“You are driving people into the jaws of death.” “You are painting a rosy picture, not in touch with ground reality.” “You should be booked on murder charges probably.” “What were you doing for the past 10-15 months?” “Are you living on Mars?”
These are some of observations of various High Courts in India directed towards governments and other authorities in a past few weeks. At least 14 High Courts have been actively involved in management of the deadly second wave of the Covid-19 pandemic which has seen confirmed cases zoom up by over one crore, and deaths by over 86,000 since 1 April. These above thoughts were part of the diverse directives or observations that these Courts made - as the judiciary grappled with governments and related authorities and sought to bring some organisation in the exploding chaos.
Brief summaries of what various High Courts said are given below. But before that, some things that stand out starkly need to be noted. First and foremost is that various levels of judiciary have had to get involved because of the monumental failure on the part of the Modi-led central government to prepare the country for this second onslaught of Covid. Scientists, both Indian and foreign, had repeatedly warned of the impending second wave. But Modi at the Centre and his BJP colleagues leading governments in several states appeared to have got intoxicated on their own rhetoric and PR-machine outputs. PM Modi was boasting in Davos this January that India has shown the way to the whole world. Health Minister Harsh Vardhan was calling it the pandemic’s endgame. And various chief ministers or leading lights were boasting that masks were no longer needed, that the river Ganga would wash away the virus, and so on. As a result, when the predicted second wave hit India, the already decrepit healthcare system cracked up, supply chains got choked, oxygen and life saving drugs disappeared, healthcare staff became stretched beyond all human limits – and people in the country started dying in tens of hundreds. It was in this desperate situation that many persons approached the Supreme Court or the High Courts pleading for help – some just wanted a bed in ICU, some wanted a life saving drug at its normal price, some sought larger interventions to rectify mistakes of the governments.
Secondly, there is no escaping the fact that the High Courts have been far more active than the Supreme Court in responding to what was an unprecedented calamity. The High Courts were looking at the system, and looking ahead. They wanted accountability of the executive, and they also wanted rapid relief for the suffering people. Not that everything went smoothly, but by and large, the effort was there – and it did provide some succour to harried people.
Thirdly, the Supreme Court seemed a bit reticent and tardy in its responses. It was only on 22 April 2021 that it initiated hearings on the Covid crisis and asked for various intervention on four issues : oxygen, essential drugs, vaccination and the state’s powers to declare lockdowns. It called for a ‘National Plan’ although last year it had accepted the rather dodgy logic of the central government that a national plan was already in place. In fact, the apex court had last year played along with the Government’s false assertions that there was no migrant crisis, and later, when the stark reality was beamed across the world, it had been sparing in its reaction. Only in the last few weeks – some are suggesting after Chief Justice Bobde’s retirement – that the Supreme Court has really come to some grips with what is one of the most tragic chapters in Indian history. It has directed that a Task Force be set up to ensure oxygen supply, it has ordered that no patient will be denied admission by hospitals, that police or administration should not harass or file charges against those asking for help, as was bizarrely happening in UP.
Meanwhile many High Courts continue to monitor the evolving government policy in different states, as they have been doing for the past several months. They also make observations on the central government, or other authorities. Here is a summary of those efforts:
In one of the earliest instances of Court interventions, on 11 April, Gujarat High Court took note of the “harrowing tales, unfortunate and unimaginable difficulties, unmanageable conditions of the infrastructure, the shortfall and the deficit of not only testing, availability of beds, ICU, but also supply of oxygen and the basic medicines like Remdesivir, etc.” Earlier it had asked the government to consider imposing a lockdown to break the transmission of coronavirus.
Continuing its monitoring of the government response to the exploding Covid crisis, on 27 April, Justice Karia remarked, "State's affidavit is painting a rosy picture and is not in touch with the ground reality. We can't sit on the ivory towers. The state has to take steps to break the chain.”
"There should be an assurance from the State Government that no patient is unattended …,” Chief Justice Vikram Nath said.
On 26 April, the Madras High Court severely criticised the Election Commission for not enforcing basic safety precautions like masks, social distancing and sanitisers in election rallies being held in the state in the run up to the Assembly elections. The Court said that the EC was “singularly responsible for the second wave of Covid-19” and went on to observe that EC officials “should be booked on murder charges probably”. The EC rushed to the Supreme Court asking that these observations be deleted and going to the extent of demanding that the media be gagged from reporting on oral observations made by the Courts. However, the apex court rejected these pleas and said that while the Madras High Court’s observations were “harsh” they served as a waking up call. It may be recalled that the EC has been criticised for the way it scheduled and conducted this round of Assembly elections in four states and one Union Territory. In many places safety precautions were flagrantly violated, notably by the Prime Minister himself, who praised the crowd attending his rally in Asansol for turning up in large numbers.
A few days later, on 30 April, acting on a suo moto petition, the Madras High Court pulled up the Modi government for the raging pandemic and asked “What were you doing for the past 10-15 months?”
“There can’t be ad-hocism in dealing with a pandemic, and the Centre should have acted in a planned manner with expert advice. …. Despite having almost a year-long lockdown, see the situation we are in ..,” it observed.
On 19 April, the Allahabad High Court asked the BJP-led government of Uttar Pradesh to impose a lockdown in five major cities – Lucknow, Kanpur, Varanasi, Allahabad and Gorakhpur – in view of the steeply rising cases of Covid-19 in the state. In a trenchant critique of the government, the Court observed, “If people die of pandemic in a large number due to paucity of sufficient medical aid it would be the governments to blame which failed to counter the pandemic even after one long year of experience and learning..”
