Question

The Supreme Court of India in a Suo Motu Writ Petition In Re: Distribution of Essential Supplies and Services During Pandemic, [Writ Petition (Civil) No. 3 of 2021], analyzed the power of judicial review over the management of the COVID-19 pandemic in India. The Union of India has highlighted a few concerns as: The executive is battling an unprecedented crisis and the government needs discretion to formulate policy in larger interest and its wisdom should be trusted; The current vaccine policy conforms to Articles 14 and 21 of the Constitution, and requires no interference from the courts as the executive has room for free play in the joints while dealing with a pandemic of this magnitude; Judicial review over executive policies is permissible only on account of manifest arbitrariness. No interference from judicial proceedings is called for when the executive is operating on expert medical and scientific opinion to tackle a medical crisis; and any over-zealous 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. The court clarified that in the context of the public health emergency, the executive has been given a wider margin in enacting measures which ordinarily may have violated the liberty of individual. The judiciary has also recognized that Constitutional scrutiny is transformed during such public health emergencies and noted the complex role of the government in battling public health emergencies in following words: ...While this court should guard with firmness every right appertaining to life, liberty or property as secured to the individual by the Supreme Law of the Land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. 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. …the courts should expect policies that more carefully account for Constitutional rights. The court stated that separation of powers is a part of the basic structure of the Constitution of India. However, this separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies.