Arbitrary and irrational -- strong words for the Supreme Court to use about the Narendra Modi government’s vaccine policy. The judges not only sought detailed information in the form of an affidavit on the government’s plan for procurement and distribution of vaccines, they also asserted that “our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies. Responding to the government’s earlier affidavit asking the court to trust the wisdom of the executive and leave policy decisions to them, the honourable judges also said that “judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform”.
The government has blotted its copybook so badly that the plea to the Supreme Court to trust its wisdom sounds ludicrous. There will be no purpose of the judiciary -- high courts or Supreme Court – if they refuse to intervene to provide whatever little relief they can, in this unprecedented humanitarian crisis. The government could have done better to summon all its resources and will to put its best foot forward in fighting this pandemic, instead of attracting charges of abdication of duty when people were dying without oxygen and medicine. But for the still, small voice of conscience coming from the judiciary and a small section of media, the situation would have been worse than what it is today.
The question is not whether the judiciary is encroaching upon the executive’s domain, the question is whether the judiciary is serious enough to enforce accountability upon the government or not. The Delhi high court has gone so far as to declare that some people need to be ‘charged with manslaughter’ for sitting on the ‘untapped potential’ of vaccine manufacturing. The question, indeed, is whether this is a mere change of tune, or a change of heart, in the judiciary? After all, there are tell-tale signs of many judges acting against their better judgment in the recent past.
The same Supreme Court meekly accepted Solicitor General Tushar Mehta’s false claim during the lockdown last year that nobody was on the road, when the sorry spectacle of thousands of people – carrying their children and luggage on their heads -- walking hundreds of miles to reach home was flooding the media. Every schoolkid knew the CAG (Comptroller & Auditor General of India) had not examined the Rafale deal but the Supreme Court quietly accepted the government’s submission that its report was assessed even by the Parliament’s Public Accounts Committee (PAC). How the Supreme Court dealt with an inhumane clampdown on Kashmir, and the habeas corpus petitions, is deeply embedded in public memory. While a frustrated opposition moved an impeachment motion against a former Chief Justice of India, senior members of the bar publicly raised questions about the conduct of two other Chief Justices.
Now, amidst such a ruinous tragedy when horrific scenes were witnessed outside hospitals and crematoriums, when bodies were found floating in the Ganga and buried in sand, the judges couldn’t have restrained expressing moral outrage. While the strong words gave good publicity to individual judges, it also helped in redeeming the image of the judiciary. But it is to be seen whether the critical observations are followed by sound legal consequences for those responsible for the crisis.
Common-sensical rhetoric doubtless isn’t enough to change the ground reality. There have been several instances of judges making the right noises without giving the right judgments in the past. Strong words have been used by high courts of Delhi, Allahabad and Gujarat while dealing with various aspects of Covid management, creating hopes of a strong judiciary emerging after a disappointing phase but the scene is not as clear as crystal. Activists are languishing in jail, students are struggling with blatantly false charges and state governments have escaped the clutches of the law despite adopting a grossly unconstitutional approach.
The haze will lift only after pro-people judgments are delivered and erring governments are held accountable. Courts may not have to slap ‘manslaughter’ charges on bureaucrats and politicians but they have to ensure effective policies for vaccination and fix accountability for lapses. The perverse idea that the judiciary should work in tandem with the executive must be abandoned. The judiciary has to act in tandem with the Constitutional scheme and the larger public good. The judiciary has to trust its own wisdom, not the executive’s. They are supposed to be in quest of truth, not in pursuit of harmony with power.