Praiseworthy ruling on pandemic justice by Birgunj High Court

Jivesh Jha

Of late, the criminal justice system or ordinary proceedings of the courts are halted due to Prohibitory Orders put in place to stem the transmission of the Coronavirus outbreak. Lesser arrests, limited trials, release of offenders convicted under petty offences, or punishment at the instance of violation of the order of district administration has unfolded a new jurisprudence that extraordinary approaches could be adopted to deal with extraordinary situations.

As a part of preventive measures taken in response to COVID-19 outbreak, judicatures across the globe have announced the closure of non-urgent proceedings for a particular period. The sufficiently superior courts pronounced scores of welcome rulings. Some of these rulings are intended to remind the state of its welfare functions, while the others are related to the release of inmates and juvenile delinquents.

In this respect, the judicial department, through its judicial creativity, succeeds to acknowledge the philosophy of realist school of jurisprudence. The theory argues that letters of law is made by parliament but spirit is filled in it by judiciary. Acknowledging this theory, almost every Constitution of the world incorporates judicial precedent clause in order to ensure the full faith and credit to the judicial pronouncements.

Birgunj High Court, at the instance of public spirited persons, has taken various decisions that have been well-recognized by the society.

In this light, the Birgunj High Court, at the instance of public spirited persons, has taken various decisions that have been well-recognized by the society. The High Court has adopted a utilitarian approach by giving a humanising touch in providing pandemic justice to the society. In the case of Harish Chandra Pandit and Others v Office of the Chief Minister and Council of Ministers, Province-2 and Ors, the Birgunj High Court on Sunday [August 23] asked the authorities to expedite welfare work and to respect the fundamental rights of the people.

"At a time when the cases of COVID-19 soaring up by the hour, it's necessary to make strict border controls. The people entering Nepal through border points shall be quarantined,” held the Division Bench of Ramesh Kumar Pokharel and Anju Upreti Dhakal. The learned judges were of the view that the entry of people from India through proxy border points could increase the risk of spread of the virus.

The government shall expand the scope of the COVID-19 testing and endeavour to create required isolation wards and quarantine centres to ensure the proper treatment of the persons infected with the virus,” further held the court.

The court directed the authorities concerned to issue a guideline as to the timing in which shops, including ration shops dealing with food, groceries, fruits or vegetables or other essential services, could be made available at the disposal of the people. The court directed the District Administration Office, Rautahat to bring a directive as to the timing in which the Prohibitory Order would be eased for the shops providing essential services.

As public awareness could play a creative and constructive role in fight against the global pandemic, the bench, in its order, was of the opinion that the government agencies should make the people aware about the importance of social distancing, sanitization or use of mask and among other preventive measures required to be taken to win a war against the Coronavirus.

The learned bench observed that the government hospital-based in Gaur, Rautahat should make necessary arrangement for expediting proper treatment of COVID and non-COVID patients.

“We have approached the court to seek to improve matters and to fill in the vacuum arising from the government’s inaction and apathy to undertake reforms in Province-2. In fact, we want to remind the state of its solemn duties towards the citizens amid Coronavirus outbreak that has wreaked havoc on the people,” argued learned counsel Harish Chandra Pandit during the proceeding.

Interestingly, the Birgunj High Court on July 31 in the case of Advocate Sudhir Kumar Karna v. Office of the Chief Minister and Council of Ministers, Province-2, had issued similar ruling against Parsa district administration and provincial government.

These rulings clearly demonstrate that the judiciary receives the signals of community good from the community’s own expectations. The arguments of litigants before the court in the end are not about policy but about the legitimacy or reasonableness of their expectations. “The court decides what expectations are reasonably held according to the practice of community. Expectations change as the conditions of social life change. Justice Holmes was right to observe that in some areas of law, the community expectations may be unclear so that judges are left with legislative discretion,” argues the admired commentator of Legal Philosophy Suri Ratnapala in his popular book Jurisprudence (2013).

In the days of Coronavirus outbreak, the country saw a fundamental transformation in right to life and liberty as a result of healthy judicial activism. From non-deprivation of right to healthcare to its preservation and from negative to positive contents, the court sought to humanise and liberalise the administration of justice. After all, quick justice is now regarded as sine qua norm of due process and right to life and liberty.

Still, the non-implementation of the rulings of the court is a depressing reality: the compliance of the pronouncements is an uphill task in countries like Nepal where much time and energy are spent on political slugfests. The non-compliance of the decisions of the court impacts public trust. The prestige, stature, and independence of the judiciary are dependent on the public trust and confidence it enjoys.

The courts could devise a mechanism of seeking the compliance report from the authorities concerned who are supposed to enforce the said rulings. It's imperative for the government to develop a comprehensive mechanism for dealing with the compliance of court orders and judgments. What requires more is a strong mechanism put in place to expedite the implementation of the rulings and the said authority should be apolitical with the power to initiate contempt proceedings against any authority whatsoever.

The non-compliance of the rulings would not only lower the public confidence in judiciary but it will also pose threats to judicial credibility and rule of law. Moreover, the long-stayed legal philosophy of Judicium semper pro veriate accipitur (A judgment is always accepted as true) would also come under attack with the non-compliance of rulings of the court.

(Author of “Scio-legal Impacts of COVID-19: Comparative Critique of Laws in India and Nepal” (2020), the writer is a former Lecturer of Law at Kathmandu University School of Law.)

Published on 24 August 2020