supreme-court-order-on-free-tests-raise-points-of-judicial-overreach

Context: The Supreme Court order for private laboratories not to charge for covid-19 tests has sparked a debate on whether it is a case of judicial overreach.

Background

  • 15,000 COVID-19 tests are being done by 118 government labs every day, which is not sufficient.
  • The court’s order said the government has to issue necessary directions for free testing immediately. 
  • In an advisory, Indian Council of Medical Research set the price of a test at ₹4,500 for approved private labs only. The government has involved 67 private laboratories to ramp up testing.
  • The final outcome will depend on the reimbursement model for these labs and the next steps that the Union government would take.
  • The court order said the question whether private laboratories conducting such tests are entitled for any reimbursement shall be considered later on.
  • Private labs are now likely to move the court against the interim order.

Concerns: 

  • May impact testing: There are more than 5,500 active cases of the disease in India, and criticism has mounted over the lack of adequate testing. The court order may further impact the testing.
  • Judicial overreach: Unelected judges do not get to decide how public or private money is spent. 
    • The government has powers under the Essential Commodities Act to regulate prices of testing by private labs and it is better placed to decide such issues that have implications for the public exchequer. 
    • The Supreme Court does not have the power, or the capability, to make similar decisions.
  • Discouraging the private sector: This may discourage private labs from undertaking large-scale testing as they may be unable to or it may be commercially unviable for them—unless the government agrees to reimburse at least the costs.
    • It may eventually lead to a drop in testing numbers. 
  • Challenge for the government: It is for the government to now decide what is in public interest, while striking a balance between making covid-19 tests economically viable and keeping the private sector engaged. 

The current order is just an interim order and thus cannot be termed as a precedent. The issue of reimbursement is open, the need of the hour is to allow as many tests as possible.

 

The powers of the State are generally characterized as the legislative power (i.e. making laws), the

executive power (i.e. enforcing laws) and the judicial power (i.e. adjudicating the disputes by applying laws).

Judicial review: The Supreme Court has pronounced that judicial review is a fundamental feature of the constitution. 

  • The power of judicial review by courts therefore is not subject to amendment and thus has been effectively taken out of the field of Parliament’s power to amend or in any way abridge.
  • It is to ensure a system of checks and balances between the legislature and the executive on one hand, and the judiciary on the other.

Constitutional background:

  • The Constitution of India provides for judicial review under Article 13, Articles 32 (Supreme Court) and 226 (High Court). 
  • Article13(2) – The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 32 of the Indian Constitution enshrines this provision whereby individuals may seek redressal for the violation of their fundamental rights.
  • The Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purpose.

Judicial activism: It is an approach to the exercise of judicial review, or a description of a particular judicial decision, in which a judge is generally considered more willing to decide constitutional issues and to invalidate legislative or executive actions. Eg: Suo moto (on its own) cases, Public Interest Litigations (PIL), new doctrines etc).

  • Judicial Activism has no constitutional backing.  Indian Judiciary has invented it.

Examples of Judicial Activism

  • The case of Kesavananda Bharati v. State of Kerala: While ruling that there is no implied limitation on the powers of Parliament to amend the Constitution, it held that no amendment can do violence to its basic structure (the "Basic Structure Doctrine"). 
  • Further, it established the Supreme Court's right of review and, therefore, established its supremacy on constitutional matters..

Judicial overreach: There is a very thin line between judicial activism and judicial overreach, as when the activism crosses its limit and starts becoming judicial adventurism it takes the form of Judicial overreach.

  • Examples of Judicial Overreach: National Anthem Case:The Supreme Court on December 2016, passed its judgment in the case of Shyam Narayan Chouksey v. Union of India, which makes it mandatory, that:
    • All the cinema halls in India shall play the National Anthem before the feature film starts along with other directives
Image Source: Economic Times