Why Courts are justified in making correctional interventions during the pandemic

In light of some High Courts across the country and later the Supreme Court pulling up the executive branch of the State for its failure to manage the second nationwide COVID-19 wave and directly issuing orders to it to better manage the crisis, GAURAV THOTE writes about why it is not just permissible but crucial that the judiciary steps in at such a juncture.

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IT is said that the judiciary sometimes overreaches its boundaries with several far-reaching verdicts in furtherance of socio-economic objectives besides making correctional interventions. Such interventions can be interpreted as an intrusion into the domains of the legislature and executive.

In light of some of the major questions over State policy and executive decisions that have arisen during the COVID-19 pandemic, is judicial intervention vis-à-vis policy concerns justified in the present times?

The First Wave

During the first wave of the pandemic, the requirement of oxygen and medical assistance was not as severe as the issue of migrant workers'.

With neither the economic capacity to survive the lockdown nor the means to travel, a majority of the migrant workers were compelled to return home for basic survival – an arduous journey many of them embarked on foot.

Also read: The unnecessary shadow – Notes from the ground

As a spectator to the State's inept attempts at addressing their plight, various High Courts intervened and passed a string of guidelines to tackle the predicament.

However, the Solicitor General of India Tushar Mehta, representing the Union Government, went on to state before the Supreme Court that the issue was being politicised and that High Courts had started running parallel governments.

When public interest litigation concerning the plight of migrant workers came up for hearing before the Supreme Court in March, Mehta attacked them as 'self-employment generating petitions', falsely claiming that there were no migrant workers on the roads, as the government had ensured that they were housed and fed.

Unilaterally accepting the claims of Mehta and Union Government, the Supreme Court agreed with them in its order that the migrant workers' exodus had been driven by 'fake news'.

Later, data compiled by the SaveLIFE Foundation, a road safety NGO, revealed that at least 198 migrant workers got killed in road accidents during the national lockdown from March 25 to May 31. India Today's database on this issue pegged the number of such fatalities among migrant workers at 238 as on May 28. 

The most heart-wrenching of these fatal accidents was the one that occurred on 5^th May 2020, when a goods train ran over 16 migrant workers in Aurangabad, Maharashtra who fell asleep on the tracks out of exhaustion after walking along it for several hours during the day.

Eventually, towards the end of May, the Supreme Court changed track and took suo motu cognizance of the issue, observing that the measures taken by the government were inadequate and inefficient.

Ultimately, the Union and state governments were directed to follow the guidelines framed by the court regarding transporting migrant workers safely and humanely back to their native places.

The Ongoing Second Wave

During the present wave, India has taken a far graver hit due to inadequate infrastructure and resources, and a shameful lack of planning. There is a massive surge in the number of deaths for want of oxygen and medical assistance.

Also read: COVID Horror: Criminal Dereliction of Duty While Indians Gasp for Breath

In the midst of this chaos, Prime Minister Narendra Modi, in his recent speech on April 20, made an endeavour to pacify the ongoing situation by assuring people that the situation would soon be under control as the Centre had ramped up production of oxygen and other medical supplies.

However, given the continued abysmal state of affairs of public healthcare all across the nation, various High Courts, including those of Gujarat, Jharkhand, Karnataka, Sikkim, Delhi, Madhya Pradesh, Allahabad, Calcutta and Bombay, have recently stepped in and passed a slew of directions for the proper management and availability of oxygen and medicines to patients admitted in hospitals, among other issues.

Given that the national capital is amongst the worst affected cities, not just in India but across the world, the Delhi High Court on May 1 directed the Union Government to ensure that the national capital received its allocated share of oxygen.

This came soon after the Delhi Government expressed its inability to supply oxygen to hospitals in the city due to an acute shortage of oxygen, the allocation of which to all states and union territories is controlled by the Union Government.

Unfortunately, this direction was not complied with by the Union Government. Pursuant to this inaction, the Delhi High Court on May 4 issued a show-cause notice against the Union Government for defaulting on its direction and directed government officers Piyush Goyal and Sumita Dawra to remain present before it on the next day of the hearing. "The allocation (of oxygen) to Delhi has been in force from April 20 and not for a single day has Delhi received its allocated supply", the High Court's division bench observed.

While it may be the duty of the executive branch to frame administrative policies, the fact that such directions are coming from the judiciary only underscores the incapability of the Union and state governments to coordinate with each other at this crucial time. They are being directed to perform their basic duties, something that they seem to be failing miserably at. 

The contempt notice issued by the Delhi High Court against the Union Government is a clear indication of the debacle of executive abdication of its responsibility.

It may be apposite to mention that just a few days ago, a lawyer had approached the Delhi High Court seeking its intervention to direct the State to provide oxygen to his relative. During the hearing, he broke down, submitting that the court's help was no longer required as his relative passed away.

Highly disappointed with the functioning of the state, the court said, "We've been informed during hearing that Counsel's relative has passed away. We only want to say that the State has failed in fulfilling its fundamental obligations of protecting the fundamental rights."

The vaccine policy adopted by the Government has also come under scrutiny of the Supreme Court. A three-judge division bench of the apex court comprising Justices D.Y. Chandrachud, L.N. Rao and S.R. Bhat, while passing a spate of guidelines to tackle the current crisis has, in unequivocal terms, observed that the current vaccination policy, especially the differential pricing aspect, is prima facie detrimental to the right to public health, which is an integral element of the right to life under Article 21 of the Constitution of India.

Also read: The Mystery of Covishield Pricing

The Solicitor General may not be completely unjustified while remarking about High Courts running parallel governments during the first wave of the pandemic. But it so happens that people who were chosen to run the State have often disappointed the nation by exhibiting an impasse in handling the ramifications of the pandemic. This neglect on part of governments compels the judiciary to intervene to balance the equilibrium.

In dire situations such as our current state of affairs, the Supreme Court and High Courts are required to uphold a pivotal constitutional role in protecting and safeguarding fundamental rights of people, as waiting for the governments to take charge does not seem to be a viable option.

(Gaurav Thote is an advocate practising at the Bombay High Court and National Company Law Tribunal, Mumbai Bench. The views expressed are personal).