It's been more than a year since the first case of COVID-19 was reported in India but as per the prevailing outcry in the whole country it seems that government has not just only failed in insuring necessary medical aid to the citizens of this nation but has also failed in understanding and examining the gravity of this pandemic and how much loss it can cause to one's life.
The government may become a mute spectator in such critical situation but it is not the case of Indian judicial system.

Till now 11 High Court have reacted on mismanagement being caused during the on-going second wave of COVID-19 in a very strict manner, some High Court have even gone to the extent of warning the responsible officers of Union Government and State Government to insure the necessary medical facility in their respective territorial jurisdiction otherwise the Court will act like never before and put such officers behind the bars.

Though the Indian judicial system has acted in a very assertive manner but such directions and orders are always a dead letter till they are not being executed at root level, and this is what is happening in current scenario. Hon'ble High Court may direct the State authority to insure the regular supply of medical oxygen in every hospital of district or may direct to insure the uninterrupted supply of medication like Remedesivir injection, Tocilizumab or Favipiravir but what will happen if the executing authority refuses to comply such order?

And the responsible officers does such dereliction of his duty during the time of such a undeclared medical emergency situation, where lacks of lives are dependent on the government machinery?

However, as it has rightly been said that at several occasions, attaining a decree only proves to be less than half the battle won. Execution of court decrees is not an unchartered territory which has not had its fair share of controversy under law. A decree is precisely the trophy that a claimant litigant eyes at the time of approaching a court of law.

The troubles faced by a decree holder, in bearing the fruits of long-fought justice, due to inordinate delay in execution of decree/order is not a new issue faced by them. In this pandemic even after getting a judicial order for insuring right to health it serves for no value as the executing authority's are sitting hand on hand without any fear of law.

In the case of Ram Jawaya Kapur v. State of Punjab[1]it was held that it is not possible to frame an exhaustive definition of executive functions. Ordinarily the executive power connotes the residue of governmental functions that remains after legislative and judicial functions are taken away and if people die of pandemic in a large number due to paucity of sufficient medical aid it would be the governments to blame which failed to counter the pandemic even after one long year of experience and learning and the executive pillar of democracy which failed to timely comply the directions and orders issued by the judiciary. One would only laugh at us that we have enough to spend on elections and very little to spend on public health.

As per the Constitution, Judiciary is meant to be independent in its field and there can be no interference with the judicial functions either by the executive or by the legislature. The Indian Judicial system works in a manner which excludes the existence of arbitrariness, of prerogative or even wide discretionary power on the part of government. It is generally accepted that there are 3 main categories of governmental functions

1. The Legislature i.e., Parliament,
2. The Executive i.e., President and
3. The Judiciary i.e., Supreme Court, High Court & other subordinate Courts

For proper functioning of the government it is essential that all these 3 pillars of democracy work in coordination with each other under the umbrella of Rule of law and if not then surely the State will face Constitutional crises making whole Sate lawless.

Right To Health & Constitution

The concept of Right to health was evolved by Hon'ble Apex Court in the matter of CESC Ltd. vs. Subhash Chandra Bose[2]where the Hon'ble Court held that right to health must be considered an aspect of social justice informed by not only Article 21 of the Constitution, but also the Directive Principles of State Policy and international covenants to which India is a party.

Further, the Supreme Court in Devika Vishwas vs. Union of India[3]reiterated that right to health� is a facet of right to life guaranteed under Article 21 of Constitution of India. Hon'ble Apex Court while dealing with the aforesaid matter held that the right to health is an integral part of the right to life and the same does not requires any sort of repetition. But the question that pops up in the mind of citizens of this country is whether the State has fulfilled its responsibility by insuring such the right to life and health to every citizen of this nation during this COVID-19 pandemic?

Given the recent State of affairs surely the answer will be negative as due to second wave of COVID-19 India is going through a pathetic situation. It is evident that citizens are struggling to get a bed, oxygen support, injection and other medical facility in hospital which depicts on the face of record that system has miserably collapsed. Around 11 High Courts of this nation have taken cognizance of such alarming situation prevailing in their respective territorial jurisdiction and have directed the State to ensure citizens their right to health.

But whether directions given by Hon'ble High Court are being complied by the State Government? If, yes then why huge hue and cry is made out by public at large on daily basis for non-availability of medical facility?

