A Court that breathed life

Spring 2021

In a city known for its extreme weather, spring in Delhi oversees the transition from a biting-cold winter to the scorching summer that lies ahead. With its many deciduous trees shedding abundantly during this season, the streets of Delhi are carpeted with fallen leaves, signifying an ethereal pathway of the mesmerising yellow-red-purple trifecta of blossoming Amaltas, Gulmohar and Jacaranda trees upon which summer arrives. The leafy precincts of the High Court of Delhi, perched right in the middle of a wide and beautiful tree-lined avenue at the heart of the capital, also witness a microcosm of this wider scenic transformation that envelops the entire city in spring.

The spring of 2021 was, however, unlike any other the city or its High Court had seen before. An ominous portent was witnessed exactly a year prior with the COVID-19 pandemic spreading across the world. This had resulted in a strict nationwide lockdown being put in place in March 2020, which was only gradually relaxed by the time summer had well and truly arrived that year. The period in the middle was largely spent indoors, hoping and praying that COVID-19 would not come knocking at one’s door. As 2020 went by and the world seemed to be learning to live with the virus, hopes for a return to normalcy were high. The rollout of a nationwide vaccination program in India in January 2021 further fueled the optimism of being able to overcome the pandemic in the near future.

However, things began to unravel rapidly by the time spring arrived in 2021. The highly infectious Delta variant of the virus led to a second wave of the pandemic in India, which, similar to a tsunami, resulted in a significant spurt in the daily infection count. In Delhi, for instance, the number of daily infections rose from 1,819 on the 1st of April to reach a figure of 24,325 by the end of the same month. This massive surge in the number of patients led to an unprecedented collapse of the medical infrastructure in the capital city, with a severe shortage of oxygen, medicines and hospital beds. Scenes of horror such as overflowing crematoriums and people gasping for breath in hospital corridors, while awaiting a burst of oxygen that never arrived, became commonplace.

In the middle of this carnage, a Division Bench of the High Court comprising Justices Vipin Sanghi and Rekha Palli suo motu revived a disposed of writ petition praying for COVID-19 counter-measures and began to issue a slew of directions to the Union and State governments to help stabilize the situation.

Several other freshly filed petitions, including those by hospitals in the city urgently seeking supply of oxygen to their establishments, were clubbed with this main matter. The Court would go on to appoint Senior Advocate Rajshekhar Rao as amicus curiae and hold near-daily hearings in the matters in April and May, with the composition of the Division Bench later changing to comprise Justices Vipin Sanghi and Jasmeet Singh.

No time for caution

When a Court delivers judgment in a case listed before it, there are innumerable more judgments being made about the Court itself. An opinion is formed about the judge(s) and the way the case was dealt with, by the parties, the appearing lawyers, the bar as a whole and society itself through media reportage. As far as the bar is concerned, this opinion formation extends beyond a case-specific estimation of the functioning of a judge. With the advent of artificial intelligence and machine learning, probabilistic models for predicting outcomes have become mainstream. However, informal probabilistic models have always been employed by lawyers, albeit on a subconscious level, when engaging with the judges whom they appear before.

The data set employed in the lawyer’s probabilistic model is derived from a wide range of sources, including personal encounters with the judge during past appearances in Court, the judge’s professional and personal background from before the time the judge ascended to the bench, the judge’s judicial outlook as gleaned from judgments, and tales about the judge as relayed by fellow advocates et al. This data set, as replete with objective parameters as it is with suppositions and prejudices, serves as the foundation for the probabilistic model that a lawyer’s mind subconsciously applies in advance of every hearing before a judge. This subconscious modelling helps the lawyer mold the overall strategy for the argument, anticipate queries, identify the best point that should be put forward first, etc. During this entire exercise, judges inevitably get labelled, or in some sense, even stereotyped. The labels range from the liberal relief-giver, the conservative, the activist, the technicality-and-procedure obsessed, the equity-oriented, the precedent-minded, etc.

