Failure by executive to govern will invite judicial interference: Justice Gautam Patel on judicial activism

Failure While speaking on the extent of judicial interference in administrative functions of the government, Justice Gautam Patel of the Bombay High Court yesterday opined that "a failure to govern will invite judicial interference"..Justice Patel was speaking at a panel discussion organised by the Vidhi Centre for Legal Policy on Legal Reforms of Modern Maharashtra, which followed the launch of its briefing book titled 'Fifteen Suggested Legal Reforms for Maharashtra.'.The discussion during the launch veered to how much a court can intervene in administrative decisions pertaining to public health issues. Justice Patel said that in a situation where the courts see a failure on the part of the executive to perform, judicial intervention might be the correct way to go about it. Conversely, a situation where the court demands more from the administration will lead to a confrontation between the executive and the judiciary, he said. Justice Patel explained that while the executive may respond saying that they cannot do something for certain reasons, "judiciary would not be able to deal with such questions according to the executive because they are not equipped to respond to such situations.".Journalist Rajdeep Sardesai, who was moderating the discussion, had asked the panel - How does one construct a public health legal framework for dealing with a health emergency like COVID-19, and more importantly, what are the gaps that exist at the moment that can be filled in?Elaborating on his question, Sardesai used the example of the door-to-door vaccination policy which was awaiting decision by the Bombay High Court..Justice Patel at the outset stated that the issue of door-to-door vaccination shouldn't have come to court in the first place. "This issue arises only after the court asks a public administrative body like BMC, 'can you not do door to door vaccination?' There is no law that prevents BMC from doing this in a regulated fashion for specifying the classes of people availing this service. You do not need a court order for this," he said. .He proposed that Brihanmumbai Municipal Corporation (BMC) work could become praiseworthy during the pandemic only because it could "pivot rapidly and adjust to changing situations as it was not governed by too many laws and regulations."He opined that this was what public health laws required - a discretionary element both at the management and operational level and to give the administration room to innovate and manoeuvre with the rapidly changing situation. .He asserted that it was important to use the positives from COVID-19 management to build a law. "Let us not have over-regulation and give authority the room to manoeuvre and to adapt to rapidly changing scenarios. Don't expect courts to come with the solution," Justice Patel said. .He added that one must not predict and micromanage a public administration's response to a situation that is required to be rapid and effective."The administration needs to be unconstrained without being dragged to court to answer questions and needs discretion to do what is right," Justice Patel said, summing up his response.