The only people undermining the authority of the Supreme Court are the ones sitting inside it


  • April 25, 2021
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Even though the government had one year to ramp up the public health facilities in order to battle the second wave of COVID-19 that everyone saw coming, throughout India the health infrastructure has totally crumbled. Hospitals do not have enough beds and most of them are running short of oxygen which has already caused numerous deaths. Various High Courts rose up to the occasion and issued stern orders and made strong observations but the role of the Supreme Court has been disappointing so far, writes Pritha Paul

 

 

Last year, as the Prime Minister declared a lockdown with almost no prior warning or notice, India became a spectator to one of its worst human crises involving the migrant workers. Millions of migrant workers were stuck in distant states far away from their homes, with scarce knowledge of the land or the language, no ration, money or family. While their employers, contractors/agents and both state and union governments turned a blind eye to their plight, the workers set off on foot to reach their home, a desire that remained unfulfilled for many of those who lost their lives on the way. The honourable Supreme Court, in its ivory tower, shut its eyes like the Lady of Justice. It ignorantly accepted the Solicitor General’s false claim that “there is no person walking on the roads in an attempt to reach his/her home towns/villages.”

 

The only source of relief for the people of India in the time of distress came from the timely and stern orders of the various High Courts.

 

The High Courts held the state and the central governments accountable for the plight of the people. Not only did they discuss the threat of COVID but also acknowledged the subsidiary issues arising out of the pandemic and the lockdown. They recognized the parallel epidemic of hunger and depression that was raging among the working classes who were left to fend for their own survival, police brutality and the need for patients to step out of their houses for essential and emergency reasons. The Gujarat High Court had observed:

“If a person has any other ailment and is in need of medical treatment, then he cannot be asked to remain himself locked in his house. Necessary arrangement should be made in such circumstances to ensure that the ailing person is able to reach to a particular hospital or a clinic and seek immediate medical treatment. Some modalities in this regard needs to be worked out at the earliest.”

 

The Gujarat HC also ordered the state government to ensure shelter, food and water for migrant workers in order to stop them from walking home. It also directed the state to arrange for quick and easy transport for those who were more willing to leave.

 

In order to prevent migrant workers from walking, the Odisha High Court had ordered:

“the State Government to give direction to all bordering district Collectors and Superintendent of Police to make arrangement of stay, food and sanitation arrangement including medical check up of all such persons in the bordering districts itself. In the event of shortage of space they can take over closed college and school premises having toilets for the above purpose. Similarly, involving district level shifting similar arrangements can also be made by all concerned district Collectors and Superintendents of Police. This arrangement can continue at least till lifting of lock down.”

 

The SC, however, seemed to prove quite helpless in this regard. Even when it was forced to take cognizance of the COVID situation to save their grace, Justice Nageshwara Rao had nonchalantly quipped:

“How can we stop them from walking? It is impossible for this Court to monitor who is walking and who is not walking?”

 

And Justice Kaul shifted the burden on the states, saying “Let the states take action”, the highest court in India along with the Solicitor General placed the burden on the people to be patient, exonerating the central government from its responsibilities.

 

We seem to have come a full circle. While the second wave of COVID-19 is raging in India, political parties are busy campaigning in different states for the Vidhan Sabha elections, attracting huge public gatherings without maintaining COVID-19  protocols. Neither the UP government nor the Central government took steps to prevent or to enforce covid protocols during the Kumbh Mela which turned out to be a super-spreader event. Instead, they provided special trains for the devotees’ travel. While the Kumbh definitely was not symbolic, the arrangement of special trains for the devotees was a symbolic slap to the migrant workers, who are once again preparing to leave their place of work in anticipation of another sudden lockdown. In places like Uttarakhand, already the borders have been sealed and only those with a Covid test and a registration in the state government portal are allowed to enter the state. For the daily wage earners, there is once again no assistance from the governments, and they are left at the mercy of the black market to purchase their train and bus tickets, the prices of which are soaring high. The Supreme Court repeatedly failed to take cognizance of any of these issues. Perhaps, if it had stepped in and prevented the huge gatherings in the election rallies and the Kumbh Mela, the situation would not have deteriorated to this extent.

 

The working class is clearly not in the list of priorities made by the government, assuming there is any such list at all. While the efficiency of the vaccines is still under a cloud of suspicion, it is no doubt the government’s responsibility to ensure equality in the distribution of any vaccine or medicine that the government itself claims as essential and lifesaving. Instead, the central government has decided to only provide free vaccination to individuals above the age of 45. Individuals between 18 to 45 years can only receive vaccination either from the state governments or from the private hospitals who can procure the vaccines from Serum Institute of India at the rates of 400 and 600 rupees, respectively. The central government is receiving the same vaccine at the rate of 150 rupees. The Madras High Court raised this issue with the Central government and asked how it expected people from low and middle-income groups to pay for the vaccine in the face of an unprecedented economic crisis.

“The Court has made an appeal to the Union to consider how the less-privileged and, particularly those who have been rendered without basic resources or jobs in the wake of the lockdown of last year, may be able to afford vaccination at such high cost. It is hoped that appropriate steps would be taken to take care of the lowest denominations.”

 

The central government’s move in allowing SII to sell the vaccines at a higher price to the states and in allowing them to sell the vaccines to the private entities only exposes the fact that the government is prioritizing corporate profit-making over public health. Many have raised concern that the states may fail to compete with private institutions and therefore, fail to procure sufficient vaccines at all. This would leave everyone in the age group of 18-45 at the risk of the whims and fancies of these private money-making entities, essentially making it impossible for an entire class of people to access the vaccine. The lack of government regulation has encouraged other companies to fix high rates for vaccine doses. Bharat Biotech has set the prices at 600 and 1200 rupees per dose for state governments and private hospitals, respectively. The BJP, however, has despicably made this a campaign issue in Bengal. While it has failed to provide free vaccine to everyone despite running the central government, it has promised free vaccine in Bengal if it is voted to power. It had made the same unethical promise to the people of Bihar also while campaigning during the assembly election held there.

