Power Of Judicial Review: How Supreme Court Caused Changes In Government Decisions in 2021
Manu Sebastian
2 Jan 2022 6:13 AM GMT
"If the judiciary does not have the power of judicial review, then the functioning of democracy in this country would be unthinkable", said the Chief Justice of India NV Ramana while speaking at a public event recently.The CJI explained that the Constitution has created three co-equal organs, namely the legislature, the executive and the judiciary and the judiciary has been given the role...
"If the judiciary does not have the power of judicial review, then the functioning of democracy in this country would be unthinkable", said the Chief Justice of India NV Ramana while speaking at a public event recently.
The CJI explained that the Constitution has created three co-equal organs, namely the legislature, the executive and the judiciary and the judiciary has been given the role of reviewing the legality of steps taken by the other two organs. To brand "judicial review" as "judicial overreach" is a "misguided generalization", asserted the CJI.
The year 2021 witnessed the Supreme Court asserting its Constitutional role to exercise judicial review over several executive actions. While the Court was careful to not tread into the executive area of policy formulation, it did not hesitate the call out the Constitutional infirmities, wherever they were detected in the executive decisions. And, the Court's interventions bore fruits, as we saw the executive revisiting its decisions, in the light of the critical judicial remarks. Let us have a look at some of them.
Change in COVID vaccination policy
The best example for positive judicial review in 2021 is the Central Government deciding to change its COVID vaccination policy after the Supreme Court highlighted several flaws in it.
A bench comprising Justice DY Chandrachud, Justice L Nageswara Rao and Justice S Ravindra Bhat made prima facie observations to the effect that the dual pricing policy for Centre and States and the exclusion of the age group 18-44 years from free vaccines were arbitrary and discriminatory.
In a detailed order passed on April 30, the Supreme Court went to the extent of prima facie saying that the vaccine police was "detrimental to the right to life and health" and that it needs a rethink to "make it conform to the mandate of Articles 14 and 21 of the Constitution of India".
(1) Furnish complete data on vaccine purchase history.
(2) Produce before the Court all relevant documents and file notings which led to the policy.
(2) Explain how the budgetary allocation of Rs 35,000 crores was utilized for vaccine procurement and clarify why this amount cannot be utilized for giving free vaccines for the category of 18-44 years.
Rebutting the Centre's argument that the executive policy decision was beyond judicial scrutiny, the Court explained :
"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 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".
On June 7, the Prime Minister announced changes in the vaccine policy, deciding to change the dual pricing policy for centre and states and extending the free vaccination benefit to the age group of 18-44 years - the two major areas of concern flagged by the Court.
For detailed reading : 'Free Vaccines For All' : A Powerful Impact Of Supreme Court's Judicial Review
The Bench comprising Justices RF Nariman and BR Gavai observed that the State of Uttar Pradesh cannot go ahead with the Kanwar Yatra, especially so when the Union Government has taken a stand against holding the same. "Religious sentiments are subservient to the fundamental right to life and health", the bench observed in its order(case : In Re Alarming Newspaper Report Regarding Kanwar Yatra in State of UP).
In the same suo motu case, the issue of lockdown relaxations announced by the Kerala Government for Bakrid festival was brought to the notice of the Court. The Kerala Government action came under severe criticism from the Court. However, as the festival was over by that time, the Court ordered that if the relaxations announced by the Kerala Government lead to any "untoward spread of COVID-19 disease", action will be taken against those responsible.
Court pushing government to fill up tribunal vacancies
The Supreme Court took serious note of the mounting vacancies in various tribunals across the country and passed strong observations to compel the Union Government to expedite the process of filling up of vacancies.
A bench comprising Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice L Nageswara Rao criticized the Central Government for "cherry-picking" the names approved by the Search-cum-Selection Committee and taking names out of the wait-list ignoring the select list. The bench also expressed its unhappiness over the Tribunal Reforms Act 2021, which it said was a "virtual replica of the provisions struck down by the Court".
Following the rap from the Court, the Central Government notified appointments in tribunals like NCLT and ITAT. The bench also took note of the non-functioning of several DRTs and DRATs in the country due to unfilled vacancies and asked the High Court to entertain writ petitions in relation to bank recovery matters.
