As Governance Fails, Courts Step In

Ramesh Menon
07 Jun 2021

THE Supreme Court of India along with High Courts and subordinate courts have a lot on their hands. There are more than 4.4 crore cases pending. The Niti Aayog predicted in a strategy paper that it would take more than 324 years to clear the backlog! The paper was done in 2018 when the pending cases were 2.9 crore. It clearly is overburdened with work. Despite that, it has recently taken on more work questioning the government on various issues and false steps. And, it is doing that very frequently in the recent past.
In various suo motu actions, the Supreme Court has taken upon itself to ensure that systems work the way it should.

On June 2, a special bench of the Supreme Court comprising Justices DY Chandrachud, LN Rao and S Ravindra Bhat demanded the Centre provide it with a vaccine roadmap. Ironical. The Centre should have had it on its drawing board last year when the first wave hit the country.  The Court wanted to know when the remaining population of the country would be vaccinated. It asked the Centre to give it complete data on its purchase of all COVID-19 vaccines. 

It also demanded copies of all relevant documents and file noting that reflect its thinking on its vaccination policy. Earlier, the Court had highlighted the "digital divide" between rural and urban India and wondered about the mandatory registration for the vaccines, the differential pricing, and why everyone in India could not get the vaccine at the same price. The Court wanted to know how many vaccines were available, how many are being ordered, and other sundry details. 

It asked the centre to provide exhaustive data on the vaccination drive both in rural and urban India. Clearly, all this was not expected from the Court, but it had to do it as the government had botched up its strategy to tackle the pandemic and its vaccination plan too.
The Court said that its policy of charging some and not charging some and having different charges for the vaccine all over the country was “irrational” and “arbitrary.” 

‘Cannot be a Silent Spectator’

When the Centre submitted in the Court that it should not interfere with its decisions on the management of COVID-19, the Supreme Court did not mince words. It said that the Indian Constitution in no way envisaged that the Court should be a silent spectator when the rights of citizens are infringed by executive policies.  

It also said that it had no intention of second-guessing the wisdom of the executive when it had to choose between two competing and efficacious policy measures. 

The special bench said that it was trite to state that separation of powers is a part of the basic structure of the Constitution and policy-making continues to be in the sole domain of the executive.

The Supreme Court said it would continue to exercise jurisdiction to determine "if the chosen policy conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons”.  

The Court said it would “conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny…The judiciary does not possess the authority or competence to assume the role of the executive, which is democratically accountable for its actions and has access to the resources which are instrumental to policy formulation. However, this separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies.”

The Supreme Court said that in grappling with the second wave of the Covid pandemic, it does not intend to second-guess the wisdom of the executive when it chooses between two competing and efficacious policy measures. “Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform,” it said. Strong words indeed. 

Why did the Supreme Court have to say this? The government of late through various spokespersons and ministers has been saying that the judiciary has been exceeding its powers and interfering with the functioning of the executive.

Eliciting Answers

All of a sudden, the judiciary seems hyperactive on questioning the government. It comes as no surprise. When governance fails, the courts have to step in to ensure it is done to protect rights guaranteed by the constitution. It wants the government to be accountable. It wants concrete answers.  

The executive view is that there has been a judicial overreach and it has tried to go beyond its powers. At a time when India is the worst affected in the pandemic and its systems are not able to do what it should, it could hardly be called an overreach as the courts are doing exactly what they are supposed to do.

It is another story that the government does not want to be answerable to anyone. Not the judiciary. Not even its voters. 

This was transparent when the government in its affidavit told the court that its vaccination policy and strategy were completely driven by expert medical and scientific opinion that left little room for judicial interference and as its vaccination drive was devised as an executive policy, the "wisdom of the executive should be trusted”.

Wrong Priorities

The world was a witness to the mayhem that Covid-19 unleashed as an uncaring dispensation concentrated on other priorities like elections and religious festivals that were obvious super spreaders. There was no clear vaccine strategy. Grand announcements were made of opening up vaccines to various groups, but many just returned as there were no vaccines. Holy mess. 

How could the court have overlooked all of this as thousands died gasping for oxygen and medical care that was just not available? It was as if the government had not learned any lessons from the first wave and had not even cared to prepare for the second. No wonder the courts asked the government what its strategy was for the third wave which threatens to strike in a few months.

Meanwhile, the Delhi High Court said that officers sitting over the untapped potential to make COVID-19 vaccines need to be charged with "manslaughter" as it is leading to so many deaths.  It said that a lot of scope and infrastructure available in India was not being used. 

