Can Our Courts Manage the COVID-19 Crisis?

In 1748, Montesquieu published L’Espirit des Lois or The Spirit of Laws, which introduced the theory of separation of powers and formed the basic foundation of several constitutions, including that of India. The State that most effectively promotes liberty is one where the legislative, executive and judicial powers are entrusted to different bodies that act independently of each other.

After the Emergency of 1975-77, the advent of public interest litigation (PIL) brought the judiciary centre stage. While PILs played a salutary role in releasing 40,000 undertrial prisoners, checking pollution and preventing deforestation, the judiciary was increasingly petitioned to resolve almost every major crisis. The 19th century political philosopher Alexis de Tocqueville famously remarked: “There is scarcely any political question in the United States that does not ultimately resolve itself into a judicial question.” In India, there is scarcely any controversy or crisis that does not become the subject matter of a PIL.

The second wave of the Covid-19 crisis once again witnessed a flurry of writ petitions. No less than eight high courts have passed far-reaching orders that include directions not to supply Remdesivir to private hospitals till the state hospitals have a sufficient supply; to ‘centralise’ its procurement, allocation and distribution; divert industrial oxygen for use of the people and to take action against private hospitals and pharmaceutical companies. The Allahabad High Court went to the extent of declaring a lockdown in five major cities of Uttar Pradesh. These orders, albeit well-intentioned, are really in the executive domain.

On April 30, the Supreme Court passed a 64-page order with a slew of directions in a suo motu petition. While those that directed full access to hospitals and prohibited any clampdown on sharing information on social media platforms are welcome, the central government was also directed to examine the possibility of price control of essential drugs, of compulsory licensing and to revisit the initiatives and protocols on the availability of oxygen, vaccines and essential drugs at affordable prices. In this order, the Supreme Court repeatedly emphasised that it did not want to delve into the role of the executive in designing policy choices; it was merely seeking to enter into a dialogue with the relevant stakeholders in order to ensure the probity and transparency of the measures underway.

This is the right time to revisit the role of courts in resolving national problems. The power of policy-making must be left to the legislature and the executive. As Lord Sumption put it, “litigation is not a consultative or participatory process”. The court’s task is only to see if a policy is violative of a statutory or constitutional provision. The courts can also direct compliance with executive orders; the Delhi High Court rightly issued directions to ensure that the national capital received its allocated quota of oxygen. The courts can and should interfere if there is, for example, discriminatory pricing for vaccines or there is nonimplementation of a policy provision or a statutory safeguard.

In a seminal essay published in the 1978 Harvard Law Review titled, ‘The Forms and Limits of Adjudication’, Prof. Lon Fuller points out that a “polycentric situation” is like a spider’s web and has many strands. A pandemic is a classic example of a polycentric situation that has multiple dimensions. Such a crisis can only be resolved by the executive or the legislature. The judiciary simply does not have the data or the domain expertise to arrive at a satisfactory solution.

The trend of taking frequent recourse to the high courts and the Supreme Court must be checked; courts must not take on the task of supervising the formation of a policy or issuing directions that are executive in nature. These are tasks that our Constitution never intended the courts to perform. To quote Lord Sumption again: “The rule of law does not mean that every human problem calls for a legal solution.” ■

The court’s task is only to see if a policy violates a statutory or constitutional provision. It does not have the data or the domain expertise to resolve a polycentric situation such as the current pandemic

The author is a senior advocate practising in the Supreme Court