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The Long standing, passionate disputes between the three Constitutional Organs require a new introspection in the Covid times

Kallol Basu, Advocate, Calcutta High Court

Article 501 of the Constitution of India speaks about separation of powers, when it pertains to the independence of Judiciary. The circle is complete only when we can prove that our judges are truly independent. 


In the conspectus of the Supreme Court's observation (prima facie, of course); 


1. That the vaccination policy was not conforming to the mandate of Article 142 and 213 of the Constitution of India as it seems to be arbitrary, and then my faith in the concept of independence becomes unambiguous. Such prima facie observation of the Supreme Court, being the final interpreter of the Constitution was made on the basis of well settled judicial principles affirming the Right to Health as a fundamental right as guaranteed under Article 21.


While responding to such observation made by the Supreme Court, the Central government has submitted that its vaccination policy conforms4 to the mandate of Article 14 and 21 of the Constitution of India, and therefore requires no interference by the Supreme Court. The Centre has further submitted that in times of such grave and unprecedented crisis, the executive functioning of the government needs discretion to formulate policies in larger interest. 


2. Therefore, the vaccination drive, being a policy devised by the wisdom of the executive, should be trusted. The Centre has further submitted that its executive policy decision has been taken in the most scientific manner, in consultation with the experts in the field keeping in mind the health and well-being of the citizens as the main and only focal point in the context of unprecedented human crisis.


3. The Centre has argued that, even though, some other policies have been suggested and court finds them to be better, the same may not be a ground for the supreme court to exercise its power of judicial review to substitute the policy, adopted by the executive, more so when in such unprecedented times, the executives, must be allowed to have some free play in the joints in consideration of its ground experience and in the larger public interest. 


The central government has also apprised the Supreme Court that, it is already utilizing the health care workforce available with the armed forces and Para military forces during the pandemic. The Centre has informed the court that the matter of sending the proposal for invocation of the provisions of Section 1005 of the Patents Act, 1970 is been processed. With reference to the supply of Remdesivir, the Centre has said that considering all the circumstances and constrains which are inevitable, it has provided for a rational, reasonable, non-arbitrary, transparent and equitable system of distribution.


4. It is not irrelevant to mention that the Supreme Court has constituted a 12-member National Task Force6 to formulate a methodology for scientific allocation of liquid medical oxygen to all the states and union territories, in order to deal with the dark of oxygen supply amid the second COVID wave. 


While constituting the said National Task Force, the Court has directed the Centre to continue the present practice of allocation of oxygen until the task force has submitted its own recommendations


So in view of such action on the part of the Supreme Court, the question of transgression is an illusion. Now it is not a rift between the two power corridors with regard to the encroachment upon one by another. 


Today in these trying times, it is not confined to the blame game. It is also a question of governance which is essentially inherent in the definition of constitutionalism. The time has come when the constitutional court must not and should not impose self-restraint upon it, by overlooking the plights of the common men and the citizens of the country. The steadfast and well-guarded principles of the impartiality of the court and exercise of its power even if it is perceived as being tainted with overzealous judicial activism, should not be trampled down; the court cannot be oblivious of the fact that its impartiality and cerebral alacrity are assets which belong to the nation and not at the disposal of the government. The constitutional guardian must and should exercise its power in conformity with the construction of its pathology and the historical commitments, even if it makes the other power corridors unhappy about it. 


The Supreme Court does not exist to disturb the government for all the time but at the same time the Supreme Court is under no obligation to please the government when its conscience and foundation of oath to august office handed over by the people of India by reposing trust, say that time has come to rise to the occasion. The judges can never be unmindful of their times.


All authorities are working under the Constitution, not over it. The continuous efforts on the part of the Government in pursuing the Court to remind its 'Laksmanrekha' is misconceived in the backdrop of the present situation,  because I think that the term "discretion", as used by the government is unfounded, "inasmuch as absolute discretion is a tyranny and every discretion must be informed by reason". Science says every journey from impertinent questions to pertinent answers made its arena intellectually aristocratic. So, a Constitutional Court may have been overzealous but discourse in this nature of a curial combat, court must assume the role of parents of the common people, and state should not take this combat as an adversarial process. If this attitude goes on then ego wins humanity dies.



