New Delhi: Last Friday, the Supreme Court advised high courts across the country to avoid passing unimplementable orders related to Covid-19 management. This advice came after several high courts, over the past two months, jolted their respective state governments and even the central government into action, influencing policy decisions related to vaccinations, allocation of liquid medical oxygen, bed availability and availability of reliable data.
The apex court’s observation came on the Centre’s appeal against an Allahabad High Court order passed on 17 May, which suggested several measures for the development of medical infrastructure in the state and observed that the entire healthcare system in villages and small cities of the state was ‘Ram bharose’ (at God’s mercy).
While the Supreme Court bench, comprising Justice Vineet Saran and Justice B.R. Gavai, in its order, appreciated the efforts of various high courts in taking up matters related to the management of the coronavirus pandemic, it added that “sometimes unwittingly, the courts overstep and pass certain orders which may not be capable of being implemented”.
Staying the Allahabad High Court order, the apex court then asserted that “the high court should normally consider the possibility of the implementation of the directions given by it, and such directions which are incapable of being implemented should be avoided”.
However, several orders and suggestions given by the high courts have been implemented by state governments, including those passed by the high courts of Delhi, Karnataka, Patna, Madras, Chhattisgarh, Gujarat, Calcutta, Bombay and Jharkhand.
In fact, except for two orders passed by the Allahabad HC, Covid-related orders passed by the others have been upheld by the Supreme Court.
Delhi HC’s contempt warning
One of the first of such orders was issued by the Delhi High Court, which has been monitoring the situation in the national capital on a daily basis.
On 29 April, the HC asked the central government to explain why several states like Madhya Pradesh and Maharashtra were allocated more liquid oxygen than they asked for, while Delhi was allocated “far less than its requirement” — 490 metric tonnes (MT) as against a demand of 700 MT.
On 1 May, the Delhi HC even issued a contempt warning to the central government, asking it to make sure that Delhi is supplied its allocated 490 MT liquid medical oxygen on a daily basis, by whatever means necessary. The same day, with mounting pressure from the high court, the oxygen supply to Delhi was increased from 490 MT to 590 MT.
However, the central government then filed an application to recall the 1 May order, following which the HC issued a show cause notice to the government on why contempt action should not be initiated against its officers. The Centre then appealed against this in the Supreme Court, which did stay the contempt notice, but reiterated that Delhi should be supplied 700 MT liquid oxygen.
It was also after a repeated push from the Delhi High Court that the central government finally began the process to fix the formula for pricing of oxygen concentrators.
Karnataka fought it out in SC
The Karnataka High Court began questioning the central government on the oxygen allocation made to the state on 29 April. Noting that the requirement of oxygen in Karnataka was 1,471 MT liquid medical oxygen per day, and it was allocated 802 MT, the court asked the central government to consider increasing the allocation, and take a decision by 3 May.
On 1 May, the allocation for Karnataka was increased marginally from 802 MT to 865 MT per day.
However, taking note of incidents of alleged oxygen shortage-related deaths across the state, the Karnataka HC went a step ahead on 5 May and directed the central government to increase the cap on supply of oxygen to 1,200 MT per day, as an interim measure, while also issuing a mandatory direction to reconsider the state’s demand in the meantime.
The central government moved the Supreme Court, which refused to stay the high court order on 7 May, calling it “a careful, calibrated and judicial exercise of power”.
A day later, on 8 May, the central government increased Karnataka’s allocation to 1,015 MT, with effect from 11 May. However, the state government has continued to allege that it has been receiving just 765 MT daily.
Beds, Covid deaths, vaccination policies
High court orders have not just influenced action on oxygen or drug shortages, but on state governments’ vaccination plans as well as Covid restrictions and preparedness in terms of number of beds, availability of important drugs and testing facilities.
For instance, after a Chhattisgarh High Court order, the state government had to change its vaccination plan for the fourth phase announced on 30 April.
The Bhupesh Baghel government divided those in the 18-44 age bracket for vaccinations into Antyodaya (ration) card holders, below-poverty-line (BPL) and above-poverty-line (APL) categories. While the state had initially planned to vaccinate Antyodaya card holders first, the HC on 4 May directed the state to include every qualifying individual in the immunisation drive, ruling that “financial status alone may not be correct or sustainable” way to decide on whom to vaccinate. Following this, the government divided one-third of available vaccine doses for each category.
On 15 April, the Patna High Court passed an order in a suo motu case, taking note of news reports of patients “running helter-skelter” to find beds in government and private hospitals. A day after this order, the Bihar government designated two more hospitals as Covid facilities. Then, last week, the Patna HC slammed glaring discrepancies in the number of deaths reported in Buxar by different official agencies, days after floating corpses washed up on the banks of the Ganga in the district bordering on Uttar Pradesh. The next day, the state government reportedly decided to re-verify the Covid deaths in Bihar during the 14-month pandemic period.
All four benches of the Bombay High Court — in Mumbai, Nagpur, Aurangabad and Goa — have been hearing petitions, suo motu and otherwise, on the Covid crisis in the states. Their orders have since impacted several policies, including the Nagpur district getting over 7,000 vials of remdesivir and a grievance committee being formed under the respective district collectors for securing and processing claims by eligible beneficiaries under the Mahatma Jyotirao Phule Jan Arogya Yojana (MPJAY) for Covid treatment — all after the HC pulled up the Maharashtra government.
And when the Jharkhand High Court reprimanded the state government for the slow pace of Covid tests, the state health department reportedly sent as many as 6,000 samples from Ranchi and other districts by air to a lab in Bhubaneshwar, Odisha, to clear the pending tests.
Lockdowns and bans on gatherings
Since April, high courts have also suggested measures and issued orders restricting gatherings.
On 22 April, the Calcutta High Court came down heavily on the Election Commission for not taking proper action against those who didn’t follow Covid-19 guidelines on polling days and in the election campaign in West Bengal. Hours later, the poll panel banned all roadshows, processions, and bike rallies in Bengal, finding severe violations of Covid-19 protocols in the events organised by the political parties.
The Madras High Court also made headlines on 26 April when it came down heavily on the Election Commission for allowing political rallies during the pandemic. It went to the extent of saying that the ECI is “singularly responsible for the second wave” and that its officers “should be booked on murder charges probably”.
A day after this, the ECI banned victory processions after the declaration of Assam, Tamil Nadu, Puducherry, West Bengal and Kerala election results on 2 May.
But at the same time, the ECI took the matter to the Supreme Court, bringing into question the Madras HC’s remarks as well as media reporting of oral remarks made by judges. The apex court, however, dismissed this plea, observing that constitutional bodies should do better than complain about the reporting of court proceedings. It also upheld the right of the media to report court proceedings on a real-time basis.
Last month, hours after the Gujarat High Court pulled up the state over the Covid-19 situation, the state government sprung into action and decided to ban all sorts of social, political and religious gatherings, including birthday parties, in public places.
However, an Allahabad High Court order imposing a near lockdown in five cities in Uttar Pradesh was stayed by the Supreme Court after the UP government said the order would create immense administrative difficulties, and that a lockdown by judicial order may not be the right approach.
(Edited by Shreyas Sharma)