Legislature Vs Executive

• In comparison to the legislature and the executive, what the judiciary can deliver in the realm of socio-economic rights is limited.
• Courts cannot build better health infrastructure or directly supply oxygen; neither are they functionally bound to.
• Functions: –
  • To ask tough questions to the executive,
  • Implement existing laws and regulations, and
  • Hold the executive accountable in various aspects of healthcare allocation.

Supreme Court’s Role: –

• In Parmanand Katara v. Union of India (1989), the Supreme Court underlined the value of human lives and said that the right to emergency medical treatment is part of the citizen’s fundamental rights.
• In Chandra Kumar v. Union of India (1997), the Supreme Court itself said that the High Courts are “institutions endowed with glorious judicial traditions” since they “had been in existence since the 19th century and were possessed of a hoary past enabling them to win the confidence of the people”.
• The power of the High Court under Article 226 is wider than the Supreme Court’s under Article 32, for in the former, a writ can be issued not only in cases of violation of fundamental rights but also “for any other purpose”.
• This position was reiterated by the court soon after its inception in State of Orissa v. Madan Gopal Rungta (1951).

Issue of Transfer of cases

• On April 22, the Supreme Court took suo motu cognisance of the issue in ‘Re: Distribution of Essential Supplies and Services During Pandemic’.
• It said, “Prima facie, we are inclined to take the view that the distribution of these essential services and supplies must be done in an even-handed manner according to the advice of the health authorities” and asked the Central government to present a national plan.
• In addition, it issued an order asking the State governments and the Union Territories to “show cause why uniform orders” should not be passed by the Supreme Court.
• Under Article 139A of the Constitution, the Supreme Court does have the power to transfer cases from the High Courts to itself if cases involve the same questions of law.
• However, what make the court’s usurpation disturbing are two well-founded observations regarding its contemporary conduct.
• One, the court has been indifferent to the actions and inactions of the executive even in cases where interference was warranted, such as the Internet ban in Kashmir.
• Two, where effective remedies were sought, when activists and journalists were arrested and detained, the court categorically stayed aloof. It acted as if its hands were tied.
• This deficit occurs not only in the formally pronounced judgments and orders; dissenting judges on the Bench are rare, and the hearing on the COVID-19 case was no exception.

Other Challenges: –

• According to the Seventh Schedule of the Constitution, public health and hospitals come under the State List as Item No. 6.
• There could be related subjects coming under the Union List or Concurrent List.
• Also, there may be areas of inter-State conflicts.
• But as of now, the respective High Courts have been dealing with specific challenges at the regional level, the resolution of which does not warrant the top court’s interference.
• In addition to the geographical reasons, the constitutional scheme of the Indian judiciary is pertinent.

Way Forward

Judicial federalism has intrinsic and instrumental benefits which are essentially political.

The United States is an illustrative case. Scholar G. Alan Tarr of Rutgers University hinted, “Despite the existence of some endemic and periodical problems, the American system of judicial federalism has largely succeeded in promoting national uniformity and subnational diversity in the administration of justice”.

Justice Sandra Day O’Connor rightly said in a 1984 paper that the U.S. Supreme Court reviews “only a relative handful of cases from state courts” which ensures “a large measure of autonomy in the application of federal law” for the State courts.

The need for a uniform judicial order across India is warranted only when it is unavoidable — for example, in cases of an apparent conflict of laws or judgments on legal interpretation.

• Otherwise, autonomy, not uniformity, is the rule.
• Decentralisation, not centrism, is the principle.

Questions: –

A characteristic feature of the apex court in the recent years is general lack of dissent in issues that have serious political ramifications. Discuss.