As Supreme Court Sat Out The Pandemic, High Courts Filled The Gaps

Oxygen shortages. Preparations for the second wave of Covid-19. Pandemic management. Plight of migrants. At least 20 high courts have intervened on all these issues over the past 12 months, while the Supreme Court has, until last week, delayed or deferred to the government of Prime Minister Narendra Modi. We examine the case papers.


UMANG PODDAR & NIKHIL IYER

ART BY TARA ANAND

New Delhi: On 23 April 2021, when India’s solicitor general Tushar Mehta, representing the Central government asked the Supreme Court (SC) to defer a suo moto hearing on oxygen shortages, the former Chief Justice Sharad A Bobde and Justices L Nageswara Rao and S Ravindra Bhat immediately deferred the matter by four days. Mehta twice emphasized how it was Chief Justice Bobde’s last working day and that he deserved a “loving” and “decent” farewell.


Two days before that, Mehta, at least six times, made the same request to a Delhi High Court (HC) bench of Justices Vipin Sanghi and Rekha Palli, who started a hearing on oxygen shortages to India’s capital, at 8 pm. He got half an hour. The hearing went on till 11 pm that night. On normal days, the Delhi HC sits only till 4.30 pm.


The urgency shown by the Delhi HC and the refusal to defer to Mehta are examples of the contrasting manner in which the SC and various HCs have approached the pandemic since it began, although a bench led by Justice Dhananjay Chandrachud closely questioned the government on 30 April.


Since April 2020, at least 20 HCs have held either state governments, the Centre and even the Election Commission of India accountable for what is now the world’s worst Covid-19 pandemic, where more than 350,000 are testing positive every day and more than 2,000 are dying—a rough estimate because many millions are not being tested and government are hiding deaths (here, here, here, here, and here).


That is not true of the SC, which has been uncritical of the government of Prime Minister Narendra Modi and has appeared to miss chances to review the country’s preparedness for the ongoing second wave of the pandemic.

Even though the SC began two suo moto cases in 2020 related to the pandemic—apart from oxygen shortages, the others concerned the condition of COVID-19 patients and migrant labourers—these betrayed the urgency that a pandemic warrants.


In the ongoing suo moto case, the SC in a 22 April 2021 order asked petitioners before six HCs to show why uniform orders should not be passed on issues of oxygen supply, essential drugs, vaccines, and lockdown declarations. On the same day, the former Attorney General Mukul Rohatgi called this a “retrograde” step and said that High Courts can address local issues better.


O 27 April, Justices Chandrachud, Rao and Bhat rejected concerns that the SC was interfering with the HCs. “...the suo moto intervention is not to supplant the High Courts and not to take over the valuable role that they play...Justice Chandrachud clarified.


About 11 HCs are currently hearing and passing orders related to COVID management (here, here, here, and here).

We analysed the SC’s conduct over 12 months to April 2021 in over 20 cases related to oxygen shortages, preparations for the second wave, pandemic management and the plight of migrants and found substantial cause for concern.


The Plight Of Migrants

An estimated 10 million migrant workers set off for home after the government imposed a national lockdown with four-hour’s notice on 24 March 2020. While various petitions were filed in the SC to provide basic amenities to those on the road, the Court dismissed these initially. In one of these, the Court accepted the solicitor general’s submission that there weren’t any migrants on the streets, an obvious falsehood.


When a petition came up in May for the migrants on the road, the SC infamously asked: “How can we stop them from walking?” This was the same court that saw no issues in overseeing the implementation of the National Register of Citizens (NRC) in Assam. The Caravan reported that about 70% of state field officers were occupied with the NRC, a result of the SC’s order.


Then, in late May 2020, the SC took suo moto cognisance of these issues. Noting that thousands of migrants were still on the road, it directed the government to remedy their “inadequacies and...lapses”. In one hearing, the solicitor general read from a false WhatsApp forward about how Pulitzer-winning photographer Kevin Carter did not save a dying child whose photograph won him the award, implying the media were“prophets of doom”. This submission, too, was not contested by the judges.


The High Courts acted differently over this period. The Orissa and the Andhra Pradesh HC issued directions to provide food and shelter to the migrants. The Madras HC criticised the government’s handling of the issue, and the Kerala HC monitored the situation first hand.

This dichotomy was also apparent in cases on the waiver of railway fare to be paid by migrant workers. The Supreme Court initially refused relief but flip-flopped three weeks later. Meanwhile, the Karnataka HC and the Gujarat HC had already asked the government to bear the cost of the travel.


