As Centre Seeks to Keep COVID Management Out of Judicial Review, SC Is Set to Examine Its Options

In the Federation of Railway Officers Association v Union of India, the Supreme Court noted:

“The wholesome rule in regard to judicial interference in administrative decisions is that if the Government takes into consideration all relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, courts would keep off the same”.

On Thursday, when the Supreme Court is set to hear its suo motu case on Covid management – it had to adjourn the case on Monday due to some technical glitches – it is also likely to reflect on whether the Centre deserves “greater play in the joints” and as per the criteria laid down in the above case.

In Federation of Railway Officers Association, the petitioner challenged the formation of seven railway zones on the grounds that it would not enhance efficient administration. Applying the above criteria, the Supreme Court in 2003, decided the case in favour of the Centre.

But the court’s finding of merits in the plea for granting “greater play in the joints” – which the Centre has repeatedly invoked in its affidavit before the Supreme Court in the suo motu Covid Management case – can be traced to R.K.Garg v Union of India, authored by Justice P.N.Bhagwati in 1981. In this case, the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Act, 1981 was under challenge on the ground that it was violative of the equality clause contained in Article 14.

Relying on an observation of Justice Oliver Wendell Holmes Jr, the eminent former judge of the Supreme Court of the United States in the 19th century, Justice Bhagwati said that legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrine or straight jacket formula.  To Justice Holmes, some play must be allowed to the joints, if the machine is to work.

Also read: Centre’s Vaccine Policy Detrimental to Right to Public Health, Equality, Supreme Court Says

Justice Bhagwati added that this is particularly true in the case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature.  Justice Bhagawati, as part of the majority judges in that case, held the Act as not violative of Article 14.

Permitting greater play in the joints implies a recognition that trial and error method is inherent in every legislative or executive effort to deal with an obstinate social or economic issue.  But unlike in the previous cases, wherein the Supreme Court invoked the theory of trial and error, and greater play in the joints, to give the Centre the benefit of doubt, this is perhaps the first time it is asked to adopt the same approach in a suo motu case. In suo motu cases, the court prima facie assumes that public interest is likely to suffer because of omissions and commissions of the executive, and the burden is on the executive to rebut that assumption. In other words, can the Supreme Court conclude that the Centre is entitled to trials and errors in the management of pandemic, which has already claimed so many lives?  It is not going to be an easy decision, as dictated by precedents.

The brief adjournment, which the bench granted to itself on Monday, was a blessing in disguise as the three-judge bench got an opportunity to reflect on its options in view of the Centre’s lengthy affidavit filed in the case, advising it to not intervene in the Centre’s efforts to manage COVID-19.

On April 30, the bench had given several directives to the Centre to alleviate suffering, in what it called “unprecedented humanitarian crisis” in the country following the outbreak of the COVID-19 pandemic.

Centre’s claims

In times of such grave and unprecedented crisis which the nation is fighting the disaster of an unprecedented magnitude, the executive functioning of the government needs discretion to formulate policy in larger interest, the Centre claimed in its affidavit. 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, the Centre told the Supreme Court.

The Supreme Court observed, in its April 30 order, that compelling the state governments to negotiate with manufacturers on the ground of promoting competition and making it attractive for new vaccine manufacturers will result in a serious detriment to those in the age group of 18 to 44 years, who will be vaccinated by the state governments.

Also read: What Is the Basis for Differential COVID Vaccine Pricing, SC Asks Centre

“The social strata of this age group also comprises persons who are Bahujans or belong to other under privileged and marginalised groups, like many in the other population age groups. They may not have the ability to pay…. This will create disparity across the nation. Discrimination cannot be made between different classes of citizens who are similarly circumstanced on the ground that while the Central government will carry the burden of providing free vaccines for the 45 years and above population, the State Governments will discharge the responsibility of the 18 to 44 age group on such commercial terms as they may negotiate. Prima facie, the rational method of proceeding in a manner consistent with the right to life (which includes the right to health) under Article 21 would be for the Central government to procure all vaccines and to negotiate the price with vaccine manufacturers….”, the Supreme Court observed.

