Kerala High Court
Sibha S vs Union Of India on 19 May, 2021
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 19th DAY OF MAY 2021 / 29TH VAISAKHA, 1943
WP(C) NO. 11054 OF 2021
PETITIONER:
SIBHA S., AGED 41 YEARS,
ADVOCATE, THANDIAKKAL HOUSE, ELOOR SOUTH,
UDYOGAMANDAL P.O, ERNAKULAM-683 501.
BY ADVS. SMT. PARVATHY VIJAYAN
SMT. PRAMITHA AUGUSTINE
SHRI VENKETESH BOSE
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY,
MINISTRY OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA, NEW DELHI 110 001.
2 THE STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE MINISTRY OF HEALTH AND FAMILY WELFARE,
REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
BY ADV. SHRI P.VIJAYAKUMAR, ASG OF INDIA
BY ADV. SRI. K.V.SOHAN, STATE ATTORNEY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.05.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C):11054/2021
2
"C.R"
JUDGMENT
Dated this the 19th day of May, 2021 S. Manikumar, CJ/Shaji P. Chaly, J Instant Public Interest Litigation is filed by the petitioner for the following reliefs:
"i. To Issue a writ of mandamus or any other writ or order, directing the 1st and 2nd respondents to classify, based on the annual income of the beneficiary citizens, as the eligibility criteria for free vaccine.
ii. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1st and 2nd respondents to fix and publish the rate of vaccine in Kerala for the COVID-19 for Non eligible category, based on their annual Income. "
2. Short facts leading to filing of the writ petition are that, petitioner is a lawyer by profession. She has filed this public interest writ petition seeking interference of this Court, on a decision taken by the respondents, which according to her, is in total violation of the concept of a welfare State and principles of good governance. Petitioner has also stated that while providing free vaccination to the entire citizens, irrespective of their economic status, it would cause huge debt to the State Exchequer, which has to be compensated by the poor and weaker sections of the society.
3. Petitioner has further stated that the State of Kerala represented by the Chief Secretary, Secretariat, Thiruvananthapuram, respondent WP(C):11054/2021 3 No.2, has taken a decision to obtain One Crore vaccine for COVID-19 disease from the companies, on payment of cost, which is fixed as Rs.400/- per dose, for all the citizens free of cost and further, to distribute it among the entire citizens of the State, at a cost of Rs.1,300/- Crores.
4. Petitioner has further stated that the decision to vaccinate all the citizens free, by spending huge amounts is nothing, but for political gain, at the cost of debt to each citizen. The demography based on the financial status of the State would clearly indicate that about 50% of the total population can afford the expense of vaccination themselves. Thus, half of the amounts spent on vaccines can be saved for other public good. However, the respondents have decided to vaccinate all, free, at the cost of the people's money, virtually denying the public benefits the taxpayers ought to have received with this money.
5. It is further stated that in the present scenario, this decision for free vaccination, when vaccines are in shortage and people are running around, should have been avoided. The vaccines that are being imported with Indian Council of Medical Research (ICMR) and the 1 st respondent's consent, ought to have been made available in public markets for the economically capable group to use it. This could allow the poorer section to have access to the vaccine with ease.
6. Petitioner has also stated that since the second wave of COVID- WP(C):11054/2021 4 19 Pandemic is in progress and a third wave is expected by October, 2021, it is the duty of the respondents to ensure that all the citizens are vaccinated at least once before such time. According to the petitioner, this can be achieved only if, imported vaccines are made available in the market. However, if free vaccines are available for all sections of the society, it is seldom that people will opt for costly vaccines. Thus, according to the petitioner, there will be huge crowding for the free vaccine and no purpose will be served by imported vaccine, and the number of non vaccinated citizens will remain high. This would adversely affect the health of the citizens and in controlling the pandemic, which may outgrow drastically in the entire society by then.
7. Petitioner has further stated that the respondents ought to have considered the fact that if free vaccines are given, the same can be done only through proper Government machinery. Considering the large population of our country, it will be a herculean task to vaccinate all with the available vaccine produced in India, by the Serum Institute and Bharat Bio-Tech. The respondents will be forced to rely on proven foreign vaccines. The foreign vaccine will be very costly and it will increase the burden on the state to vaccinate free of cost with it.
