"What absolute nonsense is going on here."
"We will hang anyone who is found obstructing Oxygen supply."
"This is a criminal act, it is no less than a genocide"
"We are doomed."
"The system has failed."
Statements like these are not ones that you'd come across commonly, let alone hear them from Courts; judges are usually perceived as calm and composed. While some legal experts are in favour of such judicial intervention, some argue that Courts should not interfere in matters of policy. So, what is happening and, who is right?
Before proceeding further, let us have a look at the Doctrine of Separation of Power (trias politica) in reference to the Indian Constitution.
As the term itself suggests, it basically emphasizes on the need of separation of responsibilities and powers between the three pillars of democracy in every nation: the Legislative, Executive and, the Judiciary.
Constitutional History reveals that the Constituent Assembly had no sympathy with this doctrine. The framers of our Constitution had dwelt at length for incorporating this doctrine and ultimately rejected the idea in toto (as a whole).
However, interestingly enough, in the landmark judgement of Keshavananda Bharti vs. Union of India, the Supreme Court added the Doctrine of Separation of Powers as a basic feature of the Indian Constitution. But, despite this, as envisaged by the framers of our Constitution, the idea has not been applied rigidly in India. The judiciary still enjoys an upper hand and, is often called in to look into matters of public interest even though the said issues might lie in the domain of the Executive.
One such issue, which has taken the spotlight is COVID-19. We are in the midst of an unprecedented medical crisis and, there is no sugar coating it. Both the Centre and the State Governments have failed, horribly.
In these times, High Courts across the country have risen to the occasion.
More than 15 High Courts across the country have taken stock of the countless issues piling up, ranging from shortage of essentials to pulling up the Election Commission, the judiciary has come as a beacon of hope in the otherwise bleak times.
The Madras HC went on to say that the Election Commission officials “should be booked for murder” and, also asked the State and the Central Government to file an affidavit about their plans for the third wave and, asked them to stay “over-prepared”.
The Allahabad HC, a High Court that has always enjoyed public confidence asked the Government to increase the compensation being awarded to the polling officials and, also directed the formation of a three-member Pandemic Public Grievance Committee in every district to look into the difficulties faced by the public.
“Enforce lockdown or we will order it.”
- following these remarks by the Patna HC, the Bihar Government imposed a 11 day lockdown. Hospital after hospital has moved before the Delhi HC when they faced a shortage of Oxygen. The Court acted as a bridge between all the stakeholders but, at the same time did not mince words in expressing its strongest displeasure at the state of affairs. High Court after High Court, be it the Gujarat HC asking the Government to not hide COVID data or, the Karnataka HC asking the State Government why are politicians not penalized for not wearing masks, it is the judiciary which has listened to problems of the citizens.
The Supreme Court, although started off on the wrong foot, has now taken a front seat in the fight against the virus. It issued a number of interim directions including raising crucial questions on the vaccination program and, also set up a National Task Force comprising an army of experts to decide on the Oxygen allocation. However, in some cases, the Executive has not reacted in a very accommodating manner. The UP Government openly refused to abide by the orders of the Hon’ble Allahabad HC which had directed a lockdown in 5 cities. The Central Government it its latest 218-page affidavit in the Apex Court pushed back against the judicial interference and, went on to say that “overzealous judicial intervention will lead to unforeseen and unintended consequences.”
The Government asked the Supreme Court to “trust the wisdom of the executive” but, fact is that Social Media has become National COVID Helpline and, you tell us that PM CARES?
In fact, the Parliamentary Standing Committee on Health and Family Welfare in November 2020 had highlighted a number of concerns including glaring loopholes in the Oxygen distribution and had given a set of recommendations to avoid potential dangers associated with a second wave. However, the Government did not act on even a single recommendation of the Committee.
Had our Constitutional Courts stepped in at that time and had asked the Government to implement the recommendations of the Committee, we would not have been in such dire straits. This indicates the importance of judicial intervention and, the dangers of “having faith in executive policy”. Our Constitution does not embody any formalistic and dogmatic division of powers. Courts are under the obligation to protect the Right to Life as guaranteed under Article 21 and, therefore the Executive is duty bound to answer questions, however tough they may be before Constitutional Courts because the fact is that judicial empathy is not overreach, it’s just outreach.
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