India dispatches: ‘Omicron has adversely affected the functioning of courts in the country’ Dispatches
© JURIST (Neelabh Bist)
India dispatches: ‘Omicron has adversely affected the functioning of courts in the country’

With the COVID-19 Omicron variant now surging in India just as campaigning for elections in various Indian states is set to begin, India Chief Correspondent Neelabh Bist asks whether the country’s judiciary will once again step up to check the permissive executive branch of government in order to minimize the social impact of the pandemic. He reports from New Delhi.

As the world enters 2022, India, like many other countries, has gone full circle with the Omicron threat now looming large over the nation. While 2021 saw many landmarks in the Indian judicial landscape, including appointment of nine justices to the Supreme Court with a prospective first woman Chief Justice of India, it was the reaction of the judiciary to the COVID-19 crisis that stands out as its highlight for the year 2021.

2021 saw various points of intervention by the courts during the fatal second COVID-19 wave, which acted as a counterbalance to the inaction of the executive branches of government. The prompt responses by the Supreme Court and various high courts to the pandemic situation in the nation was commendable. The judiciary sought accountability from the central and state governments and ensured a timely implementation of their orders, sometimes by micromanaging them.

The quick responses and alertness by the courts came to the rescue of citizens facing the wrath of the deadly second wave in India. The Supreme Court took stringent actions during the oxygen crisis and also held the central government accountable on its vaccine disbursement policy, while the state high courts reprimanded their respective governments for their lackadaisical approach to the crisis and poor management. The courts also protected citizens’ rights by ensuring that the hospitals did not deny admission to any patient.

However, with the onset of the Omicron variant, there rings a clarion call to the judiciary again. India reported a single day spike of around 58,000 fresh COVID cases on Wednesday, with the state of Maharashtra and Delhi reporting the highest numbers. States have called for immediate actions, with Haryana restricting the attendance of government employees to half in its offices and Chhattisgarh imposing a ban on rallies, processions and public events across the state and night curfews in districts with high positivity rates.

Kerala has imposed strict restrictions on public gatherings after recording 20,000 active COVID cases. New Delhi has been under a “yellow alert” since Thursday, prompting authorities to impose weekend curfews allowing only essential movement during this time, owing to steep rise in single-day cases in the city.

After a tough battle with the deadly Delta wave last year, India has to prepare at a war footing for what is about to come. Delhi is expected to hit at least 10,000 fresh COVID cases by the end of day on Wednesday, with its government officially stating that the “third wave has hit Delhi.” Delhi chief minister Arvind Kejriwal has affirmed that it has 37,000 oxygen beds available this time around, while the Mumbai Mayor Kishori Pednekar gave assurances that his city is ready to face even a “Tsunami” of COVID-19 cases.

Omicron has adversely affected the functioning of courts in the country, as many have decided to shift back to either virtual or hybrid modes of hearing. The Supreme Court, the Delhi High Court and the other district courts in the national capital region have switched back to full virtual hearing beginning January 3 and ending January 15 noting that they will reassess the situation at such time. The high courts of Madras, Calcutta, Bombay, Allahabad and Patna have followed suit.

Despite the return to virtual hearings, the courts have been kept busy recently by cases asking them to curtail public activities, which might act as a catalyst to the super spreading Omicron. While the battle with the Omicron variant has just begun, elections in five different states are just around the corner—i.e. in the February-March period—with everyone’s eyes on the Uttar Pradesh election (a state with over 200 million residents).

In the wake of these upcoming elections, a public interest litigation has been filed at the Supreme Court seeking orders to the Election Commission of India to issue guidelines, policies and directions for strict adherence of COVID-19 protocols during political campaigning and promotional processions of various political parties. Directions have also been sought to instruct the political parties to conduct their campaigns through digital platforms.

Along similar lines, the Uttarakhand High Court has asked the Election Commission of India (ECI) to consider virtual rallies and online voting, during a plea hearing seeking postponement of the upcoming assembly elections.

During a hearing, the Allahabad High Court also appealed to Prime Minister Narendra Modi asking him postpone the upcoming elections in view of the rising threat of Omicron, considering that Uttar Pradesh is one of the five states heading to the polls between February and March. The court also urged ECI to immediately issue directions to political parties to shift from physical rallies to newspaper and news media campaigns.

These are quite significant developments, considering that the Madras High Court remarked last year that murder charges should be filed against ECI because of the careless manner in which it allowed elections in various states to be conducted, despite the threat of the delta variant looming large. We will have to wait to see how proactively the ECI conducts its affairs this time around and how the judiciary will respond to its actions.