Judicial observations on administrative handling of Covid Horror


Delhi High Court
i) Delhi High Court observed on 20 April that economic interests cannot override human lives and suggested some reduction of steel and petroleum production to divert oxygen to COVID 19 patients. It said if nothing is done , then “we are heading for a bigger disaster”.
ii) On 21 April Delhi High Court issued unusually strong strictures on the Modi government and private industries, to order the Centre to ‘forthwith’ provide oxygen by whatever means (‘beg, borrow or steal’) to hospitals facing shortage in treating serious Covid patients. The Court observed, it seems human life is not important for the state . ” Do you want to see thousands of people dying in the country?” asked a Bench of two judges. ” Why is the Centre not waking up to the gravity of the situation? We are shocked and dismayed hospitals are running out of oxygen, but steel plants are running,” the Bench observed.
iii) On a day when 20 people died at Jaipur Golden Hospital because of oxygen shortage , the Delhi High Court said it would ‘hang’ anyone who tried to obstruct oxygen supply to the city that could prove fatal for patients in hospitals.
iv) On 22 April, Delhi High Court observed that the Covid 19 situation has turned precarious ; many hospitals are running out of oxygen; the anguished bench observed : We all know that this country is being run by god. Delhi High Court directed the Centre to ensure oxygen supply. “How many states are facing the kind of (oxygen) shortage Delhi is facing? People will keep dying and you will not do anything?” This is how an anguished Delhi High Court bench questioned the Centre on Wednesday, observing that Delhi hadn’t received its allocated quantity of medical oxygen for a single day. The Court was referring to the quantity of 490 metric tonnes (MT) of liquid medical oxygen allocated to Delhi. “What happened to that figure? What about the promise of 480-490 MT?” it asked.
v) Covid 19 has not spared even a single family and still central government’s officers are living in “ivory towers” oblivious of ground realities, observed the Delhi High Court which on 17 May was of the view that manufacturing of Sputnik V vaccine in India is giving an opportunity to the nation staring at shortage of vaccines.
vi) “God bless this country,” was another remark of a bench of Justices Manmohan and Navin Chawla which castigated the Centre for not being alive to the pandemic situation that is taking so many lives. It said “no one is applying its mind” when there is an opportunity for the government to get millions of vaccines and it should use this as a window. “Otherwise, deaths will continue to happen. Every day you are castigated by each and every court and still you are not awake.” “Which bureaucrat is giving you instructions. Is he not alive to the situation? God bless this country. That is why we are facing this situation. In such matters instructions are to be taken from the highest authorities, that too within 30 minutes,” the bench said. It added, “Does your officer not see so many deaths are taking place in the country and we are short of vaccines. Your client is not alive to the situation.”
vii) The bench, which was critical of the Centre’s stand on the issue, said “You (government) are so short of vaccines and you are not taking it through. May be it is an opportunity for you. Don’t be so negative. It is like a raging fire and nobody is bothered. You people don’t understand the larger picture or what.” “Tell your officers it is an opportunity for you, don’t lose it. The virus has not spared any single family. Your officers are living in ivory towers” .
viii) The Delhi High Court on 21 May held the Government’s action of imposing Goods and Services Tax (GST) on Oxygen concentrators imported for personal use as ‘unconstitutional’ and said persons looking to import oxygen concentrators should furnish an undertaking that the devices won’t be used for commercial purposes. A Bench of the Court held that oxygen concentrators constitute a life-saving device during the ongoing COVID 19 pandemic and therefore, should be treated on par with life-saving drugs. “Oxygen concentrator, on the face of it, is a life-saving device,” One member of the Board said. “In times of war, famine, floods, pandemic, a different approach needs to be adopted. We have also indicated and taken judicial notice of the fact that funds have been allocated for healthcare in this Budget… We would have liked more time to delve into these issues but both of us thought that time is of the essence and waiting too long would take away the meaning of the judgement,” the High Court Judge said
Calcutta High Court
ix) 24 Covid patients on ventilator support suffocated to death. On 22 April, only hours after Modi cancelled four rallies in the state ( West Bengal) citing several high-level meetings to tackle the Covid crisis, the Election Commission banned roadshows, vehicle rallies and public meetings of more than 500 people, noting that political parties and candidates were “still not adhering to the prescribed safety norms”. On the same day, the Calcutta High Court expressed dissatisfaction with the EC over the enforcement of Covid norms during the election process.
