Rising to the occasion
High Courts rediscover their powers under the Constitution to fill the void left by the Supreme Court in mitigating the hardships caused to
vulnerable sections of the population by the prolonged lockdown.
ANY FUTURE HISTORIAN WHO TRIES TO study how India fought the coronavirus pandemic during the prolonged lockdown may devote a separate chapter to the role of the country’s 25 High Courts in relieving the agony of the common man.
In the Indian judicial system, the High Court is not subordinate to the Supreme Court. It is also a constitutional court entrusted with the power of judicial review. In fact, the High Court’s powers are wider—it can issue writs for infractions of legal rights and superintend the functioning of all subordinate courts in its territorial jurisdiction. Those who accuse the High Courts of running “parallel governments”—as Solicitor General
Tushar Mehta did in the Supreme Court recently—seem to be oblivious of the fact that the High Courts are only exercising their inherent powers
However, certain factors make the Supreme Court unique: it is the highest court of appeal, the law declared by it is binding on all courts and it has the power to transfer cases from one High Court to another or to itself. Article 144 of the Constitution requires all authorities, including the High Court, to act in aid of the Supreme Court. However, the apex court failed to intervene in the matter of the migrants crisis and live up to the expectations of the common man. It is, therefore, significant that several High Courts today are rediscovering their powers
under the Constitution, to fill the void left by the Supreme Court in mitigating the crisis caused by the prolonged lockdown to vulnerable sections of the population.
DELHI HIGH COURT
In Shabnam vs Government of NCT of Delhi, a bench of Justices Hima Kohli and Subramonium Prasad of the Delhi High Court directed the Delhi government on May 20 to ensure supply of ration to all e-coupon holders through the public distribution centres in Delhi in which ration was allegedly in puacity. The same bench, while hearing a public interest petition, directed the Centre and the Delhi government to closely monitor the increasing number of COVID-19 cases in the National Capital Region for the purpose of proportionately increasing the facilities at hospitals and pathological laboratories. The petition filed by Hitesh Bhardwaj, a resident of Delhi, alleged that there were not enough hospitals equipped with medical facilities to treat COVID-19 patients.
On May 28, the Kohli-prasad bench, in Delhi Rozi Roti Adhikar Abhiyaan vs Union of India, accepted the argument that the system adopted by the government to provide e-coupons to those who did not have ration cards was inaccessible to vulnerable groups as they did not have smart phones to download the coupon by generating an OTP. It directed the government to put up within five working days helpdesks with a computer at all the 580 distribution centres that would act as one-stop centres for applying for e-coupons; to increase the number of staff handling the helpline at the call centre to ensure that calls were answered and grievances recorded; and to place in the public domain details of calls received, complaints registered and redressed.
On May 28, the bench comprising Justices Rajiv Sahai Endlaw and Asha Menon in Court on its own motion vs GNCTD [Government of National Capital Territory of Delhi], expressed concern over reports in the media of 108 bodies lying piled up in the COVID-19 mortuary of Lok Nayak Hospital, Delhi. Lok Nayak Hospital is the largest dedicated COVID-19 hospital in the city and its mortuary is the repository of bodies of those who died of the coronavirus infection or those suspected to have died of it. On May 26, the Nigam Bodh Ghat returned eight bodies as only two of the six furnaces at its crematorium were working.
The bench took note of the fact that there was a backlog of bodies needing disposal owing to the nonfunctioning of compressed natural gas (CNG) furnaces at the Nigam Bodh and Punjabi Bagh crematoriums. Emphasising that the right to dignity and fair treatment enshrined in Article 21 applied not only to a living person but also to the body after the person’s death, the bench sought to ensure the right to decent burial or cremation by seeking appropriate directions from the Chief Justice.
On May 23, the single bench of Justice Asha Menon held that no one had the right to demand the removal of health workers residing in any neighbourhood because of an unrealistic fear of the spread of COVID-19. The bench directed the Delhi government to provide a protected environment for senior citizens and other residents living near buildings occupied by health workers.
On May 22, a bench of Chief Justice D. Patel and Justice Prateek Jalan asked the Delhi government and the authorities concerned to maintain a proper record of the number of COVID cases and the death toll. The petition heard by the bench alleged that there was a deliberate attempt by the government to downplay the seriousness of the spread of the disease and the number of deaths.
A division bench comprising the Chief Justice Dipankar Datta and Justice S.S. Shinde directed the Maharashtra government to ensure that stocks of personal protective equipment (PPE) seized by investigating agencies reached the COVID warriors. According to reports, the Maharashtra Police seized a large quantity of PPES, masks, gloves and sanitizers following complaints of hoarding and black marketing. The petitioner in the case had sought orders for proper disposal of the properties seized so that the same could reach health workers in need of them.
The same bench, on May 22, dismissed a writ petition filed by a few Mumbai residents challenging the permission granted by the Municipal Corporation of Greater Mumbai to use three cemeteries in Bandra for burial of COVID-19 victims as they feared community spread. The bench held that there was no scientific data to show that the virus would be transmitted on burial. Observing that the right to decent disposal of bodies was a facet of the right to life provided in Article 21, the bench upbraided the petitioners for being insensitive to others’ feelings.