The Supreme Court also took a suo motu case to deal with the vacancies in consumer commissions and a bench led by Justice Sanjay Kishan Kaul passed directions to Central and State Governments to complete the appointment process in a time-bound manner.
Centre decides to revisit EWS criteria after Supreme Court's critical observations
While hearing a batch of petitions related to NEET-PG counselling, the Supreme Court questioned the rationale of the Rupees 8 lakh annual income limit and other criteria adopted by the Central Government to determine the eligibility for reservation for Economically Weaker Sections(EWS).
- How can the Rupees 8 lakh limit be uniformly applied across the country, regardless of the vast regional income disparities?
- Noting that Rupees 8 lakh was the income limit to determine the creamy layer in OBC category, the bench asked how can the same limit be applied to EWS category, in which there is no concept of social and educational backwardness. For a detailed report of the hearing, read here.
A bench led by Justice DY Chandrachud passed a detailed order recording its doubts over the reasonableness of the EWS limit and raised eight points of specific queries to the Government.
On November 25, the Central Government agreed to revisit the EWS criteria and formed a committee to review the same in light of the Court's observations. ( Latest update: Centre filed an affidavit yesterday stating that it has accepted to retain the existing EWS criteria for the current admissions, based on the recommendation made by the Committee).
For detailed reading : NEET-PG Counselling : Why Criticism Against Supreme Court Intervention Is Misdirected?
Disbursal of COVID death compensation
The Supreme Court is actively monitoring the disbursal of the ex-gratia compensation by the State Governments to the kin of those who died due to COVID. The Gujarat Government came under Court's criticism for constituting a scrutiny committee to review compensation applications. Observing that the constitution of the scrutiny committee was contrary to the directions of the Supreme Court judgment, a bench led by Justice MR Shah made strong remarks against the Gujarat Government, after summoning the Principal Secretary and the Health Secretary. Following that, the Gujarat Government made necessary amendments.
Other states also faced the Court's criticism for the low rate of disbursal of ex-gratia compensation, especially the States of Kerala and Maharashtra. The Court has passed directions to give wide publicity to the application process in local newspapers and media and has called for periodic reports on the status of disbursal.
Delhi pollution crisis
The Supreme Court swung to swift action when the air quality level of Delhi-NCR alarmingly plummeted to severe category during mid-November. Prodded by the Court's observations and interventions, the Commission for Air Quality Management took several steps to curb pollution in the national capital. A bench comprising Chief Justice of India NV Ramana, Justice DY Chandrachud and Justice Surya Kant directed to impose a temporary ban on construction activities in Delhi-NCR region. The Court bemoaned the apathy of bureaucrats and called for a scientific approach by the authorities well in advance instead of last-minute ad-hoc measures.
Lakhimpur Kheri case
It is not an exaggeration to say that the investigation in the Lakhimpur Kheri case involving Ashish Mishra, the son of Union Minister and BJP MP Ajay Mishra, would have got derailed had it not been for the timely intervention by the Supreme Court. A bench led by Chief Justice of India NV Ramana acted on a letter petition seeking a court-monitored probe into the incident of protesting farmers getting killed after being mowed down by vehicles in the convoy of Ashish Mishra.
The Court passed several scathing critical remarks against the UP Police, especially for not arresting the main accused Ajay Mishra. Following the Court's remarks, the police arrested him. The Court continued its monitoring of the investigation in subsequent stages and reconstituted the Special Investigation Team by including senior IPS officers who do not belong to UP. The Court also appointed former P&H High Court judge Justice RK Jain to oversee the SIT probe. The Court had earlier observed that CBI may not be a solution for the case "for reasons best known".
Direction to permit women to appear for NDA exam
Faced with harsh criticism from the Supreme Court over the eleventh-hour changes brought to the NEET-SS 2021 pattern, the Central Government on October 6, 2021 in a petition ( Prateek Rastogi and Others v. National Board of Examination and Others) challenging the changes made to NEET-SS 2021 pattern had told the Court that the revised pattern will be implemented only from next year.
