The courts' interventions over the COVID situation point to rudderless governance

The Supreme Court taking suo motu cognisance of the COVID situation and the interventions of some High Courts regarding State governments’ response during the second wave of infection ‘provide direction’ to an otherwise rudderless governance.

Ambulances carrying COVID-19 patients waiting outside a government COVID-19 hospital in Ahmedabad on April 27.

Prime Minister Narendra Modi’s love for publicity is well known. The National Democratic Alliance government that he heads spent nearly Rs.5,000 crore on advertisement and publicity from mid-2014 to September 2018, a Right to Information (RTI) application filed by Ramveer Tanwar with the Bureau of Outreach and Communication under the Ministry of Information & Broadcasting revealed. The United Progressive Alliance (UPA) government spent about half the amount, Rs.2,658 crore, during its two consecutive terms (2004-09 and 2009-14).

Well into the second wave of the COVID-19 pandemic in March-April, Modi and Home Minister Amit Shah shared high visibility in election-bound West Bengal. But soon after losing the Assembly election to Mamata Banerjee’s Trinamool Congress Party, the two leaders went missing at a time when the country was facing severe shortages of vaccines, oxygen and drugs. Nagesh Kariyappa, National Students’ Union of India (NSUI) general secretary, even filed a missing person complaint with the Delhi Police against Amit Shah for his “disappearance” during the pandemic.

Former Congress president Rahul Gandhi tweeted: “Prime Minister is also missing along with vaccine, oxygen and medicines. Among the things that remains include the Central Vista, goods and services tax (GST) on medicines and photographs of the Prime Minister here and there.”

There were rumblings in the upper echelons of the bureaucracy bemoaning the lack of leadership during a public health crisis. Even the Rashtriya Swayamsewak Sangh (RSS), it is learnt, was unhappy with this disappearing act of the leaders during a national crisis. The organisation finally took matters into its own hands and set up COVID care facilities in some parts of the country.

Against this background of palpable failure of leadership, various high courts as also the Supreme Court made several interventions holding the State governments and the Centre accountable for their duty towards citizens.

The High Courts of Madras, Bombay, Allahabad, Uttarakhand, Jharkhand, Delhi, Karnataka and Gujarat rapped the respective State authorities for failing to adequately manage the second wave of COVID. They issued a range of orders on shortage of oxygen supply, equitable vaccine policies and provisions for migrant workers stranded in cities under various lockdowns.

The Uttarakhand High Court came down heavily on the BJP government in the State. On May 10, a division bench comprising Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma said: “The State government has to extricate every single drop of its strength, and every single penny of its finances, and to dedicate itself to the protection of its own people. Until and unless the health and the well-being of the people is guaranteed by the State no state can progress. Good governance, needless to say, requires imagination, planning and implementation of the plan.”

Superspreader event

The court noted that despite Haridwar being the epicentre of COVID-19 in the State, there was not a single government-run laboratory there.

The Kumbh Mela, which ought to have been held in 2022, was advanced to 2021 on the advice of astrologers. The gathering turned out to be a superspreader of COVID-19 in the State and the entire country. More than nine million devotees took part in the Haridwar Kumbh Mela from March 31 to April 24. The mela continued even as the virus spread assumed alarming proportions. Officially only 2,642 pilgrims tested positive but anecdotal evidence points to a much higher number. Akhilesh Yadav, former Uttar Pradesh Chief Minister, and Gyanendra Shah, former King of Nepal, were among the high-profile devotees who tested positive after returning from the mela. Bollywood composer Shravan Rathod succumbed to the disease after his return to Mumbai, and so did nine Hindu seers of one sect. In Gujarat, at least 34 passengers returning by train tested positive and in Madhya Pradesh, 60 of the 61 returnees were found to be infected. A search for another 22 was launched.

On April 20, the High Court said “the opening of the Char Dhams could not be permitted” as they would become another “hotbed of infection”. Taking the test positivity rate into account, the court warned that if the trend continued for another three or four months, “by the end of July 2021 or beginning of August 2021, six lakh people may be affected by COVID-19 in the State”.

But despite the court’s repeated warnings, the Centre and the State government did not pay heed.

With the pandemic situation escalating in northern India, private players had a field day overcharging for critical medical needs amid a shortage of supplies. The Delhi and Bombay High Courts addressed issues such as overcharging by private medical facilities, shortage of oxygen and availability of critical medicines.

In April and early May, when Delhi’s hospitals and crematoria were overwhelmed by the sheer number of patients and casualties, the High Court said: “Enough is enough. If you cannot manage it, tell us. We will ask the Central government to send its officers and do it. We cannot let people die like this.”

The March-April election rallies in Assam, Kerala, West Bengal and Tamil Nadu became another superspreader of the virus. The Election Commission (E.C.) did not accede to the Trinamool’s plea to combine the last few phases of the eight-phase election in West Bengal, and allowed huge crowds to gather at polling booths. In the Madras High Court, Chief Justice Sanjib Banerjee told counsel for the E.C. that the institution was “singularly responsible for the second wave” as it allowed the holding of election rallies despite the looming threat of the virus and that its members should probably be booked for “murder charges”.

A miffed E.C. approached the Supreme Court against the High Court’s comments and sought to restrain the media from reporting the court proceedings. The apex court advised the E.C. to take the criticism “in the right spirit” and as a “bitter pill”. It rejected the E.C.’s plea to restrain the media by saying that the media cannot not be stopped from reporting court proceedings and that they “must report fully” in the interest of freedom of speech.

Decongestion of prisons

It was understood early on during the pandemic that prisons were fertile grounds for the spread of the virus and, therefore, the Supreme Court had directed prison authorities to decongest prisons.