The truth is that the order passed by the third pillar of democracy i.e. judiciary have become a dead letter in present scenario and despite issuance of various writs, orders, directions by the Hon'ble Court the State Government is working in their own wisdom without even caring about what the judiciary has called us to do. This situation is obviously a threat to constitutional mechanism and has dismantled the system based on Rule of Law.

The doctrine of rule of law proved to be an effective and powerful weapon in keeping administrative authorities within their limits and it served as a touchstone to the test of administrative action and this principle is recognized as a cardinal rule of democracy that every government must be subject to law and not law subject to the government. However high a person may be the law is always above him.

Madison also proclaimed:
The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many and whether hereditary, self-appointed or elective may justly be pronounced the very definition of tyranny.

Covid-19 And The Issues Faced By Citizens

Firstly, the patient suffering from COVID-19 are not getting admission in the hospital and if somehow or other, the patient succeeds in securing admission in the hospital then he is denied from proper treatment as hospital administration fails to provide medical oxygen support and other medical facilities to the patient. This clearly depicts the arbitrary conduct which has been adopted by the Hospital Administration and State being regulating authority is also just a mute spectator in this whole scenario due to reason best known to them. This conduct of Hospital Administration and State is completely against the law laid down by Hon'ble Supreme Court in the matter of in Balram Prasad v. Kunal Saha[4]wherein the Hon'ble Court held that right to life and personal liberty under Article 21 of the Constitution also includes right of patients to be treated with dignity as observed by this Court.

The Supreme Court in the matter of State of Andhra Pradesh v. M/s Linde India Ltd decided that Medical Oxygen IP and Nitrous Oxide IP fall within the ambit of Section 3(b)(i) of the Drugs and Cosmetics Act, 1940 Act. The Constitution Bench of the Supreme Court in Navtej Singh Johar and others vs. Union of India[5], held that right to health and health care is one of the facets of right to life under Article 21 of the Constitution of India.

The right of the citizen to adequate healthcare emanates from the dignity and sanctity of the human life which belongs to all of them. Health, besides being a fundamental right, is a basic human right, which no popular government can afford to negate. It also includes an obligation on the State in ensuring access to all the citizens inflicted with disease of Coronavirus with life-saving means and drugs such as Oxygen and Remdesivir in this case.

In any case the obligation to take care of the poor during disasters is already prescribed under the law. While there is no specific fundamental right to food, health care, shelter, etc., Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty without procedure established by law, has been given a wide interpretation by the Supreme Court which has broadened the definition of life to not just include �mere animal existence� but the right to live with human dignity which includes right to shelter in Olga Tellis v. B.M.C.[6], Chameli Singh & Ors. vs. State of U.P. [7], the right to livelihood in PUDR vs. UOI[8], right to adequate health care in Paschim Banga Khet Mazdoor Samiti vs. State of W.B.[9], right to clean drinking water in A.P. Pollution Control Board vs. Prof. M.V. Nayudu[10], right to food, etc. Thus it is not merely a moral or legal obligation of the State to look after the people but also the right of the people to demand and obtain these very essentials from the State.

Courts Imparting Their Duty

1. Hon'ble Madhya Pradesh High Court will dealing a suo-moto proceeding in the matter of Re: (Suo Moto) vs. Union Of India & Others[11] stated that:
   Ordinarily these matters lie in the domain of the Executive, who has the responsibility to resolve all the identified problematic issues. However, despite being cognizant of its jurisdictional limitations, this Court, in an extraordinary situation like the present one, when they are brought to its notice, cannot just play a silent spectator.
   
   Thereafter, the Hon'ble Court laid down a 19 point guideline, which was required to be followed by the State and Hospital Administration in letter and spirit. The Court dealt various issues like availability of beds, need for increasing the same, supply of Remdesivir injection, fixing time limit to produce results of RT-PCR and Rapid Antigen test, continuous supply of medical oxygen, charging reasonable and not hefty amount for treating COVID-19 patients, etc. The Hon'ble Court stated that in such a grim situation it can anyway play a role of catalyst by reminding the State of its duties.
    
2. Hon'ble Delhi High Court in Maharaja Agrasen Hospital Charitable Trust vs. Union of India &Ors.[12], while dealing with a plea filed by hospital administration for want of medical oxygen vide order dated 24.04.2021 held that, since hospital have several patients in ICU, and their lives are at stake and the hospital is demanding for Oxygen on immediate basis, Their requirements have to be noted duly by concerned officers of State including the Nodal Officer appointed for COVID-19, Further the Court also fixed responsibility on the Delhi Police to prevent any untoward incident.
   