 

The government’s apathy towards the lives of the people and its focus on aiding the corporate class in their opportunistic endeavour to maximize their profit during this crisis is evident from other instances as well. Even though the government had one year to ramp up the public health facilities in order to battle the second wave of COVID-19 that everyone saw coming, the state of the health sector is dire. The Allahabad High Court remarked about the state in Uttar Pradesh:

“It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance.”

 

Throughout India, the infrastructure is insufficient, hospitals do not have enough beds and images of patients sitting and lying on the floor are flooding social media. The hospitals are running short of oxygen which has already caused numerous deaths and led to black marketing of oxygen. The intensity of the disaster prompted the Delhi High Court to take suo moto cognizance of the matter. It criticized the central government for allowing steel and petroleum industries to consume oxygen for production when human lives are at stake for the lack of oxygen. It voiced a strong objection against the central government’s actions protecting commercial interests over people’s health concerns. The government needed to be reminded of what a government should never forget, that human lives are worth more than industrial production. That development means nothing to dead bodies.

 

The Bombay High Court strongly chastised the central government for reducing oxygen supply to Maharashtra, stating that it came as an ugly shock which “affected very severely Covid patients in the State of Maharashtra.” The Bombay High Court also directed the centre to consider providing door-to-door vaccination and dismissed all five of the reasons given by the centre stating why it cannot do so. The court said that the reasons are easily remedied if correct measures are taken and are not sufficient to dismiss door-to-door vaccination altogether. It invoked Article 21 to emphasize that the old and the disabled are equally entitled to the vaccine which should be provided to them in a safe and secure environment:

“Should long exposure of the vaccine result in contamination, it is for the Government in its appropriate department to explore ways and means to prevent contamination as well as exposure beyond the recommended temperature so that the vaccination programme can be taken to the door steps of elderly and disabled citizens.”

 

Other high courts too have proceeded to hold the state and the central governments accountable for their incompetence, and much like the last time, the Supreme Court seemed oblivious to the chaos and human tragedy unfolding around them. That is, until the SC decided to take suo moto cognizance of four issues:

  1. Supply of oxygen
  2. Supply of essential drugs
  3. Method and manner of vaccination
  4. Declaration of lockdown

 

These are also the main issues the High Courts are dealing with. This has raised suspicion among the general public as well as among senior advocates regarding the intention of the SC. Even though the court said that it does not want to hinder the High Court proceedings, it had indicated differently. Justice Ravindra Bhat told the Solicitor general to present his case before the High Courts, adding that the SC did not plan to supersede any High Court order “as of now”, indicating that the plan may change. To this CJI Bobde quickly added, “Maybe it is better to report directly to the Supreme Court. We will see that later.” Interestingly, the bench of the SC taking suo moto cognizance this year consists of Justice Nageshwara Rao, the same judge who had expressed nothing but disdain at the suggestion of addressing the migrant workers crisis during lockdown last year, stating that the situation was beyond their control. They seem to have changed their mind quickly this time when the centre has been caught under fire from the High Courts.

 

Yet, the Supreme Court was disappointed at the senior advocates’ mistrust in them and said that it undermines the institution of the court. It is important to take into notice, however, that this mistrust has lately been shared by ordinary citizens as well. The rising contempt cases only show how the SC has time and again made a mockery of itself, and how people have refused to take it seriously, instead only treated it as an extension of the government. The SC’s blatant disregard of protocol, due process and human rights has exposed quite glaringly that the only people who are undermining the institution of the Supreme Court are the people sitting inside it and has correctly raised apprehension among the people that their welfare is not the primary concern of the highest court.

 

This apprehension was buttressed by the fact that the court appointed Mr Harish Salve as the amicus curiae. Salve is not only a non-resident in India, but he is also the CJI’s childhood friend. Moreover, he is representing Vedanta Limited in their attempt to reopen their Sterlite plant under the guise of producing oxygen. The plant in Tamil Nadu had been shut for causing environmental pollution including contamination of water and gas leaks. The protests against the plant also led to 13 people being shot. In a matter which requires shutting down of production in industries and diversion of oxygen supply from industries to healthcare facilities, Salve who is advocating for reopening a controversial pollution making industrial plant clearly shows conflict of interest. His proximity to the CJI and the central government, moreover, do not induce too much faith in his impartiality, and as the famous maxim goes, “justice must not only be done, but it must also be seen to be done.” Though Salve has recused himself from the case, the bench, however, does not concur with the objections raised against his appointment.

 

In all this conflict, not a word has been spoken by the Supreme Court directing the central government to take any action. Not a word has been uttered condemning the gross and criminal negligence of the central government whose head seems to be more occupied with election campaigning in states than in addressing the urgent humanitarian crisis that is amplifying every hour. Ensuring the court’s dignity is not the common person’s responsibility, it is the responsibility of those who take the oath and preside on the bench. If people are voicing their concern that the judiciary which was created to protect them from the other branches of the state has become the one against whom they need protection, perhaps it is a cue for the judiciary to take a step back and introspect.

 

The virus is real, and it is killing people. But what is happening and unfolding now is nothing less than a genocide caused by willful negligence and deliberate callousness of the government and it may sound harsh but the Apex Court too is complicit.

 

The author is a student of Law.

 

Feature image courtesy: livelaw.in

 

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