In the time of coronavirus crisis, the Supreme Court (SC) of Nepal has adopted a utilitarian approach by giving a humanising touch in providing 'pandemic justice'. However, the non-compliance of the rulings frustrates the administration of justice in general and undermines the dignity and authority of the court in particular. Of late, the judiciary, at the instance of citizens, have taken various decisions that have been well-recognized by society. Nevertheless, the question that always remains unanswered is: what options are left with the citizens if the government agencies don’t implement the rulings of the court? The court has taken several decisions that are defined as judicial activism in areas like rights of women, environmental issues, right to food and housing, juvenile justice, prisoner’s rights, rights of slums, and among others. But all of these are yet to be implemented in letter and spirit. The same is true in the case of 'pandemic justice' as well.          

Amid coronavirus outbreak, the apex court of Nepal asked the authorities to expedite welfare work and to respect the fundamental rights of every person without any distinction. Public spirited people, through their lawyers, approached the apex court to seek to improve matters and to fill in the vacuum arising from the government's inaction and apathy to undertake reforms. In fact, reminding the state of its duties towards the citizens is a step in the right direction to ensure that the government takes appropriate action and helps in setting accountability.   According to media reports, the government has not followed most of the Supreme Court’s 23 rulings related to the pandemic.

Some landmark orders

The country saw a fundamental change in the right to life and liberty as a result of healthy judicial activism during the pandemic. While upholding that people’s right to live with dignity should be protected and promoted at the time of the pandemic, the top court in the case of Advocate Shailendra Prasad Harijan and others vs. 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 marginalized 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 the right to food without any distinction. In the case of Advocate Kamalbahadur Khatri and others vs 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,” said 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 walked miles to reach their homes. The court also asked the government to conduct a rapid diagnostic test for coronavirus for all stranded people.

The non-arrangement of transportation facilities or the reluctance of government agencies in providing sufficient relief materials to the underprivileged groups or not conducting COVID-19 test on the stranded people are just some depressing realities that are currently being seen in Nepal. It gives a gloomy picture that compliance of the orders of the highest court is an uphill task in countries like Nepal where much time and energy are spent on political slugfests.

Meanwhile, the Division Bench of Dr. Ananand Mohan Bhattarai and Sushmalata Mathema in the case of Advocate Roshani Paudel and Others vs 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 is not compromised amid the coronavirus pandemic. The government is obliged to protect the rights and concerns of expecting women. 

“The government shall ensure timely and proper treatment to women with pregnancy.” 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. The right to privacy of COVID-19 patients would be hugely compromised with the disclosure of their names. If the identity of COVID-19 patients are 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, the court ruled.

Likewise, the apex court on May 31 directed the government to provide appropriate dress, protection kits, and other essential materials to police staff, government employees, and other corona warriors. Also, the topmost court directed the government to make necessary arrangements to provide a free of cost coronavirus test and to provide food and water to all those kept in 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,” it ruled. 

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 materials free of cost to the needy people by virtue of a mandatory legal arrangement provisioned under Public Health Service Act, 2075 BS (2018). The writ petition was filed by advocate Dr. Punyaprasad Khatiwada. This way, the SC clarified that the free PCR test for COVID-19 should be provided by the state and is a fundamental right of a person kept in quarantine. After all, this requirement is implicit in the requirement of a due process (just, fair and reasonable) procedure prescribed by Article 16 of the constitution.    

SC order ignored 

However, neither the government employees have received the appropriate protective gear, and protection kits to fight against the pandemic; nor are the isolation wards or quarantine centres being maintained as per the World Health Organisation (WHO) guidelines.

The SC on March 31 directed 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 staff involved in the treatment of Coronavirus patients.” But, the incidents and media reports suggest that private hospitals are neither obeying the court orders nor following medical ethics. The private hospitals have continued to not only overcharge patients but also keep them in the dark regarding their schemes of treatment during the pandemic. The incidents reported also suggest that private hospitals are refusing to entertain patients as well.      

The exercise of writ jurisdiction shows that there is an increasing trend of judicial creativity (not amounting to judicial overreach) and public interest litigation (PIL). The developing trend, in regards to PIL, has shown that the court has interpreted the law in the light of existing social needs. In this respect, the court has taken a utilitarian approach while interpreting the laws of the land. But, the non-compliance of its decisions impacts public trust. The prestige, stature, and independence of the judiciary are dependent on the public trust and confidence it enjoys.

Above all this, it’s a rare practice that the courts take stern action against the contemnors who are reluctant to abide by the orders of the court. There is a well-established practice that the non-implementation of the orders of the judiciary amounts to contempt of court.

What is required 

The courts could devise a mechanism of seeking the compliance report from the authorities concerned who are supposed to enforce the said ruling of the court. It is imperative for the Nepal government to develop a comprehensive mechanism for dealing with the compliance of court orders and judgments. In India, the Supreme Court in the case of Bandhua Mukti Morcha vs Union of India (AIR 1984 SC) directed the then Director-General of Labour and Welfare, Government of India, to report within 90 days about the compliance of the directions given by the court. The court had directed the government to ensure sanitary conditions, the arrangement of education for the children of labourers, drinking water, and other necessary conditions for the workmen employed at the stone quarries. The court directed the Haryana government “to draw up a scheme or programme for better and more meaningful rehabilitation of the freed labourers.”

Justice P N Bhagwati in his order had emphasized that this is a constitutional imperative that the “bonded labourers must be identified and released from the shackles of bondage so that they can assimilate themselves in the mainstream of civilized human society and realise the dignity, beauty, and worth of human existence.” In response to the order, then Director-General on March 15, 1984, reported that none of the directions of the apex court have been implemented. On receiving this unwelcoming response, Justice Bhagwati did not initiate a contempt proceeding against the senior official and the authorities concerned. So, this experience shows that merely asking for a compliance report is not enough.

What is required is a strong mechanism to expedite the implementation of the rulings. A person who is apolitical should be appointed with enough power to initiate contempt proceedings against any authority whatsoever. The non-compliance of court orders would not only lower the public confidence in the judiciary in Nepal, but it will also pose threats to judicial credibility and rule of law. 

Moreover, the long-stayed legal philosophy of Judicium Semper Pro Veriate Acipitur (A judgment is always accepted as true) would also come under attack with the non-compliance of rulings of the court.  
       
(The writer, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. The views expressed are personal. He can be contacted at jhajivesh@gmail.com)