By the end of 2020, on one side, the Coronavirus pandemic saw rapid increment in the rest of the world, but on the other side, India saw a massive decline in the cases of Covid-19. All the activities like gym, religious places, elections, markets, political rallies started functioning in full swing. People started believing that Coronavirus had fully disappeared and they were back to normal life just as before the lockdown was imposed.

The Central and State Governments in India also created a narrative like India has defeated Covid-19, but the situation was just 180 degrees opposite to what people were made to believe.

The public health experts, doctors and advisors to the Central and State governments urged them to be prepared for the second wave, but no one gave an ear to them. As a result, by the beginning of April 2021, the negligence of the people’s representatives and bureaucrats started showing it’s fatal results on ground.

The health system of India had collapsed completely and the people were just moving here and there with their patients and literally begging the doctors, government officers, oxygen suppliers, medicine suppliers for beds, medicines and oxygen cylinders. It seemed like everyone was standing helplessly and nobody could do anything to save their lives.

In this scenario, the third pillar of Indian democracy, the Judiciary stood up for the rights of citizens of India and took Suo-motu cognizance of their issues. The various High Courts and the Supreme Court of India started issuing directions to the State and Central Governments on various issues like allocation of oxygen to the states and hospitals, distribution of medicines and allotment of beds to the patients etc.

Powers of the judiciary to defend the rights of the citizens:
The Constitution of India has empowered the judiciary in many ways to protect the rights of the person who comes before court seeking the legal remedy. The Constitution of India has enabled the citizens of India to directly go to the High Courts and the Supreme Court of India if their fundamental rights are being infringed by the state. The Supreme Court of India and the High Courts can protect their rights under Article 32 and Article 226 respectively.

Also, under Article 129 and 142 of the Constitution, the Supreme Court has been vested with power to punish for contempt of Court including the power to punish for contempt of itself. In case of contempt other than the contempt referred to in Rule 2, Part-I of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975[1], the Court may take action:

1. Suo motu, or
2. on a petition made by Attorney General, or Solicitor General, or
3. on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General.

Emergence of second wave of Covid-19 in India:
In the beginning of April 202, India witnessed a sudden hike in the number of cases and it started increasing day by day. Since April 4, India has been consistently recording the highest number of daily cases in the world and it surpassed the United States of America and Brazil on an average.[2]

When the second wave started transforming into an increasing number of cases and deaths, the State governments in India chose the senseless alternatives like imposing the night curfew. Some states with higher numbers of cases imposed weekend lockdowns. It seems like the coronavirus comes to its peak at night or at weekends only and dramatically disappears on working days. Although the State and Central Government were made aware of the second wave of Covid-19, it hardly looked into the measures taken by them.

Religious activities like Kumbh and gathering at mosques due to Ramzan resulted in the spread of coronavirus in a lightning way. Legislative assembly elections held in four states and one union territory of India which acted as a catalyst for the increment in the number of cases.

All the political leaders were organizing huge rallies and urging people to come there in large numbers. People voted in large numbers in these elections and it contributed to the spread of COVID-19. In addition to these legislative assembly elections, the three tier panchayat elections were also held in the state of Uttar Pradesh due to which the virus was successfully transferred to village areas which were, until then, not very much hit by the pandemic.

It was also reported that many teachers, who were allotted the duties in the panchayat elections, died due to Covid-19 infection. According to Dinesh Chandra Sharma, President of Uttar Pradesh Shikshak Mahasangh (UPSM), they have sent a list of 577 teachers from 71 districts who died amid the raging Covid-19 pandemic.[3]

Though the elections could have been postponed or cancelled by the Election Commission. Because, the Election Commission under section 153 of Representation of People Act, 1951 is empowered to extend the election process in a particular region if there are sufficient grounds.[4]

How the system collapsed during the second wave:
When the cases of coronavirus increased and people rushed to the hospitals, the harsh reality of the public health system of our country came before everyone and the whole world was watching it. There was a shortage of medical oxygen, essential drugs, beds in hospitals and even in the crematoriums. Everywhere a situation of absolute chaos was created and it was not getting in control by anyone. Even in the private sector hospitals, the situation was not better in any way.

With 8.5 hospital beds per ten thousand of population and 8 physicians per ten thousand, it was clear that the country is not prepared for such a dangerous crisis.[5] The inefficiency, dysfunctioning and acute shortage of healthcare delivery systems was not up to the mark as required for the pandemic. The Central Government could not provide the required quantity of medical oxygen to the states.

Many hospitals were compelled to shut down because their oxygen tanks were exhausted. Many big names among private sector hospitals raised the issues of oxygen crisis on social media too. Many instances were seen where hospitals said that they have the oxygen only for the next few hours. Big cities like Delhi and Mumbai do not have their own oxygen plants so they are dependent on the other states for the supply of medical oxygen.

