FROM ancient times, courts have been at loggerheads with executive power. It continues in modern times. Right now, India is undergoing a trial of strength between ministers and judges. It is the governments’ (central and in the states) duty to protect citizens from Covid-19. India has a written constitution with a chapter on fundamental rights which are enforceable by the supreme court, and the high court in the states. It also has a chapter on ‘Directive Principles of State Policy’ which are not enforceable by the courts. But here comes the rub. The courts can use them in interpreting laws as well as executive actions. Additionally, the courts have expanded their own powers by invoking legal doctrines.

Covid-19 has brought matters to a head. The right to life is a fundamental right and so, relatedly, is the right to health. Any wonder that the government and the judges are at loggerheads both in the supreme court and in the high courts?

A brief summary shows how things have progressed. Let us begin from April 20, 2021.

The government and courts are at loggerheads.

The supreme court stayed the Allahabad High Court’s order directing the UP government headed by the maverick Yogi Adityanath, dressed in saffron robes and spouting archaic views, to impose strict restrictions until April 26 in five cities due to the surge in Covid-19 cases. Was this a case of judicial discretion overriding executive discretion? The supreme court held that “to lock down five cities by judicial order may not be the right approach”. But it also struck a balance. “However the petitioner state government shall immediately report to the high court about the steps it has taken and proposes to take in the immediate future, within a period of one week, in view of the current pandemic”.

On April 21, the Delhi High Court came down on the centre saying that it seemed that ”human lives are not that important for the state”, adding “beg, borrow or steal, it is a national emergency”. It is not so much the court’s orders as the remarks which judges made which hurt ministers. The judges’ remarks are set out in extenso to bring home to the reader why they cause consternation and even offence:

The court said: “As a state you cannot say that look we can provide this much and no more, so if people die, let them die. That cannot be acceptable and that cannot be an answer of the sovereign state. We will have to enforce the fundamental rights of people and direct beg, borrow and steal and do whatever you have to do but you have to do. We cannot see people dying because people are dying.”

It stated, “We are telling you that as a sovereign state, it is your responsibility to provide every metric tonne of oxygen that is required by patients in India. It is your responsibility. You cannot turn around and say ‘sorry, we do not have it, lose your life’. We cannot accept that.”

The supreme court was perfectly justified when it said on April 22, that there was “almost a national emergency”. It was also justified in holding that in a country of India’s size, rulings by high courts can create some confusion. From this it followed logically enough that there was need for “a national plan”.

However, the limit was reached on April 26 when a bench of the Madras High Court censured the election commission rightly for its lapse but wrongly for its own intemperate language. It came down heavily on the commission for “not stopping political parties” from violating Covid protocols during their campaign rallies for assembly polls in four states and a Union Territory over the last month. It said that murder charges should probably be imposed on the panel for being “the only institution responsible for the situation that we are in today”.

The next day, April 27, the supreme court itself said, “We cannot remain a mute spectator in the times of a national crisis,” as it sought details of availability of medical oxygen, supply of essential medicines, ramping up of critical medical infrastructure, and the rationale of vaccine pricing from the central government to assess its readiness.

This is called judicial activism. Come May 6, the court set up a 12-member task after the government accepted the idea. But much worse lay in store when the central government asked the apex court to “trust the executive”. “In the context of a global pandemic ... there is little room for judicial interference. Any overzealous, though well-meaning, judicial intervention may lead to unforeseen and unintended consequences, in the absence of any expert advice or administrative experience, leaving the doctors, scientists, experts and executive very little room to find innovative solutions on the go.

“In times of such grave and unprecedented crisis ... the executive functioning of the government needs the discretion to formulate policy in the larger interest ... the wisdom of the executive should be trusted... .”

The wider issue of the range of judicial review deserves a fuller examination.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, May 22nd, 2021