Accelerating the “Avalanche of Evils”: Towards Covid-19 Constitutionalism?

Judicial exasperation was seen in many orders, be it dealing with the Covid-19 situation or the EC’s conduct during polls. The judiciary has tried to ensure that constitutional discipline on power becomes an asset, not a liability, during the pandemic

- Prof Upendra Baxi

COVID-19 does not know the concept of equality, nor its opposites, “arbitrariness” and “cruelty”. It has no use for doctrines of separation of powers or rule of law or the basic structure of the Constitution. It moves about incomplete post-sovereign impunity, striking death, distress, disease and devastation in bodies that it infects and souls that survive. It mocks cruelly both conspiracy and regulation theories. And as it continues to its unpredictable future frameworks of bioterror, individuals and groups have to function both through the “optimism of will, and pessimism of the intellect” (to borrow the thesis of Italian Marxist philosopher Antonio Gramsci). The Indian Constitution, like all others, is not designed to cope with bioterror of a runaway global substance causing a pandemic. But it is the only flexible instrument of political and social action and judicial review. A vast amount of discretion invested by law and policy in the executive does not achieve, as Prime Minister Narendra Modi rightly stressed in the short forward to the National Disaster Management Plan 2019, “policy coherence”, which makes governance effective.