   Further in the matter of Rakesh Malhotra vs. Government Of National Capital Territory Of India And Ors[13], Hon'ble Delhi High Court directed Central Government to dynamically review the distribution of Remedesivir injection in the States and Union Territories on a daily basis and in respect of other drugs required for the proper treatment of patient from COVID-19 such as Tocilizumab, Favipiravir, Ivermectin, Dexamathasone, Methylprednisolone, Dalteparin, Enoxaparin, HCQ and Baricitinib, it was directed that Central Government must immediately reach out to the manufacturers/patent holders/licensees of such drug, so as to forthwith ramp up the production capacities.
    
3. Hon'ble High Court of Chhattisgarh bench at Bilaspur while dealing a suo-moto proceeding[14] directed State Government to ensure that no patient loses life in this State, for cessation of supply of Oxygen and if there is any chance of shortage then immediate arrangements shall be made to stall or reduce the industrial supply for a short while. Further, the Hon'ble Court also directed State Government to consider fixation of ceiling of rates with regard to the COVID-19 treatment in private Hospitals, so as to avoid exploitation of citizens by the private hospitals.
    
4. Hon'ble Gujarat High Court while dealing a Suo-moto proceeding[15] laid down a 14 point guideline to be followed by State Government at various hospitals operating within Gujarat to fight with COVID-19 pandemic. It was held that the availability of beds should be displayed by the hospital on real time basis which means that as soon as the bed is occupied the number of vacant bed should go down and as soon as the patient is discharged the of vacancy must immediately be displayed. State must ensure that availability of oxygen is sufficient to cater to the demand of COVID-19 patients. Further, the Hon'ble Court when on commenting that.
   
   The State has nothing to gain by hiding real picture and hence suppression and concealment of accurate data would generate more serious problems including fear, loss of trust, panic amongst public at large and hence, real facts and figures must be provided to public at large.
    
5. Hon'ble Jharkhand High Court bench at Ranchi also while dealing suo-moto proceeding[16] directed State Government to maintain the adequate supply of the life-saving drugs to treat the persons affected from Covid-19, to maintain the adequate supply of oxygen in different hospitals both private as well as Government and steps must taken to put control on black marketing of life saving drugs in the interest of public at large.
    
6. Hon'ble Karnataka High Court in a suo-moto proceeding[17] directed State Government to create a help desks outside the COVID hospitals in the various cities for helping the COVID-19 patients who cannot be admitted in that particular hospital. The help desks shall also provide information regarding the availability of Remdesivir medicine in the Cities.
    
7. Hon'ble Punjab & Haryana High Court in the case of Rishi vs. State of Haryana[18] reiterated that: Had the government strengthened the health system in the past one year, people would not have been scrambling for hospitals, beds, ventilators, oxygen, and medicines.
   
   Court impleaded States due to a grave situation arising in view of non-availability of essential drugs such as Remdesivir and Tocilizumab.
    
8. Hon'ble Patna High Court in the matter of Shivani Kaushik v. Union of India[19] deal with the deficient healthcare facilities and acute shortage of oxygen in the State due to COVID-19 pandemic.
   
   Admittedly, acute shortage of oxygen is one of the greatest challenges which the healthcare system in the State of Bihar is presently facing in the wake of sudden upsurge of COVID-19 cases. Hon'ble Court directed State of Bihar to ensure that continuous supply of oxygen in the hospital is maintained and officials/ doctors of the said hospital are not made to beg for oxygen before the officials of the State Government. Any lapse on the part of the Stae, having consequence of irregular/short supply of oxygen in the hospital, shall be viewed seriously by Court.
    
9. Hon'ble Allahabad High Court In- Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive[20] dealt with the acute paucity of oxygen, beds, injections including Remdesivir and further deterioration in condition of patient by introducing painstaking mechanisms. The Court strictly addressed that:
   If even after seven decades of our attaining freedom with so many heavy industries set up, we are not able to provide oxygen to our citizens, it's a matter of shame.
    
10. Hon'ble Bombay High Court suo-moto proceeding[21] showed its disappointment towards Union of India and stated that:
    In a region which accounts for almost 40% Covid patients of the entire nation, the communication from the Ministry of Health and Family Affairs should have been to the effect of increasing the supply of liquid oxygen to the State of Maharashtra from the present practice of 110 metric tons per day to somewhere between 200 to 300 metric tons per day.
    
