India is in the middle of an anomalous medical catastrophe. A year and a half into it and it is evident that no one was prepared for it. It is under this circumstance that courts are being moved by private entities and individual citizens seeking judicial interference into the mishaps of the government. Several petitions are being filed in courts, some having substance, some not, in the entirety of this pandemic. But generally, courts cannot interfere in the functions of the executive unless the policies are unconstitutional.
THE CENTRE’S STANCE
A writ was moved in the Delhi High Court under Art 226 – extraordinary jurisdiction to protect personal liberty about medical oxygen and basic medical infrastructure issues. On April 30, 2021, the Apex Court heard a suo moto matter called ‘In re distribution of essential supplies and services during COVID-19’ relating to the management issues of Coronavirus and had called for revising the Central Government’s vaccine policy. The court stated how the current policy was framed would result in prima facie damage to the right to public health under Art 20 of the Constitution.
The Centre defended its Covid vaccinations policy which was condemned a lot for its shortage of doses, the difference in prices and a slow rollout by submitting an affidavit to the Supreme Court. The Centre advised against any kind of judicial interference in its vaccination policy stating that “Any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences, in absence of any expert advice or administrative experience, leaving the doctors, scientists, experts and executive very little room to find innovative solutions on the go.”
The Centre claimed that during a time of such grave and unparalleled crisis that our country is facing, the government needs discretion with regards to its executive functioning to construct policies for the interest of the public at large. It maintained that the executive’s wisdom should be trusted and defended its vaccination policy as being just, equitable and non-discriminatory. It further insisted that all the policies made by them conformed with Art 14 – Right to equality of law and equal protection of law and Art 20 – Right to life and personal liberty of the Constitution. The policies were made after several deliberations with experts, State Governments and vaccine manufacturers and required no interference by the Court when it is dealing with a pandemic of this magnitude as the Executive has room for free play in the joints, for public interest.
The Centre also clarified issues ranging from hospital admission policies, vaccine policies, vaccine pricing and import. Though the Court means well, any overzealous judicial intervention may lead to unforeseen and unintended consequences. As this situation has never happened before, doctors, scientists, experts and executives need to find innovative solutions to deal with this problem and any kind of judicial interference would limit this.
In another instance, a petition was filed by Kamaljeet Sandhu that trials for possible courses of treatments for the virus should be tried on inmates in jails and correctional homes who have tested positive for the virus. But here, the Bombay High Court refused to pass an order on the topic and stated that it is a matter of government policy to decide on whom the medical trials should be conducted and that it must be left at the discretion of the concerned government authority and courts should not interfere in the process.
THE COURT’S STANCE
Courts maintain that they are playing their constitutional role of maintaining checks and balances within the scaffolding of judicial review. The decision’s of the executive affect the lives of a billion people. The court is just interested in seeking accountability and transparency of the Centre’s policies and its failure to act in time. It is just exercising its power of judicial review as it is an essential facet of democracy. The court is not eager to utilize its extra-constitutional responsibility but is doing so as the cooperation between the Centre and states has broken.
Federalism is an essential feature of our Constitution and the courts are not only certifying administrative compliance but are also imposing federal coherence to ensure the stability of the executive. When citizens and private entities want redressal they have no option but to seek legal resources during the pandemic. People who file petitions in courts have a locus standi to seek judicial remedy to protect them.
No one was ready for the situations that we are facing today and all bodies be it governmental or non-governmental are doing all they can to fight this pandemic. But courts cannot interfere in the policy making process of the government on grounds that it is erroneous or that a better alternative is available. The subject of judicial review should be the legality of the policy, and not its wisdom or soundness. The constitutional principle of separation of power must be adhered to. Making policies and executing them is in the ambit of the Executive and should be left to it. The steps taken immediately to tide over an impending crisis may be unwise in the long run. But they need to be appreciated, understood and acknowledged. The courts are ex facie intervening with the duties of the executive. Such interferences may have a demoralising and negative effect.
Author: Malvika Verma from Sandip University, Nashik.