x) Calcutta High Court came down heavily on the EC for not taking proper action over not following of Covid 19 guidelines on the voting day and during campaigning time. After that the EC banned road shows and vehicle rallies and no public meeting having more than 500 people.
xi) A division bench of Calcutta High Court presided by Chief Justice T B N Radhakrishnan told the Election Commission that issuing circulars and holding meetings on the issue were not enough. Mere ‘banning’ was not enough. The EC directives should be treated like a high court order and ‘ strictly enforced’.
Allahabad High Court
xii) Allahabad High Court took note of deaths of 135 teachers, shikshamitras and investigators assigned panchayat election duty, and issued notices to the UPSEC (UP State Election Commission) asking why it failed to check non-compliance of Covid guidelines during multiple phases of the panchayat elections and why action should not be taken against it and its officials for Covid violations.
xiii) Allahabad High Court on 20 April had directed the UP government to impose strict restrictions till 26 April in five cities-Allahabad, Lucknow, Varanasi, Kanpur Nagar and Gorakhpur but stopped short of calling it a ‘complete lockdown’.
xiv) The Allahabad High Court on 19 May observed that the “entire medical system” of Uttar Pradesh “pertaining to the smaller cities and villages can only be taken to be like a famous Hindi saying, Ram Bharose (at the mercy of God)”.The judges added, “One can guess where we are leading people of this state to, i.e. third wave of the pandemic”. Asking the government to increase testing, it added, “… if we fail to identify a Covid infected person at the earliest, we are definitely inviting a third wave”.
xv) On vaccines, the High Court said: “one cannot understand as to why the government of ours which is a welfare state is not trying to manufacture the vaccine itself on a large scale”. Noting that several vaccine-producing countries had agreed to the waiver of intellectual property protection, it said, “our central agencies may give the green signal to various manufacturers who have the infrastructure to manufacture the vaccines on a large scale”.
Madras High Court
xvi) Coming down heavily on the Election Commission for “not stopping political parties” from violating Covid protocols during their campaign rallies for Assembly polls in four states and a Union Territory over the last month, the Madras High Court said that murder charges should probably be imposed on the panel for being “the only institution responsible for the situation that we are in today”. The scathing observations came four days after the Calcutta High Court had censured the EC for not doing enough to ensure that political parties were following appropriate Covid protocols amid the surging second wave.”You have been singularly lacking any kind of exercise of authority. You have not taken measures against political parties holding rallies despite every order of this court saying ‘maintain Covid protocol, maintain Covid protocol’,” the Madras High Court observed.Remarking that the panel has been “the most irresponsible over the last few months in not stopping political parties from wanton abuse of the COVID 19 protocol”. It asked whether the EC, which is a Constitutional body, “was on another planet when poll rallies were held”.
xvii) Public health was of paramount importance and that it was distressing to note that Constitutional authorities had to be reminded of it. Only when a citizen survives, would he/she be able to enjoy the rights that a democratic republic guarantees to him/her, the Court said.”This situation now is of survival and protection and everything comes next”, the Court added.
xviii) The Madras High Court bench also directed the EC to prepare a blueprint before May 2 on how Covid protocol will be maintained so that “this state does not succumb to your idiosyncrasies any further”. Otherwise, the court warned, it will order the counting to be stopped.
xix) Later, issuing an interim order on the plea, the court said: “Despite repeated orders of this court, going on like a broken record at the foot of almost every order on an election petition, that Covid protocol ought to be maintained during the campaign time, the significance of adhering to such protocols may have been lost on the Election Commission, going by the silence on the part of the Election Commission, as campaigning and rallies were conducted without distancing norms being maintained and in wanton disregard of the other requirements of the protocol.” The Madras high Court reminded the EC’s counsel that it is all about “survival and protection” now and that “everything else comes next”. “Politics or no politics, whether the counting takes place in a staggered manner or deferred… at no cost (should) the counting of votes on May 2 result in being a catalyst to a further surge. Public health is of paramount importance and it is distressing that Constitutional authorities have to be reminded,” the court observed.
