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HC encroaching upon executive by imposing COVID-19 lockdown, UP govt tells SC

·4-min read

New Delhi, Apr 20 (PTI) The Uttar Pradesh government Tuesday moved the Supreme Court against the Allahabad High Court order directing it to impose strict restrictions till April 26 in five cities following surge in COVID-19 cases saying the direction encroaches upon the executive domain.

The high court Monday directed the UP government to impose strict restrictions including closing of malls, shopping complexes and restaurants till April 26 in five cities -- Allahabad, Lucknow, Varanasi, Kanpur Nagar and Gorakhpur -- but stopped short of calling it a 'complete lockdown'.

The Yogi Adityanath government told the top court that by passing the direction, the high court has effectively encroached upon the executive domain which is incapable of being executed at the present stage, and if executed, is capable of creating panic, fear and law and order situation in the state.

“It is submitted that an irresistible belief of imposition of a lockdown for a week to provide a remedial action and to arrest the virulent spread of COVID-19 in the State, is not and cannot become the basis of exercise of the plenary constitutional powers conferred upon the High Court under Article 226 of the Constitution of India. “It is submitted that even under the PIL jurisdiction of the High Court a mandamus has to be granted on the basis of justiciable empirical data,” the state government said in its plea filed through advocate Rajat Nair.

The UP government told the apex court that the modalities which need to be worked upon before imposing a lockdown/curfew essentially fall within the domain of executives.

“While taking such an action its effects have to be minutely examined and it is only after examining its' pros and cons such an action can be taken.

“It is submitted that a bare perusal of the impugned order manifest that there was no empirical data before the High Court to compel it to arrive at a conclusion that lockdown/total curfew for a week was to the only way to break the chain of COVID-19 infection,” it said.

The state government submitted that there was no justiciable evidence on the record of the Court so as to enable it to exercise its writ jurisdiction Under Article 226 of the Constitution and pass directions.

The high court failed to appreciate that a lot of remedial steps except curfew/lockdown was already undertaken by the State Government to arrest the spread of COVID-19 infection, it said.

UP government told the top court that it was for the state to take any further steps in the matter such as curfew or lockdown so as to balance the right of public health viz right of life and to earn livelihood and right of movement of the citizens.

“It is submitted that the impugned order which is passed without even considering the steps taken by the petitioner, is therefore liable to be set aside for this reason alone as it not only encroaches upon the executive domain but effectively ventures into the arena of governance by breaching the salutary principles of separation of powers between the judiciary and executive, deserves to be set aside,” it said.

The state government in its petition said that to impose a lockdown or not is essentially a matter of policy which needs to be taken based on scientific analysis of the social, economic and other ground situations. It said that scope of judicial review in such policy matter requiring empirical analysis of social, economic and other relevant considerations is very limited.

“Sudden lockdown imposed by the Division Bench will entail irreparable hardship and civil consequence both on the citizenry of the said cities as well as on its administration,” it said.

To impose such drastic measures, the administrative machinery of the state has to be made well equipped at a stage anterior so as to ensure that no panic and fear is spread amongst the public and all the logistical support and supply lines to give either cooked or uncooked food to the needy is established, the state government said.

The UP government also said that a vast population of the 5 cities as indicated in the impugned order may not be ready for a lockdown and large number of people may not even have basic stock of food/ groceries etc. in their households which can last till April 26.

Contending that a large part of citizenry (labourers and persons from lower strata of society) in these five cities live on 'earning and surviving on day to day basis', the UP government said a sudden imposition of the lockdown would inevitably incite public scare and panic leading to a certain breach of peace in the society.

“The impugned order of the High Court which fails to take the aforesaid into consideration and creates a situation which may lead to civil consequences, public unrest, law and order situation is therefore liable to be set aside as being completely in teeth of scope and ambit of PIL jurisdiction of the Hon'ble High Court,” it said. PTI PKS ABA SJK SA