Thursday, August 11th, 2022 13:15:17

If executive fails, judiciary fills up vacuum

By Biraja Mahapatra
Updated: May 25, 2021 8:11 am

Those who lost their near ones for want of oxygen, medicine or a bed in the hospital despite having resources would not forgive the authorities in their life time. It is the Constitution that weeps when people are deprived of their fundamental right to live under Article 21 of the Constitution. At this juncture, people look at the judiciary, especially High Courts and the Supreme Court as a beacon of their hope. When the Covid’s first wave hit India, the preventive lockdown resulted in migrant labourers walking to their village destinations and many of them were dying on roads, for want of food and medicines. Panic struck the conscience of common citizens. the Supreme Court was approached through a PIL.

A century after Spanish flu of 1918, which affected virtually every third person in the world and killed over 50 million people taking the death toll much above the 20 million people in the first world war, Covid 2019 came calling to sweep bodies to places of cremation or burial grounds in the world. And India was no exception to it.

As the second wave hit India with infection rate soaring high,  the heart rending scenes included bodies floating in Ganga river, people in Delhi dying for want of oxygen, non-availability of beds in the hospitals, non-availability of medicines, waiting for hours for a space and firewood to dispose of bodies with rites and even leaving the dead unattended in mortuaries.

Those who lost their near ones for want of oxygen, medicine or a bed in the hospital despite having resources would not forgive the authorities in their life time. It is the Constitution that weeps when people are deprived of their fundamental right to live under Article 21 of the Constitution.

At this juncture, people look at the judiciary, especially High Courts and the Supreme Court as a beacon of their hope.

When the Covid first wave hit India, the preventive lockdown resulted in migrant labourers walking to their village destinations and many of them were dying on roads, for want of food and medicines. Panic struck the conscience of common citizens. Supreme Court was approached through a PIL. Government of India had informed the Supreme Court on 24.03.2020, “there is no person walking on the roads”. Supreme Court left it to the government to deal with the situation and thus invited criticism in media for abdicating its responsibility to the pains of migrant workers and labourers.

The preparedness on part of the Central Government, which is primarily responsible as per Section 35 of the Disaster Management Act 2005 to deal with such emergency situations,  for putting a security cover against the deadly virus during the second wave was full of chinks. Social media was replete with stories of Kumbh in Haridwar visited by lakhs of people, thousands moving in election rallies without masks in West Bengal, Assam and Tamil Nadu, thousands of people hitting mosques for offering prayers with clear apprehension of being super-spreaders even as the government was warned by scientists of the second wave already hitting the country. Air became poisonous. The result was seen in April second week onwards with people dying for want of beds, oxygen support, life saving drugs.

By the third week of April 2021, six high courts i.e. Delhi, Bombay, Sikkim, Madhya Pradesh, Calcutta and Allahabad High Court had already initiated actions dealing with situations arising out of pandemic and total collapse of the state machinery.

The outgoing Chief Justice S A Bobde in the last week of April ordered constitution of a bench to deal with the pandemic terming it as a national emergency and said, “to deal with national emergency, there is a need to have a national plan” in matters of admission in hospitals, treatment and vaccination etc.

Wisely the Supreme Court  taking suo motu cognizance of the alarming situation in the country constituted the bench in April last week considering the Covid crisis as a national emergency and multiplicity of litigations would result in conflicting orders.

The bench headed by Hon’ble Justice D Chandrachud recorded that a three-judge bench in its judgment in the case of Centre for Public Interest Litigation vs Union of India last year had noted that there was no need to develop a fresh national plan as “the Central Government is operating under the broad framework of the national plan and the plan is already in force.”

