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This article is written by PUSHPAM SINGH, 1st-year BALLB student from Army Institute of Law, Mohali
INTRODUCTION
It has been almost one and a half years since the Covid-19 pandemic brought catastrophic changes in the world. India being the world’s 2nd most populated country and 5th largest economy faced major losses of lives as well as livelihoods. Throughout the period of uncertainties and disruptions, there was one sole institution of governance which stood, holding the beacon of hope for its people. It was the Indian judiciary which stood for the people’s rights and facilities when the legislature was inactive, and the executive turned a blind eye to the stakeholders and became complacent of its policies. It was the “Suo Motu Cognizance” by the various high courts and more effectively by the Supreme Court of India which came as a saviour and stepped to uphold the constitutional values which we cherish by the way of equality, freedom and life.
A series of issues and problems walked in since January 2020 when the 1st Covid-19 case was recorded in India, and ranged from the merciless national lockdown, the migrant crisis, loss of lives as well as livelihoods and intensified during its second wave which was accompanied by harmful variants of the virus, oxygen crisis, lack of medical services and the controversy over vaccines. In such trying and testing times, the executives at both, the Centre as well the State level, were indifferent towards people’s essential rights and facilities and were complacent in their approach towards the virus containment. Such a response by the government led to the death of at least 3.9 Lakhs people by the middle of June(1). Visuals of migrants walking barefoot towards their native places, over-crowded hospitals, increase in crematoriums and floating dead bodies in river Ganga were some of the most heart-burning incidents witnessed by our democracy which stands for the right to life, dignity and welfare to its citizens. However, when negativity and hopelessness were hovering in the air, it was the Indian judiciary led by the Supreme Court which stood for the people’s right to life, livelihood, health, dignified death and other fundamental affirmatives granted to the people by its very own sacred Constitution.
ANALYSIS
Beginning from April 2020, when the National lockdown was announced by the Prime Minister, left millions of workers and migrant labourers were stranded at their workplaces or cities. Thousands of migrants walked barefoot towards their native villages or towns, out of which many perished in the midst of the journey. Truly, the national lockdown, though a necessary evil, fell catastrophically on the lives and livelihoods of the people of lower strata the society as well as economy. The executive was well aware of this situation, however, it chose to be indifferent and helped little to heal the wounds of the poor migrant population. In such a trying time, the Supreme Court took Suo Motu Cognizance of the matter(2) and passed a series of directions with regards to the transport and food facilities to be provided to the stranded migrant workers. The Court also directed the employers to provide certain incentives to their workers to manage their basic expenses in such difficult situations. The Apex Court also provided directions to the administrations of States and UTs for proper management of hospitals, basic medical facilities and dignified handling of the dead bodies.(3)
It was clearly visible that when the nation was facing one of the worse events of its history, the executive on one hand, though working and active, chose to have astringent and authoritative face, while on the other hand, the Supreme Court and other lower courts were the face of compassion, mercy and hope. The Supreme Court didn’t interfere unnecessarily in the policy and measures of the Central and State Governments and proved itself as a facilitator as well as the Guardian of the Indian Constitution. It chose to interfere whenever citizen’s basic rights were infringed, while roasted those who violated and disturbed the administrative management of the Covid-19 crisis. The Supreme Court observed that “Due to unprecedented Pandemic, everybody in the world is suffering, one way or the other. It is a world war against COVID-19. Therefore, there shall be Government Public Partnership to avoid world war against COVID-19”. Such a statement in its order reflects the intent of the Indian judiciary towards the cooperative efforts and actions to beat the virus. It also mentioned in its order that “Right to health is a fundamental right guaranteed under Article 21 of the Constitution of India. Right to health includes affordable treatment”. The Apex Court cast upon the State to make provisions for affordable treatment and more and more provisions in the hospitals to be run by the State and/or local administration are made. It also opined that “it cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished”.(4)
The Judiciary made sure that the citizens receive all the basic facilities and rights which are required in this catastrophe. In the first wave, from masks, sanitisers, medical drugs, medicines, etc. to the issue of migrants, dead body cremation and police brutality, the courts were actively looking into each of the matter and passed rational judgements which followed the ideas and values of the Constitution, without interfering the executive’s required actions. While the second wave arrived, the Courts took an advanced role and criticised the government for its mishandling in the virus containment, thus took a more pragmatic and wide-reaching approach. Earlier, in the first wave, the Judiciary acted as a facilitator of the Executive’s leadership in the war against the virus, however, it turned little harsh on the government because the second wave jeopardised the new-normal not because of the reasons related to ‘act of god’, but due to the mishandling and complacency of the government in its approach against the virus.