8. Petitioner has further stated that in order to avoid the extra burden and to achieve the goal of vaccinating the entire citizens, within the time WP(C):11054/2021 5 frame, it would be appropriate to classify the citizens according to their financial capacity, and the State can reserve the quantity required for the poorer sections, who are more likely to spread the pandemic and incapable for better treatment, for free vaccination. The financially capable section will then be compelled to opt for other available vaccines and reduce the burden on the State. Together the goal of getting vaccinated in time can also be achieved. In such circumstances, petitioner has approached this Court praying to invoke its extraordinary jurisdiction under Article 226 of the Constitution of India.
9. In the writ petition, petitioner has raised the following grounds:
"A. Constitution of India permits reasonable classification and there are judgments both by this court, as well as the Hon'ble Apex Court, which permits such classification not hit by the fundamental right under Article 14 of the Constitution of India. Thus, following that principle, respondents can classify the citizens according to their financial capacity/ income and provide free vaccine to the most deserving among the citizens.
B. Petitioner has also pointed out the urge for vaccines and the time it may consume to vaccinate the whole citizens. From the available data, only 15 crores of people, among the 130 crores, have been vaccinated since January, 2021. That is, it took 120 days to vaccinate 15 crores, that is just above one lakh dose per day. Even if it continues in this manner, it will take 11500 days or nearly 4 years to vaccinate the whole citizens. In such circumstances, it would have been appropriate for the WP(C):11054/2021 6 respondents to make the vaccine free to the deserving section.
C. Petitioner has further contended that at present, Russian Vaccine (Sputnik V) is also being imported for which, the Government have completely waived the excise duty and it will be available for a price of Rs. 700/-. Even those vaccines can be made available at a higher rate for those citizens who can afford the same and thereby making the vaccine with lesser cost, made freely available for those below the poverty line.
D. Further, the serum institute, engaged in the Manufacturing of COVISHIELD Vaccine, has stated in a press release that the maximum dose that can be produced by it, in a month, is just 6,00,00,000/- (Six Crores only). Thus, it may require more than 2 years for its manufacturing 130 crores and the only option is to import foreign vaccines by permitting the foreign companies. But, for the foreign vaccines to be accommodated in the market, the concept of free vaccine must be reduced and the wealthy section, be compelled to get themselves vaccinated by using the available foreign vaccine.
E. At any rate, the concept of free vaccination to all the citizens is causing damage to the public health, to the State Exchequer and in controlling the alarming growth of pandemic.
F. Petitioner has further contended that the respondents ought to have issued guidelines for the deserving citizens for free vaccination, another class of citizens to be given the vaccine for reduced rate and another class, at the required rate. This classification requires no time, as far as Kerala is concerned, in view of different types of ration cards issued to the people based on their annual income. So the income declared as per the WP(C):11054/2021 7 ration card itself would be sufficient to classify the people for their eligibility of free vaccine, reduced rate vaccine and fully paid vaccine.
G. The petitioner also contended that WP(C) No. 9883/2021, WP(C) No.10659/2021 and WP(C) No. 10806/2021 are all writ petitions pending before this Court in relation to RT PCR rates, its usage etc., and in connection with Covid-19 and the instant writ petition is also in relation to Covid-19 pandemic.
10. Based on the above grounds, Smt. Parvathy Vijayan, learned counsel for the petitioner, made submissions.
11. We have heard the learned counsel on either side and perused the material available on record.
12. Discussion of facts made above would make it clear that the paramount contention advanced by the petitioner is that a classification is to be made on the basis of annual income of the beneficiary citizens, in order to fix the eligibility criteria for free vaccine. That apart, petitioner has also contended that since the State Government are vested with powers, to make reasonable classification, by and between the people, within the State, who have the financial capacity to afford the rate fixed for the vaccine, and the poor people, who are unable to spend money for the vaccine, the decision taken by the State Government to provide free vaccine for all the people of the State, irrespective of economic and financial status, is arbitrary and bad in law.