Gujarat High Court
xx) During the hearing of a suo motu PIL, on the recent surge in Covid cases, a bench of CJ Vikram Nath and Justice Bhargav Karia on 27 April expressed dissatisfaction over the affidavit filed. The court pulled up the government for not furnishing details about shortages of oxygen, the drug Remdesivir, functioning of 108 EMRI ambulances and shortcomings in Covid testing. Justice Karia said to Advocate General Kamal Trivedi : We are heading for a crisis. How to manage the crisis with effort and cooperation from all is important. You cannot sit in an ivory tower and decide we will solve this crisis like this. You have to come down to the ground level and see what the situation is.”
Supreme Court
xxi) On 22 April, Supreme Court observed that the situation is grim. Nonetheless, it seems that a certain amount of panic has been generated and people have invoked the jurisdiction of several high courts in the country seeking various reliefs such as Delhi, Bombay, Sikkim, MP, Calcutta, Allahabad, and Gujarat. With a slight upon this, the Supreme Court also said the high courts have passed certain orders which may have the effect of accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups. The Central government should place before the Supreme Court a national plan for dealing with different services and supplied during the pandemic.
xxii) Supreme Court bench headed by DY Chandrachud on 27 April termed the massive resurgence of COVID 19 cases a ‘national crisis’ and said it cannot remain a mute spectator and made clear that its suo motu proceeding on devising national policy for Covid 19 management is not meant to supplant high court hearing. ‘Intervention must be understood in the correct perspective as there are some matters which transcend the regional boundaries. Following that, Election Commission banned all victory processions in states where assembly polls have been held and counting were to be held on 2 May. (Assam, TN, WB, Kerala, Puducherry)
xxiii) In a hearing on 24 may 2021, the Supreme Court noted that scared, unemployed and hungry, migrant workers may just want to go home and will hardly care for the finer nuances of “national” and “mini” lockdowns imposed by the government. A division bench of the Apex Court was hearing a suo motu case to provide migrant labourer families marooned in big cities dry rations and cooked food and public transport to workers travelling home to their villages, where they think they would be safe from the clutches of the virus.
xxiv) The court, not quite taken in by the submissions, referred to an affidavit filed by the government. Justice Bhushan said the document mentioned only people covered under the Food Security Act, that is, people with ration cards. The court said unorganised labourers, wandering from one place of work to another in mega cities, cannot be expected to have ration cards.
xxv) The court also addresses the government’s delay in completing a national database to identify and register migrant workers in order to provide them benefits in times of need. The direction for such a database, the court pointed out, was issued in 2018 and the process thus far had been very slow. The court also asked the government to clarify what steps it had taken under the Code of Social Security of 2020.
xxvi) A three-judge Bench led by Justice D.Y. Chandrachud also asked the government on 31 May to “please wake up and smell the coffee” about the farfetchedness of an illiterate villager from rural India crossing the “digital divide” to register for Covid-19 vaccination on the CoWIN portal where slots disappear in the blink of an eye. Justice Chandrachud said the government should be aware of the ground realities in ‘Digital India’. Vaccination policy today is entirely exclusionary of the rural areas, the court said. “What is the rationale for this dual pricing policy? Why is the Centre procuring at a lower price and what has the Centre fixed its vaccine purchase at 50% and left the States to their own devices?” Justice Bhat asked. “Article 1 of the Constitution says Bharat is a Union of States. When the Constitution says that we will follow the federal rule. Then the Government of India has to wholly procure the vaccines and distribute them. Here, individual States are left in a lurch…” Justice Chandrachud said.
