In most other years, the month of May would mark the beginning of court holidays for India’s higher judiciary in the southern and western states, apart from the Supreme Court itself. Save for ‘urgent matters’, courts are filled with what lawyers would call the ‘holiday mood’ — an inclination to adjourn where possible and getting ready to tune out of work for four to six weeks. Given that litigation involves a 7 day work week (for a serious lawyer), this is a much-needed break, even if the public sometimes derides the whole affair.
Not this year. While some courts, such as the SC, have decided on an early vacation in view of the pandemic, benches are still hearing matters fairly regularly — especially those related to the (mis)management of the pandemic by state and central governments.
The Supreme Court and the various High Courts have concerned themselves with a wide range of issues related to the pandemic — everything from supply of oxygen to vaccines to ensuring that rations are available to those workers affected by the lockdowns imposed by the states.
How High Courts Are Ensuring the Accountability of the Political Executive
In a previous article, I had argued that the constitutional courts, in taking up the issue of COVID management, were performing an important democratic role — ensuring the accountability of the political executive. The tough questions that they have asked have unearthed some answers — even if those answers have proven to be unsatisfactory in many cases.
Consider that we now know that the Karnataka government had barely 7 lakh doses of vaccines left at one point during last week — not even enough to guarantee a second dose to all those who were due. On the same topic, the affidavit filed by the Union offered something approximating a justification for the Union government’s vaccine policy. The justification itself couldn’t come up for judicial scrutiny since, in a bizarre ironic twist, Justice DY Chandrachud — who was heading the bench — fell ill due to COVID.
In a similar vein, the Gujarat and Allahabad High Courts have pressed their respective state governments to make data more transparent, at least in the context of beds available for treatment. The Allahabad HC even went to the extent of exposing the state government’s duplicity in this matter in a unique manner.
When the web portal showed the availability of beds at a certain hospital, the Court got an advocate to call a hospital mid-hearing and found out the truth — there were no beds. Both High Courts have also been pushing their respective state governments to stop hiding the truth about the true state of affairs, especially in the manner of death.
The Courts’ Actions Which Exposed the Govt’s Errors of Omission & Commission
Amid the daily flood of hearings, orders and directions, one cannot but help ask though — have the courts been effective in their interventions? Individual interventions — such as the Karnataka High Court’s direction to the Union Government to increase oxygen supply to the state — notwithstanding the appeal to the SC — did indeed ensure an increase in the supply to the second worst-affected state in the country.
Other directions have been hobbled by the mistakes made by the government earlier, and which cannot be rectified quickly. The same High Court had to backtrack somewhat on its insistence of persons with disability being vaccinated quickly when the appalling shortage of vaccines was made obvious.
That said, the hearings on the vaccine policy of the state have themselves been successful in brutally exposing the incompetence and callousness of the state government.
Other interventions will take time to show fruition. The Supreme Court’s recent directions on the supply of rations, accessible transportation, et al to people affected by lockdowns in the National Capital Region (NCR) will take time to show results on the ground. It is perhaps encouraging to note that the SC, on this occasion, has wasted no time in acting.
Courts’ Efficacy Can’t Be Judged Only on the Basis of On-Ground Results
The middle of the second wave of COVID-19 might not be the best time to assess the effectiveness of the courts’ interventions in the management of the pandemic. For one, we are still in the middle of a second wave that, far from abating, has spread with fury to the rural hinterlands. For another, the whole exercise assumes that it is possible to disentangle what the court does from what the government would have done anyway in every single instance. Finally, it also assumes that there is no gap between the courts’ order and its implementation by the government.
There is also a larger point here and one which goes back to something I said in my previous piece — the on-ground implementation of the courts’ orders may not even be the best way to measure the courts’ interventions.
Rather, it might be better to study what has come to light and what justifications have been offered for the governments’ failures in managing COVID in the hearings themselves. If one were to assess the court’s effectiveness only by on-ground results, one implicitly accepts that the court is really performing the executive’s functions — a role it is not suited for and cannot perform anyway.
India’s Judiciary Must Know That The Harder Task Lies Ahead
Far more important though is the need for courts to widen their scope from just the urban areas to rural areas which are much worse affected by the pandemic this time around, and who may not be able to access the courts themselves to highlight what they need.
Whatever they may have achieved so far in their quest to ensure the proper management of the pandemic, India’s judiciary must know that the much harder task still lies ahead.
(Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy in Bengaluru. He is also a member of the Executive Committee of the Campaign for Judicial Accountability and Reforms. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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