By Salona Mittal and Priyesh Srivastava
At the cost of repetition, it must be acknowledged that the spread of COVID-19 has savaged the world and has practically brought it to a stand-still. This unprecedented global pandemic has challenged not only the society at large, but also the organs of the State. In a recent note released by the Supreme Court of India, while giving a worldview of how courts in foreign jurisdictions have tackled the pandemic, it stated that – “few have been able to manage what the Supreme Court of India has delivered, despite being in almost similar circumstances though with much less resources.”
The Supreme Court ends the note by reiterating that it has firmly fostered the cherished tradition of our ancient lands – “JUSTICE, AT ALL COST, ALWAYS!”. This article therefore seeks to give a conspectus of how the courts have, globally, reacted to the pandemic, not in terms of the volume of cases handled by them, but by the nature of judgments/orders passed. The challenges faced by the judiciary are not endemic to India, and the manner in which the courts have responded all over the world, makes for an interesting read.
UNITED STATES OF AMERICA
The courts in the United States have been flooded over the past month with challenges to orders of the governors of respective states.
Elections – In Wisconsin, Governor Tony Evers on 6th April 2020 issued an executive order postponing the elections to be held on 7th April 2020 (which inter alia included matters such as presidential preference primaries for both major national political parties and an election for a seat as a justice of the Wisconsin Supreme Court), citing the threat of infection by COVID-19 to in-person voters as well as poll workers. The Republican-dominated legislature swiftly moved the Wisconsin State Supreme Court, which on 6th April 2020 (by a 4:2 majority), enjoined the executive order, reasoning that the Governor did not have the constitutional backing to issue such an order. In a scathing dissenting judgment, Judge Walsh Bradley noted that “…the majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic”. Further, the United States Supreme Court by an order of even date, overturned (by a 5:4 majority) a Michigan District Court order (allowing residents to cast absentee ballots, even after election day, i.e., 7th April, as long as the ballots were received by 13th April), by holding that the absentee ballots must be mailed by 7th April, and not thereafter.
In the authors’ opinion, requiring voters (without absentee ballots) to vote in person during such unprecedented time, will certainly lead to disenfranchisement.
Lockdown – In Pennsylvania, the governor issued an executive order, ordering closure of all non-life-sustaining business to reduce the spread of COVID – 19. Certain businesses (classified as non-life sustaining) petitioned the Supreme Court of Pennsylvania, seeking a vacation of the governor’s order. The Supreme Court held that the closure of Petitioners’ businesses was not unduly oppressive and negated the contention that the order violated their right to free speech and assembly. Holding that such rights are not absolute, the Court upheld the order and observed that the order did not prohibit communication by telephone, video-link and otherwise. The Petitioners have challenged this decision before the United States Supreme Court and also sought for an interim stay of the executive order.
In contrast, the Circuit Court for the City of Lynchburg, Virginia, granted a temporary injunction against an executive order that closed indoor gun ranges during COVID-19, since it would violate the right under the Virginia’s Constitution to bear arms.
Abortion – Various abortion providers in Texas approached the District Court, seeking a temporary restraining order (“TRO”) against an executive order that required hospitals to postpone all treatments that were not urgent. The District Court granted the TRO by observing that the attorney general’s interpretation of the executive order prevented Texas women from exercising their fundamental constitutional rights to terminate a pregnancy. At the request of Texas officials, the United State Court of Appeals for the 5th Circuit vacated (2:1 majority) the TRO on the ground that constitutional rights may be reasonably restricted in the interests of public safety.
On 9th April 2020, the District Court then granted a second TRO and restrained the executive order inter alia in relation to medication abortions. The 5th Circuit Court of Appeals however (2:1 majority), set aside the second TRO, holding that medication-induced abortions required the unnecessary use of PPE and that the district court ought not to have disregarded the wisdom of the governor.
This decision was, however, rendered nugatory since the governor issued a new executive order allowing patients to get an abortion in the state. The authors resonate the dissenting opinion of Judge James L. Dennis that the litigation surrounding the ban of abortion has led “to a confusion that is likely more disruptive than the alleged harm it sought to prevent.”.