xxvii) A three-judge Bench led by Justice D.Y. Chandrachud flagged indiscriminate use of the sedition law against critics, journalists, social media users, activists and citizens for airing their grievances about the government’s Covid-19 management, or even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.”This is muzzling the media,” Justice L. Nageswara Rao, another judge on the Bench along with Justice S. Ravindra Bhat, said about the manner in which Andhra Pradesh had tried to “silence” channels TV5 and ABN.”It is time to define the limits of sedition,” Justice Chandrachud said. He pointed out that the Court had categorically told the States not to initiate penal action against the critics of Covid-19 management measures in an April 30 order.
xxviii) The Supreme Court held that paid Covid-19 vaccination policy for 18-44 age group is “arbitrary and irrational”. The Supreme Court’s observation came days after it said that vaccine prices should be uniform across the country. “Unlike the prior policy, the Liberalized Vaccination policy does not prioritise persons with co-morbidities and other diseases, persons with disabilities, or any other vulnerable groups. This is especially at issue because the experience of the second wave of the pandemic has provided experiential learning that the Covid-19 virus is capable of mutation and now poses a threat to persons in this age group (18-44) as well,” the Supreme Court said.The Supreme Court has sought a response from the central government asking it to clarify how Rs 35,000 crore earmarked for Covid-19 vaccine procurement in the Union Budget was being spent. The court asked why the same could not be utilised for vaccinating persons in 18-44 age group. The Court directed the Centre to place entire data on record giving the purchase history of all Covid-19 vaccines within two weeks. The central government has been asked to place on record all relevant documents and file notings reflecting its thinking culminating in the Covid-19 vaccination policy.
xxix) The Supreme Court expressed concerns on 8 June over the role of private hospitals in Covid-19 vaccination, and wondered whether they would prefer profit over public health. The court’s anxiety is real and present as Prime Minister Narendra Modi’s speech on 14 June revealed that private hospitals would retain their capacity to buy 25% of vaccine stock from the manufacturers.”Further consequences of vaccination by private hospitals under the liberalised vaccination policy relate to a simple issue at the core of their existence: that while they provide a public health service, they still remain private, for-profit entities. Consequently, they may sell the vaccine doses procured at a higher price, unless regulated stringently”. The Court was also worried about transparency. “Private hospitals also may not sell all their vaccine doses publicly through appointments on CoWIN, but rather sell them for lucrative deals directly to private corporations who wish to vaccinate their employees,” the Court observed. “Private hospitals are not equally spread out across a State/UT and are often limited to bigger cities with large populations. As such, a larger quantity will be available in such cities, as opposed to the rural areas,” the Court added .
xxx) The Supreme Court on 1 June asked the Centre how it intended to deliver food to crores of migrant labourers who have no ration cards. “How will food reach migrant labourers without ration cards?” a Bench of Justices Ashok Bhushan and M.R. Shah addressed Solicitor General Tushar Mehta and Additional Solicitor General Aishwarya Bhati, for the Centre. The Court said the schemes rolled out so far seemed to cover only ration card holders. “No doubt you [the Centre] are providing food… No doubt some migrant labourers have ration cards… But we are only bothered about those who do not have them. We want to know about your mechanism to identify and provide food for people who do not have ration cards…” the Court addressed the government side.The Court pulled up the government for delaying the completion of a national database to identify and register migrant workers.”Why do you need three or four months? You are only preparing a database portal”, queried the Court.
(Source:-The Hindu 26-04-21, 21-05-21, 24-05-21, 31-05-21, 01-06-21, 08-06-21, 11-06-21, Indian Express-27-04-21, 19-05-21, Times of India 29-04-21, NDTV 30-04-21, The Statesman 01-05-21, The Tribune-18-05-21, India Today 02-06-21)

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