The judicial attitude of the time often defines the response of courts to any situation faced by a country. A comparative analysis of the judicial attitudes of the oldest democracy and that of the biggest democracy during a pandemic presents an interesting take.
The said analysis is relevant considering that the Supreme Court of India has sought to rely on some of the observations made by its American counterpart in order justify its manner of dealing with the pandemic.
This article aims at presenting a comparison between the response of the two judiciaries by studying American precedents - from an old compulsory vaccination case from Massachusetts to a relatively recent lockdown restriction case from California - and Indian cases: from the limitation matter to the recent cases concerning COVID-19 vaccination.
The American jurisprudence on the subject has developed for more than a hundred years, in a particularly noticeable context – the authority of the states to impose mandatory restrictions on personal liberty for public health purposes.
The unbridled nature of rights guaranteed by the American Constitution, including the right to freedom of movement and personal liberty, have enabled American citizens to challenge before the constitutional courts the steps taken by the states in the nature of compulsory vaccinations, lockdowns or other such measures curtailing liberty.
The caveat being that in its history, in no situation whatsoever has the United States Supreme Court dealt with or even entertained any challenge on the basis of efficacy or the lack of the same, of any Executive policy in distribution, procurement or availability of medical goods or vaccines or otherwise.
In India, the nature of fundamental rights is not untrammelled, and theoretically, there exists a greater latitude for State intervention, irrespective of whether there exists a public health emergency or not.
Despite the obvious differences in the nature of rights conferred by the American Constitution and the Indian Constitution, a brief analysis of the case law in America points towards a clear inclusion of the reasonability standard in such situation by the American courts: a standard which acknowledges Executive primacy in matters concerning policy, especially concerning public health issues.
Case at the turn of the 20th Century
Since the outbreak of COVID-19, numerous American States [the Federal Units] have placed restrictions [often referred to as lockdowns] in an effort to reduce transmission of the virus. It is the imposition of such restrictions, in law, that have been challenged on the ground of breach of personal liberty which is guaranteed without exception under the American Constitution – subject to due process.
American courts have entertained petitions with a distinct injury, locus standi and legal grounds which include a wide variety of pleadings alleging a direct breach of constitutional provisions with an interplay of a broad array of constitutional rights, including the free exercise of religion, freedom of speech, and the right to travel.
This tussle is not new to the American system with the first case reaching the American Supreme Court in 1905 in Jacobson v. Massachusetts. In Jacobson, the US Supreme Court upheld a Cambridge, Massachusetts, regulation mandating smallpox vaccination during an outbreak. It becomes relevant since the said decision and observations of Justice John Harlan were noted by the Indian Supreme Court recently.
At the start of the 20th century, epidemics of infectious diseases such as smallpox became a recurrent threat in America. A Massachusetts statute granted city boards of health the authority to require vaccination “when necessary for public health or safety.” The Cambridge city’s Board of Health issued an order pursuant to this statute that required all adults to be vaccinated to halt the disease of small pox. It imposed a statutory penalty for refusing vaccination, a monetary fine of 5 dollars.
The petitioner, Jacobson, refused vaccination claiming that he and his son had had bad reactions to earlier vaccinations. The Massachusetts Supreme Judicial Court held that it was not in the power of the State [or the city Board of Health] to vaccinate a person by force though it held that a person can be duly fined for refusing. In appeal, the US Supreme Court had no difficulty upholding the State’s power to grant the Board of Health authority to order a general vaccination program during an epidemic.
Justice Harlan framed the issue as to whether the statute was inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the State. Justice Harlan noted that though the American Constitution protects individual liberty, the said liberty is not “an absolute right in each person to be, in all times and in all circumstances, wholly free from restraint”.
He noted,
"It is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
He further emphasised on the aspect of Executive primacy in such situations, observing that the vaccination law applied “only when, in the opinion of the Board of Health, that was necessary for the public health or the public safety.”
The Court held that the Board of Health was qualified to make that judgment and that vaccination was a reasonable means of control. In an attempt to steer away from a question of choice of measure adopted by the Legislature, Justice Harlan noted that measure chosen by the State was at least an effective measure even if may not be the best known way that may have been available.
The Court nonetheless concluded with a note of caution that the powers exercised by State authorities cannot be so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression. Justice Harlan said that it was the Legislature’s prerogative to determine how to control the epidemic, as long as it did not act in an oppressively unreasonable or arbitrary.
The context, however, is relevant in the said case wherein the debate was between a citizen’s right to reject a medical good being forced upon him by the State. The question before the US Supreme Court was a rather straight forward one – a question of the State’s power to curtail personal liberty during an epidemic. It was held that such power to curtail personal liberty, requiring a compulsory bodily intrusion [in the form a vaccine], cannot be exercised in an oppressively unreasonable or arbitrary manner.
The issue is a far cry from the context of a national allocation policy or the parameters or modalities of such policy concerning a medical good at a macro-level.
Subsequently, in Zucht v King, the petitioner had refused a smallpox vaccination, which was subsequently made compulsory by a City Council Ordinance for attending schools. The US Supreme Court upheld the city Ordinance, relying upon the Jacobson case, simply noting that states can grant cities broad authority to decide when to impose health regulations.
