A patient with breathing problems wears an oxygen mask as she waits inside an ambulance in a queue to enter a COVID-19 hospital, amidst the coronavirus disease pandemic, Ahmedabad, India, April 14, 2021. REUTERS/Amit Dave (REUTERS)
A patient with breathing problems wears an oxygen mask as she waits inside an ambulance in a queue to enter a COVID-19 hospital, amidst the coronavirus disease pandemic, Ahmedabad, India, April 14, 2021. REUTERS/Amit Dave (REUTERS)

Covid-19: When the courts step in

A combination of executive failure and breakdown of the federal compact has led to judicial governance
By Abhik Chimni
PUBLISHED ON MAY 04, 2021 06:05 PM IST

India is in the midst of an unprecedented medical crisis. Four weeks into the second wave of Covid-19, and a year after the pandemic first struck, it is clear that the State had no plan for an emergency of this nature.

It is in this context that the Delhi High Court (HC) has been moved under Article 226 (extraordinary jurisdiction to protect personal liberty) of the Constitution seeking judicial interference by private entities and individual citizens. The petitions pertain to the production and allocation of medical oxygen and the urgent requirement of basic medical infrastructure such as beds and drugs.

Subsequently, the Supreme Court (SC), under Article 32 (extraordinary jurisdiction to protect personal liberty), has taken suo motu cognisance of the pandemic.

Two issues demand attention. First, is the suo motu petition being heard by SC an act of interference in the executive policy domain, specifically on the issue of vaccination?

During the 2G spectrum litigation, SC held that the allocation of natural resources ought to be done through public auction. Subsequently, a Constitution Bench overruled this finding and held that the allocation of natural resources is a matter of economic policy, within the domain of the executive. It is, therefore, clear that the court cannot enforce a policy decision on the executive. But while acknowledging this principle, let us look at the current vaccine situation and SC’s order.

There is, without a doubt, a major vaccine crisis. The Centre failed to anticipate the urgent requirement for vaccination. It engaged with only two companies, Serum Institute of India (SII) and Bharat Biotech. These companies today do not have the capacity to vaccinate India in a quick time. SII now is on record saying it did not know that the Centre expected a billion doses in a short period of time. The Centre failed to facilitate adequate manufacturing through existing entities, and did not make purchase orders in time to import a sufficient number of vaccine doses.

To add to this, there is differential pricing for vaccines for states and the Centre. Several experts have argued that the Centre is best placed to procure vaccines. Some suggest that the money can be raised through a one-time cess while others, including Opposition parties, want the 35,000 crore vaccination budget used to inoculate the public for free.

The apex court categorically asked the Centre for its policy for mass inoculation and medication, and framed some important questions/remarks.

First, what is the premise on which the State has concluded that decentralised procurement of a scarce commodity in the current health crisis is the best policy towards rapid mass inoculation? Second, as the right to life (Article 21) is a fundamental guarantee under the Constitution and the current vaccine policy has a direct effect on this guarantee to life, has the Centre finalised its policy keeping in view the commitment to protecting public health?

Third, has the socio-economic disparity between citizens been considered when shifting the burden of cost onto them? And fourth, why is the Centre, in this national emergency, not exercising powers under Section 92 and 100 of the Patents Act 1970, which would help various manufacturing companies augment the production of vaccines and drugs?

The suo motu hearing isn’t adversarial or seeking adjudication between two contesting parties. What the court is doing is exercising its constitutional authority under Article 32 to fulfill its constitutional role of maintaining checks and balances within the framework of judicial review. This is significant since the executive’s decisions affecting the lives of a billion people have been opaque. SC is not seeking to take policy decisions, but is seeking public accountability and transparency on the executive’s policy decisions and its failure to act in time. This exercise of judicial review to maintain accountability is the institutional duty of a constitutional court and an essential facet of constitutional democracy.

Second, should the Delhi HC have exercised judicial review and taken cognisance of petitions on questions of allocation and distribution of oxygen? When communications with the executive failed, private hospitals in the Capital approached HC seeking judicial interference in maintaining oxygen capacity.

HC was bound by its duty to protect the right to life under Article 21. As the hearings continued, one saw HC being forced to facilitate the supply and allocation of oxygen between the Centre and the Delhi government. For almost a fortnight now, the court has been monitoring the oxygen situation on the ground.

This is not because the court is eager to exercise its extraordinary constitutional responsibility for protecting the lives of people. It is because the federal cooperation expected between the Union and states has broken.

The basic structure of the Constitution holds federalism as essential to upholding our constitutional democracy. Therefore, HC is not only ensuring administrative compliance, but also enforcing federal cohesion to ensure executive stability. Today, private entities and citizens are left with no option but to seek legal recourse for essential amenities in a pandemic.

Let us not confuse this situation with busy body litigation or an act of judicial overreach. Those who have petitioned the court have locus standi to seek judicial remedy. They seek nothing less than the protection of human life. The judiciary, today, is being forced by citizens to step into a vacuum created by the executive, and thereby, fulfill its constitutional duty to do justice. And, this, by its very nature, unfortunately warrants judicial governance.

Abhik Chimni is a Delhi-based advocate

The views expressed are personal

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