New Delhi: Last Friday, 22 May, the Gujarat High Court made headlines with a strongly worded order that came down heavily on the state government for the condition of the “dungeon-like” Civil Hospital in Ahmedabad.
However, this wasn’t the first time since the Covid-19 crisis struck India over two months ago that the Gujarat High Court has taken to task the state government, the central government or private hospitals — it has actually issued 11 orders related to the novel coronavirus so far.
It was the first high court to take suo motu cognisance of the “precautionary measures in the wake of the pandemic of coronavirus (Covid-19)”, on 13 March, even before the first case was detected in the state. The case has since then been listed on the top of the board of priority for the court.
A bench comprising Chief Justice Vikram Nath and Justice Ashutosh J. Shastri initiated the petition, and has issued eight orders, granting an entire spectrum of relief for various classes of individuals. Another bench, comprising Justice J.B. Pardiwala and Justice Ilesh J. Vora, has issued three orders.
Behind these 11 orders, the high court has taken under consideration several newspaper articles and other reports, over 15 PILs, 10 applications and even an anonymous letter.
From court security to larger issues
The Gujarat High Court’s orders on Covid-19 actually began with directions on the precautions to be taken in the court premises. The first order in the suo motu PIL directed the usage of temperature guns at the court entrance, and sanitisation of the court premises.
The court also ordered that public gatherings be avoided, and accordingly, issued broad guidelines on its functioning as well.
But over the next few orders, the court issued a slew of directions on larger issues —appropriate equipment for healthcare professionals, requisition of private hospitals for treating Covid-19 patients, procurement of more testing kits, testing of healthcare workers, establishment of a Covid-19 control centre, and payment of one-way train fare for migrant labourers.
In an order passed on 14 May, the court asserted that the Covid-19 outbreak is a “critical war-like situation” and not a time to do business to earn profit, and directed the state government to regulate the “exorbitant fee” being charged by private hospitals treating coronavirus patients.
The court had said it would take appropriate legal action, including cancellation of licence, if the hospitals “did not budge” and continued to “demand exorbitant amounts” despite a state directive.
In the order passed last Friday, the court also pulled up private hospitals which had not begun treating Covid-19 patients, despite an understanding with the state government. It went to the extent of asking the government to initiate criminal action against such hospitals under provisions of the Indian Penal Code and the Disaster Management Act.
Additionally, several reports were filed with the high court over the hearings, including from Gujarat’s food, civil supplies and consumer affairs department, the health and family welfare department, and the Gujarat State Legal Services Authority.
Multiple PILs and applications
In the meantime, different people have filed over 15 PILs and 10 applications in the Gujarat High Court, seeking a range of measures, including free Covid-19 tests and treatment, cooked meals for the homeless, essentials for senior citizens, a month’s ration to everybody, tests for jail inmates, PPEs for healthcare workers, release of vehicles seized during the lockdown, basic amenities for widows and orphans, food security, sanitation, and extension of time for payment of insurance premiums.
All these PILs were heard along with the court’s suo motu petition, with the court demanding answers from the state government almost every 10 days, and pulling it up if it found lapses.
However, on 3 April, the court warned against PILs found to be “motivated or sponsored or for personal gains for popularity or any vested interest, or frivolous”. It asserted that in such a time of crisis, NGOs and social activists should “do hand-holding with the government” instead of filing multiple PILs.
Most of these petitions and applications were disposed of on 17 April, after the court said that these were not adversarial in nature and merely highlighted certain concerns.
“The concerns so expressed have reached the state and the Centre. In most of the cases they have been redressed and in some they are in the process of being redressed,” it observed, saying their purpose had been served.
Since March, the Gujarat High Court has also kept a close watch on news reports on Covid-19, actively taking cognisance of articles.
One of the first such orders was passed on 1 April, when the court took note of newspaper articles on the Tablighi Jamaat congregation in Delhi, which emerged as a Covid-19 hotspot. While the case was actually to be heard on 3 April, the court brought the hearing forward, in view of news reports on the issue.
It sought answers from the top law officers of the state government as well as the central government, and directed the latter to provide it a list of all the Tablighis who had entered the state of Gujarat, with details on their nationality and visas. This information was to be provided in a sealed cover.
This was followed by a warning that the court will take “coercive measures” if the reports submitted by the government are “not found to be satisfactory”.
On 11 May, it took note of two Ahmedabad Mirror articles and two Indian Express articles.
One of these spoke of the inability of non-Covid-19 patients to get medical services because of the lockdown; another highlighted the plight of daily wage earners, claiming that they hadn’t eaten for several days. The third article was about migrant workers having to wait for 19 hours to board a train to UP, while the fourth was on Gujarat’s Director General of Police asking migrant workers to be stopped from walking and to be taken to shelters.
The court asked the state government to come up with “concrete plans” to help migrant workers, saying the poor are “not afraid” of Covid-19 but “are afraid that they would die due to starvation”.
In last Friday’s order, the court even took note of an anonymous letter sent to it by a 25-year-old resident doctor serving at the Ahmedabad Civil Hospital.
Acknowledging that ordinarily it does not take cognisance of such anonymous letters, the court said that “the situation is so grave that we should not ignore the contents of the letter”, and that it is “very disturbing”.
The author of the letter claimed to have tested Covid-19 positive on 2 May, but tested negative after isolating himself for five days. He claimed in the letter that despite he and a few others testing positive, their contacts weren’t traced, and they were instead “criticised” for getting their tests done.
It also highlighted several instances of mismanagement in the functioning of the Civil Hospital, including absence of PPE kits, N-95 masks and proper gloves for doctors. It said that normal patients in the hospital are testing Covid-19 positive after staying for two days in non-Covid-19 wards.
The anonymous doctor then claimed that if the situation remains the same, “doctors working here will be super spreaders of Covid-19”.
The same day, the court it also took note of a report made by a “responsible medical officer” of the Civil Hospital in Ahmedabad.
This report spoke about the grievances voiced at the Covid-19 hospitals in Ahmedabad, the current practices, and the possible solutions.
The court, however, clarified that it was not aware of the authenticity of this report, and appointed a team of three senior medical officers to look into this and revert.
Essential orders or judicial overreach?
Ever since the India-wide lockdown was imposed to curb the spread of Covid-19, the Supreme Court and the high courts have been flooded with PILs seeking different measures.
While the Supreme Court has largely advocated leaving it to the Executive to deal with the concerns, several high courts have not just taken suo motu cognisance of certain issues but also entertained PILs — on subjects ranging from the number of days a person can be quarantined for to ordering Covid-19 tests on dead bodies.
This, however, has fuelled the age-old debate on whether the judiciary is encroaching on the executive domain.
Senior advocate Rakesh Dwivedi said “courts have little experience or capacity to deal with tackling of Covid-19 problems”, but said their interference on behalf of migrant labourers is justified.
“They (courts) don’t interfere where they should, and want to interfere in areas which they have no control over,” Dwivedi said.
“We can’t generally say that the court should keep out, but each aspect of the orders needs to be examined individually to see if it is judicial overreach or not,” he asserted.
However, senior advocate Dushyant Dave lauded the Gujarat High Court for being proactive.
“Constitutional courts have to pass orders. They have to do it. They can’t shirk their responsibilities and I think the orders were passed in the right spirit,” Dave said.
“The Gujarat High Court should be commended for the orders. It is a good pointer to the Supreme Court, which has failed to pass any orders whatsoever,” the senior advocate continued.
“They (courts) actually have a duty. Ultimately, if the constitutional court does not discharge its duty to oversee the actions and inactions of the government on the touchstone of Article 14 for arbitrariness, then who will?” he asked.