Jivesh Jha

Amid coronavirus outbreak, the Supreme Court (SC) of Nepal has taken a big innovative step forward in humanising the administration of pandemic justice by asking the state instruments to expedite welfare functions and respect fundamental rights to every person without any distinction. Of late, the advocates and public spirited persons invoked the writ jurisdiction of the apex court as a potent tool to seek to improve matters, and to fill in the vacuum arising from the governmental inaction and apathy to undertake reform so as to ensure justice. In fact, reminding the state of its duties towards the citizens is a step toward ensuring transparency and accountability.

Judicial activism
In this light, from non-deprivation of life to its preservation and from negative to positive contents, the right to life and liberty has become fundamentally transformed as a result of judicial creativity in Nepal and that too in coronavirus lockdown. With the robust judicial activism and creativity, the court sought to humanise and liberalise the administration of justice. After all, quick justice is now regarded as sine qua non of the right to life and liberty.
The top court on April 26 observed that the children kept in juvenile correction centres were at high risk of COVID-19 infection. The state has an obligation to protect the health of juvenile delinquents. The SC urged the body concerned to hand over those children (juvenile delinquents) to their parents on the condition that the parents, when asked, would bring back their children to the correction centres. The writ petition was filed by advocate Ajay Shankar Jha. Again on June 8, in the cases of Advocate Ajay Shankar Jha v. Khotang District Court and Advocate Dala Bahadur Dhani v. Kailali District Court and others, the SC wrote the order in similar terms.
While upholding that people’s right to live with dignity should be protected and promoted at the time of pandemic, the top court in the case of Advocate Shailendra Prasad Harijan and others v. Office of the Prime Minister and Council of Ministers on May 17 issued an interim order to the government directing it to provide relief materials to the economically marginalised and needy people without requiring them to produce citizenship card or its equivalent documents. The Division Bench of Deepak Kumar Karki and Hari Prasad Phuyal held that right to life encompasses right to food without any distinction.
In the case of Advocate Kamal Bahadur Khatri and others v. Office of Prime Minister and Council of Ministers on May 14, the highest court of appeal directed the government to ensure proper arrangement for the test of COVID-19 through PCR. The government shall endeavour to augment the test of COVID-19 and ensure that there shall be no scarcity of testing kits, held the court.
Earlier on April 17, responding to a writ petition filed by senior advocate Prakash Mani Sharma, the SC directed the government to ensure free transportation facility to stranded migrant workers who have hit the roads on foot to reach their homes miles away. The court asked the government to conduct rapid diagnostic test for coronavirus on all those stranded persons.
Meanwhile, the Division Bench of Dr Ananda Mohan Bhattarai and Sushmalata Mathema in the case of Advocate Roshani Paudel and Others v Office of the Prime Minister and Council of Ministers on June 9 directed the government to adopt all necessary measures to ensure that the right to safe motherhood and right to bear a child are not compromised amid coronavirus pandemic. Also, the court directed the appropriate governments to ensure the availability of required vaccines to be given to infants. Similarly, the court ruled that the government shall not disclose the identity of COVID-19 patients. Right to privacy of COVID-19 patients would be hugely compromised with the disclosure of their names. If the identity of COVID-19 patients is revealed, the fellow citizens or community members may start perceiving them as their enemy and that could tear the social fabrics. So, it’s desirable to keep the names of such patients secret.
Likewise, the apex court on May 31 directed the government to provide appropriate dress, protection kits and other essential materials to police staff as well as government employees or forefront warriors against the virus who face service-seekers on daily basis. Also, the court directed the government to make necessary arrangements to provide a free of cost test for coronavirus, food and water to all the persons kept in the quarantine. The government shall ensure social distancing in the quarantines, meaning thereby, the distances between the beds and toilets should be as per guidelines so specified. Appearing as a custodian of fundamental rights, the court held that the government is under an obligation to provide essential medicines as well as masks, sanitizers and other required materials free of cost to the needy people by virtue of a mandatory legal arrangement provisioned under Public Health Service Act, 2075 BS (2018).
In a petition filed by Som Prasad Luitel, the apex court on June 15 observed that the government should hold dialogues at diplomatic level to bring back Nepali migrant labourers from foreign countries. The SC on March 31 instructed the private hospitals to attend COVID-19 patients unconditionally. The top court wrote: “The private hospitals shall make necessary arrangements of beds, ICUs and ventilators and endeavour to ensure the safety of medical staffs involved in the treatment of coronavirus patients.”
Justice
The apex court on April 23, in a writ petition filed by advocate Ajay Shankar Jha and others, directed the state to ensure special care and protection to citizens during the pandemic. The court wrote, “No government officials or persons holding public office shall endeavour to harm the rights, interests and dignity of the persons.”
The judicial department during COVID-19 outbreak succeeded to advance the notion of judicial review, for the court has adopted utilitarian approach while interpreting the laws of the land. ‘A wise and creative judge, unfettered by paragraphs in the code and precedents, will find justice through a clear and cool perception and valuation of social issues at stake,’ says eminent jurist Frank. Judge is the living oracle working in the dry light of realism pouring life or force into the dry bones of law to articulate the felt necessities of the time, said the SC of India in the case of Krishna Swamy v. Union of India.

(Jha is currently a Judicial Officer at Birgunj High Court. jhajivesh@gmail.com)