Can’t be silent spectators when govt policy violates citizens’ rights: Supreme Court | India News
NEW DELHI: Batting aside down the Centre’s combative stand against judicial interference in Covid-19 management and vaccination policies, the Supreme Court on Wednesday said courts could not be “silent spectators when constitutional rights of citizens are infringed by executive policies”.
However, it acknowledged solicitor general Tushar Mehta’s argument that the judiciary must trust the Centre’s wisdom in crafting policies in wider public interest to combat an unprecedented pandemic and that, for that purpose, the executive required “room for free play in the joints”. Mehta had earlier said, “Any overzealous judicial intervention, though well-meaning, in the absence of expert advice or administrative experience may lead to unintended circumstances where the executive is left with little room to explore innovative solutions.”
A bench of Justices D Y Chandrachud, L N Rao and S R Bhat said, “It is trite to state that separation of powers is a part of the basic structure of the Constitution. Policy-making continues to be in the sole domain of the executive. The judiciary does not possess the authority or competence to assume the role of the executive, which is democratically accountable for its actions and has access to resources which are instrumental to policy formulation.”
However, the court also asserted the right to review the executive’s policies. “This separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies… Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform,” the SC said and resolved to scrutinise policies for vaccination, production and supply of vaccines, differential pricing, oxygen supply and auditing, supply of essential medicine and health infrastructure as well as insisting on a change in policy towards free universal vaccination.
Keeping its focus on universal free vaccination, the bench clarified that it was not relenting on examining the Centre’s policy decisions on all issues related to Covid-19 management. “All of the issues contained in the SC’s previous orders still retain their overall importance, and this court shall continue to monitor them alongside the national task force and intervene whenever necessary,” it said.
Justices Chandrachud, Rao and Bhat added, “Courts have often reiterated the expertise of the executive in managing a public health crisis, but have also warned against arbitrary and irrational policies being excused in the garb of the ‘wide latitude’ to the executive that is necessitated to battle a pandemic.”
The SC acknowledged the unenviable task of the Union government, engaged in tackling the enormity of challenges posed by the deadly second wave of the pandemic. “This court does not intend to second guess the wisdom of the executive when it chooses between two competing and efficacious policy measures. However, it (SC) continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons,” it said.
Suggesting that the Centre not be touchy about judicial scrutiny, which it assured would be through the process of dialogue and suggestions, the bench said, “This court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to management of the pandemic.”
“Hence, this court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.”
Appreciating the Centre’s dynamic response on several fronts of the unprecedented health emergency caused by the pandemic, the bench said, “This court appreciates the dynamic nature of the measures. Across the globe, the executive has been given a wider margin in enacting measures which ordinarily may have violated the liberty of individuals, but are now incumbent to curb the pandemic.”
“Historically, the judiciary has also recognised that constitutional scrutiny is transformed during such public health emergencies, where the executive functions in rapid consultation with scientists and other experts.” It cited the US SC’s intervention in 1905 for compulsory vaccination law that was enacted to combat the smallpox epidemic.
With regard to the present pandemic, too, it cited a US Supreme Court intervention to overrule US government policies. The US SC in “Calvary Chapel Dayton Valley” case had said, “Members of this court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten and a public health emergency does not give governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as states have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.”
However, it acknowledged solicitor general Tushar Mehta’s argument that the judiciary must trust the Centre’s wisdom in crafting policies in wider public interest to combat an unprecedented pandemic and that, for that purpose, the executive required “room for free play in the joints”. Mehta had earlier said, “Any overzealous judicial intervention, though well-meaning, in the absence of expert advice or administrative experience may lead to unintended circumstances where the executive is left with little room to explore innovative solutions.”
A bench of Justices D Y Chandrachud, L N Rao and S R Bhat said, “It is trite to state that separation of powers is a part of the basic structure of the Constitution. Policy-making continues to be in the sole domain of the executive. The judiciary does not possess the authority or competence to assume the role of the executive, which is democratically accountable for its actions and has access to resources which are instrumental to policy formulation.”
However, the court also asserted the right to review the executive’s policies. “This separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies… Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform,” the SC said and resolved to scrutinise policies for vaccination, production and supply of vaccines, differential pricing, oxygen supply and auditing, supply of essential medicine and health infrastructure as well as insisting on a change in policy towards free universal vaccination.
Keeping its focus on universal free vaccination, the bench clarified that it was not relenting on examining the Centre’s policy decisions on all issues related to Covid-19 management. “All of the issues contained in the SC’s previous orders still retain their overall importance, and this court shall continue to monitor them alongside the national task force and intervene whenever necessary,” it said.
Justices Chandrachud, Rao and Bhat added, “Courts have often reiterated the expertise of the executive in managing a public health crisis, but have also warned against arbitrary and irrational policies being excused in the garb of the ‘wide latitude’ to the executive that is necessitated to battle a pandemic.”
The SC acknowledged the unenviable task of the Union government, engaged in tackling the enormity of challenges posed by the deadly second wave of the pandemic. “This court does not intend to second guess the wisdom of the executive when it chooses between two competing and efficacious policy measures. However, it (SC) continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons,” it said.
Suggesting that the Centre not be touchy about judicial scrutiny, which it assured would be through the process of dialogue and suggestions, the bench said, “This court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to management of the pandemic.”
“Hence, this court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.”
Appreciating the Centre’s dynamic response on several fronts of the unprecedented health emergency caused by the pandemic, the bench said, “This court appreciates the dynamic nature of the measures. Across the globe, the executive has been given a wider margin in enacting measures which ordinarily may have violated the liberty of individuals, but are now incumbent to curb the pandemic.”
“Historically, the judiciary has also recognised that constitutional scrutiny is transformed during such public health emergencies, where the executive functions in rapid consultation with scientists and other experts.” It cited the US SC’s intervention in 1905 for compulsory vaccination law that was enacted to combat the smallpox epidemic.
With regard to the present pandemic, too, it cited a US Supreme Court intervention to overrule US government policies. The US SC in “Calvary Chapel Dayton Valley” case had said, “Members of this court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten and a public health emergency does not give governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as states have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.”
