As countless patients are rushed to hospitals in the face of India’s deadly second coronavirus wave, the country’s judiciary has taken a collective step towards holding national and state governments to account for their woeful response to the COVID pandemic.
The issues most commonly brought before the courts include shortages of oxygen and other life-saving drugs.
Recently, the Bombay and Delhi High Courts intervened to tackle overcharging by private hospitals and clinics, ensuring the supply of oxygen to hospitals, and the availability of antiviral drugs.
“Enough is enough. If you cannot manage it, tell us, then we will ask the central government to send their officers in and do it,” the Delhi High Court said. “We cannot let people die like this,” the bench said.
On Friday, the Supreme Court intervened to direct Prime Minister Narendra Modi’s government to completely audit the system and develop a universal vaccine policy. It also advised the government to come up with a plan of action to ensure more oxygen supply to Delhi.
“We want 700 metric tons of oxygen to be supplied to Delhi on a daily basis,” the Supreme Court said. “When the third wave comes, how will you deal with it? What is the plan? Suppose containers are not available, what can be done?”
The government has so far not responded directly to the judiciary’s criticism.
Courts step in to fill ‘governance vacuum’
Just a few days earlier, the Delhi High Court issued a notice of contempt to the government for defying its order to supply adequate oxygen to more than 40 New Delhi hospitals. If officials were found guilty of defying the order, they could face six months in prison or a fine.
This week, the Allahabad High Court in Uttar Pradesh said that the death of COVID patients due to a lack of sufficient oxygen supplies for hospitals was a “criminal act and not less than a genocide” committed by those responsible for ensuring the continuous procurement and supply of medical oxygen.
“How can we let people die in this way, when medical science has advanced so much that heart transplants and brain surgeries are now a reality?” the judges said.
Attorneys at the High Court in the western state Gujarat also condemned the government’s handling of the crisis.
“It is the constitutional courts that have stepped in to ensure that governments do their job. The governance vacuum has been filled by suo motu proceedings from various courts,” Supreme Court lawyer Vrinda Grover told DW.
Election commission under scrutiny
Even India’s election commission came under criticism for ignoring the second wave and continuing to allow large political campaign rallies as the virus battered health care systems.
The poll panel was described as being “the most irresponsible over the last few months in not stopping political parties from wanton abuse of the COVID-19 protocol,” with judges of the Madras High Court saying commission members should be handed murder charges.
Stung by the criticism, the commission sought to restrain the media from reporting court proceedings. The effort was, however, promptly rejected, with the Supreme Court ruling that court reporting was covered by freedom of speech and expression.
“What is pushing the Supreme Court today is the courage shown by the high courts in the country. They are telling the top court to correct the course,” Rebecca Mammen, a top criminal defense lawyer in India, told DW.
Supreme Court hit with criticism
The Supreme Court, especially under the recently retired Chief Justice S.A. Bobde, has come under fire for not proactively monitoring lapses in pandemic management, regarding the distribution of drugs, oxygen, and medical treatment.
For example, in August last year, the court refused to order the government to come up with a national COVID response plan under the Disaster Management Act.
Prior to that, it was criticized for not doing enough to help the millions of migrant workers who were stuck without jobs or the means to buy food when a harsh national lockdown was announced in March 2020. With transport suspended, hundreds of thousands decided to walk back to their hometowns, which led to many deaths.
“That high courts have to prod the executive in the face of such a human tragedy is a sad reflection on Indian administration,” Nitya Ramakrishnan, a senior advocate of the Supreme Court, told DW.
‘Let information flow freely’
Even on the question of freedom of expression, the top court last week warned all state governments against taking action against people using online platforms to make desperate appeals for oxygen, essential medicine and other help, saying that this would be the “worst way” to deal with the crisis.
The court’s observations came in the wake of a recent case lodged in Uttar Pradesh’s Amethi district against a 26-year-old man for spreading “false information” on social media regarding oxygen supply.
“Let information flow freely. Let us hear the voices of our citizens and not clamp down on them,” the court said.
Grover pointed out that the ongoing monitoring by the courts could make the difference between life and death for those suffering from the coronavirus.
“It is heartening to see that courts are no longer accepting the government at face value. Lives have been lost due to criminal negligence,” she said.
India reported a record high of 414,182 new infections and over 3,900 deaths over the past 24 hours. The new figures take the country’s total case count to nearly 21.5 million and total recorded fatalities to over 234,000.
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