An admission of failure if orders not implemented, SC raps Centre

New Delhi, Oct 26 (IANS) The Centre on Thursday told the Supreme Court that it was overstepping its boundaries by expanding the scope of fundamental rights, by including rights like eradication of poverty, through judicial legislations, and it would take 50 to 100 years to execute them. The top court, in a rap to the government, said it was an "admission of failure" if they have not been implemented.

"You have read into Article 21, 30 separate fundamental rights, in which certain rights like eradication of poverty, right to housing, right to shelter, are there, ... There is no manner that they can be executed in next 50 or 100 years," Attorney General K.K. Venugopal told the five-judge constitution bench headed by Chief Justice Dipak Misra.

At this Justice D.Y. Chandrachud said, "It is your responsibility to implement our orders. If you have not implemented, it is an admission of failure."

Article 21 of the constitution guarantees Protection of Life and Personal Liberty.

Defending enlarging of the ambit of Article 21 by the direction of the top court from time to time, Chief Justice Misra said, "Every addition into Article 21 has to be read in a particular context."

Telling the court that in the guise of exercising powers under Article 142, the top court has intruded into the legislative functions and passed orders which can't be implemented, Attorney General Venugopal referred to the December 15, 2016, ban on the sale of liquor on the national and State Highways within 500 meters that affected the livelihood of over one lakh people.

Asking the Attorney General to read the December 15 order carefully, Justice Chandrachud who had authored the judgment told Venugopal that "We have not done anything. It is your policy, not our policy. Government of India has issued hundreds of advisories to the state governments (to curb sale of liquor on highways)."

He told Venugopal that the top court by its December 15 judgment only wanted the states to implement the rules framed by the Centre, taking note of the fact that India is emerging as "accident capital of the world".

Pointing out that the top court had exceeded its boundaries and intruded into legislative domain by resorting to judicial legislation, the Centre told the court that it can't rely on the parliamentary committee reports for deciding the matters before it as separation of powers under the Constitution interdicts the court from looking into such reports.

"The very concept of separation of powers would interdict the court from, in any manner, scrutinising or judicially reviewing reports of parliamentary Committees," Attorney General told the constitution bench, which also included Justice A.K. Sikri, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Ashok Bhushan.

"The carefully structured dividing lines between the judicial wing, the executive wing and the legislative wing of the State would be obliterated if it were asserted that notwithstanding the separation of powers between the three wings of the State, it will be necessary for the court to scrutinise or judicially review the reports of parliamentary committees for the effective and complete discharge of its functions," the Attorney General told the court.

The Centre said this to the constitution bench which is examining the question whether courts can look into the reports of parliamentary committees for adjudicating the matters before it.

Pharmaceutical companies producing vaccines to prevent cervical cancer too are opposing the plea that the top court look into the report of the parliamentary committee.

The top court by its April 5, 2017 order had framed two questions to be addressed by the constitution bench.

The questions included whether the top court in the hearing of a plea under Article 32 and Article 136 could "refer to and place reliance upon the report of the Parliamentary Standing Committee?" and whether the report could be looked at for the purpose of reference.

The issue is rooted in a PIL by a person, Kalpana Mehta, who had questioned the safety and efficacy of the Human Papillomavirus (HPV) vaccines used for preventing cervical cancer.

The PIL petitioner had contended that the Human Papillomavirus (HPV) vaccines was "unproven and hazardous", and had said that the anomalies in the safety and efficacy of the vaccine was brought out by various women's groups and health groups from across the country, that included a member of National Technical Advisory Group on Immunization (NTAGI).

Senior counsel Colin Gonsalves who appeared for the PIL petitioner Kalpana Mehta told the court that they only wanted to place before the court the parliamentary standing committee report which had brought out certain facts about the vaccine.

Telling the court that they were not saying that it has evidentiary value, Gonsalves said they were not saying anything about Members of Parliament, privileges of Parliament or how it should act on the report.

Hearing will continue on October 31.