    The Hon'ble High Court further directed State Government to insure the uninterrupted supply of Remdesivir drug and other life-saving drugs to State of Maharashtra.
     
11. Hon'ble Uttarakhand bench at Nainital in the matter of Anu Pant v. State of Uttarakhandand another[22] was pleased to issue various directions to the State Government of Uttarakhand vide order dated 28.04.2021. Hon'ble Court directed the State authority to update the availability of bed at online portal on real time basis which means that as soon as bed is occupied by a patient the vacancy of bed must go low and as soon as patient is discharged the vacancy of bed must go high. Further also directed government to motivate the people to undertake the plasma donation.

But implementation of such guidelines laid down by various High Courts is still a far cry as executive has completely turned Nelson's eye to the orders passed by abovementioned High Court, amongst others, is completely against the cardinal principle of the Constitution that no one howsoever highly placed and no lofty authority can claim to be the sole judge of its powers under the Constitution. The Rule of Law requires that the exercise of powers by the legislature or by the government or by the judiciary or by any other authority must be conditioned by the Constitution.

In the matter of Lucknow Development Authority (LDA) v. M.K. Gupta, it was held by Hon'ble Supreme Court that Public authorities acting in violation of constitutional or statutory provisions or any order passed by the Hon'ble Court oppressively are accountable for their behaviour before the authorities created under the statute like the Commission or Courts entrusted with the responsibility of maintaining the Rule of Law.

But it is hereby stated that the administrative authorities are working in utter disregard to the constitutional or statutory provisions without having any fear of law, reason being the judiciary has stopped taking strict penal action against the concerned officers responsible for violation of constitutional or statutory provisions or any order passed by the Hon'ble Court.

Conclusion
So far as Indian Law is concerned, the maxim, The King can do no wrong was never fully accepted. Absolute immunity of the government was not recognized in the Indian Legal system in the past. Kings were always subordinate to the Rule of Law and to the system of justice prevalent at the time. According to Manu, it was the duty of the king to uphold the law as he himself was subject to law like any other ordinary citizen.

But in present scenario I think the doctrine has evolved a lot and now State Government being King of their respective States are doing not just wrong but a constitutional blunder by acting in their own whims and fancies by not following the order passed by Hon'ble High Court.

The only silver lining in the cloud is that the scientists have become successful in formulating vaccine and as on date, but securing vaccination in a country having population of more than 135 Crores is a very difficult task.

It must be kept in mind that:
The Government should be subject to law, rather than the law subjects to the government [23]but it is widely been observed that as of today the law is being subject to the government and everybody is just a mute spectator.

End-Notes:

1. Ram Jawaya Kapur v. State of Punjab; AIR 1955 SC 549
2. CESC Ltd. vs. Subhash Chandra Bose (1992) 1 SCC 441
3. Devika Vishwas vs. Union of India (2016) 10 SCC 726
4. Balram Prasad v. Kunal Saha; (2014) 1 SCC 384
5. Navtej Singh Johar and others vs. Union of India; (2018) 10 SCC 1
6. Olga Tellis v. B.M.C.; (1985 3 SCC 545)
7. Chameli Singh & Ors. vs. State of U.P.; (1996) 2 SCC 549
8. PUDR vs. UOI ; AIR 1982 SC 1473
9. Paschim Banga Khet Mazdoor Samiti vs. State of W.B.; 1996 4 SCC 37
10. A.P. Pollution Control Board vs. Prof. M.V. Nayudu ; (2001) 2 SCC 62
11. Re: (Suo Moto) vs. Union Of India & Others W.P. No.8914/2020
12. Maharaja Agrasen Hospital Charitable Trust vs. Union of India &Ors.W.P. No. 6000/2021
13. Rakesh Malhotra vs. Government Of National Capital Territory Of India And Ors W.P. No. 3031/2020
14. W.P.(PIL) No. 27 of 2020
15. W.P.(PIL) No. 53 of 2021
16. W.P.(PIL) No. 1301 of 2020
17. W.P.No.6435/2020
18. Rishi vs. State of Haryana[CRWP-242/2021]
19. Civil Writ Jurisdiction Case No.353 of 2021
20. In-Re Inhuman Condition At Quarantine Centres And For Providing Better Treatment To Corona Positive
21. Suo-Motu P.I.L. No.4 of 2020
22. [WP (PIL) No. 97/2019]
23. Wade & Forsyth, Administrative Law (2009) 17-21, 289-287

Written By: Jayesh Gurnani (4th year law student, School of law, DAVV)