India dispatches: dire COVID crisis presents courts with constitutional dilemma
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India dispatches: dire COVID crisis presents courts with constitutional dilemma

JURIST EXCLUSIVE – As a second wave of COVID-19 rages across India, with more than a million new infections officially reported in the past few days, JURIST staff correspondent Neelabh Bist files his first letter from Delhi reflecting on the profound constitutional challenge the surge of disease represents for India’s courts in their relationship to the executive as a new Chief Justice of the Supreme Court of India takes office. He writes:

Here’s some food for thought.

Think about an ideal constitutional setup where there is separation of powers between the executive and the judiciary. Both these wings have a constitutional mandate to respect each other’s autonomy and not to breach this holy line while exercising their power. This is not just to ensure the smooth functioning of the state machinery but to create a system of checks and balances, so that no wing becomes intoxicated with power.

Now consider a scenario where one wing is failing miserably to perform its duty. Strictly speaking, the doctrine of separation of powers clearly dictates that one wing has to maintain the constitutional propriety, and discipline itself by not interfering with the functioning of the other wing. But now, to put matters into perspective, consider the prevailing scenario of Covid crisis in India and the failing wing to be the executive government of different states of the country.

With depleting levels of oxygen supply in the hospitals, non availability of essential medicines for Covid, overworked medical staff and undersupply of hospital beds, people are running helter skelter for help. The executive is making promises but constantly failing to deliver. Days turn into weeks but Covid reigns supreme and keeps adding to its tally new victims. The number of cases getting reported daily reaches astronomical heights, heights at which the judiciary has deemed it fit to step over the boundary of the doctrine of separation of powers and answer the clarion call to protect the life of the citizenry.

One such example is the intervention of the High Court of Uttar Pradesh (a state, which if it were a country, would be the 5th largest in the world in terms of population). The Court while noting that the recent surge of Covid has virtually incapacitated the medical infrastructure of the State, through its order imposed a lockdown in five major cities of the State- a power which most would argue, being a policy decision, lies within the realm of the executive. Even the Court did recognise this argument. However, it deemed fit to step in as it felt that the executive has failed to chalk out a concrete plan to tackle the more aggressive second wave of the pandemic in the state as yet. While blaming the executive for the chaotic health problems, the High Court of the State of Uttar Pradesh underlined its constitutional duty to save innocent lives and not remain a passive spectator.

The executive government of Uttar Pradesh, on its part, blatantly refused to follow the order of the High Court and appealed against the order on the very next day in the Supreme Court of India. Before adverting to the development in the Supreme Court, it is worth mentioning that the High Courts of other states in the country, on their part, decided other pleas regarding Covid crisis that were filed before them. The Delhi High Court, in a plea by different hospitals for the supply of oxygen, directed the executive to arrange for the passage of oxygen tankers to Delhi from other states by remarking- “Beg, borrow, steal, it’s your job to get oxygen”. The Bombay High Court, noticing the reduction in the oxygen supply by the Central government ordered for the restoration of the previous levels of supply in the state.

Thereafter, the Supreme Court of India, having noticed the judicial intervention in different High Courts, took suo moto cognizance on the Covid issues. A day prior to that, it stayed the aforementioned order of the High Court of Uttar Pradesh imposing lockdown in the major cities of the state. While hearing the suo moto proceedings, the Apex Court took the view that while six different High Courts of the Country have exercised their jurisdiction to tackle the covid crisis in best interest, it has created confusion and diversion of resources. The Court further directed the Central Government to report on the oxygen supply, drug supply, vaccine policy etc. and even provide a national plan on the ascertained issues. Thereafter having appointed a senior lawyer of the Court as an amicus to assist the Court, the matter was adjourned for the next day.

Before the first light of dawn the following day, many senior lawyers of the Court expressed their displeasure with the Apex Court’s interference. Some called it a retrograde step stating that the local conditions, problems and solutions can be best addressed by the respective High Courts. The others went on to question the appointment of the amicus – who has been close friends to the then Chief Justice S.A.Bobde. (The amicus has since recused himself.)