WP(C):11054/2021 8
13. Apparently, the question revolves around a policy decision taken by the Government to provide vaccines for all, free of cost.
14. First of all, the petitioner has relied on a press release dated 22.04.2021 appeared in one of the Vernacular dailies, carrying the statement made by the Hon'ble the Chief Minister of Kerala, which is the sole document produced, to contend that Government is intending to provide free vaccine to all the people, within the State of Kerala. We are not going into the merits and intricacies of the news item, appeared in the newspaper, which is the foundation of the writ petition. However, one thing is clear that if at all the State Government have taken such a decision, it is a policy decision. It is well settled that whenever a policy is declared by the Government, the interference of a writ court, exercising the power of judicial review, would be very slow and it is done only when the decision made by the Government is so irrational, capricious, arbitrary, abhorrent and violative of Constitutional, as well as statutory provisions.
15. The State makes its decision after securing necessary advice and opinion from the experts on the field and may be after due deliberations with the elected members of the Assembly, and the Ministers. Sometimes, an elected body makes a statement on the floor of the Assembly or otherwise, in accordance with the election manifesto made by it before facing the election. Therefore, if and when such offers WP(C):11054/2021 9 are made and the political party has come to power, it has a duty to implement the promises or offers made by it. Likewise, the Government may formulate a political and democratic strategy to convince the electorate, its democratic and socialist ideal, in order to satisfy the welfare and the requirements of the general public.
16. It may be true that the Government would be at liberty to make reasonable classification segregating the haves and have-nots, within the framework of Article 14 of the Constitution of India, but that would not detain the Government to declare and formulate a feasible policy, so as to attain the principles and target of equality before law treating the citizens alike in its absolute terms, as enshrined under Article 14 of the Constitution of India. To put it otherwise, the Government are at liberty to evolve a policy, without making any discrimination on the basis of the economy and financial status of the people.
17. If and when the State Government makes such a policy decision, it is not for the Constitutional Courts to sit over such policy decisions, truncate and digress the policy of the Government, and in our view, any interference made by the Courts would only derail the steps taken by the Government to achieve its policy targets.
18. In the case on hand, even according to the petitioner, the Government have already taken a decision to administer free vaccines to WP(C):11054/2021 10 the people. As we have pointed out above, the Government is aided and advised by experts as regards the advantage of administering vaccines to protect the best interest of the community. If the Government intends to provide free vaccine and administer it, at the earliest, to all the citizens within the State, it may have the intention of acquiring herd immunity to the people, so as to protect the health, welfare and safety of the citizens. Whatever that be, It is not for the Courts to interfere with such a policy and scrutinize the sanctity and benefactory principles of the policy and put forth its own ideals, substituting the expert formulations made by the Government. The Government may even implement its policies in a trial and error method and it is for the Government to decide the manner in which, its policy decisions are to be implemented. It may even change its policies for various reasons and factors to adapt to any change in situations. Even then, if it has no adverse consequences and arbitrariness, so as to interfere palpably with the rights of citizens guaranteed under the Constitution and the laws, the Courts are not expected to meddle with the policy formulated by the Government, which thus also means that, whenever any legislation is made or orders are passed under law, they initially have a presumption that they are made in accordance with law and the litigant challenging such legislations or orders must establish before the Court, without any iota of doubt that it has real negative factors WP(C):11054/2021 11 interfering with the fundamental and basic rights of the citizens.
19. It may be true, a Constitutional Court, exercising the power under Article 226 of the Constitution of India, is vested with wide and ample powers to interfere with the policy decision of the Government, but such power shall only be exercised when there is arbitrariness, discrimination, unconstitutionality and illegality, thus circumscribing itself from interfering with the policy decision of the Government. The Courts, in the guise of judicial review, cannot replace, change or substitute the policies of the Government under the impression that it would be a better suited one to meet up with the requirements of the public. This is because, the State has the men and machinery to tabulate and configure various aspects, in order to protect the interest of the people, which would not even be gauged by the Courts, without making any empirical study of the matter, which is not expected to be undertaken by the Constitutional Courts. In our considered view, if such exercises are undertaken, it would be nothing short of indulging in legislative action, which is the absolute domain of the Legislature or the Parliament and a Constitutional Court shall not generally venture itself to tinker with the policies of the Government.
