Court off-balance
THE WEEK|May 23, 2021
While courts have had to step in to fill the vacuum left by the executive, not every order has helped pandemic management
REKHA DIXIT

Any overzealous, though well-meaning, judicial intervention may lead to unforeseen and unin-tended consequences...” This was part of the Centre’s recent submission to the Supreme Court when it was asked about the differential vaccination policy across age groups in the country. As the second wave of the pandemic raged across India, and caught the executive with its pants down, the judiciary stepped into the vacuum. The apex court and several High Courts have been passing orders to ensure better management of the pandemic. Whether it is vaccination or bed allocation, availability of oxygen or the drug tocilizumab, some judge has passed a stricture, told an authority to “beg, borrow, steal” or pulled up those incharge for contempt.

Here is a sampling of what has been happening across virtual courtrooms over the past few weeks: The Allahabad High Court asked the Uttar Pradesh government to fix a “minimum” ex gratia of ₹1 crore for every official who succumbed to the pandemic because of panchayat election duty; the ₹30 lakh the state government had announced was too little. The Kerala High Court ordered a ceiling on charges in private hospitals for Covid-19 treatment. The Delhi High Court has been almost micromanaging pandemic management, fixing oxygen quota and distribution. It even issued a contempt notice to the Centre on the oxygen issue, which the Supreme Court dismissed. The Uttarakhand High Court pulled up the state government for allowing the Kumbh Mela to go ahead against scientific advice, and then, for not following standard operating procedures.

The mountain of public interest litigations also points to administrative lapses at the government level, leading to injustices, said Ranbir Singh, former vice chancellor of the National Law University.

The courts’ intervention began as a response to an immediate problem. Over time, however, the courts have found themselves in territory where they have neither scientific nor administrative expertise. As one lawyer said, there was a situation where lawyers, and not medical experts, were comparing the benefits of dexamethasone over remdesivir.

So, has the judiciary waded deep into a mire that even medical and administrative experts are wary of?

When it came to the distribution of vaccines, the Centre finally made a stern submission: “In the context of a global pandemic, where the response and strategy of the nation are completely driven by expert medical and scientific opinion, there is even little room for judicial interference.”

It added that, in the absence of administrative experience or expert advice, such interference could leave the doctors, scientists, experts and executive little room to find innovative solutions on the go.

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