Madras High Court
Madras High Court

The Madras high court toned down its order against the Election Commission (EC) after its oral observations that the latter should probably be booked for murder due to the outbreak of Covid-19 cases, which was published prominently on the front pages of all national newspapers. Earlier, the high court said the EC was “the only institution responsible for the situation in which we are today”.

These remarks predictably provoked outrage among some do-gooders who wanted the Supreme Court to strike out these remarks. But coming in the wake of similar remarks made by the Calcutta high court, the three high courts of Calcutta, Madras, and Delhi are at long last discharging their duty towards the people.

The 47th CJI Sharad Bobde who just retired, made it clear last year that the government had the resources and the wisdom to tackle the Covid-19 crisis, which was why the judiciary should not interfere.

Oral observations

As oral observations cannot be enforced, the Supreme Court cannot do anything. The Madras high court’s scathing observations came four days after the Calcutta high court censured the EC for not doing enough to ensure all political parties observed the Covid-19 protocols amid the surging second wave of Covid deaths in West Bengal. “You have been singularly lacking any kind of exercise or authority. You have not taken measures against political parties holding rallies despite every order of this high court saying: “Maintain Covid protocol, maintain Covid protocol,” the Madras high court said.

“You should be put up (sic) on murder charges probably,” remarked a division bench of Chief Justice Sanjib Banerjee and Senthilkumar Ramamoorthy. Of course, the EC has now told the media it had earlier told the Madras high court that according to the Covid-19 rules notified under the Disaster Management Act, 2005, the State Disaster Management Authority (SDMA) was responsible to ensure the rules are followed. “The EC has always emphasised in its order on August 21, 2020, and all subsequent instructions, the state authorities shall ensure Covid compliance during campaigning,” it told the high court, according to an official who did not want to be named.

But that is passing the buck, which is why senior advocate Dushyant Dave severely criticised retired CJI Sharad Bobde for allegedly shirking his duty towards the migrants who were forced to walk long distances to their villages with some of them probably dying on the roads.

Oxygen shortage in Delhi

Coming in the wake of the Madras high court’s observations against the EC, the Delhi high court directed the NCT government in Delhi to file a report with regards to the deaths that had taken place at hospitals and nursing homes due to lack of oxygen. A plea stating the Covid-19 situation had worsened due to shortage of medical oxygen in Delhi was filed in the Delhi high court.

The Delhi high court said the NCT government had to formulate a plan to distribute oxygen cylinders in the national capital. On April 27, the judges noted the alarming rise in prices of cylinders due to COVID-19. The Court directed the Delhi government to make an inventory from all pharmacies on their stocks of Remdesivir, Dexamethasone and Fabiflu, due to a shortage of medicines. This in effect, means the three high courts of Calcutta, Madras and Delhi did not adhere to the so-called wisdom of the former CJI Sharad Bobde to let the government decide how to tackle the pandemic.

Senior advocate Dushyant Dave’s remarks against former CJI Sharad Bobde were strong enough to provoke the latter to remark, the lawyer was “imputing motives to us without reading our order. We did not prohibit the high courts from entertaining writ petitions seeking relief in their own jurisdictions,” CJI Bobde remarked in open court. The point here is that like the media, the courts are supposed to protect the people against government negligence and apathy. But when a few Supreme Court judges openly declare their admiration for the Prime Minister, whether they will pass orders against the government leaves room for suspicion.

HCs take the lead

Justice Arun Mishra, who openly called the Prime Minister “a visionary who thinks globally but acts locally” has till date allegedly not vacated his official bungalow due to deaths in his family. Justice Mishra openly enjoys government hospitality by violating the very rules he was supposed to uphold while in office. So, we are forced to accept a situation where the courts which earlier abdicated their responsibility towards the citizens are now beginning to assert themselves with the Calcutta, Madras and Delhi high courts taking the lead.

Madras High Court Chief Justice Sanjib Banerjee spoke bluntly in court but behaved tamely while dictating his order. The EC could have banned political rallies or postponed the elections in West Bengal, Assam, Kerala and elsewhere because the right to life overrides the right to elect a government. The EC could also have held all the elections on just one date throughout the country. But, like the Supreme Court, the EC has been accused of being subservient to the government, which is what iconoclast lawyers like Dushyant Dave and Prashant Bhushan, allege in their stinging interviews to the media.

Whether the Supreme Court will do justice to ensure the government comes out with a plan under the Disaster Management Act, 2005, to double production of vaccines, remains to be seen. There is no doubt demand exceeds the production capacity, which was why the EC had to ban political rallies or ensure only virtual meetings were held.

The dead can no longer cry out for justice which is subverted by those Constitutional authorities like the Election Commission which deserves its admonition. The Uttarakhand chief minister, Tirath Singh Rawat, who often puts his foot in his mouth, knows this very well.

The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay high court.

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