The second COVID-19 surge has seen cases and deaths skyrocket. This unprecedented health crisis — unavailability of ICU beds, insufficient medical oxygen, no space to respectfully perform the last rites of those who succumbed - has exposed the worst in our Central and State governments. They fell way short of meeting the infrastructural and operational requirements of handling a crisis this big. Add to that, complete apathy, and even denial that there was anything wrong.
In this light, the judiciary refused to be a mere bystander. Various high courts across the country took up the issue of COVID-19 management in their respective states, forcing governments to answer tough questions and take swift action.
We highlight how these high courts went out of their constitutional mandate under separation of powers, to don the hat of an “executive court” to ensure necessary interventions are made to protect the lives of those suffering from COVID-19 — a responsibility that primarily lies with the government under Article 21 of the Constitution.
Managing the Oxygen Crisis
On 21 April, much after the regular working hours of the court, Max Hospital moved an urgent plea before the Delhi High crying for help. The hospital informed the court that the lives of around 262 COVID-19 patients were in danger, as the medical oxygen left with the hospital would only last four hours.
In a hearing that lasted more than two hours, the Division Bench of Justice Vipin Sanghi directed the Central government to ensure supply of medical oxygen to hospitals “by all means necessary”. The court further directed the Centre to divert supply from steel and petroleum industries, and consider creating a dedicated corridor for transporting oxygen.
During the proceedings, the court expressed extreme disappointment towards the Central government’s lack of preparedness, using very strong words.
“Why is the government not waking up to the reality? How is the government so oblivious of the ground reality? We can’t let people die... Why is it not dawning upon your officers that the supply of oxygen to steel and petroleum industries need to be minimised. Why are you showing hesitancy?”Delhi High Court
Just hours after the court’s order, another hospital on 22 April, approached the Delhi High Court, again highlighting the oxygen crisis. During the proceedings, the court pushed both, the Central government and the Delhi government, to work out a strategy to ensure smooth transportation of oxygen.
The court, in very clear terms, also held that in case the supply of medical oxygen to Delhi is blocked, then the local authorities responsible for its movement shall be held liable.
In addition to the shortage in supply of oxygen, the court also expressed concern about the lack of adequate hospital beds for COVID-19 patients.
“Forget the common man on the street, even if I were to ask for a bed, it would not be available right now.”Justice Vipin Sanghi, Delhi High Court
Supply of Remdesivir
In Maharashtra, the Nagpur Bench of the Bombay High Court expressed great anguish for non-compliance with its order to ensure an adequate supply of Remdesivir vials. The court directed both the Central and State authorities to ensure that the Vidarbha region receives its share of Remdesivir (12,404 vials).
“If you don’t feel ashamed of yourself, we are feeling ashamed of ourselves for being part of such a nasty society. We are not able to do anything for the helpless patients of Maharashtra. You don’t have any solution?”Bombay High Court
The Chief Justice-led Bench of the Karnataka High Court also questioned the state government over the availability of oxygen, Remdesivir vials, and hospital beds. The court was particularly concerned with the COVID-19 drugs and oxygen being sold in the black market.
“If patients are unable to get Remdesivir in adequate quantities, it’s a violation of Article 2... State government shall know that the situation is very very bad. In absence of any clarity from the government, even critically ill non-COVID patients are not admitted in hospitals unless they produce a negative RT-PCR report.”Karnataka High Court
In light of such a crisis, the Karnataka High Court directed the state government to maintain real-time data on availability of drugs, to appoint officers to keep a check on black markets, and have “some kind of system” for the supply of oxygen.
Disregard of COVID Guidelines
On 19 April, the Allahabad High Court called the COVID-19 situation in Uttar Pradesh “grim” and went on to impose lockdown in five cities in the state.
Commenting on the lack of preparedness of the UP government, the court said that “it is a shame that while the government knew of the magnitude of the second wave, it never planned things in advance”.
The court further went on to claim that if due to the paucity of sufficient medical aid, people end up dying, the blame would lie on the government which “failed to counter the pandemic even after one long year of experience”.
“Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy, which means a government of the people, by the people, and for the people.”Allahabad High Court
The court further expressed displeasure towards the degree of attention and money being spent by the UP government on local body elections. It remarked:
“One would only laugh at us, that we have enough to spend on elections and very little to spend on public health.”Allahabad High Court
On the issue of accurate reporting of COVID-19 cases, the Gujarat High Court had to interfere and take a suo motu cognisance of the matter. Commenting on the need to ensure transparency in reporting of COVID-19 cases and deaths, the court rapped the state government and said:
“The state has nothing to gain by hiding the real picture and hence suppression and concealment of accurate data would generate more serious problems including fear, loss of trust, and panic among the public at large.”Gujarat High Court
In the northern states of Punjab and Haryana, the high court directed the state governments to immediately respond to the “grim state of COVID-19” caused by the non-implementation of COVID guidelines, unavailability of beds, and inadequate supply of oxygen.
The Supreme Court's Suo Motu: Needed or Devastating?
As various high courts were continuously keeping the Central government on its toes, to ensure effective response to the COVID-19 crisis, the Supreme Court on 22 April decided to handle the matter by itself.
The apex court registered a suo motu case on the nationwide COVID-19 crisis, appointed Senior Advocate Harish Salve as amicus curiae to assist the court, and proposed to transfer to itself all the COVID-19 related PILs pending before different high courts.
The Supreme Court, while issuing notices to the Centre, state governments, and Union territories, observed that the orders passed by the various high courts “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.
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