COVID-19 crisis 2021: How the courts acted as a counterbalance to government inaction

Even as the Central and state governments struggled to contain the devastating fallout of the second wave of COVID-19 in 2021, constitutional courts across the country stepped in to offer succour to India's citizens.

The High Courts were particularly instrumental in prompting action from the governments and micromanaging the pandemic situation in their respective states.

On a number of occasions, the Courts pulled up the State, sought accountability and ensured that their orders were implemented in a timely fashion. Below are a few instances where the judiciary acted as a counterbalance to State inaction through the year.

It is essential to note that during the first wave of the COVID-19 pandemic in the country, the top court was criticised for its lack of proactivity while dealing with pandemic-related issues. However, the institution redeemed itself in the second wave by making sure the Central government remained on its toes.

During the height of the Oxygen crisis that hit the capital during the second wave, the Supreme Court put its foot down and directed the Central government to supply Delhi with 700 metric tonnes (MT) of Oxygen on a daily basis.

"We want 700 MT Oxygen to be supplied to Delhi on daily basis and we mean business. It has to be supplied and we don't want to be coercive. Our order will take time to be uploaded by 3 PM. But you proceed and arrange the oxygen...Don't make us go firm," said Justice DY Chandrachud during one of the hearings.

While dealing with the pertinent issue of vaccinating the country’s population, the Supreme Court in June called upon the Central government to furnish complete data on the purchase history of all COVID-19 vaccines till date, including Covaxin, Covishield and Sputnik V.

A Bench of Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat also sought an outline for how and when the Central government would vaccinate the remaining population in phases 1, 2 and 3. These orders were passed during the hearing of the suo motu case initiated by the top court to deal with COVID-related issues.

On the subject of the Oxygen crisis, the Delhi High Court had observed in one of its orders,

"This is a George Floyd moment for the citizens of this country. The refrain is ―I can’t breathe, albeit, in a somewhat different context and setting; although in circumstances, some would say, vastly more horrifying and ghastlier. Chased and riven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair."

Vide this order, the Court quashed a Central government notification levying 12% Integrated Goods and Service Tax (IGST) on Oxygen Concentrators imported as gifts for personal use amid the COVID-19 pandemic.

During a hearing in April, the High Court exhorted the Central government to explore all available means to manage the Oxygen crisis. The Bench of Justices Vipin Sanghi and Rekha Palli observed,

"We want you to undertake maximum procurement from all sources. Beg, borrow, steal, whatever, you have to provide (Oxygen). You have plenary sovereign power. No industry will say no to you. You must take over," the Court said.

The observation was made after the Court took up urgently a plea filed by Max Hospitals in Delhi seeking urgent replenishment of Oxygen supply so that lives of over 1,400 COVID patients who wer admitted to the hospital are not endangered.

A Bench of the Madras High Court led by its former Chief Justice Sanjib Banerjee questioned the Central government on why it had let its guard down in managing the COVID-19 pandemic, going on to comment that the situation continues to be dire despite a year of lockdown.

The Court, at the time, quizzed Additional Solicitor General R Sankaranarayanan on why all his submissions had been focused on the situation getting better in June, whereas measures were required urgently.

“I have not met any respectable doctor who had advised the guard to be dropped over the last few months... Even if doctors have not advised, who are the experts Centre has been consulting? We are in this state of absolute despair despite having lockdown for most of last year!"

Shortly after this, the Madras High Court in May sought answers as to why the Central government was relying on only private manufacturers to procure COVID-19 vaccines at huge amounts when there were government-owned facilities lying idle.

"India is one of the pioneers in the production of vaccine, before COVID and the World's largest exporter of vaccines. Now, only two private Indian vaccine manufacturers are in the field of producing vaccines for COVID, namely, Serum Institute of India (SII) and Bharat Biotech," observed a Bench of Justices MS Ramesh and B Pugalendhi.

The Bench had said that there were several public sector undertakings in the field of production of vaccines, including the HBL facility in Tamil Nadu.

At the very beginning of the second wave, the Bombay High Court sought responses from the State and Central governments in a plea alleging improper management of COVID-19 medical treatment in Maharashtra.

The Court required the respondents to be prepared with instructions on the next date of hearing, while acknowledging that “serious issues of public importance” had been raised in the plea.

While discussing the issue regarding hospitals and medical centres denying admission to deserving patients merely on account of lack of a COVID positive RT-PCR test report or any other compliance, the Bombay High Court asked the State to take action.

A Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni directed the State government to ensure strict implementation of the circular which made it clear that "no patient will be refused admission on any count in respect of their health issues and the same shall be scrupulously followed".

While hearing a suo motu case with regard to COVID-19 management in the State, the Karnataka High Court expressed its worry about implementation of its orders and lives of citizens. The Court observed during a hearing,

"There is a direction of the Court to provide results in 24 hours. This is a case where the person was tested positive. Till his death, he was not communicated. We are worried about implementation of orders of this Court and lives of citizens."

During the same hearing, the Court pulled up the Centre on its vaccination policy, while asking, "Is it not the right of a person under Article 21 to get the second dose in a timely manner?"

While the effects of the second wave were still being seen, the Uttarakhand High Court expressed its serious displeasure at the failure of the State government in ensuring compliance with COVID protocol while holding religious events or gatherings like Kumbh Mela and Char Dham Yatra in the midst of the COVID-19 pandemic.

"First we make the mistake of Kumbh Mela, then there is Char Dham. Why do we repeatedly cause embarrassment to ourselves?," then Chief Justice RS Chauhan had asked.

The remarks came in light of videos on social media showing a large number of priests moving around in pilgrimage centres, Badrinath and Kedarnath in violation of social distancing norms.

"Who is supervising, or is it left to the priests? What happens if Corona virus spreads among the priests? Even when deity is being worshiped, you can't permit twenty priests to enter, because of the small size of room," the Court observed.

In a later order passed in June, the Court noted that there was “a clear correlation between the holding of Kumbh Mela in April 2021 and the consequent deaths which occurred in Uttarakhand in May 2021”.

In April, the Gujarat High Court questioned the State government,

"What is State doing to check the rise in the number of COVID-19 cases?"

Then Chief Justice Vikram Nath stated that the Court was not satisfied by certain government policies, noting,

"We are not happy with certain policies of the government. No doubt it is doing its best, but some things need to be corrected."

Shortly after this order, the Gujarat High Court again pulled up the State, stressing on the need for accurate and real-time data on availability of hospital beds.

"When the patients and the attendants are already in a state of crisis struggling for survival, the Government and the Corporation instead of helping them create further complications by not giving accurate data, then nothing can be more worse," the Court said.

While dealing with the issue of Black Fungus, the Gujarat High Court asked the State government about the shortage of injections being administered and the cost of treatment. A Division Bench of Justices Bela Trivedi and Bhargav D Trivedi stated that preparedness to combat Mucormycosis was an issue that demanded immediate attention of the State government.

"The shortage of injections being administered for the said disease and the cost of its treatment are also the issues which deserve to be seriously and immediately considered by the State," the order said.

During the peak of the second wave, the Allahabad High Court took a dim view of the medical facilities available in hospitals in Uttar Pradesh. While taking exception to the fact that the dead body of a patient who had collapsed in the bathroom and died was disposed of as unidentified body, the Bench of Justices Siddhartha Varma and Ajit Kumar said,

"If this is the state of affairs of treatment at medical College in the city like Meerut then the entire medical system of the State pertaining to the smaller cities and villages can only be taken to be like a famous Hindi saying ‘Ram Bharose’."

In a earlier order, the Court said that the death of COVID-19 patients due to non-supply of oxygen to hospitals is a criminal act and nothing less than genocide.

Unhappy with the Bihar government's reluctance to disclose in the public domain the number of deaths that occurred in the State due to COVID-19, the Patna High Court had directed the State government to reveal accurate and timely statistics of such deaths through digital means.

"The Right to Information is a Fundamental Right as recognized by the Hon’ble Apex Court, and the information in question is covered under such right," said the Court, reminding the Government of Bihar that it was under an obligation to the citizens to provide information as to the number of deaths that occurred during the pandemic.

"As on today, State of Kerala stands No.1 in Covid 19 cases. Government, on the one hand, is trying to reduce the number of Covid cases, by taking appropriate measures, vaccination, etc. Simultaneously, crowding at public places should not be allowed, more particularly, in liquor shops. Health is more important than revenue," said the Kerala High Court in July.

The observation from a Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly, which issued directions to the State to file a detailed report as regards the failure to observe COVID protocol outside the state-run Beverage Corporation (Bevco) liquor outlets in Kerala.

The health and humanitarian crisis acted as a reminder to all organs of the government, including the justice system, that their primary constitutional duty remains protecting the citizens of India.

The system may have failed some, but as a result of the timely intervention of the courts, many lives were saved. And with the possibility of a third wave around the corner, it remains to be seen whether the governments have learned their lesson.