The bench believed that the Centre should consider revisiting its current vaccine policy to ensure that it withstands the scrutiny of Articles 14 and 21 of the constitution. In other words, the bench made it clear that the policy, as it stands, cannot withstand the scrutiny of Articles 14 and 21.

To this the Centre replied in its affidavit as follows:

“The age group above 45 years is especially vulnerable to COVID-19. Since the vaccination of the entire country is not possible in one stretch due to the very suddenness of the pandemic, limited availability of vaccine doses and the vulnerability as the prime consideration, the policy is framed as above which is just, equitable, non-discriminatory and based upon an intelligible differentiating factor between the two age groups.  This policy thus conforms to mandate of Article 14 and 21 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.”

Efforts in the direction of procurement of other vaccines from other countries is essentially a responsibility of the central government. For such procurement, significant efforts are being made at several levels, including through diplomatic channels, both within and outside the country. If and when such procurement takes place, the aforesaid system of distribution may undergo a fresh look. But the Centre did not at all make it clear how its efforts to procure other vaccines from other countries could facilitate a revisiting of the current policy.  The phrase, “if and when such procurement takes place” suggests as if the Centre has no clue about the outcome of its efforts to procure other vaccines.

Responsibility evaded

The Centre refers to the “suddenness” of the second wave, as if it could not have been anticipated, despite clear indicators to the contrary. It also underlines the need to “remain dynamic to deal with an ever mutating virus, whose exact graph cannot be predicted with accuracy and continuous upgradation of knowledge pool with further experience and research”.

The Centre further asserted:

“While this court looks into the steps taken on national, regional and grassroot levels for management of this global pandemic and its waves/surges, propelled by mutated versions of the virus, the policy, strategy and steps taken by the executive, based on expert medical and scientific advice have to be appreciated in the context of a medical crisis (emphasis added) and as the decisions are taken after detailed deliberations at the highest executive level, for germane reasons, no interference is called for in judicial proceedings, leaving it open for the executive to discharge its functions in larger interest.”

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By calling it a medical crisis, which could not be anticipated, it is clear that the Centre wants to be free to decide how to discharge its functions in the larger interest. What one can read between the lines here is that without judicial interference for germane reasons (the Centre doesn’t specify what are these), the Centre will also feel free to abdicate its responsibility during such a crisis.

The Centre reminded the Supreme Court that in a plethora of judgments, the court has laid down the parameters for judicial review of executive policies, which can only be struck down or interfered with on the grounds of manifest arbitrariness, allowing sufficient play in the joints to the executive, to function in accordance with its constitutional mandate. In the context of a global pandemic, where the response and strategy of the nation is completely driven by expert medical and scientific opinion, there is even little room for judicial interference, the Centre said. Clearly, the executive here suggests that it was the medical and scientific community which was at fault for not anticipating the crisis, and will be at fault again if the current strategy backfires.

“Any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences, in absence of any expert advice or administrative experience, leaving the doctors, scientists experts, and executive very little room to find innovative solutions on the go”, the Centre added. A careful reader can discern a tacit admission by the Centre that it had ignored expert advice and experience because of which the country had to suffer the ongoing crisis.

With regard to vaccination, the court posed certain queries to the Centre to ensure the protection of fundamental rights (equality, life and personal liberty)  of all citizens who will be eligible to take the vaccine from May 1.

The first query was whether the central and state governments have introduced any initiatives for ensuring the immunisation of persons who do not have access to digital resources.  It was felt that the mandatory requirement of registration over the CO-WIN digital portal for persons in the age group of 18-44 would deprive a large scale of citizens of vaccination.

