Our constitution has made a deliberate assumption that the functions of one organ do not encroach upon another. The court is empowered to interpret the laws and judicially review both the constitutional validity of the laws framed by the legislature and the actions of the executive. The courts rarely substitute their wisdom for that of the executive as policy formulation is the job of the executive. However, we see a departure from the settled principle of separation of power in a recent judgment of the Allahabad High Court wherein public interest litigation the court has imposed a complete lockdown in the five districts of Uttar Pradesh in the wake of a surge in Covid-19 cases.
Under the constitutional framework centre and the state takes recourse to two laws for acting against the pandemic and imposing Lockdown: The Epidemic Diseases Act, 1897 (EDA) and The Disaster Management Act, 2005 (DMA).
The EDA empowers the executive under section 2A “…When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force do not prevent the outbreak of such disease or the spread thereof, the Central Government may take measures…”
It further empowers the state government under section 2 Power to take special measures and prescribe regulations as too dangerous epidemic diseases.—“… When the [State Government] is satisfied that 7 [the State] or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the [State Government], if [it] thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed…”
The DMA under Section 6 empowers the Central government to issue binding directions to authorities and state governments. Section 22(2) (h) permits the state authority/executive committee to give directions to government departments on actions to be taken in response to any threatening disaster. Section 35 further permits the Central government to take such measures as (a) coordinate work between the various authorities and government departments (b) deployment of forces and (c) other matters to secure “effective implementation”.
In interpreting the laws laid under the two acts, we will conclude that imposing lockdown is primarily an administrative decision and not a judicial one therefore the Doctrine of Separation of Powers should not be obliterated by such judicial pronouncements; as held in Premium Granites v. the State of T.N., while considering the court’s powers in interfering with the policy decision:-
“…It is not the domain of the court to embark upon the unchartered ocean of public policy in an exercise to consider whether a particular public policy is wise or a better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be…”
In M.P. Oil Extraction v. the State of M.P., the Supreme Court held:
“…The supremacy of each of the three organs of the State i.e. legislature, executive, and judiciary in their respective fields of operation needs to be emphasized. The power of judicial review of the executive and legislative action must be kept within the bounds of the constitutional scheme so that there may not be any occasion to entrance misgivings about the role of the judiciary in out-stepping its limit by unwarranted judicial activism…”
Therefore, any democratic setup to which the polity is so deeply committed cannot function properly unless each of the three organs appreciates concluding the need for mutual respect and supremacy in their respective field.
About the Author
Siddhant Mishra obtained B.A LL. B (Hons) from School of Law, KIIT Deemed to be University Bhubaneswar in 2016 and has been practicing and handling cases independently before the High Court of Judicature at Allahabad, Lucknow Bench. Siddhant is an avid reader and writer and writes regularly on issues relating to law and policy.