"Bounded Deliberative approach:" Justice DY Chandrachud explains how Supreme Court order prompted Union govt to change COVID vaccination policy

The role of the Supreme Court is that of a counter-majoritarian institution and it is the duty of the top court to protect the rights of socio-economic minorities, Justice DY Chandrachud said on Monday.

. While some have termed the role of the Supreme Court during the COVID-19 pandemic as “judicial activism” or “judicial overreach”, the Court as a guardian of Constitution has to apply brake when the executive or legislative actions infringe fundamental human rights, he said.

"Many of its interventions have changed the course of Indian history - be it in protecting civil and political liberties which cast a negative obligation on the State or in directing the’ State to implement socioeconomic rights as affirmative obligations under the Constitution. While some have termed these interventions of the Indian Supreme Court as “judicial activism” or “judicial overreach”, the Court plays the role of a counter-majoritarian institution and it is its duty to protect the rights of socio-economic minorities," the judge said.

He was speaking on the topic " Role of the Supreme Court in protecting fundamental rights in challenging times" at an event organised by the American Bar Association.

. Pertinently, Justice Chandrachud referred to his much discussed judgment on the vaccination policy of the Central government which had prompted changes from the government.

"The Indian Government had introduced a liberalized vaccination policy, in which the Union Government was only vaccinating people above the age of 45 years, health care workers and other frontline workers for free. People in the age. People in the age group of 18-44 had to approach the State Government vaccination centres or private hospitals to get vaccinated and had to bear the cost of such vaccination. The people in this age group were also required to book appointments for vaccination digitally," he pointed out.

In such a situation, the Supreme Court had to be cautious that it does not transgress into policy domain and usurp the role of the executive, he said.

However, at the same time, in a humanitarian crisis, it could not stand as a silent spectator and, therefore, it adopted a “bounded deliberative approach” seeking justifications from the government for its policy.

"The Supreme Court observed that prima facie the Union Government’s policy of differential pricing where a certain class of citizens is given free vaccines and another class has to pay for vaccines or depend on the financial wherewithal of each State to avail free vaccines was arbitrary and inconsistent with the right to life (which includes the right to health) under Article 21 of the Constitution. We noted that the social strata of the 18-44 age group also comprises persons who belong to under privileged and marginalized groups. Such persons may not have the ability to pay for essential vaccines which is a public good in a pandemic," the judge explained.

Hence, we noted that prima facie a rational policy would require the Union government to take up the responsibility of procuring vaccines and negotiating with the vaccine manufacturers as a monopolistic buyer, and subsequently allocate the vaccines to the States for distribution to people free of cost.

"On the issue of mandatory booking of appointments for vaccination online for persons in the age group of 18-44, we noted that there exists a digital divide in the country. Digital literacy and digital access have not penetrated a majority of the population in India. There is especially a disparity between urban and rural areas," the judge further elaborated on his judgment.

The Supreme Court’s approach of questioning " the rationale of the policy decisions of the government helped in grounding the dialogue between the government and the Court regarding the existence of the policy within the constitutional framework."

Thereafter, the Union Government revised its policy, bearing the responsibility of procuring 75 percent of the vaccines and administering them free of cost to persons above the age of 18 years, while also capping the price that could be charged for the remainder 25 percent of vaccines being procured by private hospitals from manufacturers, he said.

.[COVID Vaccination] What the Supreme Court said and how the Prime Minister responded. While being acutely aware of this responsibility, the judges of the Supreme Court of India are careful to maintain the separation of powers, he added.

. Justice Chandrachud also drew comparisons on how the US Supreme Court and Indian Supreme Court responded when the pandemic led to halt on physical hearings.

"The e-Committee of the Supreme Court, of which I am the Chairperson, rolled out two important initiatives that charted the course for hearings during the lockdown. The first was the video conferencing facilities in all district courts, High Courts and the Supreme Court. The second, was initiation of e-Filing in courts," he said.

"Bounded Deliberative approach:" Justice DY Chandrachud explains how Supreme Court order prompted Union govt to change COVID vaccination policy

Debayan Roy

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