HC junks plea to shut down PSUs functioning during lockdown

New Delhi, May 6 () The Delhi High Court has refused to direct shutting down of Public Sector Undertakings and enterprises which are functioning during the lockdown to contain the spread of COVID-19, saying the issue is within the realm of executive discretion and judiciary cannot formulate governmental polic

A bench of Chief Justice D N Patel and Justice C Hari Shankar said a bare reading of the Guidelines governing the lockdown, which are issued from time to time, make it apparent that the decision regarding the precise extent to which lockdown should be imposed is one with which interference, at the hands of the judiciary, must be reduced to a bare minimum.

The court dismisses a petition by an advocate seeking direction to the authorities to strictly impose COVID-19 related statutory orders and guidelines and to close the Public Sector Undertakings (PSU) and Public Enterprises which are opened during the lockdown and are dealing in non-essential goods and services.

"We reiterate that, in our view, any hyper-legalistic interpretation of the various clauses in the Guidelines issued by the Central Government to tide over the COVID-19 crisis, would be fundamentally misconceived. What is required, in these circumstances, is a purposive and realistic, rather than a legalistic, understanding of the Guidelines, and, thus viewed, we do not find that the writ petition makes out any case of infraction therewith," the bench said.

The petition, by advocate Anil Kumar Aggarwal, had mentioned some of the PSUs /public enterprises like Steel Authority of India Ltd (SAIL), National Buildings Construction Corporation (India) Ltd (NBCC), Engineers India Ltd (EIL), Indian Railways Construction International Ltd (IRCON) and the Rail India Technical and Economic Service (RITES), and alleged that they have breached the April 15 order of the ministry of Home Affairs.

It had also sought initiation of criminal proceedings against the heads of such public enterprises/government companies, which had opened up, for having allegedly breached the lockdown.

The court, in its 22-page order passed on May 1 and made available on Wednesday, said the continued lockdown, though unavoidable, has inevitably resulted in a certain degree of upheaval in the industrial and economic demographics of the country.

"It is obviously with a view to strike a balance between the necessity of minimal social interaction, on the one hand, and deleterious – and, if left unchecked, possibly catastrophic – fiscal and industrial consequences, on the other, that the executive administration has taken a decision, vide the Guidelines dated April 15, to allow certain enterprises to function," the bench said.

It said it cannot be ignored that the PSUs, specifically named in the petition, and other industrial undertakings are engaged in production of goods and services which seriously and substantially impact the lives of the citizens.

The bench said it is not for the court to pronounce on the services which may be treated as 'essential' or 'non-essential' and even in the exercise of the power of judicial review, vested in the court, it is not permissible for them to rewrite the Guidelines issued by the MHA.

The court termed the prayers in the petition as "fundamentally misconceived" and said the issues such as the extent to which the lockdown be relaxed, whether socialisation should be limited only to enterprises rendering 'essential' goods or services or should extend to all enterprises are all within the realm of executive discretion.

"It is not for us to pronounce thereupon. We do not formulate governmental policy. Judicial interference, with the exercise of executive discretion, in such cases, has necessarily to be circumspect, and may justifiably be said to be invited only where the decision, resulting from such exercise, suffers from absurdity, or manifest perversity. Courts cannot sit in appeal over the executive policy, in such matters; least of all in a situation of crisis, such as that with which the administration is grappling at present," the bench said.

The court said the reliance placed by the petitioner on the guidelines issued by the MHA on March 24 are of no substance and those guidelines have been superseded by April 15 guidelines and any reliance on the former norms would be "misconceived". SKV HMP RKS RKSRKS