Today, two Acts – the Essential Commodities Act, 1955 (“ECA”) and the Essential Services Maintenance Act, 1980 (“ESMA”) read with Order by Ministry of Home Affairs dated, 24.03.2020 (“the Order”) – are guiding us to understand, what are the ‘essential goods‘ and ‘essential services‘ in this wake of the novel epidemic, COVID-19.

Pertinently, ESMA enlists defence; hospital and dispensaries; water; sanitation; and services related to purchasing, procurement, storage, supply or distribution of food-grains etc. as ‘essential services‘. Similarly, the Order of the Government moulds and earmarks several categories of services as ‘essential services‘ and non-essential for the epidemic. This list prescribes hospitals and hospital support services, defence, police, electricity, water, sanitation, bank, transport limited to essential goods or related to fire, law and order, and emergency services, as ‘essential services‘.

However, these classifications noted in ESMA and the Order, interestingly, does not provide judicial services by the Courts as an ‘essential service‘.

Though the operation of Court is not enlisted as an ‘essential service‘, multiple reasons can be appreciated for the government not enlisting and not suspending the operation of the Courts even in a time of such an epidemic, which has called for a complete lock-down, barring above-said ‘essential services‘. The first reason for the continuance of Court services may be attributed to them being a quint-essential in the pyramid of institutions to maintain the ‘law and order‘ whose maintenance is generally though ascribed to the police and the defence forces. The second reason is the separation and independence of the judiciary from the other two organs of the Government i.e. the legislature and the executive, inscribed under Article 50 of the Constitution of India, 1950. This empowers the judiciary to continue serving the people even during any of the national emergencies. Due to the independence of the judiciary, unlike legislature, the Hon’ble President or and other Constitutional dignitary or organ of the government, cannot suspend the judicial services temporarily or permanently under the Constitution of India or the Constitution of any other democratic country of the world, in any such exigency.

Last, it must be noted that the Courts are the ‘watch-towers guarding the liberty and fundamental rights of the citizens‘. It is this primary purpose for keeping the Court services subsisting even during such emergencies. The Courts continue to serve and surveil the arbitrariness in the acts of the other organs. The Courts make other organs work within the bounds of the Constitution and check any transgression on the fundamental rights of the people. Thus, these are the prime reasons for no direction from the government concerning continuation or temporary termination of judicial services despite the operation of the lock-down in the country in wake of the novel epidemic.

However, this does not mean that the Courts for their distinct position can continue working with the same conglomeration of advocates and litigants and that no Order or direction from the government binds the judicial services.

The non-operation of the Courts is first called upon, because of the inter-dependence, inter-obligation, and inter-responsiveness between the organs of the government within the constitutional bounds. A complete separation of power no inter-organ obligation is undesirable, impractical, and would only prone a system to deadlocks and inefficiencies. It is this congenial and compatible interplay between these organs, duty to check and balance the acts of each other, and the supremacy of human rights which allow and oblige judicial services to be continued, though only for urgent matters. It would be apposite to say herein that the Order of the government governs the judges as individuals and not the judges as a Court. Thus, the Court services are meant to be perennial in all situations in a democratic country subject and such exigencies and exceptions.

Second, it may be noted that the directions for the hearing of only extreme urgent matters have been issued under the Supreme Court Rules, 2013, like it, does for holidays (see Order II). Similarly, the High Courts across India have regulated their functioning and the functioning of the sub-ordinate Courts under the exercise of its supervisory jurisdiction under Article 227 and 235 of the Constitution. The directions have been made by the Chief Justice of the Supreme Court and Chief Justices of respective High Court who are administrative heads (para. 13, 14) of their respective courts, in their administrative capacities, as ensued by the Constitutional mandate and that too, in the longer and special interest of the society. Thus, because of the deeply embedded principle of the separation of power, the suspension of non-urgent matters have been done on the subsequent directions of the respective administrative heads and not vide straight and specific direction to the judiciary for the limitation of their functioning.

Any power in the hands of the legislature or the executive to completely cease the services of the Courts, whether in, temporary or permanent, in any exigency, will make us revisit Montesquieu’s views in his book ‘The Spirit of The Laws‘ (1748) wherein while enunciating and explaining his theory of Separation of Power, he observed:

“… . .Again there is no liberty if the judicial power be not separated from the legislative and executive. Were it joined with the legislature, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge, the judge might behave with violence and oppression…”

In light of the above-said, it is the sense of security, an obligation of the Courts towards the society, the inter-organ obligation and pertinently, by the direction of the respective afore-noted Court administrators, empowered under the Constitution vide the Rules drafted thereunder by themselves which has made the Courts suspend their working, except, for urgent matters. It is the duty of the Courts due to sacrosanct standing they hold in a democratic set up to continue operating for extremely urgent matters and check the government’s arbitrariness and transgression on the fundamental rights of the people in times of all exigencies.

The performance of this constitutional obligation of the Courts in the present exigency may be briefly appreciated in the light of the herein discussed directions and orders in different petitions. Amid the epidemic, the Supreme Court recently directed the States to consider the release of under-trialprisoners in wake of the epidemic. The Court also directed the Government to take steps to combat fake news and miseries of migrant workers. On another instance, the Court refused to allow prior censorship from the government for news relating to COVID-19. Similarly, different High Courts like Rajasthan High Court issued notice to the State Government for immediate measures for the rehabilitation and food for a daily wage and migrant workers. The Karnataka High Court issued directions to the State Government for refrainment from lathi charge or police excesses, food for the poor, and decongestion in the jails. The Kerala High Court directed release of under-trial prisoners facing up to 7 years of imprisonment. Alike, in civil matters, the Karnataka High Court stayed the auction of properties by the banks till lock-down order is revoked. Similarly, the Bombay High Court ordered an ad-interim injunction on the sale of pledged shares. Similar directions and orders have been made by nearly all High Courts across the nation.

Thus, as may be noted, the Courts are continuing to provide and secure justice even at the time extreme exigency in extreme urgent matters. The Courts are operating or adapting to operate the hearing through e-modes to serve the society to the possible extent.

Though, in the present situation where many non-essential services have been suspended and people are facing variant challenges which could be addressed by and remedied, yet, the functioning of the Courts makes us realize the primacy to the right to life and liberty of all the people, including prisoners, under the Constitution of India. Further, it makes us remember the Court’s role as guardian of the fundamental rights of people in all situations, and its essence of existence to check and balance the acts of the government. This makes us appreciate the distinct service of the judiciary to society and a need for their continuance at all times, be it epidemic, emergencies, or war. In a writ petition the Kerala High Court while imposing a fine of Rs. 50,000 for a frivolous application noted that “the citizenry ought to realize that the restrictions imposed by this Court on the filing of cases is with a view to ensuring that their fundamental rights as citizens, for access to justice, is guaranteed to the extent possible, even at the cost of exposing the Judges, lawyers, clerks and staff of this Court, to the risk of viral infection“.

Thus, though the judicial services may not be not part of the ‘essential services‘ under the afore-said Act or the Order, yet, the continuation of the judicial services is fundamental and quint-essential in all the emergencies, including, the present epidemic. It can neither be suspended by the Government nor by the Courts itself considering them being so vital and indispensable in the democratically structured set up of our country. The importance of the judiciary for being too profound at all time, and so is the inter-dependence and inter-organ obligation for efficient working of a country. The judicial service is thus deemed ‘essential service‘ in all exigencies in a society. The wheel of justice is deemed to continue to roll, though on a narrow road.

[The article has been authored by the founding editor and first appeared on Live Law.]