According to the National Crime Records Bureau’s Prison Statistics India 2019, Delhi’s prisons were the most overcrowded ones in the country with an occupancy rate of 174.9 per cent. There were 17,285 prisoners in Delhi against a sanctioned capacity of 10,026 inmates as on February 2021, according to the Prison Department.

Following reports of COVID-related deaths in Tihar Jail, where more than 250 inmates had reportedly tested positive, the advocate Vrinda Grover, Professor Pratiksha Baxi of Jawaharlal Nehru University, and Sarojini Nadimpally, former Member of the Expert Committee formed by the National Human Rights Commission (NHRC) on the “Impact of COVID-19 Pandemic on human rights and future response”, wrote to Justice Vipin Sanghi Chairperson of the High Powered Committee and Executive Chairperson of the Delhi State Legal Services Authority. They recommended identification of undertrial prisoners and convicts for release on interim bail or emergency parole to ensure immediate decongestion of prisons. Given the vulnerability of women prisoners, they also recommended the release of women undertrials and convicts on interim bail or emergency parole.

An apex court bench comprising Chief Justice of India N.V. Ramana and Justices L. Nageswara Rao and Surya Kant passed a slew of directions for the decongestion of prisons. Referring to the verdict in Arnesh Kumar versus State of Bihar (2014), the bench directed the authorities to make arrests an exception in cases where the offences were punishable with up to seven years of imprisonment. The High Powered Committees, constituted by the State governments and Union Territories in 2020 for the release of prisoners, were asked to once again release prisoners at the soonest.

To ensure the safety of the inmates who would not be released, the bench said: “The spread of COVID-19 virus should be controlled in the prisons by regular testing of not only prisoners but also the jail staff, and immediate treatment should be made available to the inmates and the staff. It is necessary to maintain levels of daily hygiene, and sanitation required to be improved. Suitable precautions shall be taken to prevent the transmission of the deadly virus amongst the inmates of the prisons. Appropriate steps shall be taken for transportation of the released inmates, if necessary, in view of the curfews and lockdown in some States.”

The Siddique Kappan case

The court’s directives were laudable on paper, but in some cases they were flouted. Take the case of the journalist Siddique Kappan, who was arrested in October 2020 for merely trying to do his job. He was on his way to Hathras to report on a heinous caste atrocity. He was incarcerated in an overcrowded district jail and charged under the provisions of the Unlawful Activities (Prevention) Act, and Section 124A (sedition) and other sections of the Indian Penal Code. On April 21, Kappan was moved to a hospital in Mathura as he had tested positive after what the jail authorities claimed was a fall in prison, but medical reports seemed to suggest a chin injury after being hit by a blunt object. A diabetic with high blood pressure and high cholesterol, Kappan was kept hand-cuffed to a hospital cot. In a letter addressed to the Chief Justice of India, Kappan’s wife apprised the court that he was not able to take food, had not been allowed to go to the toilet for more than four days and was in a critical condition. Subsequently, the Uttar Pradesh government produced a discharge slip of April 27 which declared Kappan to be COVID negative and he was sent back to jail. Given his comorbidities, Kappan’s family found it difficult to believe that he had been cured of COVID in four days.

The Kerala Union of Working Journalists moved the Supreme Court seeking the transfer of Kappan to the All India Institute of Medical Sciences (AIIMS) or Safdarjung Hospital in Delhi for treatment. On April 28, the Supreme Court directed that Kappan be shifted to a government hospital in Delhi for medical treatment following which he was sent to AIIMS. This, according to Kappan’s family and friends, was made possible after Justice N.V. Ramana took over as the Chief Justice of India on April 27.

Kappan’s treatment began on April 30, but none of his family members or his lawyer was informed about the progress of his medical condition. They found out that on the midnight of May 6-7, he had been whisked back to the Mathura jail. Kappan’s wife sent a notice of contempt to the Uttar Pradesh government against non-compliance of the Supreme Court’s order and for submitting wrong and misleading information before the court about his medical status.

The Supreme Court under Chief Justice of India S.A. Bobde had been criticised for not doing enough during the pandemic, especially for migrant workers who were stranded owing to strict lockdown measures in March 2020. Some lawyers feel that while it might be too early to celebrate the resurgence of the Supreme Court under the new Chief Justice of India, they appreciate the fact that it took suo motu decisions concerning the second wave of COVID and provided leadership to an otherwise rudderless governance.

A bench comprising Justices D.Y. Chandrachud, L. Nageswara Rao and S. Ravindra Bhat took up several issues concerning treatment of patients, oxygen allocation to States and warned against clampdown on citizens using social media to seek help regarding COVID, until Justice Chandrachud tested positive. It told the Central government to develop a universal vaccine policy. A bench consisting of Justices Ashok Bhushan and M.R. Shah directed the Centre and the Delhi, Haryana and Uttar Pradesh governments to provide dry ration and start community kitchens for migrants stranded in the National Capital Region (NCR) and not insist on identity cards while doing so.

On May 13, the Chief Justice of India Ramana addressed the press virtually and acknowledged the physical as well as psychological strain faced by the judiciary and court staff in the line of duty under the pandemic. Around 2,768 judicial officers and 106 high court judges had tested positive until then. “My heart goes out to the families and the loved ones of those whose life has been cut short by this pandemic…. Everyone has been deeply affected by this pandemic, including my brother and sister judges in the Supreme Court. Apart from the physical impact of this pandemic, the psychological and mental strain has been terrible. Despite this demoralising and fear-inducing environment, everyone is rendering service to their best capacity, to ensure that justice continues to be rendered,” he said.