“HAD the government followed the rule of law and followed expert advice the 2nd wave would have been anticipated. Without being advised by experts or ignoring their advice on matters of public health, which is impairment of the Rule of law, no preparations were made for the second wave in terms of medical infrastructure, equipment for oxygen supply, and ventilators. As a result, the consequences on the ordinary people were devastating who went through a nightmare without any succour from the government. There were lakhs of preventable deaths,” said senior advocate Anand Grover while delivering the 4th Neelabh Mishra Annual Lecture conducted by the People’s Union of Civil Liberties. He spoke on the Rule of Law during the Covid-19 Pandemic highlighting the lack of planning and accountability in dealing with the pandemic.
“It is clear that decision-makers in the executive neither anticipated nor planned for the second wave of the pandemic, but allowed super spreader events to go on in defiance or ignorance of the advice by committees set up for the purpose again evidencing defiance of advice of scientific experts, destructive of the Rule of law,” Grover stated.
He underlined the sheer lack of planning that resulted in inhuman tragedies of bodies flowing across rivers. It is claimed that the official figures of the deaths caused in the second wave of Covid is ten times lesser than the actual figures.
The Neelabh Mishra Annual Lecture is held every year in memory of journalist Neelabh Mishra and his fearless strife for accountability and truth.
“I would submit that in a liberal democratic society based on a written Constitution like India, with the vision cast in the Preamble ensuring Justice, Liberty and Equality to all and promoting Fraternity amongst all, the importance of the role played by each institution and in particular participation of the affected communities cannot be but emphasised. Diminishing their roles would, in my opinion, lead to arbitrary, unfair, and unjust action, resulting in failed actions,” Grover said.
As he explained the context of Rule of Law, Grover referred to the International Law instruments. He elaborated on the distinction between fundamental rights and the directive principles of State Policy.
“Fundamental Rights (equivalent to the Civil and Political Rights) in Chapter III of the Constitution, which are indeed directly enforceable in a court of law as against the Directive Principles of State Policy (DPs) in Chapter IV of the Constitution, which are only guiding principles of state policy but are not directly enforceable in a court of law,” he said.
He contended that the fact these rights in actual practice are completely intertwined and inextricably linked is accepted in Human Rights discourse but less so amongst lawyers in India who have argued in silos of these two rights.
This issue has been ignited in India more acutely now during the Covid 19 pandemic. The right to live with dignity provides the interlinkage and between these two apparently diverse rights which is encapsulated in Article 21 of the Constitution. Covid 19 provides an example where the impairment of the Rule of law, which is considered as a part of the CPRs impacts on the Right to Health, the availability and accessibility of health goods, services, and facilities, he said.
Rule of law, roles of institutions, beyond, judiciary, media
Grover pointed out the magnitude of the disaster that the pandemic has caused in India. After the partition of India, the Covid-19 pandemic is the gravest crisis to hit Indian society in independent India. In terms of a health crisis in India, the Covid 19 crisis is unprecedented in its magnitude in history, comparable perhaps to the Spanish flu.
Having said that, he raised the question that unlike before, we are a decolonised constitutional state. Yet, have we really fared any better than what we did under a colonial British government?
How we have coped with Covid-19 in our country tells us a story of the failure of rule of law, of governance, reliance on vague notions of the exceptionalism of India, instead of reliance on science, scientific data, and scientific advisors, resulting in not anticipating the 2nd wave, lack of preparedness, planning and most importantly, in the preventable death of thousands of people, he said.
As many as 2.96 crore persons had tested positive. Out of them,3.77 lakhs died. Internationally, 17.6 crores had tested positive of which 38 lakhs had died. India is next only to the US in the numbers afflicted but is in the third position after Brazil as far as the dead are concerned, he said.
The core of the Indian liberal Constitutional system in terms of the Rule of law based on the doctrine of separation of powers traditionally delineates and separates the roles assigned to parliament, executive, judiciary, and the media. Less emphasis has been laid on the roles assigned to other extremely important and diverse institutions in societies, in India like the Election Commission of India, Scientific institutions, e.g. Centre for Scientific and Industrial Research (CSIR) or Indian SARS-CoV-2 Genomic Consortium (IGNOSOC), data gathering institutions, e.g. Statistical Institute of India, diverse Educational and Research institutions collecting information in nature of scientific, economic, social, health data, whether governmental, public and private, all of whom feed into decision-making by the executive, he said.
Defying the Rule of Law
The scientific and the pluralist nature of the data and its diverse nature, its gathering based on objective criteria, shorn of ideological, partisan politics and advice by experts, scientific or otherwise, plays a critical role in balancing and advising the executive to take decisions based on a holistic understanding of the problem and in accordance with the Constitution. The role they play in the Rule of law is important. The defying of their role or bypassing them is destructive of the Rule of law, he said.
Delving into the issue of sheer mismanagement, Grover spoke about one of the strictest lockdowns that were imposed in India in March 2020. The lockdown imposed on 24th March 2020 was arbitrary, without any consultations with key ministries or any States or any inputs by scientific and medical experts or any communities. A proper way to go about it would be to take experts on health, economy, and labour based on their advice and medical evidence to the government to decide to impose or not impose a lockdown. The checks and balances in our system were put in place to avoid exactly such arbitrary decisions. That was not to be. With no regard to the Rule of law, the decision was taken without expert advice on an arbitrary, irrational, and unscientific basis, he said
“No wonder that rather than curtailing the spread of the pandemic, by the end of the first lockdown, the count of Covid-19 positive cases had increased from 519 detected with 10 fatalities at the beginning to nearly 2 lakh cases and 5000 dead at the end, making it the fastest infection rate in Asia. Pertinently, unlike other countries which only imposed lockdowns with restrictions and lifted them after the reduction in the rate of infection, in India the rate of infection was not a determining factor evidencing the unscientific and arbitrary nature of decision making,” Grover said.