Referring to the ongoing local body elections in the state, the Court observed in exasperation: “One would only laugh at us that we have enough to spend on elections and very little to spend on public health.”
The Court also said,” … it is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance.”
The next day, UP government rushed to the Supreme Court asking for a stay on this order. A Bench headed by Chief Justice Bobde agreed to the plea.
On 27 April, the Allahabad High Court issued notices to the State Election Commission based on media reports that 135 school teachers had died of Covid while they were sent on election duty during the local body elections. The teachers’ union later alleged that the number had risen to over 800 deaths by the time the four-phase election was completed.
On 10 May, the Kerala High Court termed as ‘fantastic’ the State government’s order on capping Covid treatment costs in private hospitals. This followed a plea filed in the Court complaining of exorbitant rates being charged by the private hospitals of the state. The LDF government of Kerala has also reserved 50% of beds in non-empanelled private hospitals for Covid patients, following a suggestion by the High Court to take over these beds. In government hospitals, 50% beds are already so reserved.
After giving a series of directions to the state government on 29 April on drugs availability and other matters so that as many lives are saved as possible, the Uttarakhand High Court came down heavily on the state government on 10 May, saying that “Despite the fact that in January 2021 the scientific community kept on warning about the second wave of the COVID-19 pandemic, the State did not pay any heed.”
“Unfortunately, for certain mistakes committed, for certain negligence shown, COVID-19 pandemic has taken gargantuan proportions, both in the State and the Nation,” the Court observed.
The Court noted that the State government, in its affidavit, had “very cleverly” tried to scuttle the Court’s earlier orders regarding hospital beds, oxygen supply and drugs availability.
On 29 April, Patna High Court termed the state government’s Action Plan as “wrong” and issued an email ID for people to send their grievances about lack of oxygen to. This happened after a three-member committee set up by the Court submitted a report saying that 1000 beds in Patna’s three major hospitals were lying vacant because there was no oxygen supply. The committee had also pointed out that there was shortage of health manpower in the state. The Court criticised the government for a large number of vacancies in health personnel, highlighted in a CAG report too.
Delhi High Court has been hearing various matters related to the explosive and dire situation of the pandemic in Delhi for several weeks. On 24 April, it called the pandemic a “tsunami” and asked the central government about the preparedness in terms of infrastructure, hospitals, medical staff, medicines, vaccines and oxygen as on date for the coming peak. It warned that anybody found obstructing oxygen delivery to hospitals in the Capital would be hanged. It also asked the Delhi government to pull up its socks. On 27 April, it asked why states like Madhya Pradesh and Maharashtra were allocated more liquid oxygen than they asked for while Delhi was allocated “far less than its requirement”.
All three Benches of Bombay High Court – located in Mumbai, Aurangabad and Nagpur – heard and gave directions on a host of issues related to management of Covid pandemic in Maharashtra. The issues included cumbersome documentation process for conducting a Covid-19 deceased's last rites, rampant black marketing of anti-viral drug, Remdesivir, and problems pertaining to oxygen supply.
Starting 20 April, the Calcutta High Court issued a series of orders to the Election Commission and the district and State government authorities to ensure that Covid protocols were strictly followed during the arduous 8-phase Assembly election. On 22 April it criticised the Election authorities of simply issuing circulars and not monitoring their implemention.
After the formation of the new TMC-led government, on 10 May, the Court asked the State government to file a detailed affidavit disclosing the exact state of affairs as well as the facilities, medicines, infrastructure, and the vaccination drive in the State.
On 20 April, Madhya Pradesh High Court gave a list of directions to the BJP led state government to ensure availability of life saving drugs and medical oxygen to residents. It also urged the central government to either increase production of Remdesivir or try to import it. The Court directed the State government to step up testing and ensure that test reports are delivered “positively within 36 hours from the time of collection of the sample”. These directions followed hearings on a bunch of five petitions that complained of shortage of drugs, black marketeering and other issues related to the raging pandemic in the state. On 11 May, the High court ordered that state prisons should be decongested (following guidelines issued by the Supreme Court earlier) in view of the fact that there was a dire threat of Covid transmission in over-crowded jails.
On 30 April, Rajasthan High Court, after hearing a letter sent by the Bar Association on the plight of Covid patients and lack of facilities, directed that a state-level, and various district level committees of prominent lawyers be formed forthwith to “alleviate general public’s difficulties”. It directed that all these committees should set up 24x7 helplines and undertake awareness measures.
On 30 April, the Telangana High Court dramatically quoted the famous poem ‘Charge of the Light Brigade’ to castigate the State Election Commission for holding elections to municipal corporations of Greater Warangal and Khammam as also five municipalities. The Court said that holding elections at this time was driving people (and employees on election duty) “into the jaws of death”, as described in the Tennyson poem.
“The entire world, not only the country or the state, knows of the war-like conditions going on since February 2021. Does the SEC not belong to this planet? Are you living on Mars?” the Court observed when the SEC secretary tried to argue that the elections were only in a few areas.
Responding to a letter complaining about lack of beds in hospitals and black marketeering of drugs, the Karnataka High Court, on 28 April, called the situation “alarming” and criticised the municipal authorities. It also directed that people with disabilities should be vaccinated on priority basis.
The pandemic is still devastating India and appears to be spreading in rural areas which are usually not visible in mainstream media. Sadly, the central government is still groping and fumbling to evolve a speedy and comprehensive response. It has also effectively restricted State governments’ capabilities to carry on the battle by giving very meagre financial support, and by forcing them to buy vaccines on their own from predatory manufacturers. It is likely that the judiciary will have to continue its role in the coming days – hopefully in a more decisive way.