S.A. Bobde, on the occasion of his retirement as chief justice, said that he was leaving the court with mixed feelings. If this was a reference to the last hearing he held, many lawyers who followed its proceedings on both days also had mixed feelings about what transpired. Laypersons like me cannot say whether their dominant emotion was relief or apprehension.
If it was relief, this was because the bench headed by the outgoing CJI clarified that it had never wanted to interfere with the six high courts which were already dealing with the situation arising out of the deadly pandemic and the total collapse of the state machinery. But apprehension is also likely, since the court nevertheless asked the solicitor general to return to it quickly with a ‘national plan‘, and, in the Indian scheme of things, especially for people sitting in Delhi on different seats of power, national always supersedes the regional.
The bench led by the outgoing CJI castigated some senior lawyers who had criticised its move to take up the matter related to the management of the pandemic. The lawyers had seen the Supreme Court’s remarks on the first day of the hearing as an unnecessary interference with the work of the high courts which were already assessing the situation, making their observation and passing orders to set things right in their respective jurisdictions.
The Supreme Court was especially upset with Dushyant Dave, who had come down heavily on the bench for giving the impression that it wanted to take all matters related to the pandemic away from the high courts.
The bench was also anguished that aspersions were cast when it chose Harish Salve as its amicus to help it in the matter of evolving a national plan to deal with the pandemic.
Salve’s selection was criticised by many because they saw conflict of interest writ large. He was appearing for Vedanta, which was before the same court seeking to open its copper plant at Tuticorin. The plant has been shut following people’s protests because of its environmental cost. Vedanta had tried to get it opened unsuccessfully even before. Now it is using the crisis of pandemic to find a way to reopen.
The plea was that its intent was humanistic as it would only use this facility to produce medical oxygen which the nation desperately needs. The bench seemed inclined to grant the plea in the name of a larger public good. It was then that the court said that there was a ‘national emergency’ and decided, suo motu, to review the government’s handling of the pandemic.
‘To deal with the national emergency there was a need to have a national plan,” that is what the Supreme Court bench observed. But even before this realisation dawned on it, at least six high courts had already intervened. The Supreme Court noted their pro-active initiative but felt that six different courts giving directions can lead to confusion. What was needed was order.
So, it proceeded to bring order to the supposed chaos that the orders of six diverse courts might cause. When it chided Dave and other lawyers for opining on the basis of perception, it failed to see that it was also acting on perceptions. Let us recall its words,
“We as a Court wish to take suo motu cognizance of certain issues. We find that there are 6 High Courts – Delhi, Bombay, Sikkim, Madhya Pradesh, Calcutta and Allahabad. They are exercising jurisdiction in best interest. We appreciate that. But it is creating confusion and diversion of resources.”
What was the evidence of the diversion of resources and confusion? There was none. More specific are the words of the order it passed,
“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. 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 whether the groups are local, regional or otherwise…”
One can again ask what was the basis of this conclusion that certain groups would be given priority while others would be pushed behind. The court did not cite one order substantiating its apprehension. So, all we can read in the proceedings and the order of the bench is its apprehension. Was it not then itself guilty of acting on the basis of perception?
It was not only Dushyant Dave who found the intervention of the Supreme Court wrong, a seasoned legal mind like Navroz Seervai questioned the move of the bench:
“The reason given, namely, “….that the distribution of these essential services must be done in an even handed manner according to the advice of the health authorities…” is absurd, given that it is acknowledged the world over that each state, each city, each district grappling with this virulent pandemic have their own peculiarities which have to be taken into account.
From a medical and scientific point of view, therefore, the pandemic can best be tackled locally and not at a “national” level. And did the court even pause to consider: advice of which health authorities? State government’s health authorities, or only the Central government’s health authorities, or both? It is obvious to a person of simple intelligence that the Supreme Court’s order will only increase the prevailing panic and confusion and make confusion worse confounded.”
The assertion of the bench that it was moved by the plight of people is a bit rich. As Dushyant Dave rightly reminded the judges, the Supreme Court had missed the chance to act when it was most needed and there was a request before it to do so.
Last year, SC refused to push for ‘national plan’
The court has spoken about a national plan for dealing with various services needed at this time. Sadly, there has to date been no formulation of a Disaster Management Plan under Section 11 of the Disaster Management Act. If such a plan to deal with a pandemic-induced disaster had been conceived, prepared and executed, the country would not have been facing the problem it is facing today and citizens would not have been dying and suffering as they are.
Last year, WP(C) No. 546 of 2020 was filed, inter-alia seeking the following prayer:
“Issue a writ, order or direction to the Union of India to prepare, notify and implement a National Plan under Section 11 read with Section 10 of the Disaster Management Act, 2005 to deal with the ongoing COVID-19 pandemic.”