To this, the Centre has replied that the doses of vaccine are not unlimited.  Constraints of production capacities and permitting walk in vaccination or registration is anticipated to result in overcrowding at the vaccination centres, defeating the very purpose of vaccination, it said. Online registration enables different time slots to be given in advance to each applicant to avoid crowding.  Any vaccination centre would require certain minimum requirements like doctors, nurses and other paramedics. Any vaccination centre would also require a waiting area big enough to maintain social distancing, an earmarked room where the vaccine would be administered and an area where a person vaccinated is required to wait for 30 minutes as per medical protocol to ensure social distancing.

Also read: COVID-19 in Prisons: SC Intervention Must Ensure the Centre Exercises Its Responsibility

Later as more vaccines are available and administered under the online system, the system of onsite registration and walk-in vaccination at COVID vaccination centres would be considered, the Centre’s affidavit promises. If more vaccines are available, it is not clear how the Centre expects it to result in fewer crowds at the vaccination centres to enable consideration of onsite registration.

The ground experience shows that for persons over the age of 45, and at vaccination centres designated for them, the problem of overcrowding is largely not experienced, the Centre has said. But the court is likely to ask whether the problem of overcrowding could only be met by the denial of walk-in registration to those under 45.

The Centre has admitted that the availability of vaccines for the next six months would be difficult to project as it depends upon successful augmentation in the existing manufacturing capacity of two vaccine manufacturers, the procurement of other vaccines from other countries and its quantity etc.

Gag on public discourse

The Centre has claimed that discussions for procurement of vaccines from abroad have been ongoing since the third quarter of 2020, at a time when foreign vaccine manufacturers were prioritising their domestic requirements.  “These negotiations are a complex undertaking which is currently ongoing on a war footing using all resources including diplomatic channels.  Any discussion on this aspect is likely to be detrimental to these efforts being made by the Central Government in other countries”, the Centre claimed, as if it seeks a gag on observations and queries from the courts too, let alone discussion in the public fora.

The Supreme Court, in its order on April 30 advised the Centre to consider using its powers under Sections 92, 100 or 102 of the Patents Act, 1970 to increase production of essential drugs to ensure that it is commensurate to the demand. The Delhi high court too, in its order on April 20 directed that the government/controller should not hesitate to invoke their jurisdiction and powers under the Patent Act, since the lives of thousands of people are being lost each day in the country due to COVID-19.

The Centre, however, has responded by saying that any discussion or a mention of exercise of statutory powers either for essential drugs or vaccines having patent issues would have serious severe and unintended adverse consequences.

Also read: Why Media Can’t Be Blamed for Reporting on Judicial Proceedings

The augmentation of manufacture of Remdesivir involves certain constraints including limited availability of certain inputs; the methodology factors in several day-to-day exigencies which would not be possible to anticipate in the exercise of judicial review by the Supreme Court, the Centre said.

Among other things, the Supreme Court in its April 30 order, was also extremely critical of the clampdown on information sharing by the state and its instrumentalities. Preventing clampdowns on sharing information on online platforms is not just in the interest of individuals sharing the information, but the larger democratic structures of our nation; without the ready availability of such information, it is entirely possible that the COVID-19 pandemic may turn into a tragedy worse than what it already is, the bench had warned. The bench also emphasised the role of information sharing for preserving collective public memory about the pandemic to help future generations to learn from our experience. The Centre’s affidavit skirts this issue altogether, lest it becomes a justification for the court’s intervention.

The court’s suggestions for imposing a ban on mass gatherings and super spreader events or a lockdown also elicited no response in Centre’s affidavit. In case of a lockdown, arrangements must be made beforehand to cater to the needs of marginalised communities, the bench had cautioned.  The Centre has avoided a response to this too perhaps not to invite judicial scrutiny of its omissions and commissions since the last lockdown, which has led to the current surge.

In view of the Supreme Court’s constitution of the National Task Force relating to oxygen supply and related issues on May 6 in Union of India v Rakesh Malhotra, the Centre found it convenient to defer its response to part of the April 30 order dealing with generation, procurement, and logistical plans for delivery of oxygen.

All eyes are now on the Supreme Court on how it would deal with the Centre’s affidavit, which is not only evasive in its responsibilities, but also accountability in all forms.