This article has been authored by Avinash Singh Vishen, Founder & Managing Partner at Vishen Law Chambers.
“We understand the limitation of the government in creating infrastructure forthwith to meet the challenge of COVID-19. At the moment efforts are afoot to create the same but before all efforts are translated into action much water would have flown under the bridge to the utter dismay of a large population of have nots. We are of the view that in a democracy there are legitimate expectations from the government to adopt measures to meet public health issues like all other issues of public interest. Public interest expects judiciary to remain vigilant to all the issues which if not addressed to in time, will result in the failure of the system which is meant to safeguard public interest.” remarked the Bench of the Hon’ble High Court of Judicature at Allahabad while hearing Public Interest Litigation No. 574 of 2020.
The Bench Exercising its Public Interest Litigation jurisdiction under Article 226 of the Constitution of India directed the Chief Secretary, Uttar Pradesh to ensure lockdown in 5 cities effective from 19th April to 26th April to ensure that the pace Covid-19 Pandemic can be limited and effectively curbed.
The Government of Uttar Pradesh responded by stating that it would not be following the order of the Hon’ble High Court and would be challenging it before the Hon’ble Supreme Court. The only possible ground of challenge for the Government is the Argument of Exclusive Domain and Separation of Powers. Thus, reinvigorating the half a century old debate between Separation of Powers v. Judicial Activism.
The Doctrine of Separation of Powers is a part of the basic structure of the Constitution and it is supplemented by a system of checks and balances. This doctrine provides that each pillar of the Democracy should only perform the duty entrusted to it by the Constitution and should not engage in any activity which is the exclusive domain of another pillar. However, to ensure that each functionary performs its functions, a system of checks and balances has been provided which enables each pillar to examine the actions of the other on the benchmark of Constitutional Duties.
The state’s rationale behind appealing the judgement could possibly be that Medical Infrastructure as well as Law & Order are matters of governmental policy and are an exercise of the exclusive domain of the State Government. Therefore, the Hon’ble High Court while passing the order and directing the state to ensure a lockdown in the state, has exceeded the authority vested to it by the Constitution under Article 226 and has acted in violation of Separation of Powers.
The law with regards to exercise of the Jurisdiction of Public Interest Litigation by a High Court is very clear and it is actually a tool that enables the Judiciary to ensure a system of checks and balances. The Hon’ble Supreme Court in the First Judges Case (S.P. Gupta v. Union of India, AIR 1982 SC 149) has explained that the Jurisdiction of Public Interest Litigation can be exercised “when the public in general is interested in the vindication of some right or the enforcement of some public duty”.
In Shrilekha Vidyarthi v. State of Uttar Pradesh, AIR 1991 SC 537 the court clarified that in exercise of the PIL Jurisdiction under Article 226 the Court cannot direct the State Government to initiate legislation or interfere in matters of governmental policy, except in cases of violation of Fundamental Rights. Further clarity as to the objective of Public Interest Litigation was provided by the Hon’ble Supreme Court in Malik Brother v. Narendra Dadhich, (1999) 6 SCC 552 wherein it was emphasised that the Courts have been conferred with the PIL Jurisdiction to primarily provide:
- Access to justice to weaker sections of the society and to combat exploitation, injustice.
- To ensure to the under privileged segments of society their social and economic entitlements.
- To redress Public Injury.
- To protect Social Rights.
- To vindicate public interest and Rule of Law.
- Effect meaningful realisation of Fundamental Rights of the economically weaker class of the society.
Right to Life and Personal Liberty as enshrined in Article 21 of the Constitution imposes an obligation of the State to ensure good health to the citizens. Self Preservation of one’s life is the necessary concomitant of the Right to Life and is fundamental, sacred, precious and inviolable. The order sought to be challenged has extensively considered the aspect of right to health as a Fundamental Right and also meets the criteria set out in Malik Brothers (Supra).
Recently, the State Government successfully argued before the Hon’ble Supreme Court that securing ends of justice is a duty of the State and in the essence of protection of Fundamental Rights to Life and Liberty of its Citizens, the state can approach the Hon’ble Supreme Court in exercise of Article 32. Now we must ponder whether an appeal against the judgement which seeks to enforce that very Fundamental Right to Life and Liberty would succeed or is it destined fail.
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NOTE
This article is a purely legal work and does not seek to comment upon the Sub Judice aspect of the matter, it merely seeks to critically analyse the Order of the Hon’ble High Court and provide an academic understanding of the legal provisions relating to Seperation of Powers and Public Interest Litigation.
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