By Kanu Agrawal
This part will study the change in the approach of the Indian judiciary in the second phase and thereafter summarise the comparative findings between the Indian and the American approaches.
Unlike the first phase, in the second phase [during the second wave in 2021], the Indian Supreme Court and High Courts across the country, took up COVID related issues – not necessarily on the basis of hardcore legal questions, rather cognizance was taken generally of the “situation”.
In many ways, the Indian judiciary has “assumed” this jurisdiction without really establishing the same, either through suo-moto petitions or public interest petitions. In many ways, it can be said that the hybrid “oversight jurisdiction” was overstepped, the judiciary entered unchartered territories without explicitly stating the jurisprudential basis.
In conjunction with the situation, a judicial greenfield of issues was kept open in the second phase, with more than a dozen Indian constitutional courts initiating suo-moto proceedings in relation to the pandemic. The judicial orders in the second phase can be illustratively summarised as under:
A. The Indian Supreme Court thought it fit to constitute a separate extra-constitutional private body of self-selected “experts” to formulate policy on management of Liquid Medical Oxygen, a crucial component of intensive COVID Care[1].
B. A High Court ordered a complete lockdown of six of the most prominent cities of the State along with certain other directions on lockdown being applicable to the entire State[2]. However, it may be noted that the order was subsequently stayed by the Indian Supreme Court;
C. At least eight High Courts [The Nagpur Bench of the Bombay High Court[3], the Delhi High Court[4], the Jharkhand High Court[5], the Karnataka High Court[6], the Madras High Court[7], the Patna High Court[8], the Punjab & Haryana High Court[9], the Telangana High Court[10]], almost simultaneously, when the oxygen requirements of the country were stretched to the limit and the daily infections were at their peak, deemed it fit to order delivery of a particular quantity of oxygen to the particular States, irrespective of the corresponding national demand for the same and the possibility of the impact of the same on other States needing the said oxygen. In some cases, even supply chain routes were decided and discussed before the Courts in the middle of the pandemic. A High Court ordered the takeover[11] of one of the oxygen production units by the State officials which later had to be suspended[12] as the officials had no expertise in handling oxygen plants.
D. A High Court ordered collection of oxygen cylinders from all industrial units for providing the same to patients without getting into the question of hygiene and the logistics of the issue.[13]
E. Multiple High Courts [Bombay High Court Nagpur Bench[14], the Delhi High Court[15], the Madhya Pradesh High Court[16]] went on to issue orders with respect to national allocation and supply of crucial drugs without largely comparing the same to requirements in other States.
F. Another High Court[17], issued orders with respect to supply of particular amount of vaccines for the State, irrespective of the need of vaccines in other States.
G. A High Court[18] had been conducting a hearing with respect to floatation of a global tender for the supply of vaccines ordering/“nudging” the State to float the global tender [irrespective of the publicly known facts that all major vaccine manufacturers in the world have denied trading with provisional governments and further that the Central Government is already in advanced talks with the said global manufacturers].
H. A High Court[19] issued a broad based, generic and open ended judicial diktat, ordering all nursing homes in the State to necessarily have oxygen facility for every bed; all medical establishments to have certain percentages of beds for ventilators, high flow nasal cannula facility and beds with BIPAP machines in every nursing home/hospital; every nursing home/ hospital which has more than 30 beds to compulsorily have an oxygen production plant; medical colleges in Prayagraj, Agra, Meerut, Kanpur and Gorakhpur be provided enhanced facilities like Sanjay Gandhi Postgraduate Institute within four months, etc. The court had even ordered the State to provide within a month at least 20 ambulances in every small town of the largest State in the country and have at least two ambulances with ICU facilities in every village. The Supreme Court later on stayed the order terming it to be virtually impossible to implement.
I. Lastly, the Indian Supreme Court, is maintaining a level of oversight and actively adjudging the vaccination policy of the Central Government[20].
The second phase is marked by lenient exercise of mandamus powers, even exercised to resolve day-to-day management issues. This phase can also be marked with a significant amount of “off the cuff” remarks [something which was noted by the Supreme Court itself in an Election Commission case recently] in order to purportedly convince/coerce the executive in taking a particular decision in a particular manner.
A mutated form of jurisdiction, perhaps well-meaning, dropped any conceivable requirement of specificity of issues, ascertainment of facts or requirement of locus in judicial proceedings. Therefore, Courts ventured into a variety of issues, picked up on a revolving roulette of judicial sensibilities on a daily or weekly basis.
At the same time, while such broad based orders were passed during the “second wave” in 2021, the same was largely missing during “third wave” in 2022. The same could be function of relative mildness of the “third wave” which could be attributed to various factors.
The American judiciary, whilst maintaining a healthy constitutional distance, has sternly opined on issues through pointed judicial opinions by conducting a thorough jurisprudential, factual and legal analysis. The American Courts have analysed purely legal issues, involving a direct interplay of personal freedoms of liberty, religion, association, congregation and State’s restrictions on exercise of such rights. In no case whatsoever has the American Supreme Court, ever provided a ruling on the public health policy of the States especially concerning the mode, method and manner of procurement, distribution and administration of any medical goods required during any medical emergency or in the nature of other orders mentioned above.
In fact, if analysed carefully, the American context of the courts dealing with pandemic issues is actually the reverse than that of India. It is the context wherein citizens wish to breach the restrictions on personal liberty imposed by the States [in the benefit of the citizens themselves], on the grounds of unimpeachable personal liberty rights in the United States. On the other hand, the world of suo-motu court governed COVID response in India involving micromanaging, checking and deciding almost every aspect of the COVID response by the States, is like many other things, unique to India. The two situations, jurisprudentially speaking, are incomparable and as immiscible as water and oil.
There is an old judicial rule the Indian Court have borrowed from American counterparts in Equal Protection Cases - The legislature may proceed “one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind”[21]. The said principle would be equally applicable to the Executive actions, especially during a public health emergency.
While it is correct to suggest that Indian jurisprudence on separation of powers and public interest litigations provides for a wider latitude to Indian Courts, the Indian Courts have failed to jurisprudentially reason their interventions. It would not be inappropriate to suggest that a culture of armchair epidemiology, tempered through self-anointed harfanmaula[22] amicus, has ruled the roost in the Indian judiciary during the second wave of the pandemic.
In many ways, the response is symptomatic of a creeping executivism in the Indian judiciary, most recently dubbed as dialogic jurisdiction, enabling Courts to punch above their weight in the constitutional tug-of-war. While the Courts in both countries have correctly held that the government cannot keep aside the Constitution in the times of a pandemic, the corollary of the same is also true – the presence of a pandemic and Executive being stretched to the limit cannot become a vehicle for the Courts to annihilate the constitutionally prescribed limits to exercise of their powers. A comparative analysis of the response of the judicial wings establishes that indeed, the seven seas separate the two nations.
This is the third of a three-part series. You may read the first part here and the second part here.
The author is an advocate at the Supreme Court of India.
Disclaimer: The writer is a part of the legal team of the Central Government and has assisted the team in various COVID-related litigation. The views of the writer do not express the views of the Government of India.
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