The Dangerously Blurring Lines between Judicial Adventurism and Judicial Protection

Arushi Anthwal
LL.M. student at Maharashtra National Law University, Mumbai

Volume III, Issue II, 2020

India is currently engaged in an unexpected and massive health crisis, battling potential economic and social risks as the country remains in lockdown due to the Covid-19 virus. At this juncture, the Apex Court’s role in supplementing government’s policies and acting in furtherance of reducing risk and exposure becomes pivotal. However, the same was recently made subject to a debate with respect to the court’s decision to make testing for the virus free of cost in the approved private laboratories. The decision comes under scrutiny, as it becomes another example of judicial overreach wherein the court occupied the executive’s domain as it re-created policy. In addition to violating the doctrine of separation of powers, the court’s directions to oblige private entities with the object of enforcing fundamental rights was blatantly contrary to the well-established rule that fundamental rights stand to be enforced only against the state. The article aims at analyzing the shortcomings of this decision including the impact it would have had economically as well as in terms of its effect on the fight against the novel virus had this order been allowed to sustain. The researcher shall also discuss the subsequent modification made in the order and how the same reflects poorly on the Supreme Court as it acknowledges with disconcert its own transgression. The article attempts to bring to light the pattern of unfortunate judicial supremacy in India and the impression it tends to create in the minds of the general public to the tune that every policy decision is accountable to the judiciary’s modification of the same even if it does not involve any legal question whatsoever.

Keywords: Covid-19 Virus, Supreme Court, Lockdown, Free-testing, Private Laboratories


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