[WSMDiscuss] Supreme Court of India says Constitution doesn't envisage courts to be silent spectators when citizens' rights infringed

[Jai Sen]

Wednesday, June 2, 2021

India in movement…, Governance in movement…, Justice in movement…, Ideas in movement…, Resistance in movement… ?

[An unexceptional opinion from a Supreme Court, under ‘normal circumstances’ – whatever those are -, but perhaps also a somewhat notable one given the way the wind is blowing in India; and where it is clearly treading carefully, and even if apparently firmly.  Worth reading carefully, I think.  But what it does with the powers it is insisting it enjoys, remains to be seen.

[Apologies for posting such turgid reportage, but…

[On the other hand, what a dramatic change in tone from that of the Supreme Court under the Chief Justice who recently retired ! :

Supreme Court of India says Constitution doesn't envisage courts to be silent spectators when citizens' rights infringed

The apex 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

Press Trust of India

https://www.hindustantimes.com/india-news/sc-says-constitution-doesn-t-envisage-courts-to-be-silent-spectators-when-citizens-rights-infringed-101622647866959.html <https://www.hindustantimes.com/india-news/sc-says-constitution-doesn-t-envisage-courts-to-be-silent-spectators-when-citizens-rights-infringed-101622647866959.html>

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 apex 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 D Y Chandrachud, L N 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 recognized 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.”
____________________________

Jai Sen

Independent researcher, editor; Senior Fellow at the School of International Development and Globalisation Studies at the University of Ottawa

jai.sen at cacim.net <mailto:jai.sen at cacim.net> &  <mailto:jsen at uottawa.ca>jsen at uottawa.ca <mailto:jsen at uottawa.ca>
Now based in Ottawa, Canada, on unsurrendered Anishinaabe territory (+1-613-282 2900) and in New Delhi, India (+91-98189 11325)

Check out something new – including for copies of the first two books below, at a discount, and much more : The Movements of Movements <https://movementsofmovements.net/>
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