In an unprecedented flurry of rulings, statements and interventions, India’s courts have waded directly into the country’s ongoing Covid-19 crisis.
In several different states, as well as the Supreme Court, the judiciary has proactively reached out to seek answers and solutions in the rapidly deteriorating pandemic scenario. There is now considerable pushback from administrators who say they are being impeded by unnecessary overreach.
It is true that individual benches have resorted to unusually inflammatory language.
For example, the Allahabad high court called interrupted supply of oxygen “a criminal act and not less than a genocide.” Earlier, the Madras high court hammered the national Election Commission as “the only institution responsible for being in the situation that we are in today”. The justices went so far as to say “you should be put up on murder charges.”
In Karnataka, the high court cited Article 21 of the Indian Constitution (which assures the protection of life and personal liberty) to rule that depriving citizens of their second dose of Covid-19 vaccine is a violation of fundamental rights. Similarly, in my home state of Goa, the high court said, “The Constitution says that no lives should be lost, if deaths occur due to want of oxygen, then it is a clear case of violating the fundamental right to life, and it is not acceptable.”
While all these intercessions are undoubtedly well-meaning, and precipitated by epic misgovernance at both the local and national levels, there are legitimate concerns that – as the Economic Times (ET) editorialized on May 9, “courts should not play government.”
The ET said, “courts hinder the work of the government, when they open up yet another front the government must engage, in the midst of fighting the pandemic. Give unto Caesar what is Caesar’s, your lordships.”
It argued, “The higher judiciary’s indignation at the inability of the system to address the misery of those who cannot get oxygen or a hospital bed as the pandemic rages across the land is understandable, as is its empathy. But it is difficult to endorse the high courts’ directives to allocate prescribed quantities of medical oxygen to specific states or the Supreme Court’s decision to tell the government what is to be done, even if through committees of chosen experts. These are not judicial matters, but executive functions, best carried out by the government.”
This is precisely the Centre’s standpoint, as framed by its affidavit to the Supreme Court that argued “the wisdom of the executive should be respected.”
It stated, “in the context of a global pandemic, where the response and strategy of the nation are completely driven by expert medical and scientific opinion, there is even little room for judicial interference. Any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences, in absence of any expert advice or administrative experience, leaving the doctors, scientists, experts and executive very little room to find innovative solutions on the go.”
While that reasoning was tabled about vaccine distribution, it applies with equal validity to the Supreme Court’s self-guided solo mission to take over oxygen allocation and distribution via its May 6 order constituting a top-heavy 12-person task force for the purpose.
“I understand why the courts feel the need to do something,” says a serving judge who spoke to me on strict condition of anonymity, “we are all faced with a central government that is stonewalling, being obstructive, and visibly not delivering the results that are needed in health care. But is this the answer?”
Looking at the bigger picture, the judge said, “the courts should be more restrained in their language. You don’t use words like genocide and murder without seriously considering their implications. Also, most of these problems are actually specific to individual states. How is the Central Government responsible for inefficiencies that are specific to – let’s say – Karnataka?”
When it comes to the Supreme Court task force, “we have a fundamental problem. This isn’t – as the Centre has argued – judicial over-reach. What we have instead is the court stepping into territory that is clearly beyond its area of expertise and its ability to enforce. This kind of national task force, with all the fuzziness and wooliness of its stated mandate, is only designed to make the union government that much more confrontational and combative. Is that what we want?”
What is needed from the courts instead is “a much more granular approach. Inaction is unacceptable, but the Supreme Court has to remain in the role of overseer. We require the high courts to make the necessary micro-interventions to keep state governments accountable. Instead of a huge, multi-part body dealing with oxygen, we need a much smaller committee that can function at speed, and viable mechanisms by which its recommendations can be enforced. We are not seeing anything like that yet.”
Vivek Menezes is a writer based in Goa, India.
