India’s COVID Mishandling: Govt is Testing Courts’ Self-Esteem

The handling of the pandemic by the government seems to have tested the Supreme Court’s patience and self-esteem.

We live in extraordinary times that call for extraordinary measures by individuals and institutions. There are still many persons around who saw Partition, but the horror of collective insanity of the time can hardly compete with the devastation inflicted by COVID-19. In this too, the experience of 2020 pales before the unrelenting cruelty of 2021. Mirza Ghalib described the overwhelming tragedy of the Delhi massacre of 1857 as a flood of mourning for loved ones that would scarce leave survivors to mourn the poet’s own death.

The language might be different today, but the sentiment is strikingly the same. Humanity continues to confront the pandemic despite daily setbacks and sorrow, but ironically, the initial efforts of myopic self-conceited persons to convert the tragedy into a political opportunity have been overwhelmed by the shared grief and fear that have obliterated divisive ambitions.

Suddenly, the Tablighi Jamaat is seen giving a helping hand to the deceased of all faiths; the living of all faiths admit that the Kumbh gatherings and election rallies are the super-spreaders.

How We Spent 2020, the First Year of the Pandemic

It is not our place to dare to wonder if our respective Gods know what to do. On the contrary Gods (or Nature, for the atheists) know how we have transgressed. Our temples, mosques, gurdwaras, churches, cannot secure the healthy but are trying their best to help the sick. We will have to make peace with the Almighty — the message to the believers is loud and clear. But meanwhile, the protocol, the face masks, the mandatory distance, the hand-washing and disinfectants must become second nature.

When the pandemic hit India in March 2020 and we faced the first lockdown, we knew very little about the virus, and could only extrapolate the future from the immediate defence measures.

Air Force fly pasts, lighting of candles and beating of utensils and blaming someone else promised quick salvation. Proclaiming victory over the virus prematurely helped the morale, but not without periodic reminders of our vulnerability and mortality. The vaccine on the horizon, including an Indian version (Covaxin) was the promised salvation. But we snatched defeat out of the jaws of the promised victory.

What Were Our Courts Upto?

The constitutional courts of India, like everyone else, knew very little about the pandemic when it first hit India. In times of a crisis of such proportions, functioning on virtual platforms, their first reaction was to fall back on the trust and support of the government since the executive arm of the State is better equipped and politically-mandated to take emergency decisions.

The doctrine of separation of powers makes that clear. The Supreme Court thus was most reluctant to step out to hold the hands of the migrant labourers who set out to seek relief at their faraway homes when their employers turned away.

The State had restricted all transport, and the hapless labourers had but their legs to carry them home with meagre belongings and little children. What would they eat when they got home? Who would give them medical attention? What about their dues and contractual rights to be conveyed home? And how many were they to begin with? Statistics and logistics are, at best, difficult tools for courtroom hearings, particularly if the government provides them sparingly and with a sense of business-as-usual.

How the Courts Prepared for the Second Wave of COVID

The courts trusted the government and hoped all would be sorted out as it always is in the end. The High Courts chose to keep a tight watch on State agencies not taking advantage of the emergency situation to run riot against civil liberties. The Allahabad High Court in particular, and others too, including the Delhi High Court, in spurts of sensitivity. However, they were all better prepared for the second wave, more willing to step across the separation of powers as a vicious whiplash of the mutant virus and an inane reluctance of executive to absent itself from felicity awhile in five state elections and religious rituals on the river Ganga.

Nine High Courts unselfconsciously rose in unison to question the ill-prepared local governments on hospital beds, oxygen cylinders, life-saving COVID drugs, protection for frontline medical workers, VIP culture, distribution of vaccine and compulsory licensing.

Briefly it appeared that the Supreme Court was unwilling to endorse the activism of the High Courts but soon enough the Bench that took up the suo motu matter after Chief Justice Bobde retired, made it clear that it would not hold the High Courts back, and indeed, directed longterm prisoners to be granted parole.

Indicators of Judicial Distress

‘Genocide’, ‘murder’, ‘you want people to die’, ‘we are ashamed’ — such harsh words have seldom been heard in living memory; the Supreme Court steering clear by indicating that it did not want to demoralise the High Courts, is an indication of the judicial distress.

In a democracy, the courts, like other institutions, are under constant public scrutiny. Opinion about their functioning is not always fair and reasonable.

When public opinion is severely divided, court pronouncements are intensely dissected. The present Supreme Court has — to its credit — some remarkable decisions on liberty, dignity, autonomy of the individual. It now has its work cut out to apply those principles to our lives in the midst of the unprecedented human crisis.

A beginning has been made by putting together a team of the finest medical experts and a top lawyer as amicus.

Some people believe that the present Supreme Court has been very accommodative of the present government. Although the Court is the sentinel on the qui vive, some degree of accommodation with the elected government is not unknown during phases of history. But the handling of the pandemic by the government seems to have tested its patience and self-esteem.

(Salman Khurshid is a designated senior advocate, Congress party leader, and is a former Minister of External Affairs. He tweets @salman7khurshid. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)