A bench of Justices Manmohan and Naomi Waziri asked why domestic manufactures were being asked to conduct bridge trials when vaccine manufacturers from abroad were not expected to do it. The court said that thousands had died as they were not vaccinated and the government must now move fast on getting the vaccines produced or procured.

In a strong indictment of the centre’s vaccine policy, the court asked: “What answer will you give for the loss of lives because of the lack of vaccines?”

‘Criticism is not Sedition’

It was not just the handling of the pandemic that worried the courts. Activists were being jailed for voicing their protest. Journalists were being slammed with sedition charges for doing their job of asking tough questions. 

Television anchor and journalist Vinod Dua was charged with sedition in BJP-governed Himachal Pradesh as a BJP leader filed a complaint against him for criticising the Central Government’s handling of the pandemic crisis. Dua approached the Supreme Court challenging it. 

On June 3, the Court threw it out saying that the Kedar Nath Singh judgment on sedition entitled every journalist from such charges. The Court said that the case in 1962 had said that it cannot be called sedition if "mere strong words used to express disapprobation of the measures of the government with a view to their improvement or alteration by lawful means”.

Significantly, the Court said that the principles culled out from the decision of the 1962 case show that citizens have a right to criticise government measures as long as it does not incite people to resort to violence and create public disorder. Vinod Dua was touching upon issues of great concern about migrants, and journalists are entitled to protection under the Supreme Court ruling, the court said.

The Supreme Court has also barred the Andhra Pradesh police from taking any coercive action against two news channels and said that criticising a government was not sedition. Hopefully, this will have far-reaching effects as politicians both in the ruling and opposition parties now are rushing to file sedition cases against journalists for any critical comments and observations they make.

Numerous courts in India have passed stringent orders or stinging observations about governance and have taken the government, both at the centre and the states, to task by asking tough questions on deliverance and action. 

Even the Election Commission of India was singled out for criticism by the Madras High Court for not ensuring Covid protocol during elections. It said that the Commission was “singularly responsible for the second wave” and that its officers “should be booked on murder charges probably”.

The High Courts in Delhi, Bombay, Madras, Patna, Uttarakhand, Gujarat, Karnataka, Telangana, Allahabad, and others have been tough on the government. When governance fails, the courts will step in. News website, The Print crowned the High Courts of India as “Newsmaker of the Week”.

Judicial Over-reach?

In recent weeks, we have witnessed a flurry of judgments and judicial observations that are courageous and forthright. For the public who were distraught with lack of medicines, hospital beds, oxygen, and healthcare, the courts were the only hope.

The Uttarakhand High Court directed the state to take measures to alleviate the suffering of people during the pandemic.

The Rajasthan High Court set up state and district level committees to tackle difficulties that people were facing battling Covid-19. 

The Patna High Court said that the Bihar government’s action plan to tackle the pandemic was wrong. It even issued an email ID so that people could submit their complaints in case they were not getting oxygen.

The Karnataka High Court had to point out to the government that it did not have enough beds in Bengaluru hospitals as the number of patients increased and called it alarming.  

The Gujarat High Court wanted to know why the government was painting a rosy picture when the reality on the ground was so different. Patients were gasping for breath in ambulances at Ahmedabad as the hospitals were overflowing. 

The Allahabad High Court said that hundreds of teachers had died on poll duty as authorities did not do anything to prevent their infection from the deadly virus. It said that instead of handing the pandemic, the government had got busy with the Panchayat elections. 

The Court drew out a series of steps that the government should do to tackle the health emergency, something that a bureaucrat should have done. "We request the district judges of Lucknow, Allahabad, Varanasi, Kanpur Nagar, Agra, Gorakhpur, Ghaziabad, Gautam

Budh Nagar, Jhansi to nominate a judicial officer, civil judge (senior division) or above. The nominated officers shall work as nodal officers in their districts and report to the registrar general every weekend,” the Court said. 

Similarly, the Telangana High Court criticised the State Election Commission for holding municipal elections during the pandemic.

The Delhi High Court went to the extent of warning it would ‘hang’ anyone who was trying to obstruct oxygen supplies to hospitals. Without mincing words, it asked the Delhi Government to pull up its socks and said if it could not manage the situation, it would ask the

Centre to step in. It also asked the Central Government why Delhi was being denied the quota of oxygen that it had asked for while other states like Madhya Pradesh were getting more than what they asked.

All this is certainly not judicial over-reach as the government spokesmen would have us believe. The courts stepped in only because they did not see the government act in the way it should when it was facing such a serious health emergency. More than anything else, it has raised hopes of how the judiciary would step in again to protect rights and stop human rights violations.

(Ramesh Menon is a senior Delhi-based journalist. He has authored six books, is a documentary film-maker, educator, and editor of The Leaflet.)

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