COVID-19 and Courts Symposium: India: Covid-19, the Executive, and the Judiciary

Gautam Bhatia is a PhD scholar at the University of Oxford and an advocate in India. He is also a scholar of constitutional law, science-fiction author and Managing Editor of the Oxford Human Rights Hub.

This symposium consists of a series of blogs authored by the different panelists of a webinar hosted by the International Commission of Jurists titled “COVID-19 and Courts: A Global Trend of Judicial Deference?“

From the declaration of India’s first national lockdown, on 23 March 2020, India’s executive has taken a range of actions, purportedly to address the effects of the COVID-19 pandemic. Many of these actions – at both the central level, and at the level of India’s several states (the federal units) have been challenged in a variety of judicial forums.

In the interests of clarity, the period between March 23 2020, and the present day, can be divided into three parts: first, the lockdown itself, and its immediate impact; secondly, the handling of the “first wave” of the pandemic, from May to September of 2020; and thirdly, the handling of the “second wave”, which coincided with various controversies around India’s COVID-19 vaccine policy, between March 2021 and June 2021. This post looks at these three phases and assesses the intervention of Indian Courts to protect human rights and the rule of law in the context of the COVID-19 pandemic.

Lockdown: the Indian government’s initial response to COVID-19

To declare a stringent, nation-wide lockdown, with extensive restrictions on various personal liberties, the central government invoked the Disaster Management Act of 2005, a law that had been brought into place primarily to deal with localised natural disasters such as earthquakes or cyclones. Through widely worded omnibus clauses, India’s Disaster Management Act gives sweeping managerial powers to the executive to declare and address a “disaster”, with minimal parliamentary scrutiny.

Simultaneously – and in some occasions, even before March 23 – many state governments invoked the colonial-era Epidemic Diseases Act of 1897, which grants similarly sweeping powers to state governments. Using this law, these state governments declared containment zones (entire districts were sealed off and movement in and out was prohibited, put into place various surveillance measures (from the innocuous to the invasive), and imposed various restrictions (such as, for example, banning vehicular movement).

Both the Disaster Management Act at the central level, and the Epidemic Diseases Act at the state level, arguably undermine one of the central premises of parliamentary democracy –parliament makes laws, while the executive implements them. Through the omnibus clauses, and in the absence of parliamentary scrutiny, once the protective cover of these laws is invoked, they effectively authorise the executive to engage in law-making, over a sustained period of time (evidenced by the range of measures indicated above).

The most serious impact of the nationwide lockdown was what came to be known as the “migrant crisis” (the word “migrant” here refers to internal migration within India): with the forced closure of all shops and businesses, the large number of people who had migrated to India’s metropolises to work on (often) temporary and precarious projects, were left with no means of sustenance, and were obliged to trek back to their villages (as transport had also been suspended). The lockdown thus raised important questions under both domestic Indian law and international law. The primary issue was that of proportionality, which is a principle recognised both by the Indian Supreme Court, and international instruments such as the Siracusa Principles, requiring government restrictions on rights in the name of emergencies to be proportionate. Given that the complete lockdown (a) entirely wiped out the livelihoods of migrant labourers who could not, by definition, “work from home”; (b) had a disproportionate impact based on socio-economic circumstances (as migrant labourers are invariably from economically and socially under-privileged backgrounds); and (c) no measures were taken to alleviate the situation, either in terms of livelihood, or even in terms of providing migrant labourers transportation to return to their villages, there is a strong argument to be made that the national lockdown, as implemented, violated both domestic law and international law. How then did the Indian judiciary respond when faced with petitioners making allegations of this nature?

First Wave: Varied judicial responses

The plight of the migrants was brought to the Supreme Court through a public interest litigation process. However – and setting the tone for much of the pandemic – the Supreme Court refused to offer any substantive relief to petitioners, taking on faith, instead, the Solicitor-General’s demonstrably incorrect statement that “there were no migrants on the road”.

Widespread outrage forced the Court to take up the case again a short while later, but again, no substantive relief was forthcoming. Something similar happened in respect of legal challenges to the high prices that had been set for N95 masks and similar personal protective equipment: while in an initial hearing, the Court indicated that such equipment ought not to be charged for, it very soon took a U-turn on that decision, and the case died a quiet death.

Indeed, perhaps the only substantive intervention in Phase One or Phase Two from the Supreme Court came in September of 2020, where it struck down a state government’s attempts to roll back labour laws under cover of the pandemic. Throughout the first phase, thus, the Supreme Court – which has a historical reputation of being interventionist, especially on issues of governance – was almost entirely deferential to the government, an attitude summed up by the Chief Justice of India’s remark, during an interview, that the executive had the “3Ms” – money, men, and material – to handle the pandemic.