Religious Services – A Lower Saxony Ordinance imposed a blanket ban on meetings in churches, mosques, synagogues and the gatherings of other faith communities. The Applicant, a religious association that intended to hold Friday prayers, especially in the remaining weeks of Ramadan, unsuccessfully challenged the Ordinance before the Higher Administrative Court. It thereafter approached Germany’s Federal Constitutional Court, which held that such prohibition represents an extremely serious interference with the freedom of belief guaranteed under Article 4 of the German Constitution, since it makes an essential form of practicing one’s religion impossible. The Court further held that in view of such serious encroachment, it was hardly justifiable for the regulation to not provide for exceptional approvals.
Freedom of Assembly – A group of activists in the state of Hesse sought permission to hold meetings under the motto “Strengthen health instead of weakening fundamental rights – protection against viruses, not against humans.”. The permission was denied on the ground that it would endanger public order and would violate the Ordinance of the Hesse State Government to combat COVID – 19. The activists approached the German Constitutional Court against denial of such permission. The Court held that the denial of permission violates Article 8 of the German Constitution which provides for the right to assemble peacefully and unarmed, without prior notification or permission, but highlighted that all protesters should adhere to social distancing.
Lockdown – The State of Saarland had imposed stringent lockdown measures and allowed only essential outings. However, in a challenge by a resident against these measures (on the ground that his personal freedoms were infringed), the State’s Constitutional Court held that there was no good reason for continuation of stringent measures. The Court further held that family visits and leisure walks should be allowed at once, if social distancing rules were observed.
Procedural difficulties – With the advent of technological measures, including video-conferencing and e-filing, some scammers impersonating as Supreme Court officers started misusing this as a medium for fraud and phishing, which led to the Supreme Court warning the public (vide a press release) to be vigilant and even specified all the official Registry details.
Economy – A notable judgment passed by the Supreme Court of Singapore was in the case of SK Lateral Rubber & Plastic Technologies (Suzhou) Co. Ltd v Lateral Solutions Pte Ltd  SGHC (I) 09, where the defendant’s/counterclaimant’s application for security for cost was dismissed. The counterclaimant contended that the Plaintiff/Defendant would be unable to pay the costs, if ordered to, in light of the economic impact of COVID-19. The Court however noted that the economic effects of COVID- 19 were unsubstantiated and as such cannot be used to demonstrate cash flow issues. This, in the authors’ opinion is an appropriate principle to ensure that businesses do not vexatiously plead inability to perform a contract, absent any evidence of impact of COVID-19 on their business directly.
Conduct of hearings – In what was considered to be the ‘largest class action’ ever brought in England, concerning 2,02,000 claimants together with 520 private businesses, the High Court appreciated the difficulties caused by the pandemic (such as volume of documentation, need for interpreters, location of the deponents etc.) which could not be attributed to the Defendant, and thus delayed the hearing by six weeks. However, it emphasized that the hearings be conducted remotely in July and set aside the plea of the defendants for an in-person hearing.
Prison – In a case brought before the Victorian Supreme Court, a prisoner suffering from heart disease, had sought his release in light of the serious risk posed by COVID-19. In its judgment, the Supreme Court came to a prima facie finding that there were a number of breaches of hygiene in the prison and that prison authorities failed to undertake reasonable care. While the Court did not order the release of the applicant (since he had much of his sentence left to serve), the Court ordered for an independent risk assessment of the prisoners and other staff.
Conduct of hearings – The Supreme Court of Western Australia dismissed an application seeking adjournment grounded on issues arising from COVID-19. Counsel appearing for applicant had argued that he would be at a significant disadvantage if he could not see and ‘read’ the court throughout the appeal hearing. Rejecting such contention, the Court held that hearing by telephone / video-link provides for comprehensive and considered dialogue between the bar and bench. The contention of material prejudice being caused due to the senior and junior counsel not being co-located was negated since it was possible for counsel to communicate electronically.
Now that the courts in India are also enlarging their boards to not just urgent matters, one cannot help but ponder whether latitude will be shown to lawyers who seek adjournment on similar grounds as above.
Trial – The Supreme People’s Court (SPC) of the People’s Republic of China has not only regulated the usage of ‘Mobile Micro Court’, which is the SPC’s online case-hearing portal, but has also, for the first time, allowed a witness to testify remotely in a construction contract dispute.
Handling of civil cases – The SPC published crucial guidelines on handling of civil cases involving COVID-19, in which it has inter alia highlighted that (1) employers’ applications to fire employees for the reason that the employee is infected or suspected to be infected by COVID-19 (including asymptomatic employees) will be rejected (especially in light of discrimination faced by labourers from Hubei province); and (2) the courts should take a prudential stand in interpreting force majeure principles in contract disputes. The guideline also allows parties to claim for suspension of statute of limitations in light of difficulties faced due to the pandemic.