  1. Article 50: Separation of judiciary from executive: “The State shall take steps to separate the judiciary from the executive in the public services of the State.”

  2. Article 14: Equality before law: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”

  3. Article 21: Protection of life and personal liberty: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

  4. Srishti Ojha, "COVID Vaccination Policy Conforms To Constitutional Mandate, Executive Needs Discretion, Requires No Interference By Court,: Centre Tells Supreme Court”, May 10,  2021, Livelaw.in, available at: https://www.livelaw.in/top-stories/supreme-court-covid-vaccination-policy-conforms-to-constitutional-mandate-173885

  5. Section 100: Power of Central Government to use inventions for purposes of Government. -

(1) Notwithstanding anything contained in this Act, at any time after an application for a patent has been filed at the patent office or a patent has been granted, the Central Government and any person authorised in writing by it, may use the invention for the purposes of Government in accordance with the provisions of this Chapter.


(2) Where an invention has, before the priority date of the relevant claim of the complete specification, been duly recorded in a document, or tested or tried, by or on behalf of the Government or a Government undertaking, otherwise than in consequence of the communication of the invention directly or indirectly by the patentee or by a person from whom he derives title, any use of the invention by the Central Government or any person authorised in writing by it for the purposes of Government may be made free of any royalty or other remuneration to the patentee.


(3) If and so far as the invention has not been so recorded or tried or tested as aforesaid, any use of the invention made by the Central Government or any person authorised by it under sub-section (1), at any time after [grant of the patent] or in consequence of any such communication as aforesaid, shall be made upon terms as may be agreed upon either before or after the use, between the Central Government or any person authorised under sub-section (1) and the patentee, or, as may in default of agreement be determined by the High Court on a reference under section 103: [Provided that in case of any such use of any patent, the patentee shall be paid not more than adequate remuneration in the circumstances of each case, taking into account the economic value of the use of the patent.]


(4) The authorisation by the Central Government in respect of an invention may be given under this section, either before or after the patent is granted and either before or after the acts in respect of which such authorisation is given or done, and may be given to any person whether or not he is authorised directly or indirectly by the applicant or the patentee to make, use, exercise or vend the invention or import the machine, apparatus or other article or medicine or drug covered by such patent.


(5) Where an invention has been used by or with the authority of the Central Government for the purposes of Government under this section, then, [except in case of national emergency or other circumstances of extreme urgency or for non-commercial use], the Government shall notify the patentee as soon as practicable of the fact and furnish him with such information as to the extent of the use of the invention as he may, from time to time, reasonably require; and where the invention has been used for the purposes of a Government undertaking, the Central Government may call for such information as may be necessary for this purpose from such undertaking.


(6) The right to make, use, exercise and vend an invention for the purposes of Government under sub-section (1) shall include the [right to sell on non-commercial basis, the goods] have been made in exercise of that right, and a purchaser of goods so sold, and a person claiming through him, shall have the power to deal with the goods as if the Central Government or the person authorised under sub-section (1) were the patentee of the invention.


(7) Where in respect of a patent which has been the subject of an authorisation under this section, there is an exclusive licensee as is referred to in sub-section (3) of section 101, or where such patent has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention (including payments by way of minimum royalty), the notice directed to be given under sub-section (5) shall also be given to such exclusive licensee or assignor, as the case may be, and the reference to the patentee in sub-section (3) shall be deemed to include a reference to such assignor or exclusive licensee.”


  1. Nupur Thapliyal, National Task Force To Formulate Methodology For Scientific Allocation Of Medical Oxygen To States, UTs, May 8,  2021, Livelaw.in, available at: https://www.livelaw.in/top-stories/supreme-court-constitutes-national-task-force-for-formulating-methodology-for-scientific-allocation-of-oxygen-to-all-states-uts-173842 

Kallol Basu, Advocate, Calcutta High Court