Dialogic Jurisdiction I

Policy-making continues to be in sole domain of Executive. Judiciary does not possess authority or competence to assume the role of Executive, which is democratically accountable for its actions and has access to resources which are instrumental to policy formulation. However, this ‘separation of powers’ does not result in Courts lacking jurisdiction in conducting a judicial review of policies [DDA v. Joint Action Committee, (2008) 2 SCC 672]. Constitution does not envisage Courts to be silent spectators when constitutional rights of citizens are infringed by Executive policies. Soliciting constitutional justification for policies formulated by Executive is an essential function, which Courts are entrusted to perform.

Courts have often reiterated expertise of Executive in managing a public health crisis, but have also warned against arbitrary and irrational policies being excused in garb of ‘wide latitude’ to Executive that is necessitated to battle a pandemic. This Court in Paragraph 9 of Gujarat Mazdoor Sabha v. State of Gujarat, AIR 2020 SC 4601 had noted, policies to counteract a pandemic must continue to be evaluated from a threshold of proportionality to determine if they, inter alia, have a rational connection with the object that is sought to be achieved and are necessary to achieve them.

Court does not intend to second-guess wisdom of Executive when it chooses between two competing and efficacious policy measures. However, it continues to exercise jurisdiction to determine if chosen policy measure conforms to standards of reasonableness, militates against manifest arbitrariness and protects right to life of all persons. Court is presently assuming a dialogic jurisdiction where… various stakeholders are provided a forum to raise constitutional grievances… where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.

Hon’ble Supreme Court of India, In Re: Distribution of Essential Supplies and Services during Pandemic, [Suo Motu Writ Petition (Civil) No.3 of 2021] decided on 31.05.2021.