New
Delhi: The Indian
Constitution does not envisage courts to be silent spectators when rights of
citizens are infringed upon by executive policies, the Supreme Court has said
while dealing with the centre’s submission that courts should not interfere
with its decisions on management of COVID-19.
The top court said that in grappling with the second wave of the
Covid pandemic, it does not intend to second-guess the wisdom of the executive
when it chooses between two competing and efficacious policy measures.
The court said it will however continue to exercise jurisdiction
to determine “if the chosen policy conforms to the standards of reasonableness,
militates against manifest arbitrariness and protects the right to life of all
persons”.
A special bench of Justices DY Chandrachud, LN Rao and S
Ravindra Bhat said that it is trite to state that separation of powers is a
part of the basic structure of the Constitution and policy-making continues to
be in the sole domain of the executive.
“Our Constitution does not envisage courts to be silent
spectators when constitutional rights of citizens are infringed by executive
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 bench said in its May 31 order uploaded on
Wednesday.
The top court said that it is presently assuming a dialogic
jurisdiction where various stakeholders are provided a forum to raise
constitutional grievances with respect to the 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”, it said.
The bench, which passed its order in the suo motu case on Covid
management, said that it had clarified in its order of April 30, 2021, that in
the context of the public health emergency with which the country is currently
grappling, this court appreciates the dynamic nature of the measures.
“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 the resources which are instrumental to policy
formulation. However, this separation of powers does not result in courts
lacking jurisdiction in conducting a judicial review of these policies”, the bench
said.
It said that 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,” the bench said and referred to a 1905 verdict of US Supreme Court on
the issue.
The bench said that similarly, courts across the globe have
responded to Constitutional challenges to executive policies that have directly
or indirectly violated rights and liberties of citizens.
“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,” it said.
On May 9, in an affidavit filed in the top court, the centre had
justified its COVID-19 vaccination policy saying that its response and strategy
is completely driven by expert medical and scientific opinion which leaves
little room for judicial interference and emphasised that citizens of all age
groups will get free vaccination throughout the country. In view of the
unprecedented and peculiar circumstances under which vaccination drive is
devised as an executive policy, the “wisdom of the executive should be trusted”,
it had said.
In a global pandemic, where the response and strategy of the
nation is completely driven by expert medical and scientific opinion, “any
overzealous, though well-meaning judicial intervention, may lead to unforeseen
and unintended consequences”, the government had said.
In 218-page affidavit filed in the top court’s suo motu case on
COVID-19 management, the centre had said, this policy “conforms to mandate of
Article 14 and Article 21 of the Constitution of India and is made after
several rounds of consultation and discussion with experts, state government
and vaccine manufacturers requiring no interference by this court as while
dealing with a pandemic of this magnitude, the executive does have a room for
free play in the joints, in larger public interest”.
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