Following the disapproval and resentment from the legal community, the Court clarified that its order had been misread and they never stalled the High Courts from proceedings but have only asked the Central Executive to approach the High Courts. This hearing took place on the same day as the completion of the tenure of Chief Justice S.A.Bobde, and the matter was adjourned to next Tuesday, i.e., 27th April 2021.

In all these developments, there are two fundamental questions that loom large. First is whether the Supreme Court was right in considering the issue in the first place while the High Courts were in seisin of the matter and were better placed to understand the situation of their states at a micro level. The answer to this needs a little elaboration and can be dealt with in subsequent posts. Second, and perhaps the most important question, is the extent of judicial intervention or judicial activism or judicial overreach (as according to one’s philosophical bent) in these Covid related issues. What is importantly to be borne in mind is the doctrine of checks and balances and how the present intervention by the courts impacts the development of the doctrine in the country.

While there have been a lot of debates and discussions in the recent past by the courts in India about the extent of this power, however, the width and boundaries of it cannot be strictly drawn. One would argue that if the different states are indeed not acting up to the need of the hour, then it becomes incumbent on the High Court or even the Supreme Court to intervene in such matters. After all, the courts cannot wait and watch its people fall just because of their boundation by the doctrine of checks and balances. And in fact, there is rich jurisprudence on the intervention of the judiciary in matters of policy that reach to the life and personal liberty of a person. But the question that begs to be answered is whether the division bench of a Court like the High Court of Uttar Pradesh (I emphasise division bench so as to drive home the point that while the High Court has 160 sanctioned post for judges, the matter was heard by 2 judges whose judgment became the voice of the entire Court) can on the basis of newspaper reports and videos take a call on what is best for the people of the State while the executive which is actually working on the ground level is having real time data of the resources available and is equipped with trained administrative officers who know the best way of using them.

But the larger issue relates to the question of the unbridled power of the Courts to intervene in such policy matters. It assumes more significance because of the fractured jurisprudence it creates which is undesirable for any constitutional setup in the longer run. While it might appear to look absurd in the present circumstances, however, I would elaborate with an example. Take a hypothetical situation wherein the opposite of what has transpired takes place. The government, taking a toll of the situation imposes a lockdown but the Court strikes it down as being an unnecessary step taken without an application of mind. Or an example where the Court stops the vaccination drive because of certain local news reports of its non-effectiveness in certain cases. Therefore, the power of the judiciary to intervene in such matters is a double edged sword that has to be viewed with a pinch of caution.

However, having raised these academic objections, it will be unjustified if I fail to present the ground reality. Today, the situation in India is no less than a health emergency. Visual graphics and newspaper reports do little justice in painting the real picture of what is transpiring and how it is leaving an indelible mark in the lives of the billions of Indians. As mentioned earlier in this article, the uncontrollable surge of Covid cases with inadequate health infrastructure to cater to it, is leaving millions helpless. However, we need to ask this today:  What is the best course of action that India can take? Who is in the best capacity to take a call? If all things fall apart, which wing is to be blamed?

All these questions gain particular significance as reports from different sources are throwing light on how the administration of the country is in shambles. With large  religious congregations and election rallies being conducted, incorrect reporting of Covid deaths, serious dearth of oxygen in hospitals, non – cooperation between the state and central government with respect to Covid resources, one might argue that the country does need the reckoning of the intervention of the Court. Infact, this was the leading cause behind the High Court of Uttar Pradesh’s intervention when they had remarked –  “If popular government has its own political compulsions in not checking public movements during this pandemic, we cannot remain mere passive spectators”. Indeed, if there is mala-fide in the action of the executive, then judicial action is certainly necessitated. In such circumstances,  the intervention of the courts may actually be the performance of their highest constitutional duty – preserving the ‘right to life’ of the people.

Therefore, in this dilemmatic situation, what is the right step ahead is a moral quagmire. While the executive, which is in fact in the best situation to deal with the situation, is visibly failing, then isn’t the intervention of the Court not only justified but in fact a god sent blessing? However, the question that really remains is whether the courts will be held at fault if they fail to act, and whether, if they do act, but in stark contrast to what has been planned by the executive, they be held accountable if things go south?  I resign on that thought.