20. In the instant case, it is basically for the reason that the State Government might have evolved such a decision, taking into account WP(C):11054/2021 12 various scientific and health advisories in the larger interest of the community, and therefore, when the policy decision of the Government is not discriminatory or arbitrary, in any manner, then the power exercised by this Court should remain in its domain, rather than embarking upon the policy and transmuting itself as a legislature. Moreover, Article 162 of the Constitution of India enables the State Government to exercise the executive power, in order to discharge its functions, by formulating policies to the maximum advantage of the citizens.
21. In the instant case, the State Government is vested with ample powers to take emergent and expedient action, by virtue of the powers conferred under the Disaster Management Act, 2005, and the ordinance issued by the Government to manage COVID-19 Pandemic. Going through the provisions of the Disaster Management Act, 2005, and the ordinance issued by the Government, it is clear that the State Government are vested with ample powers to make policies and issue such directions, in order to ensure that the health and safety of the people, within the State are protected and safeguarded and thereby attempting to take precautionary measures.
22. In the Chambers - Revised 13 th Edition Dictionary, the word "policy" is defined to mean, a course of action one based on some declared or respected principle; a system of administration guided more by WP(C):11054/2021 13 interest than by principle; the art of Government; State Craft; dexterity of management etc.
23. According to the Oxford Dictionary, the word "policy" means political sagacity, State Craft, prudent conduct, craftiness, course of action adopted by Government. According to Webster's New International Dictionary, policy means a settled or definite course or method adopted and followed by a Government, institution, body or individual; a civil or ecclesiastical policy; Government; the signs of Government etc.
24. In Wharton's Law Lexicon 13th edition, policy is defined as under:
"Policy, the general principles by which a government is guided in its management of public affairs, or the legislature in its measures."
25. That apart, in Advanced Law Lexicon 4th edition, policy is defined as under:
"The word 'policy' means a settled or definite course/method adopted by a Government in the course of management of Public affairs. [Gujarat State Petroleum Corpn. Ltd. v. Union of India, AIR 2008 (NOC) 2761 (Guj) (B)] Policy decision. 'Policy decision' means a conscious decision taken by Government for the management of public affairs. It has applicability in rem. [ Gujarat State Petroleum Corpn. Ltd. v. Union of India , AIR 2008 (NOC) 2761 (Guj)]
26. In a catena of decisions, the Hon'ble Supreme Court had considered the issue of interference with the policies formulated by the WP(C):11054/2021 14 Government, in exercise of the power of judicial review. On the said aspect, reference can be made to a few decisions:
(i) In Peerless General Finance and Investment Co. Ltd. v. RBI, [(1992) 2 SCC 343], the Hon'ble Supreme Court held thus:
"31. The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts."
(ii) In Premium Granites v. State of T.N., [(1994) 2 SCC 691], the Hon'ble Apex Court considered the question of judicial review in policy matters, in the anvil of T.N Mineral Concession Rules, 1959, and held as under:
"It is not the domain of the court to embark upon unchartered ocean of public policy in an exercise to consider as to 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. The court is called upon to consider the validity of a public policy only when a challenge is made that such policy decision infringes fundamental rights guaranteed WP(C):11054/2021 15 by the Constitution of India or any other statutory right..."
(iii) In Bhavesh D. Parish and Others v. Union of India and Another, [(2000) 5 SCC 471], while judicially examining the economic policy, in the background of RBI Act, 1934, the Hon'ble Apex Court held thus:
"26. .............However, in the path of economic progress, if the informal system was sought to be replaced by a more organised system, capable of better regulation and discipline, then this was an economic philosophy reflected by the legislation in question. Such a philosophy might have its merits and demerits. But these were matters of economic policy. They are best left to the wisdom of the legislature and in policy matters the accepted principle is that the courts should not interfere. Moreover in the context of the changed economic scenario the expertise of people dealing with the subject should not be lightly interfered with. The consequences of such interdiction can have large-scale ramifications and can put the clock back for a number of years. The process of rationalisation of the infirmities in the economy can be put in serious jeopardy and, therefore, it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at all."
