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'Courts Have To Respect The Decision Of Popular Govt, Especially In Policy Matters: Telangana HC Dismisses Plea Against Relaxing Lockdown Norms

Mehal Jain
8 July 2020 11:31 AM GMT
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The Telangana High Court on Monday observed that the decisions of the Executive "may sometimes appear to be in excess of their power", and "may even appear, at the first blush, to be rather unusual", but so long as the policy decision does not infringe the fundamental rights, or a provision of law, "the courts would be weary of interfering" with such decisions.

Moreover, the bench announced that even in such an event, it is not the decision, but the decision making process that will be examined by the Court before arriving at a conclusion that the fundamental rights guaranteed under the Constitution of India are infringed.

The bench of Chief Justice Raghvendra Singh Chauhan and Justice B. Vijaysen Reddy was considering a PIL by a Human Rights Activist, challenging the action of the respondent – authorities in completely removing lockdown from 08.06.2020 and opening of religious places vide a G.O. dated 07.06.2020 as being arbitrary, illegal and in violation of Articles 14, 19, 20 and 300-A of the Constitution of India. The petition also sought consequential reliefs to direct extension of lockdown by engaging the services of paramilitary forces for better implementation, equip the entire public health system, and provide safety precautions for the entire medical fraternity and the paramedic workers, to open religious places after 15.07.2020 after reviewing the situation by an expert committee, and to provide interim cash transfer of Rs.7,500/- for all White Ration card holders for sustaining themselves for this month.

Dismissing the PIL, the Division Bench remarked, "Courts have to respect decisions of the popular government more so when policy decisions are made".

"The strength of democracy, apart from several factors, depends upon each organ of the State respecting the functions and decisions of the other organs", observed the High Court, adding that "the smooth and effective functioning of the Executive is possible only when there is no unwarranted interference from the judicial system".

"The executive, in its day to day functioning, is presumed to have knowledge of public necessities; it is also presumed that the policy decision subserve the public interest. For, naturally, the state dispensation takes into consideration social, economic and several other factors before formulating any policy decision", it said.

The bench opined that a popular dispensation is expected to have knowledge and expertise in matters relating to health, food, security, law and order, etc., and that a court cannot be expected to have expertise in all these matters.

"Merely because another view is possible, the courts would not ordinarily interfere with a policy decision, unless there is a violation of fundamental rights, or violation of provision of law. Otherwise, it would amount to transgressing into the areas that are specifically earmarked for the Executive authorities; same would run contrary to the theory of separation of powers as enshrined in the constitution of India", the Court expressed its view.

Besides, in the present case, the bench was of the opinion that if the relief sought for by the petitioners were granted, then it would amount to continuing the lockdown which was imposed under G.O.Ms.No.45 dated 22.03.2020. Moreover, if the consequential reliefs sought by the petitioner were to be granted, then it would amount to directing or advising the Executive in the matter of policy.

"However, the writ court rarely enters the arena which is the exclusive domain of the executive authorities. If such directions were issued, it would amount to the High Court formulating a policy decision under its writ jurisdiction. Needless to say, the writ court cannot usurp and encroach upon the powers of the Executive. For, it would be an anathema both to the doctrine of separation of powers, and to the system of democracy", reads the judgment.

The court continued to reflect that the relaxation of lockdown by permitting certain activities outside the containment zones vide the impugned G.O. is a policy decision of the Government, and that it is a settled law that while exercising extraordinary jurisdiction under Article 226 of the Constitution of India, the High Court has got limited jurisdiction in interfering with the policy decisions of the State. "Various factors prevail upon the State to relax the lockdown imposed, at the earlier point of time, keeping in view several hardships being faced by the citizens, more particularly, economic hardship, movement restrictions, livelihood of worker class etc", appreciated the Court.

The bench asserted that while the petitioner may have apprehension that easing down of lockdown may result in disastrous consequences, it cannot be forgotten that there is no compulsion for any particular individual to visit any religious place, hotels, restaurants or shopping malls. Health Bulletins are issued from time to time on daily basis cautioning general public not to move in groups, maintain social distancing, avoid physical contact while greeting another person, avoid touching idols, books, usage of face masks, gloves, hand sanitizer etc.

"This Court cannot sit as an appellate Court over a policy decision of the State. The State is well within its domain to take decision to relax lockdown norms, and also to review the situation from time to time. Interference of Constitutional Courts in the policy decision is very limited; such interference can be made only when such policy decision violates fundamental rights of the citizens", the bench has declared.

The Court acknowledged that Undoubtedly, the power of judicial review is a plenary power under Article 226 of the Constitution of India; it is part of the basic structure of the Constitution of India. Hence, there cannot be any absolute limitation in exercise of power of High Court under Article 226 of the Constitution of India in relation to matters concerning public policy. "However, the Courts have to keep in mind that policy making is in the exclusive domain of executive authorities. Unless such decision is made with mala fides, or in gross abuse of power, ordinarily, the Courts would not interfere", it stated.

WRIT PETITION (PIL).No.118 of 2020

Sunitha Krishnan Versus The State of Telangana

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