Law In Action In A Time Of Crisis: A Legal Realist Analysis Of Fundamental Rights Adjudication By Indian Courts During The Covid-19 Pandemic
Payal Rajendra Chavhan, KES Shri Jayantilal H Patel Law College, Mumbai
Zuber Shahezad Khan, Adv. Balasaheb Apte College of Law, Mumbai
ABSTRACT
The COVID-19 pandemic placed India's constitutional architecture under extraordinary stress, triggering executive orders, emergency legislation, and judicial proceedings that brought state power and fundamental rights into direct conflict. This paper applies the lens of American Legal Realism, drawing on Holmes' Bad Man Theory and prediction theory, Llewellyn's paper rules/real rules distinction, Jerome Frank's psychological account of adjudication, to examine how Indian courts actually responded to fundamental rights challenges arising from pandemic governance.
The central argument is that judicial behaviour during the pandemic conformed far more closely to Legal Realism than to classical formalism. Courts deferred markedly to executive action in the early crisis phase, prioritised practical relief over constitutional scrutiny, and exercised creative discretion through Article 142 when formal rules proved inadequate. As the humanitarian catastrophe became undeniable during the 2021 second wave, judicial posture shifted toward greater scrutiny, confirming the Realist insight that law is a situationally responsive institution, not a system of logical deduction.
The paper analyses several judicial decisions and concludes by arguing that Realist insights point toward structural constitutional reforms to close the gap between rights on paper and their real enforcement.
Keywords: Jurisprudence, Legal Realism, Bad Man Theory, COVID-19, Fundamental Rights, Article 14, Article 19, Article 21, Article 142, Judicial Deference, Oliver Holmes, Karl Llewellyn, Jerome Frank, Indian Constitutional Law, Supreme Court, High Court.
