depending on the severity and the intensity of the disease, they have given various classifications.”
“So the rule of law is based on written documents such as our Constitution. Then there are statutory enactments carried out by the legislature time and again. Apart from the necessary enactments, there is the notification system. Yet another important thing is the judge-made law. Judges not only declare or expound the law; sometimes they also say what the law is and regulate certain procedures.”
“Technological innovations during the time of Novel Corona have proved to be very convenient in certain ways to uphold the rule of law. Since we are living in a virtual world, the rule of law can be established by utilizing the recent developments in science and technology. In India the Supreme Court as well as many other courts is functioning online. This modern technology has got its own pitfalls also. But in every adversity, there is an opportunity. Now the courts can function even on Saturdays and Sundays. Because of the technological advancement lawyers and litigants can remain wherever they are, use an appropriate App (application), and take part in the court proceedings. My friend, Justice A. H. M. D. Nawaz of Sri Lanka said to me that he was having physical appearance in the Court of Appeal in his country despite the Pandemic as he was concerned about the rule of law there. According to him, people could not sit in the dark without their right of having a redressal mechanism.”
“Now even the Supreme Court itself has come under a lot of criticism because petitions filed by journalists like Arnab Goswami and other such people are being heard immediately. But many other important cases with larger burning issues that require immediate attention from the court have not been taken up. For example, the plight of migrant labourers is a grievous issue and the court should have really stepped in. The court should not have left it to the whims and fancies of the executive authorities.”
“So to sum up, I would like to say that the Law is the King and not the King is the Law. None is above the Law and the Law is above all of us. So let us respect the Law, obey the Law by our rationality and due diligence of thought and temperance. Thank you.”