Conscience, in political thought, has many meanings. It refers to the host of values, traditions, morals and norms that a society holds dear, and has passed on through the ages. It refers to the shared consciousness and the most core beliefs of a group of individuals, that is based on a shared system of meaning and shared histories and purposes. Most commonly, however, conscience refers to the balance between morality and reason. It is undeniable that the judiciary in India – as the sole interpreter of the Constitution and the guardian of the law, the protector of the separation of powers and of the people from the excesses of the State, the defender of civil and political rights, and the bolster of civil society – is the keeper of the nation’s conscience, because it is that organ of public authority in which all citizens repose their trust and faith. Thus, it is the judiciary that strikes that balance between morality and reason, between interests and law, between what is right and what is legal; and in doing so, protects the interests of all citizens.
As India is embroiled in the midst of the pandemic, the role of the judiciary as the keeper of society’s conscience has become even more essential. These are uncertain and unstable circumstances, where it seems that each individual and each state has been left to fend for themselves. Under these circumstances, it is easy for societal relationships to crumble and for socio-economic life to dissolve into chaos.
The judiciary is responsible for the maintenance of the rule of law, order and peace. It must ensure that conditions are sustained where the rights of individuals are not injured; life-saving necessary goods and services can move unimpeded across the country; activities of government and other official bodies tasked with managing the pandemic are coordinated and compelled into compliance; and that any emergency legislation and restrictions placed by the State do not wound the liberty of the individuals. Indeed, it is the judiciary that ensures accountable, transparent and responsible governance and citizenhood during such volatile times, and it protects, through its pronouncements, the very soul of the nation. This article aims to analyse the role of the Indian judiciary as the keeper of the society’s conscience during the pandemic. In aid of this, it will provide instances to describe how through the pandemic, it has performed this duty assiduously. It will also provide an alternative view, where critics have questioned the actions of the judiciary as the trustee of the people, during this period.
Judicial Pronouncements Amidst Crisis
The Indian judiciary – both the High Court and the Supreme Court – has, during this period of the pandemic and the ensuing crisis, rigorously upheld the conscience of the public and of the State. As a trustee of the people, its judgements and pronouncements have maintained that the public interest must be held above all else. The first instance that is evident are the confrontations between the Calcutta and the Madras High Courts and the Election Commission of India. In 2021, Vidhan Sabha elections have been conducted across four Indian states – West Bengal, Assam, Kerala and Tamil Nadu, and the Union Territory of Puducherry. What was most confusing for observers was that in West Bengal, the Election Commission decided that the elections be held in eight phases spread over several days. There was never any disagreement about the fact that it was essential that the elections be conducted, and that no national crisis be able to disrupt the process by which citizens express their right to vote. But the decision to increase the polling period seemed misguided, especially as individuals across the country have been devastated, financially and physically, by the pandemic, and such a long election would only increase their exposure to the virus.
The government of West Bengal had also appealed to the Election Commission to reconsider its decision amidst the rising second-wave of the pandemic, but in vain. The Election Commission also did not adequately prohibit the massive, crowded election rallies undertaken by the competing parties that paid no heed to physical distancing norms or had any consideration for public health, in clear violation of the Model Code of Conduct. It was only towards the very end of the polling period, on 22nd April 2021 that it banned election rallies, road shows and public meetings; but by then, the damage had already been done and hundreds were at risk or already infected. On the same day, the Calcutta High Court officially expressed their concern and dissatisfaction over the Election Commission’s handling of the polling period amidst the pandemic, specifically in the matter of campaigning, urged by the hearing of three Public Interest Litigations. After already having directed, on April 13th, 2021, that all Covid-19 protocols be enforced in the strictest possible manner during campaigning and rallies, the division bench headed by Chief Justice TBN Radhakrishnan and Justice Arijit Banerjee declared that the Election Commission needs to do more to ensure that public safety standards are upheld during campaigning, other than simply issuing circulars that prescribe the route maps for the political parties and the protocols for party-workers, administration and the policemen employed. The High Court was also not satisfied with the manner that these guidelines were being enforced on-ground by the Election Commission and demanded that it submit an affidavit by April 23rd, 2021, with the details and records of specific steps undertaken by it to enforce the norms and do its duty.
Spurred by this pronouncement of the Calcutta High Court, the Madras High Court, which was also swooning under the tremendous resurgence of cases in the state, also denounced the Election Commission’s irresponsibility to the public interest by not stopping political rallies and campaigning activities even at the face of such widespread loss of life. In a scathing and controversial statement, the bench headed by Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy remarked that the Election Commission is the only institution that is directly responsible for the horrific state of affairs in the country, because it has not exercised its authority in any appropriate way to prohibit the wanton violation of Covid-19 norms by the political parties. Responding to a petition that appealed to the Election Commission to provide directions and strict enforcement measures on how elections and counting could be safely conducted; the Madras High Court asked whether the Constitutional body of the Election Commission “was on another planet when poll rallies were held”, and condemned them by saying that it “should be put up on murder charges probably.” This was one of the strongest statements proclaimed by the state judiciary against a Central Constitutional body in Indian history and received equal amounts of citizen affirmation and official denunciation.
