A three-judge bench of the Supreme Court led by Dr. D Y Chandrachud, and comprising Justices L. Nageswar Rao, and S. Ravindra Bhat has passed an interim order in a Suo Motu Writ Petition (Civil) No. 3 of 2021 yesterday directing the Central and State Governments to put on record efforts taken to curb the […]

A three-judge bench of the Supreme Court led by Dr. D Y Chandrachud, and comprising Justices L. Nageswar Rao, and S. Ravindra Bhat has passed an interim order in a Suo Motu Writ Petition (Civil) No. 3 of 2021 yesterday directing the Central and State Governments to put on record efforts taken to curb the spread of coronavirus and the measures that they are planning to take in the future. The Court has also asked the Central Government to revisit its vaccine procurement policy observing that it would “prima facie result in a detriment to the right to public health which is an integral element of Article 21 of the Constitution”. In addition to this, the Court has also urged the Union and the States to consider imposing a lockdown to curb the virus in the second wave in the interest of public welfare. However, before announcing any lockdown, the Court has suggested to the government to make necessary arrangements for the marginalized sections of society. The Court further stated that no person should be denied hospitalization or essential drugs for lack of local residential proof or identity proof. This is a great affirmation of the right to health enshrined under Article 21 of the Constitution. This is the need of the hour. The Court issued a warning to the governments not to harass the users of social media during this trying time. This is an admirable and balanced order that takes care of public health, the national economy, governance issues, and public sentiments.

The Apex Court did not stop the High Courts from exercising their powers during this corona crisis. Let the High Courts continue to monitor the covid crisis in their respective jurisdictions. Fortunately, some High Courts like Delhi, Madras, Allahabad, and Kolkata have been very active in protecting human rights and dignity during this covid crisis. They have strongly reprimanded the respective governments for their failures to address the public grievances. The constitutional courts are expected to protect the fundamental and legal rights of the people when they knock on their doors or even suo motu. In times like these, the Courts need to push the governments to protect people’s lives effectively and quickly. If citizens are dying because of a shortage of oxygen, this is nothing but a total collapse of our health system and the executive cannot avoid its responsibility. The High Courts are within their rights to pressurize the governments to provide oxygen, life-savings drugs, and beds to the covid patients. The governments cannot be allowed to take the plea of the paucity of resources at this time. The Supreme Court has also taken serious notice of some these executive blunders and failures. This order will also be helpful to the Union Executive to prepare a national plan to handle the covid crisis.

Notably, the Supreme Court has given the following interim directions to the Central and the State Governments to handle the Covid crisis. (1) The Union of India shall ensure, in terms of the assurance of the Solicitor General, that the deficit in the supply of oxygen to the GNCTD is rectified within 2 days from the date of the hearing, that is, on or before the midnight of 3 May 2021; (2) The Central Government shall, in collaboration with the States, prepare a buffer stock of oxygen for emergency purposes and decentralize the location of the emergency stocks. The emergency stocks shall be created within the next four days and is to be replenished on a day-to-day basis, in addition to the existing allocation of oxygen supply to the States; (3) The Central Government and State Governments shall notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by this Court. The Registrar (Judicial) is also directed to place a copy of this order before all District Magistrates in the country; (4) The Central Government shall, within two weeks, formulate a national policy on admissions to hospitals which shall be followed by all State Governments. Till the formulation of such a policy by the Central Government, no patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UT or even in the absence of identity proof;(5) The Central Government shall revisit its initiatives and protocols, including on the availability of oxygen, availability, and pricing of vaccines, availability of essential drugs at affordable prices and respond on all the other issues highlighted in this order before the next date of the hearing, that is, 10 May 2021. Copies of all affidavits to be served upon the Amici in advance.

Admittedly, these directions are coming at a time when India is receiving lakhs of cases and thousands of people are dying daily. People are unable to get oxygen, beds, and even drugs. Unfortunately, the Centre and the States have failed people badly to provide them relief. Some High Courts, as mentioned earlier, had rightly intervened to mitigate the sufferings of the people. The Supreme Court has pushed to the governments to prepare a mechanism to deal with the unprecedented crisis created by the covid. The governments have no option but to arrange more resources at the earliest to fight against the covid. The Court has rightly intervened to protect the life and personal liberty of the citizens as per the basic spirit of Article 21 of the Constitution. This order reflects the true commitment of our top court to the cause of protection of human rights, dignity, and constitutional morality.

It is apposite to mention that the Court has protected the freedom of social media that has been a great tool for communicating the grievances of the people relating to an oxygen supply, drugs, and hospitalization, etc. Through social media, lakhs of public-spirited citizens have come together to help those who need it during this most difficult period. Sadly, some governments were more concerned about their image rather than public health. The Court has not appreciated that approach of the executive. Appreciating the use of social media, the Court observed as follows: “It is only appropriate then that when many cities in India are suffering through the second wave of the COVID-19 pandemic, many have turned to the internet, using applications/websites to find critical support. On these platforms, online communities led by members of the civil society and other individuals, have assisted the needy in multiple ways – often by helping them procure oxygen, essential drugs or find a hospital bed through their own networks or by amplifying original requests, and even by offering moral and emotional support. However, it is with deep distress that we note that individuals seeking help on such platforms have been targeted, by alleging that the information posted by them is false and has only been posted in social media to create panic, defame the administration or damage the “national image”. We do not hesitate in saying that such targeting shall not be condoned, and the Central Government and State Governments should ensure that they immediately cease any direct or indirect threats of prosecution and arrest to citizens who air grievances or those that are attempting to help fellow citizens receive medical aid. If this does keep happening even after the current order, this Court shall be constrained to use the powers available to it under its contempt jurisdiction. We also direct that all Directors General of Police shall ensure compliance down the ranks of the police forces within their jurisdictions.”

Given the above discussion, it is submitted this the Supreme Court has intervened at a right time when people were looking towards the Court for justice. The Court has not rightly touched the petitions pending in the different High Courts relating to the Covid mismanagement. This is a very difficult time that certainly needs an extraordinary degree of judicial activism to protect the lives and livelihoods of people. People cannot be thrown at the mercy of the centre and states. They need immediate relief to save their lives. All governments have failed them. There should be some uniformity to deal with the corona crisis. We can fight against the coronavirus jointly, not alone. The governments should not unwelcome criticism at this time. This is the time to make self-introspection and feel the public anger and protect humanity. The Supreme Court has demonstrated a great initiative towards the compliance of constitutional morality in this suo motu action. This is what the people expect from the judges of the Supreme Court who decide the legal destiny of a nation. Hopefully, the momentum of this great judicial statesmanship should be continued to mitigate the sufferings of people during this painful time. In difficult times like this, judges should not hesitate to create a new law to protect the human rights and dignity of the people. Let me conclude this discussion with these words of the eminent jurist, distinguished statesman, and renowned public intellectual Salman Khurshid: “Judges should ideally apply the law made by the legislature but where there is no possible answer in the words of the legislature, judges do make new law covertly or explicitly. In doing so, democratic considerations require them to fill up the gaps keeping in mind what the legislature would do if it were asked to.”