In response to this, the Central government filed an affidavit seeking to rely upon the National Plan 2019 to rebut the contention and refused to have any fresh plan despite the fact that sub-section 4 of Section 11 commands that “National Disaster Plan shall be reviewed and updated annually”.
A cursory glance through the National Plan 2019 would demonstrate how insufficient and inadequate it is to fight COVID-19. Nevertheless, the Supreme Court dismissed that writ petition and thus ended its jurisdiction to intervene in the matter.
So, is it wrong to conclude as Dave does that “… the order passed yesterday once again directed the Central government to place before the court a National Plan to deal with “services and supplies during pandemic”. The court had [already] missed the opportunity to set things right and direct the government on the right course of action as commanded by the statute to save lives and ensure the well-being and welfare of the citizens at large”.
This pandemic is a continuum. What we are facing today is not a natural calamity. Experts had been warning about this more lethal phase. But the Central government and many state governments had already declared victory.
Migrant workers abandoned
The past record of the Supreme Court in the matter of pandemic is not very inspiring. It should recall its words throwing out the petition which had requested a comprehensive plan to support the stranded migrant labour. The same solicitor general claimed that there was not one migrant worker on the road. And the court, again under the leadership of Justice Bobde, had happily accepted his assertion. It noted,
“The Solicitor General of India made a statement on instructions that at 11 A.M. today, there is no person walking on the roads in an attempt to reach his/her home towns/villages….The Solicitor General of India has also referred to the Status Report to make a submission that the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media. The Status Report refers to an advisory given by the Government of India on 24.03.2020 to the authorities to effectively deal with rumour mongering.”
The Justice Bobde-led bench concurred with the solicitor general that the talk of walking migrant labour was a figment of the imagination of some mischievous minds. It in fact noted,
“Section 54 of the Disaster Management Act, 2005 provides for punishment to a person who makes or circulates a false alarm or warning as to disaster or its severity or magnitude, leading to panic. Such person shall be punished with imprisonment which may extend to one year or with fine.”
Even when the court was dictating this order, people were walking, falling on the roads and dying. But according to the court, all this was a rumour.
Dave is not wrong when he says that the court has missed all opportunities to give direction to the government. Instead, it has gone out of its way to keep the government safe from the demands of the people by delegitimising them.
A disturbing pattern
This sad state of affairs did not start with its most recent intervention. Mihir Desai says that the apathy of the Supreme Court towards the rights of the people and its propensity to be seen and trusted as a friend of the executive follows a pattern:
“The refusal of the Supreme Court to exercise [its] power of judicial review in effective ways is not something which started with COVID 19 litigation. It has only become stark in recent times. Nobody was asking for the lockdown to be lifted; nobody was asking for the curtailments of civil liberties to be altogether removed; nobody was asking the Supreme Court to play doctor. The petitions were filed essentially for the poorest of the poor who were dying by the hundreds not because of COVID but because of the job losses, because of complete lack of food, because of complete lack of planning for ensuring livelihoods during the lockdown. Undoubtedly, this was an unprecedented situation in which the government had to be allowed a certain freedom to act as it saw fit. But to completely abdicate its responsibilities towards the poor was something shocking.”
The high courts, as at the time of the 1975-77 emergency, have shown much more enterprise and courage. Of course, not all high court judges have responded with the same activism, and there are many judgments of many high courts that essentially follow the pattern set by the Supreme Court.
The Supreme Court’s role in respect of the Kashmir crisis or in dealing with NRC/ CAA, or the recent Delhi riots was clearly indicative of the times to come. It is not the case that in earlier years the Supreme Court has consistently been pro-people.
In every decade there have been many judgments which cast a shadow on the Supreme Court’s functioning. Whether it was the Bhopal disaster or the issue of Narmada oustees; whether it was the retreat on labour jurisprudence in the 1990s or the constitutionality of TADA, POTA and AFSPA or its continuing mandamus in Assam NRC; whether it was the demolition of the Babri Masjid and its aftermath or its ‘Hindutva is a way of life‘ judgment; the Supreme Court’s role has come into question from time to time.
Possibly, however, COVID-19 is the darkest phase in the history of the Supreme Court when it abdicated its responsibility towards hundreds of millions of destitute and marginalised people and this record will take some beating in the decades to come.
The Supreme Court might have reasons to act the way it has done. But its inability to come to the aid of the suffering masses and ensure humane justice should not become an excuse for preventing the high courts – which still have some drops of humanity and compassion left – from providing justice.
Apoorvanand teaches at Delhi University.