With everything in short supply — hospital beds, ICU beds, medicines, vaccines and even crematoriums and burial sites — desperate patients and citizen groups who were getting no help from the state appealed to the courts hoping they could force the government to get its act together. The Supreme Court and some High Courts also took suo moto notice of the situation and passed orders stressing upon governments’ responsibilities and actions to be taken.
One significant, if controversial, step taken early by the Supreme Court was to take cognizance of issues on COVID-19 pending before six High Courts, Delhi, Bombay, Sikkim, Calcutta, Madhya Pradesh and Allahabad. The apex court stated that it was a national emergency and a national plan was needed. Though before it could formulate the plan, the high courts mentioned had already issued their own directives to the government.
The Supreme Court felt that six different courts giving directions might create confusion. It brought all the petitions in the High Courts under its ambit. Subsequently, it appointed a 12-member National Task Force comprising doctors and civil servants, to streamline allocation of life-saving oxygen by the Central government to various states and UTs. The apex court stated that the rationale for constituting a Task Force at a national level was to facilitate a public health response to the pandemic based on scientific and specialised domain knowledge. “The likely future course of the pandemic must be taken into contemplation at the present time,” the SC had observed.
The task force has a larger mandate such as enabling decision makers to have inputs which go beyond finding ad-hoc solutions on COVID management. It is also expected to ensure that projected future requirements can be scientifically mapped and may be modulated in the light of experiences gained, and provide the Union Government with inputs and strategies for meeting the challenges of the pandemic in the present and future. The task force has an initial life span of six months.
Police threatened with contempt action
The Supreme Court also took cognizance when state police were filing FIRs against citizens for posting their requirements of oxygen, hospital beds etc. on social media, terming it as spread of misinformation. The Apex Court under Justice D Y Chandrachud stated that they wanted to make it very clear that citizens communicating their grievances on social media could not be construed as wrong information and that any police action against those posting such grievances would be treated as contempt of court.
COVID-19 also orphaned many children and some organisations began posting on social media for adoption of such children. The Supreme Court passed an order expressing concern about such illegal adoption and directed the state governments and Union Territories to take action against such NGOs. In its order, the SC mentioned that no adoption of affected children should be permitted contrary to the provision of Juvenile Justice Act, 2015.
“Such posts are contrary to law as no such adoption can be permitted”. It also directed respective governments to prevent any NGO from collecting funds in the names of affected children. Over 30,000 children have become orphans or have lost one parent or were abandoned due to COVID-19 as per NCPCR data.
The Supreme Court has also asked the centre to submit detailed data of purchase of all vaccines including Covishield, Covaxin and Sputnik V. It was anxious about the part played by private hospitals in the vaccination drive, questioning whether they would prefer profit over public health. In an earlier order, it had advised the centre to keep strict vigil over private hospitals.
The High Courts were not far behind in questioning the actions and responsibilities of central and state governments, Delhi High Court being prominent among them. In mid-April, with an alarming rise in COVID-19 cases, the Court decided that it will take up only extremely urgent issues. Addressing pleas on management of the pandemic in the national capital, the HC remarked that the problem in Delhi exists because both Centre and State think Delhi is theirs. It directed both governments to make up for the oxygen shortage in hospitals arguing that economic interests cannot override citizens’ lives.
The HC also directed the Centre to speak to drug manufacturing companies for ramping up production of various life-saving drugs, while taking note of their shortage in the market. Wastage of COVID vaccines was another issue the HC noted, terming such wastage a criminal act and asked the authorities to formulate a plan for vaccination from the doses that were left after opening a vial.
Looking into delayed testing, the government was directed to take immediate action by simplifying the process by eliminating the practice of form filling despite giving Aadhaar Card details. The HC also sought Centre’s response on demand of Tocilizumab and ways of obtaining supplies from manufacturers. It also directed Centre to fix the MRP of equipment used in COVID treatment like ventilators to check black marketing.
The judicial interventions did have an effect. Oxygen shortage started declining, real-time information about availability of beds was given, and makeshift hospitals with oxygen beds and ventilators were set up in many states. Government created helplines for reporting COVID frauds which helped police track down fraudsters. During a proceeding, Senior Advocate Gopal Sankaranarayan said that when there was no governance, it was an obligation for courts to step in.
Some High Court orders reversed
Questions of judicial overreach have been raised since the pandemic began, as in some instances, orders passed by the courts were found to be too vague. For instance, a recent Allahabad HC’s direction to the UP government that every village in the state should be provided with two ambulances with ICU facilities within a month, was stayed by the Supreme Court stating that it would not be “humanly possible” as the state has 97,000 villages.
Courts have also found themselves having to decide on issues on which they have no expertise. For instance, in deciding on substitutes for Tocilizumab and ramping up their production. Also, while dealing with oxygen shortage, by allotting Delhi a quota on oxygen supplies, states like Tamil Nadu and Karnataka also approached the courts to allot them a daily quota of oxygen. The Supreme Court later appointed a task force for fair distribution of oxygen. But the Delhi government seemed unhappy with the apex court’s move.
In another instance, the Gujarat HC last year had ordered free testing in public and private labs. But after protests by private labs, the court said that only those citizens covered by Ayushman Bharat will receive free testing.
Such rulings allowed the Centre to defend its policies and arguing that these were uncalled for judicial interventions. In an affidavit submitted defending its vaccination policy, the union government argued that any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences, especially in the absence of any expert advice or administrative experience, leaving doctors, scientists, experts and executive very little room to find innovative solutions. It further mentioned that given the unprecedented crisis, the vaccination drive has been formulated by the executive with expert inputs and its wisdom should be trusted.
Inevitably, there were different views over the courts’ actions. Those in favour of judicial intervention argued that there was a vaccine crisis, lack of anticipation by the government, mismanagement, lack of amenities etc. When citizens faced government inaction, they looked to the courts for help and in many cases, prompt intervention by courts did give citizens some relief.
Upholding federal principals
It also must be noted that with all petitions, the Courts tried to uphold the federal pillar of the constitution. Even while passing orders on related matters, courts refrained from giving specific directions to the government in some cases. For instance, the Allahabad High Court announced ex-gratia compensation to families of deceased poll workers even though the Supreme Court, during the migrant crisis last year, stated that policy decisions were the government’s area and it does not want to supplant its wisdom and refused to pass an order on compensation to migrants.
The Allahabad High Court had also ordered the state government to impose complete lockdown, which was not adhered to by the state government stating the cases were low in the state and needed medical supplies were sufficient to cater the need. The Supreme Court sided with the state, though subsequently lockdown was imposed in some cities.
The Supreme Court also dismissed a plea to stop construction of the Central Vista project amidst the pandemic, which was given status of essential service by the government. Meanwhile, the Delhi High Court has reserved judgment on the same plea after hearing arguments from both sides.
Nevertheless, appreciation of Courts’ promptness during the second wave can be seen wherein a school girl wrote a heart-warming letter to the Chief Justice of India, thanking the Supreme Court for its orders on managing the pandemic.