Justice Vipin Sanghi is, in the aforesaid context, too complex a judicial personality to be tied down to a single overarching label. He was a no-nonsense judge known for his integrity, always speaking his mind and not shying away from authoring dissents. As a self-professed ‘student of the law’, he was willing to go beyond a mechanical reliance on precedent when convinced of the strength of a case. However, when it came to the specific aspect of granting relief, Justice Sanghi would consistently fall into the ‘cautious’ category. One had to really labour to convince him, especially if the relief being sought was one that was unconventional or with wide-ranging consequences. That being said, relief would be granted regardless of the opponent’s standing if one managed to convince Justice Sanghi. However, this invariably meant a lot of heavy lifting and astute advocacy. Even if you had what you believed was the best case in the world, you were not assured of a cakewalk in his courtroom. On a lighter note, the thick moustache coupled with a stern face, which served to immensely amplify any look of disapproval, probably made matters worse in terms of sheer optics. 

The COVID-19 cases that were listed before the Division Bench headed by Justice Sanghi presented significant challenges. First, a global pandemic and a judicial response to its devastating effects was a once-in-a-generation event with no real precedent in independent India. Second, the age-old refrain regarding the limited role of the courts in matters that ideally fall within the executive’s domain was exemplified in this case, particularly against the backdrop of the Supreme Court’s largely muted response to the COVID-19-induced migrant labour crisis in 2020. Third, with the underlying political blame game that had erupted between the Union and the State governments over responsibility for the abysmal situation in Delhi, any intervention by the Court in the form of stern directions or strictures was likely to be perceived as taking sides and entering into the political thicket.

In addition to the aforesaid complexities, the prevailing sentiment at that time leaned heavily towards self-preservation and weathering the storm.

It was a cautious judge’s worst nightmare.

Revelation

Obliterating all probabilistic models and dispelling stereotypes, the Division Bench headed by Justice Sanghi, over a course of several hearings spread over two months, took stock of a wide range of issues ranging from the non-availability of ICU beds, to lack of oxygen and medicines, and black marketing by unscrupulous elements. Various directions were issued to address aspects such as supply of oxygen by steel and petro-chemical industries, setting up of oxygen generating facilities, capping prices of oxygen, supply of oxygen from different sources, allocation parameters, shortage of medical professionals, plasma donation, efficient utilization of oxygen, ramping up of testing facilities for COVID-19 tests, enhancing the software for uploading of RT-PCR test reports, black marketing and hoarding of medicines, wastage of vaccines, helplines for minors and senior citizens requiring support, and improving the CoWin Platform by making it more user friendly. Contempt jurisdiction was invoked wherever required against officials who failed to comply with directions and deliver results and against persons engaged in black marketing of oxygen cylinders and medicines.

The hearings, and the charged and desperate environment in which they were held, presented a sight that was not seen before in an Indian courtroom. Petitions filed by hospitals would be listed in the morning, and the Court would be informed that these establishments had barely enough oxygen to get them through the day. The lives of the various patients on critical life support hung in the balance and literally depended on the Court’s ability to ensure immediate availability of oxygen. For many of the relatives of these patients, logging into the virtual courtroom and seeing the pixelated image of the judges on the screen and hearing their distant voices echoing over the speakers was the only ray of hope in a city devastated by the pandemic.

There were unfolding scenes of tragedy in the courtroom as well when, on certain days, the judges were informed much to their horror that lives had already been lost due to an oxygen shortage just prior to orders being passed during the hearing.

Notwithstanding the challenges and the grief, hundreds of lives were directly saved by the intervention of the Division Bench headed by Justice Sanghi as various hospitals received the required amount of oxygen just in the nick of time owing to judicial orders passed on the very same day. Countless more in the city benefited from the various far-reaching emergency measures that were put in place, along with the coordination between various agencies that was ensured under the constant supervision of the Court. For those on COVID duty from all walks of life, whether it be doctors, nurses, security personnel, or government officials, the Court’s facilitative and mediative role ensured that their collective efforts were put to cohesive use and that their sacrifices were not wasted on account of the administrative disarray and wave of panic that seemed to paralyze the system.