The Supreme Court, however, in its April 30, 2021 judgment recorded in para 23. “we have come to understand that there is no national policy on how admissions must take place in the various tiers of hospitals (CCC, DCHC and DCH). Gaining admission into a hospital with a bed is one of the biggest challenges being faced by most individuals during this second wave of the COVID-19 pandemic. Left to their own devices, citizens have had to suffer immeasurable hardship. Different states and local authorities follow their own protocols. Differing standards for admission in different hospitals across the nation leads to chaos and uncertainty. The situation cannot brook any delay. Accordingly, we direct the Central Government to frame a policy in this regard, in exercise of its statutory powers under the DMA, which will be followed nationally. The presence of such a policy shall ensure that no one in need is turned away from a hospital, due to no fault of their own. “

The court was also informed that patients were being turned away on the ground that they did not have valid ID proof , in Ahmedabad, patients were not given admission as they did not come to the hospital in 108 number ambulance,  relatives of patients were asked to arrange medicines on their own among many other allegations presenting the state of affairs in Covid management in the country.

Keeping these in view, the Supreme Court directed the Central Government formulate a guideline regarding hospitalisation to as to ensure that beds are not occupied by those who do not require hospitalisation. The court directed that these directions have to be implemented in three days till these are replaced by appropriate policy.

The solicitor general told the court that there was no dearth of oxygen supply but the state governments were failing to lift allocated quantify of oxygen.

Interestingly, the statement of Delhi Government came to the contrary. The projected demand of oxygen for Delhi for April 20 was 300 mt tons per day, for April 25, it was 349 mt tons per day,  and for April 30, it was 445 Mt tons per day and their projected demand for the next few days were to be 976 mt tons per day.

Interestingly as per the affidavit given by the centre on April 23, 2021, the allocation of GNCTD was 490 Mt tons per day.

The Supreme court said ““the situation must be remedied forthwith.  The situation on the ground in Delhi is heart rending. Recriminations between the central government and the GNCTD can furnish no solace to the citizens whose lives depend on a thin thread of oxygen being available. The protection of lives of citizens is paramount in times of a national crisis and the responsibility falls on both the central government and GNCTD  to cooperate with each other to ensure that all possible measures are taken to resolve the situation.

Visible shaken by the reported deaths in Delhi due to want of oxygen and on a petition by Batra Hospital alleging non-supply of oxygen, Delhi High Court had on May 4 swung into action and directed the Central Government ensure adequate supply of oxygen or else there could be contempt proceedings.

The supreme court also issued directions with regard to vaccination with a question if someone does not have an access to digital resources, would he/she be barred from being vaccinated? If that happens, a large number of people would be deprived of it. Should vaccination be charged? If so what about the socio-economically underprivileged sections of the society ?  Since vaccination is one of the most important strategies to combat the pandemic, the government has to take a policy decision to ensure that everyone is immunised without any discrimination.

Thus the latest judgment of the supreme court of April 30, 2021 should be termed a historical document as governments were directed to ensure that no one would be deprived of medical admission for treatment of Covid.

A section of media terms the order of the Supreme Court and actions by the High Courts as judicial activism.

Judicial activism means unnecessary interference by the Judiciary in executive and legislative fields. The Supreme Court in the case of Ashwinin Kumar versus Union of India, (2019 SCC online SC 1144) said “9. Classical or pure theory of rigid separation of powers as advocated by Montesquieu which forms the bedrock of the American Constitution is clearly inapplicable to parliamentary form of democracy as it exists in India and Britain, for the executive and legislative wings in terms of the powers and functions they exercise are linked and overlap and the personnel they equip are to an extent common. However, unlike Britain, India has a written Constitution, which is supreme and adumbrates as well as divides powers, roles and functions of the three wings of the State – the legislature, the executive and the judiciary.

Once Justice S B Sinha of the Supreme Court had said “we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. “

Former CJI T S Thakur in 2016,  in response to a statement of then law Minister Arun Jaitly complaining judicial interference in executive function, said that judiciary intervenes  when executive fails in performing its Constitutional duties.

This time the Supreme Court and the High Court could rise to the occasion to hold “protection of lives of citizen is paramount” The courts are mandated by the Constitution to act upon when fundamental rights of people are breached. Right to live is a fundamental right. If the executive fail, the vacuum has to be filled up by the judiciary. Judiciary did just that.

 

(the writer is an advocate)

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