(iv) In Narmada Bachao Andolan v. Union of India, [(2000) 10 SCC 664], the Hon'ble Apex Court considered the validity of the establishment of a large dam and the majority held as under:
"229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy WP(C):11054/2021 16 decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution..."
(v) In Ugar Sugar Works Ltd. v. Delhi Admn., [(2001) 3 SCC 635], the Hon'ble Apex Court held as under:
"18. The challenge, thus, in effect, is to the executive policy regulating trade in liquor in Delhi. It is well settled that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State."
(vi) In BALCO Employees' Union (Regd.) v. Union of India, [(2002) 2 SCC 333], the Hon'ble Apex Court dealt with a policy in the realm of WP(C):11054/2021 17 disinvestment by the Government in a Public Sector Undertaking and concluded the matter as follows:
"92. In a democracy, it is the prerogative of each elected Government to follow its own policy. Often a change in Government may result in the shift in focus or change in economic policies. Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court.
93. Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved..."
(vii) In State of Himachal Pradesh and Another v. Padam Dev and Others [(2002) 4 SCC 510], the Hon'ble Apex Court held that framing of administrative policy is within the exclusive realm of the Executive and its freedom to do so, as a general rule, not interfered with by Courts unless the policy decision is "demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statue or provisions of the Constitution".
(viii) In Manohar Lal Sharma v. Union of India, [(2013) 6 SCC 616], the Hon'ble Apex Court held as under;
"12. We find that the impugned policy is only an enabling policy and the State Governments/Union Territories are WP(C):11054/2021 18 free to take their own decisions in regard to implementation of the policy in keeping with local conditions. It is, thus, left to the choice of the State Governments/Union Territories whether or not to implement the Policy to allow FDI up to 51% in multi- brand retail trading.
13. The views on the efficacy of a government policy and the objectives such policy seeks to achieve may differ. The counter-view(s) may have some merit but under our Constitution, the executive has been accorded primary responsibility for the formulation of governmental policy. The executive function comprises both the determination of policy as well as carrying it into execution. If the Government of the day after due reflection, consideration and deliberation feels that by allowing FDI up to 51% in multi-brand retail trading, the country's economy will grow and it will facilitate better access to the market for the producer of goods and enhance the employment potential, then in our view, it is not open for the Court to go into the merits and demerits of such policy."
(ix) In Municipal Council, Neemuch v. Mahadeo Real Estate, [(2019) 10 SCC 738], the Hon'ble Apex Court held as under:
"13.............we propose to examine the scope of the powers of the High Court of judicial review of an administrative action. Though, there are a catena of judgments of this Court on the said issue, the law laid down by this Court in Tata Cellular v. Union of India [(1994) 6 SCC 651] lays down the basic principles which still hold the field. Para 77 of the said judgment reads thus: (SCC pp. 677-78) WP(C):11054/2021 19 "77. The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision- making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secy. of State for Home Department, ex p Brind [(1991) 1 AC 696 : (1991) 2 WLR 588 (HL)], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases, the test to be adopted is that the court should, 'consider whether something has gone wrong of a nature and degree which requires its intervention'."
14. It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the WP(C):11054/2021 20 Court comes to a conclusion that the decision-maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision-maker is vitiated by irrationality and that too on the principle of "Wednesbury unreasonableness" or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision-making process. It is also equally well settled that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision- making process."
Taking into account the deliberations made above, and bearing in mind the legal principles, facts, law and circumstances involved in the matter, we have no hesitation to hold that the petitioner has not made out a case, to secure any relief as is sought for in the writ petition. Hence, the writ petition fails and accordingly, it is dismissed.
Sd/-
S. Manikumar Chief Justice Sd/-
Shaji P. Chaly Judge sou & krj WP(C):11054/2021 21 APPENDIX PETITIONER'S EXHIBITS:-
P1:- COPY OF THE PAPER REPORT PUBLISHED IN MATHRUBHOOMI DAILY DATED 22.04.2021.
RESPONDENTS' EXHIBITS:-NIL KRJ //TRUE COPY// P.A. TO C.J.