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  • Sunday, 01 August 2021
SC mulls limit to role as policy watchdog

SC mulls limit to role as policy watchdog

GS II – Separation of powers between various organs dispute redressal mechanisms and institutions.


  • The resolve voiced by a Division Bench of the Supreme Court in July to “examine” the extent to which the judiciary can question the government’s COVID-19 policies drifts from the court’s three-judge Bench judgment in May, which held that courts cannot be “silent spectators when constitutional rights of citizens are infringed by executive policies”.
  • The May 31 judgment by a Supreme Court Bench of Justices D.Y. Chandrachud, L. Nageswara Rao and S. Ravindra Bhat is associated with the Centre’s reversal of its dual vaccine pricing policy.
  • On July 14, a Bench of Justices Vineet Saran and Dinesh Maheshwari said courts should not undermine the executive at a time when a “collective effort” was required to overcome the public health crisis.
  • “There are certain norms based on which every institution should function,” Justice Maheshwari had noted.
  • The oral remarks from the Division Bench hardly gel with the observations made under a sub-heading ‘Separation of Powers’ in the May judgment authored by Justice Chandrachud that a public health crisis like COVID-19 does not mean the Constitution should be “kept away and forgotten” by the government.
  • The Justice Saran Bench was hearing an appeal by the Uttar Pradesh government against an Allahabad High Court order of May 17, which had described the medical system in smaller cities and villages of the State during the pandemic as “Ram Bharose” (at the mercy of the gods). The High Court had issued a slew of directions for the government, which included ensuring that nursing homes in the State have oxygen facility for every bed and provide ventilators, among other facilities.

Constitutional mandate

  • 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,” Justice Chandrachud had said.
  • “it (judiciary) 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. This Court 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,” Justice Chandrachud had clarified.
  • The judgment highlighted that courts across the globe have responded to constitutional challenges to executive policies which violate rights and liberties of citizens.
  • Justice Chandrachud took the example of the United States’ Supreme Court, which said “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”.

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