All the misfortunes and hardships of the second wave were severely evidenced by the shortage of vaccines, oxygen, medicines; poor handling of dead bodies; corpses floating under the sacred river Ganga and the fight between the centre-states over the Vaccination policy. All that the second wave brought within it was an intense increase in the death rate. The wrath of the Indian Courts was justified in many ways, given the fact that the nation had already witnessed the first wave of covid-19 which would have given the administration experiences and leverage to tackle the second deadly wave, despite which there was a shortage of essential drugs and medicines; people were dying due to lack of oxygen supplies, and the administration of vaccines was halted in many states. However, the Indian judiciary again came as a saviour in such a chaotic environment and passed orders which involved the proper supply of oxygen, vaccines, essential drugs and medicine; and reiterated the guidelines for the dignified handling of the dead bodies. The Apex court in Union of India V/S Rakesh Malhotra and Anr constituted a National Task Force to provide a public health response to the COVID-19 pandemic on the basis of a scientific approach. The terms of reference of this National Task Force included, inter alia, assessing and making recommendations for the need, availability and distribution of medical oxygen; devising a methodology for allocation of medical oxygen and periodical review of the allocation based on the stage of the pandemic; providing recommendations for augmenting the supplies of oxygen; facilitating audits in each State/UT to determine whether oxygen supplies had reached its destination; efficacy, transparency and efficiency of the distribution networks within the State/UT; providing recommendations for ensuring availability of essential drugs, augmentation of medical and paramedical staff, management of the pandemic and treatment of cases.(5)
The major bone of contention in cooperative federalism was the issue over the liberalized vaccination policy. The Union government provided the vaccines free of cost to the states during the 1st and 2nd stages of the vaccine administration in accordance with the Universal Immunisation Programme that began in 1978, however, in a shift of its discourse, the centre announced the Liberalised Vaccination policy for the 3rd stage with bigger changes. As per the altered policy, the Centre was taking 50% of the total vaccines for administering it free of cost to the 45+ population, health workers and frontline workers; while the State and private hospitals were to purchase the remaining 50% vaccines directly from the vaccine manufacturers at the price announced by the latter. When the controversy over the vaccination policy grew, the Supreme Court took suo-motu cognizance of the concerned matter. In its judgement dated 31st May 2021, the Supreme Court clearly took a stance of rationality and a pragmatic approach towards the vaccination drive. The Honourable Court adjudged the Centre’s Liberalised Vaccine policy as prima facie, arbitrary and irrational. In this concerning judgement, the Supreme Court deliberated on a wide range of issues related to the vaccination drive such as the production of vaccines, its distribution, pricing, registration and the aspect of the digital divide. The Honourable Court also clarified its locus standi in the entire Vaccine issue without violating the Doctrine of separation of power. The order remarked “across the globe, the executive has been given a wider margin in enacting measures which ordinarily may have violated the liberty of individuals, but are now incumbent to curb the pandemic. Historically, the judiciary has also recognized that constitutional scrutiny is transformed during such public health emergencies, where the executive functions in rapid consultation with scientists and other experts”. The Apex court underpinned its support to the executive in the war against the virus, however it also bashed the Centre for its inconsistent and irrational policies. In its order, the Bench observed that “Courts across the globe have responded to constitutional challenges to executive policies that have directly or indirectly violated rights and liberties of citizens. Courts have often reiterated the expertise of the executive in managing a public health crisis, but have also warned against arbitrary and irrational policies being excused in the garb of the “wide latitude” to the executive that is necessitated to battle a pandemic”.(6) Such a beautiful observation by the three-judge bench led by Justice D.Y. Chandrachud clearly upholds the constitutional values cherished by our democracy. It highlights and strengthens the way a democracy should function especially during a crisis, where the executive may take tough, necessary and sometimes irrational policy decisions or keep a rough stance over citizen’s basic rights, however, there remains a ray of hope in the form of what we call the “judiciary” which always binds itself and follows the values of law & justice and saves the public from irrational and arbitrary policies of the government which may be discriminatory and catastrophic in a crisis. And this is what happened, when the Centre government on 7th June 2021 announced a change in its vaccination policy, according to which the Centre would purchase 75% of the vaccine and give it directly to the states for further vaccine administration, while the remaining 25% will be purchased by the private hospitals or “other than government channel”. The changed policy is welcomed by everyone as it solves all the major issues regarding the vaccination drive and is in accordance with the Supreme Court’s order. However, some more issues such as the ‘digital divide’, inoculation for children and the strategy for the upcoming waves needs to be considered by the government.
CONCLUSION
Such orders and actions by the Judiciary set out a great precedent for the upcoming crisis. The way the Supreme Court criticized the government for its poor policy decisions and without violating its boundaries saved the rights of the citizens, while the executive realised and amended its policy in accordance with the Court’s judgement is a clear testimony of a healthy democracy. The Indian judiciary really played a commendable role in this difficult and heart-wrenching situation. In such difficult times when the rights of the Citizens stands vulnerable due to executive actions and measures, the Judiciary came as a saviour and without violating the Constitutional provision of ‘separation of power’, underpinned the values of Judicial Activism. India, being a complex democracy with so many issues and imperfections, has strived towards solving and fighting its battle against the virus as well as other socio-economic and political problems, and this country owes huge to the Judiciary for preserving the Constitutional values over a wide-ranging matter and acted as the Guardian of the Indian Democracy.
CITATIONS
1. My Gov., https://www.mygov.in/covid-19, 24th June 2021.
2. In Re: Problems and Miseries of Migrant Labourers, Suo Motu Writ Petition No. 6 of 2020, Supreme Court.
3. In Re: The Proper Treatment of Covid-19 Patients And Dignified Handling Of Dead Bodies In The Hospitals Etc., Suo Motu Writ Petition (Civil) No.7 Of 2020, Supreme Court.
4. In Re: The Proper Treatment of Covid-19 Patients And Dignified Handling Of Dead Bodies In The Hospitals Etc., Suo Motu Writ Petition (Civil) No.7 Of 2020, Supreme Court.
5. Union of India vs. Rakesh Malhotra and another, SLP (Civil) (Diary) No 11622 of 2021.
6. In Re: Distribution Of Essential Supplies And Services During Pandemic, Suo Motu Writ Petition (Civil) No.3 Of 2021, Supreme Court.
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