Indian High Courts Show the Way; Hold EC Responsible For 2nd Wave

The high courts have found their voice, asking tough questions to all levels of government.

Image used for representational purposes.

(Image: The Quint)

Chief Justice Sanjib Bannerjee was upset with the Election Commission of India. Specifically the way it had completely failed to ensure observance of COVID-19 appropriate behaviour during the recent elections. He was not just annoyed or irked. He was furious. And in his fury, he lashed out in open court in a way that made headlines across the country the next day.

“Your officers should be booked on murder charges!”

The EC, long used to a modicum of deference, if not acquiescence from the judiciary, reeled. No judge in recent memory had used such harsh language. He was not the first judge to be upset with the body in recent times.

Election Commission Receives Wholesale Criticism

Justice TB Radhakrishnan of the Calcutta High Court had expressed his displeasure on the manner in which the EC had conducted the elections in the state. Compared to Chief Justice Bannerjee, it was positively mild criticism.

While the EC’s conduct does invite the occasional caustic remark from parties and candidates, it is rare for it to receive such wholesale criticism from any institution.

Even before the second wave of COVID-19 struck, the EC was already under fire for the manner in which it scheduled the West Bengal elections and its uneven enforcement of the model code of conduct. Matters got worse when the EC was simply unable or unwilling to rein in parties’ outdoor rallies, which saw little or no use of masks or COVID appropriate behaviour.

Given that it practically takes over executive administration at the state level to conduct elections, its abject failure to ensure the most basic norms of appropriate COVID behaviour in any reasonable way (until it was too late) has been brought front and centre by the harsh words of the Chief Justice of the Madras High Court.

As the second wave of COVID-19 wreaks havoc in India, it is obvious to anyone that governments failed to anticipate it, were miserably ill-prepared, and having been caught off-guard froze in panic as the nation ran out of tests, beds, medicines, vaccines, and oxygen in a few short weeks.

Solace Found From the High Courts

As desperate citizens reached out to someone, anyone they knew who could save them and their loved ones, they found a quantum of solace from the high courts.

The Gujarat High Court, the Bombay High Court, the Allahabad High Court, the Karnataka High Court, the Madhya Pradesh High Court, the Delhi High Court, among others have stepped in to the breach hearing cases relating to COVID mismanagement.

Some have gone overboard perhaps. The Allahabad High Court’s order directing that five cities in Uttar Pradesh be immediately placed under lockdown was an overextension of judicial powers, given that such lockdowns impose enormous costs on vulnerable citizens and need careful planning.

Nevertheless, reading the reports of the cases and live tweets of hearings, one gets the sense that the High Courts have found their voice, asking tough questions of all levels of government, irrespective of party in power.

A bench of Justices Vipin Sanghi and Rekha Palli in the Delhi High Court continues to hear matters related to shortage of oxygen, beds et al in the city state, sparing no one with tough questioning.

Chief Justice Dipankar Datta and Justice Girish Kulkarni in the Bombay High Court have, likewise hauled up the state and Central governments alike, along with their counterparts in the Nagpur and Aurangabad benches of the High Court.

It is not just about the tough questions and harsh words either. A Karnataka High Court bench of Chief Justice Abhay Oka and Justice Suraj Govindraj passed interim orders, within a day of a petition being filed, directing the state government to prepare a scheme to ensure that persons with disabilities are given access to the vaccine when it becomes available to them and no one is denied access to it on account of their disability.

The Madras HC’s stern words and order probably prompted the EC to act post haste in banning victory rallies and make proper COVID appropriate arrangements on counting day.

Chief Justice Vikram Nath and Bhargav Karia of the Gujarat High Court. Chief Justice Mohammed Rafiq and Atul Shreedharan at the Madhya Pradesh High Court. Justices Siddharth Verma and Ajit Kumar at the Allahabad High Court.

All have been unafraid to call a spade a spade and highlight the complete failure of the state and Central governments to manage the second wave of COVID.

Supreme Court’s Lingered Role in Dealing With the Pandemic

Missing in action has been the Supreme Court of India. This should not surprise us. Repeating a pattern seen in the last few years, even as the High Courts have moved with speed and courage to take up cases concerning individual liberties and human rights, the Supreme Court has dawdled and dithered, preferring to avoid hearing such cases altogether.

Even in the first wave of the pandemic, the SC went AWOL when it came to the concerns of stranded migrants accepting at face value any tall tale spun by the Union government’s law officers.

So much so that when a bench headed by then CJI Bobde took up the pandemic situation suo motu, the immediate reaction from a large section of the Bar and public was that this was a move to stem the tide of criticism the Union government was receiving in the high courts.

Faced with this barrage of criticism itself, judges claimed that they never intended to stop the HCs from hearing this matter, even though the Union government’s law officers tried to do so in the HCs.

As on date, a bench headed by Justice DY Chandrachud has taken up the case though no effective order on any substantive matter has been passed in this case. While initially suggesting that it might hear the case on a day-to-day basis, the SC has next listed it for hearing on Friday.

The contrast with how the high courts have taken up the matters is obvious.

Most grievous of all for the SC was probably to have the Supreme Court Bar Association itself asking it not to intervene or hamper the high courts in any way.

Make no mistake — India is in the midst of nationwide governance collapse, the likes of which have not been seen in the past. It is not just the healthcare system but the government itself that is buckling under the pressure of tackling the apocalyptic second wave of COVID-19.

Whether it can be put down to callousness, indifference, apathy or malice, has to be left to future historians to judge. For now, the necessary task of holding the government to account and protecting the health and safety of citizens is being taken up by India’s high courts.

This has been their finest hour.

(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.)