Like the United States and Germany, India’s states are individually responsible for health care, and there is significant nationwide variation in service delivery and capacity. While on paper every Indian citizen gets free outpatient and inpatient care at government facilities, in practice there is a shortage of staff and supplies even when the country is not facing a pandemic like Covid-19.

When the system collapsed, the social media platforms like Facebook, Instagram, Twitter and WhatsApp became the spot for seeking help. Many people have volunteered themselves to provide the required medical supplies or just amplify the message so that it can reach the person who can help the patient.

Court’s entry in the frame:
When the two pillars of democracy failed to discharge their duties, the third one i.e. the Judiciary came forward to protect the rights of the citizens of India and took a strong stand for them. Citizens saw it as a last resort to come to the courts for their grievances as they were disheartened by the response of the government system. The courts too did not disappoint the citizens and took a strong stand for them and asked tough questions to the government.

The Delhi High Court gained a lot of attention through their tough criticism on the situation of COVID-19. A petition concerning the production and allocation of medical infrastructure was moved in the Delhi High Court under Article 226 of the Indian Constitution.

The Delhi High Court pulled up the State Government of NCT of Delhi for not handling the Covid-19 crisis in a proper way and said that:
if the state government can not do it then the court will ask the Central Government to interfere in the matter.

It was noted by the High Court that the State Government has completely failed to check the alleged mismanagement in the distribution of medical oxygen and black marketing of oxygen cylinders in Delhi.

The Delhi High Court also emphasized that Delhi should receive 490 MT of daily oxygen quota and gave strict direction to the Central Government. Upon various urgent pleas amid Covid-19 crisis in Delhi, the Delhi High Court issued directions concerning the processing of insurance claims, supply of Remdesivir and publication of information regarding oxygenated hospital beds.[6]

Moving in the same direction, the Gujarat High Court directed the state government to take the same measures to break the chain of infection of Covid-19. Hearing a public interest litigation, taking suo motu cognizance of Covid-19 upsurge in Gujarat, the High Court criticized the decision of Ahmedabad Municipal Corporation that it will only admit the patients who are coming in the 108 ambulances and not those who would come in private vehicles. [7] The Gujarat High Court also pulled up the state government on medical oxygen scarcity in the state and not publishing the correct data of RT-PCR test results.

Noticing the surge of Covid-19 in the state, the Allahabad High Court, on 19th April, imposed the lockdown in the five cities of Uttar Pradesh namely - Kanpur, Lucknow, Prayagraj, Varanasi and Gorakhpur.[8] The bench observed that the sudden rise in the cases of Covid-19 cases has virtually incapacited all the medical infrastructure in the state, the bench said: Before (the pandemic) further spirals to engulf in it the entire of these badly hit districts it is necessary to take some harsh steps in larger public interest.

However, this order of the High Court was challenged in the Supreme Court by the state government and the Supreme Court of India stayed the order. The Allahabad High Court also made some stern remarks in view of the viral news regarding the death of Covid patients in Lucknow and Meerut due to lack of Oxygen. The bench also noted that people are being harassed and made to beg for the Oxygen cylinders to save the life of their patients.

The bench said:
death of Covid patients due to non-supply of oxygen to the hospitals is criminal act and not less than a genocide.

Following that the Madras High Court objurgated the Election Commission of India for not stopping the political parties from violating the Corona protocols during their campaigns in the legislative assembly elections in four states and one union territory. The court said that the Election Commission of India should be punished with the murder charges because it was the only institution responsible for the situation that we are in today.


The Madhya Pradesh High Court also raised an objection to the ongoing situation of COVID-19 and issued some directions to the state government. The bench consisting of Chief Justice Mohammad Rafeeq and Justice Atul Sreedharan referred to various Supreme Court judgements which have interpreted Article 21 of the Constitution of India so as to expand the meaning of right to life to also include right to health.