Despite the reticence of the Supreme Court, there were however a range of successful challenges to various state governments’ handling of the pandemic, brought before several High Courts. Perhaps the most notable was the Odisha High Court’s finding that the state government’s banning of even private vehicular traffic was irrational and discriminatory, and especially burdensome for persons with disabilities and women, who were not always in a position to safely walk to acquire basic necessities, such as groceries.

The High Courts of Bombay, Gujarat, and Karnataka engaged in what can be described as a “continuing mandamus”, or a “structural interdict”, exercising supervisory jurisdiction on a continuing basis, over executive action. The Karnataka High Court, for example, focused on the issue of stranded migrants, and directed – and then oversaw – the provision of transport for them to return to their villages; the Gujarat High Court issued a series of orders dealing public hospitals’ unpreparedness to deal with the pandemic, and requiring mitigation measures; and the Bombay High Court passed orders on a range of issues, from the right to a decent burial to price-gouging for essential medicines. Another example of judicial intervention, at the level of the High Courts, is the High Court of Kerala taking notice of various data protection issues with the Kerala government’s “Sprinklr App” (a software application to ostensibly detect COVID-19 transmission), following which the government withdrew from the contract. In this context, it is important to note that while India does not yet have a data protection legislation, core principles of data minimisation and purpose limitation have been read into the constitutional right to privacy by the Supreme Court.

Second Wave: judging the wake of health system failure

The somewhat unexpected retreat of COVID-19 in the winter of 2020 meant that many of these cases became infructuous, or went into limbo. In March 2021, however, India was hit by its “second wave”, and by what is now known as the “Delta variant” of COVID-19. India’s health infrastructure was entirely unprepared to deal with the scale of the second wave, leading to a situation where individuals had to arrange for emergency oxygen cylinders through social media platforms such as Twitter, on a nightly basis.

This dire situation soon led to a number of state High Courts stepping in, once again through continuing supervisory jurisdiction: most notably, the High Courts of Bombay and Delhi, two cities where the second wave was particularly virulent. The High Court of Delhi held daily hearings, adjudicating hospitals’ pleas for oxygen cylinders (often the hearings would take place when oxygen was on the verge of running out, and on more than one occasion, there were multiple deaths during or before a hearing). The constitutional framework within which the High Court did so was Article 21 of the Indian Constitution, which guarantees the right to life. Under Indian constitutional jurisprudence, the right to life has been read to impose positive obligations upon the State, as well as containing a range of ancillary guarantees, including the right to health.

In April 2021, the Supreme Court took cognisance of these issues, many of which had national implications. While indicating that it would not fetter the jurisdiction of the High Courts to deal with issues as and when they arose, the Supreme Court flagged for itself concerns around vaccine procurement and policy, the national allocation of oxygen, and the state of medical infrastructure. The Court initiated what it described as “dialogic judicial review”. Broadly, dialogic judicial review refers to a process by which the Court engages in “dialogue” with the other branches of State. The purpose of dialogic review is both to bring out information into the public domain that the government may be resisting releasing, and also to nudge government policy in a more rights-protective direction.

In the exercise of dialogic review, the Supreme Court began by posing various questions to the central government regarding its vaccine policy, seeking further information (which the government had been denying to citizens), and making prima facie observations of unconstitutionality (for example, on the central government’s policy of allocating fifty percent of the vaccine stocks to private hospitals, where patients would be charged for vaccination, and which was the only option before people between the ages of 18 to 45). The Court’s hearings contributed to at least one volte face from the central government, concerning making vaccines in public hospitals free for all age groups. At the time of writing, the second wave has receded somewhat, but the case before the Supreme Court continues to be in progress.

Judicial deference: will the Indian Supreme Court intervene more strongly over time? 

In sum: India’s experience with COVID-19 has been through the prism of executive decrees: from the time it first invoked the Disaster Management Act, pandemic management has been almost entirely through executive orders. Barring certain exceptions, and more so in the pandemic’s initial stages than now, the judicial response has been muted and deferential. Almost no measure of the central government, from the time of the imposition of the first lockdown, has actually been struck down as unconstitutional; and – barring its judgment in the labour rights case – the Supreme Court is yet to subject State action to the rigorous proportionality standard. Overall, I would argue that at least in the first two phases – before its orders in the vaccination policy hearings – the Court was excessively deferential, refraining from applying even the basic proportionality standard in assessing the government’s actions.

As far as the present phase goes, and in advance of the inevitable third wave, it remains to be seen which direction the ongoing dialogic review will take the Court and the executive. This is especially because in the proceedings concerning vaccination policy, the Supreme Court interestingly openly stated that in the initial stages of the pandemic, it was granting the government greater leeway to react to the situation as it evolved, warning that as time goes by, judicial review would potentially be exercised in a more rigorous fashion.

[Comprehensive coverage of judicial responses to Covid-19 in India can be accessed at the Indian Constitutional Law and Philosophy blog, edited by the author.]