The authors believe that these measures clearly portray the importance of a vigilant judicial system during such stressful times.
Privacy – Certain journalists’ organization, civil rights associations, and others moved the Supreme Court seeking a repeal of the emergency regulations that enabled the Shin Bet internal security service to tap into cellular data to retrace the movements of people infected by the virus. In a significant judgment, the Court held that the tracking program severely violates the constitutional right to privacy and therefore cannot continue until the government authorises it in the form of legislation. Further, relying on freedom of press, the Court noted that monitoring of journalists that had tested positive for COVID-19, can only be done with their consent.
This judgment attains importance in light of the concerns surrounding the Aarogya Setu application.
Commercial Concerns and Labour safety – The Nanterre Court of Justice in France ordered Amazon to only deliver non-essential items during the crisis with a penalty of 1 million euros for every day of non-compliance. The order came in a complaint filed by the Union that Amazon had ignored its obligations to provide for the security and health of its workers. As a result, Amazon was prompted to temporarily shut its six mammoth warehouses around France and put its 10,000 workers on paid furlough. On appeal, the order was upheld by the Versailles Court of Appeal with the fine being altered to 100,000 euros for each delivery that does not meet the court’s conditions.
It can certainly be debated whether these decisions adhere to the principles of balancing protection of safety of employees, while keeping the business running and preserving jobs.
Lockdown – The Constitutional Court of the Republic of Kosovo, perhaps became the first Court to declare the decisions by the Government pertaining to lockdown and mass gatherings as unconstitutional. In a referral from the President, the Court unanimously declared that the decision of the Government was in contravention with Articles 35 (Freedom of Movement), 36 (Right to Privacy), 43 (Freedom of Gathering) of the Constitution, in conjunction with respective Articles of the European Convention on Human Right. However, remarkably, the Court deferred the enforcement of its judgment to allow the government time to take appropriate measures to safeguard public health in accordance with the Constitution and their judgment. In the authors’ opinion, it is noteworthy that the Court, respecting the idea of separation of powers and keeping in mind the impacts of the pandemic, has granted time to the Government to modify/amend the current law.
BOSNIA AND HERZEGOVINA
Freedom of Movement – An executive order prohibiting movement of persons less than 18 and over 65 years of age in the territory of the Federation of Bosnia and Herzegovina, was challenged before the Constitutional Court. The State in response, reasoned that elderly persons are more risk averse and minors may transmit the virus to elderly persons. The Supreme Court noted that the order did not provide for any kind of exemptions (such as children with special needs) and completely ignored the fact within the category of persons older than 65 are judges, prosecutors and members of the legislative and executive. The Court thus held that the object sought to be achieved by the order was not proportional to the restrictions imposed and thus the order was held to be violative of Article II (3) (m) of the Constitution of Bosnia and Herzegovina and Article 2 of Protocol No. 4 to the European Convention that relate to freedom of movement.
Before concluding, a word of caution is necessary – the authors are aware that being a ‘sovereign’ nation, India has the sole authority to determine how it handles the spread of COVID-19. It is not the authors’ intention to compare the judgments that have been passed by the courts, globally, with those passed in India. It goes without saying that decisions of courts in India are based on considerations and factors that are India-specific, as are the decisions of courts in other countries. The purpose of this article is to demonstrate how different judicial systems around the world have responded differently in these testing times. On issues similar to those that have been agitated before the courts in India, certain courts have often dialled down the intensity of judicial review during emergencies in deference to the executive, whereas others have laid emphasis on individual freedoms.
Now, it is not necessary to embark on a deliberation whether courts in India have fulfilled their obligations as the sentinel on the qui vive or not. This is for the reason that an opinion either way is based on what a person thinks is the ‘just’ way for the courts to act during such times.
The bottom line is that conflict between the greater public interest and individual freedoms is likely to continue and become even more obtrusive. Nevertheless, such state of crisis does not give the executive carte blanche to exercise power indiscriminately, and the authors hope that the fight against pandemic is not waged outside the dictates of law.
(Priyesh and Salona are graduates from Government Law College, Mumbai. Salona Mittal is a counsel at the Bombay High Court. Priyesh on the other hand, is practicing in the High Court of Delhi. The views as stated are the personal opinions of the authors.)