Other cases of judicial review
Apart from the above, there exist numerous American cases recognising the doctrine of separation of powers wherein the US Supreme Court has often declined to adjudicate questions which it thought were constitutionally entrusted to other branches of the State, specifically recognising the finality of Executive powers in certain situations [See Martin v. Mott, Mississippi v. Johnson, In re Neagle, Haig v. Agee]
The American Supreme Court has often, post the Lochner era, provided greater leeway for classification in statutes dealing with economic issues.
The legendary minority opinion by Justice Louis Brandeis in New State Ice Co. v. Liebmann pointed out that the discoveries in physical science, the triumphs in invention attest value to the process of trial and error and it is the duty of the Court to allow such experimentation to continue.
In Ferguson v. Skrupa, the American Supreme Court held that the Court has returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies.
The American Supreme Court has often further declined to enter in to policy questions ‘firmly imbedded in the legislative and judicial tissues of the body politic’ as in cases of Galvan v. Press, Chae Chan Ping v. United States, Kleindienst v. Mandel, Trump, President Of The United States, Et Al. v. Hawaii.
It developed what it calls the ‘political question’ doctrine. The US Supreme Court views the non-justiciability of a political question as primarily a function of the separation of powers, the relationship between the Judiciary and the coordinate branches of the federal government.
In Baker v. Carr, J. Brennan outlined six criteria for political questions as under:
1. A textually demonstrable constitutional commitment of the issue to a coordinate political department; or
2. A lack of judicially discoverable and manageable standards for resolving it; or
3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
4. The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
5. An unusual need for unquestioning adherence to a political decision already made; or
6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Although the American judiciary has had its fair share of disagreements, overlaps and missteps, it is safe to assume that the doctrine of separation of powers, the legislative and executive leeway in certain matters and the role of the US Supreme Court, is far more sharply defined in the jurisprudence of the Court in comparison to that of its Indian counterpart.
The Cuomo enthusiasm
Fast forward almost a century from Zucht case, the world finds itself in the middle of another pandemic threatening the very way of life of humans. Even during such unprecedented times, the American zeal against governmental interventions and a somewhat absolutist public faithfulness to principles of personal liberty, even at the cost of public interest, remains strong.
The COVID-19 pandemic has brought these issues, specifically those concerning the forcible invasion of liberty or blanket restriction on movement placed by federal units, to the constitutional courts in America.
In Roman Catholic Diocese of Brooklyn v. Cuomo, the US Supreme Court was concerned with an executive order identifying COVID-19 clusters in New York and restricting surrounding areas. As per the same, the area immediately around a cluster was classified as a “red” zone, then “orange” zone and then “yellow” zone, where attendance at religious gatherings was limited to 10 persons, 25 persons and 50% of the building’s capacity, respectively.
At the same time, secular businesses were permitted to remain open in these zones, subject to different restrictions as they were deemed essential. The Roman Catholic Diocese of Brooklyn and two Orthodox Jewish synagogues sued to block enforcement of the executive order as it affected them. The organizations claimed that the order violated their First Amendment right to the free exercise of religion.
The American Supreme Court, by a 5:4 majority, held that the applicants met all of the requirements for a preliminary injunction and noted the minimum requirement of neutrality by singling out “houses of worship for especially harsh treatment” while allowing secular businesses categorized as “essential” without ascribing any reason. This blatant lack of reasoning and irrationality led the US Supreme Court to note that the failure of the government to demonstrate that the requested relief would harm the public and the failure to claim that attendance at the applicants’ services resulted in the spread of disease, was fatal for the purposes of an injunction.
The concurring opinion of Justice Neil Gorsuch derided New York and other unnamed states for treating religious worship more harshly than other activities, further stating that Jacobson was a “modest” decision. Justice Gorsuch concurred by stating that treating religious activities at a lower pedestal than “secular” activities, without any reasoning or rationale, would be unconstitutional. Justice Brett Kavanaugh authored a concurring opinion to highlight the importance of issuing the injunction.
On the other hand, CJ John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor and Justice Elena Kagan dissented, stating that factually, due to the changed circumstances in New York and the subsequent changes in lockdown measures, none of the applicants are presently subject to the fixed-capacity restrictions they challenged and, therefore, the relief sought for was infructuous.
Further, Justice Breyer specifically noted that precedents recognize the importance of courts granting elected officials broad discretion when they must act on the basis of uncertain and rapidly changing medical and scientific information. Justice Sotomayor noted that the “Justices of this Court play a deadly game in second guessing the expert judgment of health officials”.
The American Supreme Court, therefore, in its first interaction with a pandemic related case, leaned towards the individual’s freedom to question Executive action restricting the rights of a particular segment selectively.
Be that as it may, Cuomo was a case involving the question of the State’s power to selectively curtail liberty of congregation for religious activities to the exclusion of others during a pandemic. The US Supreme Court held that such power to curtail liberty of congregation cannot be exercised selectively against religious activities to the exclusion of other secular activities which involve similar congregations. The issue is distinctly different from the context of a Court entering into planning on macro-level restrictions, ordering lockdowns in cities or ordering distribution or allocation of medical goods as per perceivably better choices made by the Court.
This is the first of the three part series. The second and third parts will be published in coming days.
Disclaimer: The author is a part of the legal team of the Central government and has assisted the team in various COVID-19 related matters. The views of the writer do not express the views of the Government of India.
The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.