Justice Madan Lokur, a former SC judge, wrote how “after the migrant workers, empathy and compassion were the next casualties”. He said the Court only needed a continuing mandamus to ascertain that the “assurances given to it are faithfully carried out".


As former SC judge Krishna Iyer wrote, a continuing mandamus is to ensure the government is "watch-dogged by the court". This tool has been used in the past, arguably leading to big wins in right-to-food cases.


Review of Covid-19 Management

In another suo moto case in June 2020, the SC issued notices to states most affected by Covid-19, seeking reasons for high treatment costs and poor medical infrastructure. It ordered an expert committee in these states for “continuous supervision and monitoring” of the pandemic. Later, it criticised these states again, saying that “mere directions to comply is not enough”.


The SC would have been justified in similarly criticising the Centre’s assurances about migrant labourers, including provision of personal protective equipment to frontline workers and quarantine facilities for medical personnel. None of that happened.


The HCs, meanwhile, had a more robust approach.


State governments were given a short leash. The Telangana HC and the Gujarat HC ordered increased testing and accurate infection data; the Delhi HC ordered more beds and ventilators; the Calcutta HC asked for a report on alleged government mismanagement of Covid-19; the Madhya Pradesh HC ordered police action against politicians violating Covid-19 protocols. The Allahabad HC was one of the most active over this period, taking the government to task over vaccinations, the opening of schools, and ensuring social distancing.

Preparation For The Second Wave

Various HCs warned states about the second wave.


The Tripura HC observed in October 2020 that there was a “false idea...that life should go back to normal” and warned that this “would be a serious mistake with serious consequences”. The Madras HC and the Delhi HC warned the government about new strains and asked governments to be on guard. The Delhi HC also chided the state’s ministers for saying that the COVID wave was subsiding, when cases had been rising.


The SC meanwhile had the June 2020 suo moto case pending. The last hearing, in this case, took place in December 2020. Through a more prompt approach, it could have taken stock of the situation and the level of preparedness. There had been early signs about the need to ramp-up the production of medical equipment and oxygen supply. These issues could have been taken up in this suo moto case itself. For instance, the Allahabad HC’s recent oxygen-related orders are from its case going from 2020.


Likewise, the SC could also have reprimanded irresponsible statements made by politicians. It could have issued strictures against the holding of mass religious gatherings. The Gujarat HC banned the Jagganath rath yatra in July 2020, and the Allahabad HC had stopped Muharram processions in August 2020. The Uttarakhand HC, in January 2021, expressed concerns about the Kumbh Mela but did no more than criticise.


On the other hand, the SC in 2020, considered a ban on the rath yatra in Orissa; but later allowed it with modifications. A petition was also filed in the SC on 16 April about Kumbh mela, now regarded as an event that spread infection. The case does not appear to have been heard.


The Road Ahead

India’s second Covid-10 wave might peak in May with 600,000 daily cases, which will add considerable strain to the healthcare system. Many issues, such as access to vaccines, have been taken up by the SC.


As it hears future matters, it would be a good idea for HCs and the SC to work in tandem. In the SC’s words, “High Courts are best-situated to assess the ground realities.” Thus, some instances, such as the SC’s stay on a 19 April Allahabad HC’s order imposing a lockdown in the state may require evaluation.

There are infirmities with some HC orders, such as the Delhi HC accepting submissions in a sealed cover, but there are fewer delays. Overall, as we said, the SC has not handled the pandemic with the same robustness as the HCs, at least till now.


On 20 April, the Uttarakhand HC asked the state its plan for the Char Dham yatra coming up in May. It said the yatra cannot be a repeat of the Kumbh. Similarly, HCs have also reprimanded election officials for poor adherence to Covid-19 guidelines. The Allahabad HC came down strongly on the Uttar Pradesh State Election Commission over the deaths of 135 panchayat election officials, while the Madras HC threatened the Election Commission of India with criminal charges over their failure to maintain Covid-19 protocols during poll campaigns.


Over the two weeks to 15 April, High Courts have had regular hearings on oxygen supply issues and have passed stern orders. The SC has stepped in recently; in Justice Chandrachud’s words, it cannot be a “mute spectator” at a time of a national crisis.


The SC has started asking the right questions (order here), but it remains to be seen how much of it translates into action.


(Umang Poddar is a lawyer and writer. He is currently the editorial head at Lawctopus, a legal media website. Nikhil Iyer is a lawyer and public policy professional.)