Colossal governance failure to tackle COVID crisis impelled the courts to step in
Someone had to step in to salvage the situation and that is what the courts did. It was no time for hair-splitting arguments about policy or separation of powers
The recent trend of courts taking up issues that may be perceived as the domain of the executive is the result of a void that has been created by the utter failure of the government, and at times a criminal abdication of responsibility on its part.
We have had situations when faced with no help forthcoming from the government, even hospitals had to approach the courts for vital supplies of oxygen and medicines, with the courts passing appropriate directions. Otherwise, we would have seen an even greater tragedy, though the tragedy that Indians are enduring is by no means less severe.
At least six High Courts, including Delhi, Allahabad, Bombay and Calcutta, have effectively intervened in handling COVID-related emergencies and issued directives to governments, sometimes overturning prevailing government orders, and ordering immediate action, whether relating to the supply of oxygen, dysfunctional medical equipment, including ventilators, and even lockdown of cities in Uttar Pradesh, where the state government was deemed to have miserably failed to handle the situation.
The courts also posed the all-important question whether it was not the government’s constitutional duty to ensure proper medical care for the citizens. The Kerala high court went to the extent of asking why the Centre was shirking its responsibility of providing free vaccination to every Indian and enquired why it was not possible to utilise the surplus dividend of Rs 53,510 crore received from the Reserve Bank of India for administering free vaccination, at least for the poor.
The Delhi High Court even issued a contempt of court notice against the Modi government for its failure to fulfil its fundamental obligations of protecting the fundamental rights of citizens, which the courts have always upheld.
The Allahabad High Court had observed that the condition of medical and health infrastructure in small towns and rural areas of Uttar Pradesh was 'Ram Bharose’ as the state government had no effective control over the situation.
At the receiving end of strictures by various courts, the government has approached the Supreme Court, complaining that the High Courts are issuing ‘impractical orders’ and then initiating contempt of court proceedings for failure to implement those orders.
The government got a big reprieve when the apex court asked the High Courts to exercise restraint in passing orders and desist from considering issues such as oxygen supply, vaccination and right to healthcare, which have national and international dimensions.
Solicitor General Tushar Mehta suggested that the Supreme Court ask the chief justices of High Courts to head the benches dealing with the COVID management cases and related PILs to bring in ‘uniformity and judicial experience’ for passing orders that are capable of being implemented.
The court has appointed senior advocate Nidhesh Gupt as amicus curiae to study the larger issue of the High Courts tending to ‘cross the limits’ and passing orders having pan-India ramifications.
When people see no light coming from anywhere, particularly in the face of a complete vacuum being created by the failure of the government to come out with proactive measures, they are bound to approach the courts, which in the interest of solving the immediate problem at hand, may perhaps have crossed their ‘limits’.
“The need for oxygen is now,” the Delhi High Court had told the Centre when its attention was brought to an order that restricted the use of oxygen for industrial purposes from a future date. It is the timing that is most important under such critical conditions and the patient gasping for breath cannot wait for policy issues to be settled.
In this respect, the High Courts cannot be blamed for crossing their ‘limits’ because any delay in providing medical supply could be life-threatening.
It is clearly the insensitivity of the government that is to be blamed for creating such situation, which prompted the western media to remark that the Modi government seems to have melted away in the face of the ravaging second wave of COVID. Someone had to step in to salvage the situation and that is what the courts did. It was no time for hair-splitting arguments about who is supposed to do what.
The debate can wait, but not the oxygen that can bring someone back to life from the otherwise last breath.
Views are personal
Published: 26 May 2021, 9:00 PM