On May 29, the bench of Chief Justice Dipankar Datta and Justice K.K. Tated, in Centre of Indian Trade Unions vs State of Maharashtra, took note of the grievance that migrant workers who had submitted applications for availing themselves of the facilities of Shramik special trains and buses to return to their home States during the lockdown, were in the dark about the status of their applications and were forced to live in cramped and unhygienic shelters without food and other essentials. The bench called upon the State government to file a report indicating how it addressed the plight of migrant workers assembled at the boarding points.
On May 20, a bench of Justices M.S. Ramachandra Rao and K. Lakshman held that the State government could not incapacitate a human being by restricting his or her choice of the hospital for treatment of an ailment. In the instant case, the government had curtailed the freedom of the citizen to get tested in a laboratory of his or her choice or to get treatment in a private hospital of his or her choice without the support of any “law”. The bench struck down the restriction as patently arbitrary, unreasonable and violative of Article 21.
The Telangana government contended that there was a state of emergency in the State in view of the pandemic and that such an emergency justified the action of the state.
The bench referred to the Supreme Court judgment A.D.M. Jabalpur vs Shivkant Shukla during the
in
Emergency, in which the court had to adjudicate the issue of whether the imposition of the Emergency suspended the right of a person detained by any law on preventive detention to move any court for enforcement of the right to personal liberty granted by Article 21. Although the Supreme Court’s majority judges in that case resolved the issue in favour of the government then, a nine-member apex court bench in K.S. Puttaswamy vs Union of India overruled it in 2017 saying that the right to privacy was protected as a fundamental constitutional right under Articles 14, 19 and 21. Moreover, Parliament amended Article 359 (44th Amendment) in 1978 after the lifting of the Emergency in 1977, providing that the President cannot suspend the right to move a court to seek relief for violation of Articles 20 and 21 even in an emergency.
The High Court bench, therefore, refused to endorse the State’s submission that anything can be done by the state during a medical emergency, including arbitrarily restricting the right to health that Article 21 confers on a citizen. The bench held: “An emergency of any sort is not an excuse to trample on the rights under Article 21 and the courts have the power to see that the state will act in a fair, just and reasonable manner even during emergencies. …There is neither legal nor logical basis for totally excluding private sector participation in either testing or for treatment/isolation of suspects/confirmed COVID-19 patients.” It added that only private hospitals that had been approved or would be approved by the Indian Council for Medical Research (ICMR) should be permitted to provide treatment for COVID-19 patients.
On May 29, Justice John Michael Cunha of the Karnataka High Court granted bail to 126 persons as he found no basis in the police version that they tried to spread COVID by attacking health workers. The judge noted that under the Indian Penal Code the identity and participation of each accused in a conspiracy were required to be fixed with reasonable certainty, which was missing in this case. The accused petitioners were sent for trial without the prosecution ascertaining their identity. The judge found no evidence to show extensive damage to public property, as alleged by the police. Mere apprehension that the accused would spread the disease was not ground enough to deny them bail as adequate safeguards were already in place to prevent the spread of the pandemic, the judge noted.
On May 22, a bench of the Chief Justice Jitendra Kumar Maheshwari and Justice Lalitha Kanneganti of the Andhra Pradesh High Court formulated a model for shifting migrant workers to their home States to ensure coordination among government officials and non-governmental organisations.
Sixty-one medical and nursing students belonging to Kerala were stranded in Chhattisgarh since the first phase of the lockdown. Thanks to the intervention of the Chief Justice of the Chhattisgarh High Court, P.R. Ramachandra Menon, the Chhattisgarh government arranged three special buses to take the students back to their home State. The Chief Justice, according to reports, conveyed the information about the situation to the Chhattisgarh government through the Advocate General Satish Chandra Verma, and sought its help in view of the non-availability of public transport.
KNEE-JERK REACTION
Although Tushar Mehta’s disparaging remark about High Courts running a parallel government—in terms of their notices, interim orders and judgments during the lockdown—was aimed at all High Courts, none would have thought that it could have a reactionary effect on some of them. In the Gujarat High Court, a division bench headed by Justice J.B. Pardiwala and comprising Justice Ilesh Vora, dictated a scathing order on May 22 while hearing a suo motu PIL petition on the state of the hospitals in Ahmedabad. It described the Ahmedabad Civil Hospital as a dungeon. On May 25, the bench asked the hospital to be prepared for a surprise visit by the judges, while refusing to withdraw the adverse remarks passed against the State government. The bench was concerned that the Civil Hospital had recorded a high COVID mortality rate. It also took suo motu cognisance of media reports highlighting the plight of migrant labourers in Ahmedabad and decided to continuously monitor the executive’s omissions and commissions.
However, on May 28, the Chief Justice of the High Court, Vikram Nath, in his capacity as the Master of the Roster, changed the composition of the bench hearing the PILS relating to the lockdown. As per his order, a new bench with himself as the presiding judge and Justice Pardiwala as the junior judge would hear the case. Many senior lawyers practising in the High Court wrote to the Chief Justice asking him to reverse his decision and retain the Pardiwala-vora bench in the interest of continuity and efficiency until the matter was fully and finally disposed of. The Pardiwala-vora bench had intervened in the Civil Hospital matter on the basis of anonymous letters sent to it by two whistle blowers. m