The bench stated that:
The right to health can be secured to the citizens only if the State provides adequate measures for their treatment, healthcare and takes their care by protecting them from calamities like Coronavirus. Article 38, Article 39(e), Article 41 and Article 47 in Part-IV of the Constitution of India as well as the fundamental right guaranteed vide Article 21 of the Constitution of India deal with potent and substantive contents of the right to life which in its broad sweep also includes the right to good health. [9]

Supreme Court’s view:
The Supreme Court of India has also taken the Suo motu cognizance of the pandemic under Article 32 of Indian Constitution. The bench comprising of Justice DY Chandrachud, Justice L Nageshwara Rao and Justice S Ravindra Bhat while considering a Suo motu case in Redistribution of Essential Supplies and Services during Pandemic, they asked the Central Government to explain the rationale behind the pricing policy of COVID vaccines in India. [10]

The Supreme Court of India in another plea noted the action being taken on the citizens who were posting their grievances on social media. The Court strictly said that there should not be any coercive action against any citizen for putting the SOS call on social media seeking medical help for COVID-19. The Court gave a warning that contempt action would be taken against police officers who clampdown on citizens who ventilate their grievances with respect to COVID-19 on public platforms.[11]

Hearing another petition filed by the central government against the notice issued by the Delhi High Court for contempt action for failing to supply 700MT of oxygen per day to

National Capital Territory of Delhi in term of the court orders, the Supreme Court asked the Central Government to reconsider the formula for allocating the medical oxygen to the states on the basis of hospital beds.

In the case of Union of India vs Rakesh Malhotra and Anr[12], the Supreme Court bench comprising of Justice DY Chandrachud and MR Shah constituted a National Task Force of 12 members to formulate a methodology for scientific allocation of liquid medical oxygen to all the States and Union Territories in order to deal with the dearth of oxygen supply amid the second wave of COVID-19. The Task Force will be at liberty to draw upon human resources of the Union Government for consultation and information and may also constitute one or more sub-groups on specialized areas for assisting it before finalizing its recommendations.

The Supreme Court also directed an audit of the supplies of liquid medical oxygen made by the Centre to the States and Union Territories. The audit will be conducted by sub groups which are to be formed by the National Task Force constituted by the Court.[13]

Conclusion:
This is not the first time when the Court had interfered to fill the legislative void. The right to health has been the subject of jurisprudence since 1988. In the case of Rakesh Chandra Narayan v. State of Bihar,[14] the Supreme Court ruled that the government has an obligation to ensure that every citizen in the country receives medical attention. This was one of the first cases in which the Supreme Court combined non-justiciable Directive Principles of State Policy with justiciable Fundamental Rights. The case was decided based on the deplorable conditions in a Ranchi mental hospital and was filed as a letter petition under Article 32 of the Indian Constitution.

By granting the committee the authority to issue directives, the court has established a new administration with the goal of filling gaps in the existing system. In the coming days, the judiciary may be called upon to determine whether the State's recommendations are effective or half-hearted. This will allow the Court to deal effectively with the rampant violation of COVID-19 patients' right to health, guaranteeing the right to health, which has previously existed on paper but failed in practice.

End-Note:

1. Contempt of the Supreme Court, 1975, Available at: https://upload.indiacode.nic.in/showfile?actid=AC_CEN_3_3_00005_197170_15178 07319029&type=rule&filename=THE%20RULES%20TO%20REGULATE%20PRO CEEDINGS%20FOR%20CONTEMPT%20OF%20THE%20SUPREME%20COURT,%201975.PDF
2. https://www.thehindu.com/data/dissecting-indias-second-covid-19-wave/article34305 418.ece
3. https://www.indiatoday.in/india/story/uttar-pradesh-teachers-unions-577-teachers-died-panchayat-poll-duty-1796282-2021-04-29
4. Representation of People Act, 1951, Act no. 43 of 1951
5. https://timesofindia.indiatimes.com/india/5-hospital-beds/10k-population-india-ranks- 155th-in-167/articleshow/79769527.cms
6. https://www.newindianexpress.com/cities/delhi/2021/may/01/supply-490-mt-allocated-oxygen-to-delhior-face-contempthc-warns-centre-2297271.html
7. https://www.livelaw.in/news-updates/gujarat-high-court-covid-19-states-affidavit-no-p atient-should-remain-unattended-173211
8. https://www.livelaw.in/top-stories/covid-19-allahabad-hc-imposes-lockdown-in-5-citi es-till-april-26-172798
9. https://www.livelaw.in/top-stories/covid-19-no-popular-government-can-afford-to-neg ate-the-basic-human-right-to-health-mp-high-court-issues-slew-of-directions-172790
10. https://www.livelaw.in/top-stories/supreme-court-asks-centre-to-explain-rationale-of-c ovid-vaccine-pricing-173205?infinitescroll=1
11. https://www.livelaw.in/top-stories/supreme-court-citizens-sos-calls-for-medical-help-t hrough-social-mediasupreme-court-contempt-action-against-police-173384
12. https://indiankanoon.org/doc/28289084/
13. https://www.livelaw.in/top-stories/supreme-court-directs-audit-of-medical-oxygen-sup plied-to-statesuts-to-ensure-accountability-173853
14. Rakesh Chandra Narayan v. State of Bihar,[12] (1) SCC 644, 1994