Delhi is one of the worst-affected areas currently, and there are daily incidences of loss of life due to the scarcity of oxygen or hospital beds. Indeed, the pictures that are coming to the rest of the country (and the world) about the conditions in Delhi, have frightened both the domestic and the international community, who have been shocked to watch the national capital succumb to the virus. The Delhi High Court bench headed by Justices Vipin Sanghi and Rekha Palli on April 22nd, 2021, hearing a petition by Max Hospitals, condemned both the Central Government’s and the private corporations’ handling and responses to the oxygen crisis in Delhi.
The Court expressed its shock and dismay at how the Centre seemed to not be awake “to the gravity of the situation”, even as hundreds of lives were being affected, and insisted that the it is completely Centre’s responsibility to ensure that oxygen supply to hospitals is adequate and timely. The Court also heavily castigated the large private steel and petrochemical industries who have as yet refused to follow the Tata Group’s example of diverting their entire production of oxygen at their steel plants for medical use, terming these industries as “oxygen guzzlers” at the “height of greed”. The Court, upholding its duty as the trustee of the people and the keeper of the conscience of the nation, insisted that the absolute priority is the lives of the public, and if required, all 7500 metric tonnes of oxygen that are being produced everyday (out of which 6600 metric tonnes have been allocated by the Centre to the states for medical use, currently), at all steel and petrochemical plants must be redirected to hospitals. The Delhi High Court also issued a show cause notice to the Centre for failing to supply 490 metric tonnes of oxygen to Delhi as it had ordered or 700 metric tonnes as per the Supreme Court’s order, and initiated contempt proceedings against the concerned Central officials.
While these are definitely incidences of the judiciary keeping the conscience of the State and society, scholars were also concerned about the possible schism that might be created between these two centres of democratic power. If the judiciary that upholds the laws conflicts so strongly with the Election Commission that is charged with ensuring that India’s democratic credentials are upheld, there is a clear probability that the interdependent organs of government, the nodes of legitimate authority, face a rift. Recognising that the High Courts may be somewhat accurate in their assessment of the failure of the Election Commission to prevent the worsening of the pandemic, the Supreme Court, as the final arbitrator of disputes between centres of national and state authority, rightly maintained its lack of bias in judgement. On 1st May 2021, the Supreme Court urged that the High Courts refrain from making “off-the-cuff comments” on the efficiency of officials who are tasked with mitigating the pandemic and practise judicial restraint.
The Supreme Court bench headed by Justices DY Chandrachud and MR Shah had also stayed the proceedings of Delhi High Court against the concerned Central officials, after an appeal by the Centre to adjudicate on this issue, it also reiterated the High Court’s right to monitor the management of the pandemic by the Centre in Delhi and ordered that the Centre by May 7th, 2021 should present a blueprint before the Supreme Court that will detail how it plans to revamp the production and supply of oxygen back to 700 metric tonnes daily. The Supreme Court rightly defended those officials working determinedly round-the-clock to combat the pandemic, and declared that such remarks by the High Court (however understandable they may be) that may be taken out of context by social and mass media, also have the effect of demoralising the overworked national bureaucracy; which is not only unjust and unfair but could also worsen the already-critical national circumstances with regard to coordination concerning oxygen supply, vaccine provision and crumbling public health infrastructure.
On April 30th, 2021, the Supreme Court passed a variety of pronouncements directed at the Centre, particularly with regard to the Centre’s claim that there is adequate oxygen supply available in all the states, and these concerns over the paucity of oxygen have been exaggerated by social media. The Court emphasized that there is no reason that grievances raised on the internet should prima facie be considered untrue, especially as social media has been inundated with several SOS pleas by individuals scrambling to secure oxygen supply for their families; and declared that if any state attempts to suppress the information and grievances about Covid-19 that its citizens are communicating on social media, it will “treat this as contempt if any citizen is harassed”. Justice DY Chandrachud said that this is a “human crisis” and it is paramount that the voices of individuals mourning the loss of their families or calling for assistance with hospital beds and oxygen, be heard by the Court unhindered by the state administration. This is in response to Twitter’s confirmation on April 25th, 2021 that some tweets criticising the government’s handling of the crisis and expressing grievances have been deleted on the alleged charge of spreading misinformation. The Supreme Court has also questioned the decision of the Centre to divert from the national immunisation policy that had been followed since Independence, and price vaccines differently for the Centre and the states in a private sector model. The Court exhorted the Centre to purchase all the doses of the vaccine that has been produced and stressed that this disparity in pricing is an “extraordinarily serious” issue that will prevent the poor from accessing the vaccines. Declaring that hostels, temples and mosques be turned into Covid centres, the Court demanded that the Centre and the state administrations stop their “political bickering” and cooperate to ensure the mitigation of the situation not only in Delhi, but also in Gujarat, Maharashtra and Karnataka. It also emphasised the necessity that states coordinate to manage the logistical challenges of transporting oxygen across the country.
