It is a truism to state that the Supreme Court of India has one of the widest jurisdictions in comparison to any other Court in the world. It is the final Court of Appeal not just in Constitutional matters but in Civil, Criminal and other types of matters as well. The Supreme Court of India has 3 main jurisdictions namely – an Original jurisdiction, an Appellate jurisdiction and an Advisory jurisdiction. Apart from these, the Supreme Court also has a Review jurisdiction under Article 137 of the Constitution and an Epistolary jurisdiction by which even a letter written to the Court is treated as a petition.
The Hon'ble Supreme Court of India vide order dated 31.05.2021 in the matter titled 'In Re: Distribution of Essential Supplies and Services During Pandemic in Suo Motu Writ Petition (Civil) No.3 of 2021 has devised a notion of 'Dialogic Jurisdiction'. The afore-mentioned proceedings were initiated by the Court as a Suo motu Writ Petition on 22nd April 2021 when the second wave of the Covid-19 pandemic was on the rise and the Hon'ble Court sought to assess the preparedness of the supply of essentials like oxygen & vaccines.
The Hon'ble Supreme Court in its order dated 31.05.2021 elaborates on the notion of dialogic jurisdiction and states as hereunder:
"17. In grappling with the second wave of the pandemic,
this Court does not intend
to second-guess the wisdom of the executive when it chooses
between two
competing and efficacious policy measures. However, it 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. 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.
[Emphasis supplied]
James B. White, one of the founders of the Law & Literature movement opined that the law was "not an abstract system or scheme of rules, as we often think of it; rather, it is an inherently unstable structure of thought and expression, built upon a distinct set of dynamic and dialogic tensions." Prima facie, it appears that the Hon'ble Court is trying to ease the 'dialogic tensions'- that exist in view of the pandemic, between the organs of the state on one hand and the citizenry on the other- by adopting a dialogical jurisdiction and concomitantly ensuring that the judiciary harmonizes the divergent views to ensure that there is a consistency between dialogue and discourse.
Interestingly, one of the Hon'ble Judges who passed the order dated 31.05.2021- Dr. Justice D.Y Chandrachud - in his Keynote address on 'The Narrative of Justice- Law & Storytelling' organized under the auspices of the IDIA (Increasing Diversity by Increasing Access) Annual Conference 2018 had said that "the Dialogical role of the law is crucial to preserve the legitimacy of the law. If you forsake the dialogical role of the law, I daresay, the law then becomes a diabolical instrument. That's the grave danger which we must then confront."
The Hon'ble Court in a previous order dated 30.04.2021 in the afore mentioned Suo Motu Writ Petition also held that:
"the jurisdiction exercised in this matter is merely to facilitate a dialogue of relevant stakeholders, the UOI, the States and this Court, in light of the pressing humanitarian crisis, and not with a view to usurp the role of the executive and the legislature. This bounded-deliberative approach is exercised so that the UOI and States can justify the rationale behind their policy approach which must be bound by the human rights framework which presently implicates the right to life under Article 21 and right to equality under Article 14 of the Constitution."
Appearing for the Union of India in the Suo Motu Writ Petition, the Ld. Solicitor General argued that it was institutionally inappropriate for the Hon'ble Court to be assessing Executive made policy and issuing directions to the Executive, in view of the theory of Separation of Powers. The submissions of the Ld. Solicitor General with respect to Separation of Powers were threefold:
- The Executive's discretion in policy formulation must be respected and trusted.
- The vaccination policy is in conformity with Articles 14 & 21 of the Constitution and does not require any interference from the Courts.
- Courts can interfere in executive policies only when there is manifest arbitrariness in the same.
The Hon'ble Court in its order dated 31.05.2021, justifies the invocation of dialogic jurisdiction by stating that 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. Reference is also made to the judgment in DDA v Joint Action Committee [(2008) 2 SCC 672] wherein it was held that the Montesquien system of Separation of Powers does not prevent the Courts from exercising jurisdiction to review executive policies. The Hon'ble Court at paragraph 64, page 697, holds that "An executive order termed as a policy decision is not beyond the pale of judicial review". In Gujarat Mazdoor Sabha v State of Gujarat [AIR 2020 SC 4601] it was held that policies to counteract the pandemic must continue to be evaluated from a threshold of proportionality to determine if they have a rational connection with the object that is sought to be achieved.
Furthermore, the Montesquien notion of separation of powers cannot be implemented stricto sensu given the contemporary socio-political realities of our times. A complete separation of powers between the three organs of the state is therefore neither feasible nor desirable. It is but axiomatic to say that in case the executive or the legislature exceeds its mandate or abdicates from its responsibilities, the judiciary must step in to ensure that the fundamental rights of the citizens are not altered in any manner and a balance is maintained between the three organs of state. The judiciary cannot remain a silent spectator in cases where the executive and the legislature start yielding excessive power. The basic tenets of our Constitution must be safeguarded by the judiciary against any excesses.
Under this Dialogic jurisdiction, the Hon'ble Court in its order dated 31.05.2021 has passed a series of directions to the Union Of India, including directions to place on record a roadmap of projected availability of vaccines till 31st December 2021, place on record any written policy in respect of manner in which the Central Government will monitor the disbursal of vaccines to private hospitals, the manner in which the Centre & the State/UT's shall ensure equitable distribution of vaccines across sections of society, whether the cold storage facilities have increased in India for the vaccination drive – the present numbers & comparison with numbers prior to March 2020, details pertaining to whether cold storage equipment is indigenously manufactured or imported, complete data on Central Government's purchase history of all Covid-19 vaccinations till date, outline for how & when the Central Government seeks to vaccinate the remaining population along with copies of all relevant documents and file noting's reflecting its thinking on the vaccination policy. The question that thus arises is - did the Court, by virtue of issuing these directions, usurp the power of the executive to frame & decide policy and furthermore whether the creation of such a jurisdiction would have been necessitated if the Executive had been able to effectively handle the multifold challenges associated with the pandemic?
The answer may lie in having reference to Divisional Manager, Aravali Golf Club & Anr v Chander Haas & Anr. [2008 1 SCC 683] at paragraph 39, wherein after a detailed discussion on the theory of Separation of Powers, the Hon'ble Court held:
39. We hasten to add that it is not our opinion that judges should never be `activist'. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court vide Brown vs. Board of Education 347 U.S. 483 (1954), Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary.
The question then is whether the pandemic would qualify as an 'exceptional circumstance'? In view of the fact that the exigencies of the prevailing times are leading to all three organs of the state having to adapt to an ever-changing narrative - the present circumstance/pandemic would certainly qualify as being exceptional. What must also not be forgotten is that our Constitution is a living document that must keep evolving with time and be interpreted in a way that its ideals are realized. The transformative character of the Constitution must be kept relevant. As observed by the Hon'ble Court in Transport & Dock Workers Union & Ors. V Mumbai Port Trust & Anr. (2011) 2 SCC 575:
"4. The judicial process is thus not a bucket of readymade answers, but a process, or technique, for easing an endless flux of changing social tensions."
Whether the creation of this new jurisdiction is the need of the hour or whether it amounts to judicial overreach -The dialogue must continue - for it is this dialogue that forms the core of our jurisprudential and civilizational ethos. The Hon'ble Court has the onerous task of maintaining a fine balance between acting reasonably as well as in good faith and ensuring that substantive justice is delivered to the people albeit within the constitutional bounds and established parameters. As Lord Atkin observed in Ras Behari Lal v King Emperor AIR (1933) PC 208 - Finality is good but justice is better.
Written by,
Mr. Debmalya Banerjee - Partner
Mr. Vardaan Wanchoo - Associate
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