Justice Sanghi employed every tool possible in this desperate struggle to save lives. Within the overall role of judging, he also cajoled, facilitated, mediated, raged and ranted, and wielded the stick in equal measure.

On the administrative side as well, a High-Powered Committee, of which Justice Sanghi was the Chairperson, prescribed recommendations for decongestion of the Tihar Jail premises to prevent the further spread of the virus and offered various suggestions for the vaccination of the inmates as well as precautionary measures for the inmates, jail staff, para-military staff and medical staff.

By the time the second wave began to ebb towards the end of May, the High Court had played a critical institutional role in shouldering the response to the pandemic during its worst phase.

Transfiguration

It is important, at various levels, for this story to be told.

At a time when there is much disquiet around the working of the judiciary, it is a reminder about the difference that a determined judge and his or her compatriots on the bench can make in the face of seemingly insurmountable odds.

Going further, the record of the proceedings that went on in the Court is in itself a memorial to our response as a society to the darkest period of the COVID-19 pandemic - capturing our failures and successes, our triumphs and tragedies. Akin to a poignant memorial to a traumatic moment in our history, the record of these judicial proceedings helps, in Architect Julian Bonder’s words, to “direct attention to larger issues” and as reflecting the “dialogic character of memorial space...the space between the stories told, or the events remembered, and the act of remembrance (memory-work)” as also in “establishing dialogues with, and presenting questions about the past (and the future)."

For students of the law, the role played by the High Court during this period is also a fascinating case-study of the exercise of the judicial function in hitherto uncharted domains, and the normative takeaways, both positive and negative, of such an endeavour.

It is also a sobering reminder about the criticality of ensuring access to justice inasmuch as ‘access’ to the High Court, in many a case during this turbulent period, quite literally meant the difference between life and death.

But most important of all, this struggle that the judges waged reflects a moment of transfiguration for the ‘Court’.

Justice Sanghi retired as Chief Justice of the High Court of Uttarakhand, and as the senior-most High Court judge in the country on October 26, 2023. As is the case with all retirements from judicial service in our country, the day of demitting office is followed by one’s birthday on the next. Just as Justice Sanghi would have celebrated his birthday yesterday, hundreds and thousands of citizens who call the capital city home will be able to do so this year and in the years to come, alive and well in the company of their near and dear ones, thanks in no small part to the crucial role that Justice Sanghi and his compatriots on the bench performed in the spring of 2021.

The celebrated Nobel laureate, Alexis Carrel, is known to have said that “man cannot remake himself without suffering for he is both the marble and the sculptor.” This is true of institutions as well. Times of extreme strain and crisis can fundamentally remake an institution for the better, or for the worse. Answering the call at such a time for the individuals manning the institution, difficult as it is, represents, in the words of the mythologist Joseph Campbell, “…a mystery of transfiguration—a rite, or moment, of spiritual passage, which, when complete, amounts to a dying and a birth. The familiar life horizon has been outgrown; the old concepts, ideals, and emotional patterns no longer fit; the time for the passing of a threshold is at hand.”

Our Constitutional Courts are often viewed, to borrow a slightly romanticised expression, as the “last recourse for the oppressed and the bewildered." They are seen as attempting to live up to this promise in myriad ways such as by protecting personal liberty, coming to the aid of citizens against arbitrary actions of the state, and ensuring that the rule of law applies in equal measure to the powerful and to the weak.

Beyond all this, in the spring of 2021, as all hope faded away and as the very world seemed to fall apart all around him, Justice Sanghi’s relentless defiance in the face of a seemingly unvanquishable foe transformed the Court into something even more. Into a Court that breathed life itself.

Dr. Amit George is an advocate practicing before the High Court of Delhi.