The national conscience has reeled from the reports coming from Uttar Pradesh, where corpses are being dumped in the Ganga and on its banks, crematoriums are overflowing, and deaths are going legally uncounted. The condition of the public health infrastructure especially in rural areas, with serious paucities in the availability of proper treatment, oxygen, medicines and doctors, has been worsened by the total inability of the state administration to ensure any standards of law and order, and of public health. The Allahabad High Court bench led by Justices Siddharth Verma and Ajit Kumar on 19th May 2021, questioned the state government’s claim that Uttar Pradesh would be made into a Ramrajya or ideal state, and sardonically declared the condition of the smaller towns and villages with regard to how the disadvantages are being disproportionately injured by the pandemic, are “ram bharose” or completely out of the control of those worst-off due to the mismanagement of the state and the casual attitude of the doctors and medical staff. The Court pronounced this judgement after a report was submitted regarding the Meerut-based, state-run LLRM Medical College, where the body of a deceased Covid patient was disposed as if it was unidentified and pressured the state government to comply with providing sufficient healthcare infrastructure.
However, there have been contravening opinions on whether or not the Indian judiciary has truly remained the keeper of society’s conscience during the pandemic. These perspectives are based on two main observations: first, that the Supreme Court has acted in utter disregard to the plight of ordinary citizens during the Covid crisis; and second, the judiciary has committed judicial overreach in its assertions regarding the state government’s management of the pandemic. Both lawyers Dushyant Dave and Navroz Sezai questioned the decision of the Supreme Court to prioritise a national plan for the management of the pandemic over the regional plans of action by the High Courts, as contrary to public interest where the general national interest would always unfairly supersede over the particular regional interests. The Supreme Court declared taking suo motu cognisance of the judgements of the High Courts of Delhi, Bombay, Sikkim, Calcutta, Madhya Pradesh and Allahabad, that though they were all exercising jurisdiction in best interest; “a national emergency requires a national plan”, and the different pronouncements by different High Courts have created confusion, diversion of resources and breakdown of law and order by prioritising certain interests over others. Lawyers and jurisprudence theorists have questioned the validity of such a claim, as it seems to be unnecessarily impeding the power of the High Courts to mitigate the pandemic in the best way possible in their specific states and in their specific contexts. In any case, the High Courts are best placed to understand the distinct needs of specific states, and harassing that power seems to be contrary to ideals of federalism and would also disallow the High Court to work in public interest. Dave also contended that even from a medical and scientific perspective, the Supreme Court’s decision was irrational, because all medical professionals have repeated that a pandemic such as this must be handled at the local level, rather than at the national level. He said that though the Supreme Court is speaking about such a national plan, till date, there has been no preparation of a Disaster Management Plan under the Disaster Management Act (Section 11). If it had been prepared and executed, it would have prevented the worsening of the pandemic in the first place. In fact, when in 2020, the Writ Petition(C) No. 546 had entreated the Supreme Court to “prepare, notify and implement a National Plan”, it had refused; and it is now too late to ensure the wellbeing of the citizens and to direct the state governments to take appropriate action. The Supreme Court has also been criticised for ignoring the plight of the migrant labourers, who were abandoned during the first sudden lockdown, stranded on highways, punished by police, and fell prey in droves to the virus. Under those circumstances, Chief Justice Bobde concurred with the Solicitor General to declare that there are actually no migrants on the road, and all these concerns were in fact, misinformation, that deserved to be punished under Section 54 of the Disaster Management Act (2205). This worrying pattern of the Supreme Court’s betrayal of its role as the trustee of the public has also seen a parallel in the case of its judicial overreach when hearing cases regarding the management of the pandemic at the pan-India level. The Court, in a confusing declaration, proclaimed that Delhi must be viewed “as a representative of the entire nation”, and the Centre must supply oxygen to it at all costs, by whatever means. It is undeniable that Delhi has been grievously affected by the pandemic, but there is no reason why such a special dispensation was meted out to Delhi, when states like Madhya Pradesh also do not have oxygen-producing facilities, and there are reports that other states are facing oxygen shortages because supply has been diverted to the capital.
The judiciary is the representative and the guardian of all citizens all over India, and its unreasonable denotation of primacy to only the citizens of the capital has not sat right with scholars and critics. Indeed, if the Supreme Court is to uphold the conscience of the nation, it should protect the interests of the entire nation, not just the regions that have political primacy.
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