India’s high courts are on the warpath with the state and central governments. Specifically over the mismanagement of the response to the second wave of COVID-19 which has seen unprecedented numbers of daily cases and deaths. The Allahabad High Court has cracked the whip on the Uttar Pradesh State Election Commission and the state bureaucracy for the failure to follow COVID norms during the panchayat election counting, and has demanded that officers in districts personally appear with reports of hospital deaths due to lack of oxygen.
Likewise, the Delhi High Court and the Karnataka High Court have come down heavily on the Union Government for being unable to supply adequate oxygen or even explain what plans they have made to supply hospitals with sufficient oxygen in their respective jurisdictions.
Even the Supreme Court has roused itself to question the Union Government’s vaccine, hospitals and oxygen distribution policies.
Should Indian Judiciary Get Into the Nitty Gritties of Pandemic-Management?
Should the judiciary be getting itself into the nitty gritties of managing a pandemic? The short answer is, no. Managing a pandemic brought on by a novel coronavirus is not something that’s taught in law school or picked up during the course of practising the legal profession.
Judges are utterly ill-equipped to understand the niceties of manufacturing, epidemiology, supply chain management, and the many other highly specialised skills needed to address the COVID-19 pandemic.
There is also the issue that the court may tend to prioritise those who can access the court itself and make themselves heard over the others. This happens in two ways:
- first, in terms of those with the privilege and resources to approach the courts
- second, in focusing exclusively on certain limited geographical areas that they may be exercising jurisdiction over.
This might also have consequences in the kinds of relief that courts may be inclined towards — more technocratic, less democratic.
All the dangers of an expanded PIL jurisprudence, that have increased the powers of the courts at the expense of the rights of the underprivileged, have been well documented by Anuj Bhuwania in ‘Courting the People’ — and is a necessary reminder for anyone tempted to view the actions of the judiciary uncritically.
However, one may be over-stating it to say that the judiciary has ‘taken over’ the functions of the executive.
India’s Courts Have Concerned Themselves With Asking Tough Questions Amid COVID 2nd Wave
Most court orders are usually framed as requests to the executive and very rarely as directions to do something they would otherwise not have done. While there has been some clear overstepping (as with the Allahabad High Court mandating a lockdown in UP cities), other orders have sought to pin responsibility for managing specific aspects of the pandemic on concerned officials, to avoid any bureaucratic blame-game.
Whether it is in ensuring the maintenance of COVID protocols in counting elections or the supply of oxygen to hospitals, our courts have not exactly ‘taken over’ the management of the pandemic itself, but rather, concerned themselves with asking the tough questions — finding answers and pinning responsibility.
One can still question though: should they be doing this? Do they even know the right questions to ask, and is there not a danger that in times of unimaginable crisis, bureaucrats should be focusing on their jobs and not filing affidavits in court?
The answer is: indeed the judiciary should be doing this as it relates to one of its most important functions in a constitutional, rule of law polity — to ensure accountability.
Dr Sandra Fredman, a noted human rights scholar, has pointed out in her essay ‘Adjudication as Accountability: A Deliberative Approach’, that in human rights cases, the judicial process can ensure a level of accountability in governmental actions by demanding that the government explain its actions in court.
Being required to justify its actions in a public forum, and on record, can itself make a difference to how the government behaves when it comes to questions of human rights.
Why We Must Still Question the Judiciary
In this respect, the courtroom exchanges and the orders give us a glimpse into how badly governments have mismanaged the second wave of the COVID crisis. The live tweets from courtrooms (from Live Law and Bar and Bench) have given us a glimpse into the unpreparedness of the government and exposed the missteps and lies that have led to the mismanagement of the pandemic. It is not as if the judges necessarily have a better plan than the government. But they are trying to find out if the government even has one, and if it does, does such a plan adequately address the rights of citizens to life, liberty and good health.
In the midst of a raging second wave of COVID that has brought untold misery to millions across the country, it would seem somewhat churlish to get into a debate about the niceties of separation of powers or theoretical notions of the proper role of the judiciary in the Indian context.
Yet, question the judiciary we must, for, if nothing else, no institution in India is beyond question.
Even as the executive at the state and central levels avoid taking tough questions from the media, fudge or hide key statistics about the state of the pandemic from the public view, and attempt to shirk all responsibilities for the mass casualties that we see taking place, the fact that they are being questioned — at least by the judiciary, in this context — should come as a breath of fresh air.
(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.)
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