'Urgent: Need Oxygen' is flashing on all our screens left, right and centre. The present social conditions have a harrowing effect on the democratic institutions of our Constitution, that guarantees life, dignity and health.
During these testing times, the Constitutional Courts that is our High Courts, have emerged as charioteers of justice and conscience.
"If you don't feel ashamed of yourself, we are feeling ashamed of ourselves for being part of such a nasty society," the Bombay High Court said in anguish recently when the state authorities failed to comply its order to supply Remdesivir drugs to Nagpur region.
"It is a shame that while the Government knew of the magnitude of the second wave it never planned things in advance", said the Allahabad High Court in a strongly worded order after raising alarm over the collapsing health system in Uttar Pradesh.
A host of High Courts are seized with similar matters and have minced no words in calling out the Central and State authorities for their lax attitude in preparing for the potential (now omnipresent) second wave, when they had the time.
The situation has become so grim, that the Governments have been told to beg, borrow or even steal to make sure that the basic fundamental and human rights of its citizens, the right to live, to breathe, are not compromised.
At least 11 High Courts have taken stock of the situation in their respective states and some have passed very bold orders, to minimize fatalities.
At this stage, the Supreme Court yesterday took suo moto cognizance on issues related to oxygen supply, drug supply and vaccine policy in relation to COVID19 pandemic.
The CJI led Bench indicated that cases pending in High Courts might be withdrawn to SC as different HCs dealing with issues create confusion. Towards this end, it has issued notices to Centre, State Governments, Union Territories and the parties who have approached the High Courts to show-cause why uniform orders not be passed by the Supreme Court.
The legal fraternity has expressed reservations about the move of the Supreme Court to interfere with the High Courts' monitoring of the COVID situation in their respective jurisdictions.
While much has been written on the untimely intervention by the Supreme Court, this article intends to take a quick glance at the measured approach adopted by various High Courts:
Nothing to gain by hiding real picture: Gujarat HC tells State
The Gujarat High Court, without an ounce of hesitation, told the State Government to not hide behind false figures of testing and availability of amenities in relation to COVID-19.
"Concealment of accurate data would generate more serious problems including fear, loss of trust, panic amongst public at large," a Division Bench comprising of Chief Justice Vikram Nath and Justice Bhargav Kania told the State.
The Bench was hearing a suo motu PIL over the coronavirus situation in the state, observing that media reports on the pandemic indicate that the state was heading towards a "health emergency of sorts".
As the State tried to dispute the accuracy of the news reports, the High Court pulled up the authorities for hiding the real picture.
"The State should not feel shy of publishing the correct data of RTPCR testing results, if such figures are not being correctly reported," it observed. The Court went on to enjoin, "The State should publish data by making efforts to find out actual number of Covid positive cases so as to remove general conception from the minds of the people that data given by the State is not accurate."
It has issued a slew of directions including (i) Setting up of testing laboratories in all the districts, (ii) Accurate reporting of RTPCR testing with correct figures of positive results, (iii) Maintaining online portal giving details of the availability of vacant beds and occupied beds under different categories for Covid patients, (iv) Take steps for procuring enough Oxygen to cater to the demands.
You are shirking responsibility: Bombay HC pulls up Centre
The Nagpur Bench of the Bombay High Court held an urgent night sitting on Wednesday night to ensure uninterrupted supply of Oxygen to the city hospitals.
A division bench of Justices Sunil Sukre and SM Modak questioned the Ministry of Health and Family Welfare for reducing the supply of oxygen to Maharashtra from the Bhilai Plant (Chhattisgarh) despite the State bearing the load of 40% Covid19 patients in India, and directed immediate restoration of supply.
"...we direct that notwithstanding the communication dated 18.4.2021 issued by theMinistry of Health and Family Welfare, PRAX AIR -Bhilai shall continue to supply 110 metric tons of liquid oxygen to the State of Maharashtra until further orders," the Bench fearlessly ordered.
It also pulled up the State Government for not complying with its earlier order directing to supply 10,000 vials of Remdesivir, an anti-viral drug, to Hospitals treating Covid-19 patients in the city.
"If you don't feel ashamed of yourself, we are feeling ashamed of ourselves for being part of such a nasty society. We are not able to do anything for the helpless patients of Maharashtra. You don't have any solution, what nonsense is this?," the Bench sternly told Joint Commissioner of FDA who claimed that the State had no role to play in the procurement of Remdesivir for private hospital.
It directed the Joint Commissioner of FDA, Nagpur to take action against black marketers and supply 100 vials to Government Medical College and Hospital, Nagpur as the Dean hadn't received a single vial despite 900 patients.
We cannot afford to lose lives: Delhi HC puts Centre to task
A division bench comprising of Justice Vipin Sanghi and Justice Rekha Palli directed the Central Government to take all possible steps for diverting Oxygen produced by various industries for medical use.
"If necessary, Centre should divert entire supply from industries particularly steel and petroleum… If it means that those industries have to shut till imports (of oxygen) are made, so be it. We cannot afford to lose lives. It might be inconvenient. Let it be inconvenient. Human lives are more important than commercial interests," the High Court observed while hearing a plea filed by Max Hospitals citing shortage of oxygen.
The remarks were made after Solicitor General of India, Tushar Mehta submitted before the Bench that time was given till April 22 as regards the ban on industrial oxygen as technologically industries require about 72 hours to shut down their operations.
"Citizen can only fall back on the State. So you have to beg, borrow or steal and ensure the protection of fundamental emergency", the Bench remarked.
It even proceeded to issued contempt notice to an oxygen manufacturer, M/s INOX, for not complying with its earlier order to supply oxygen to the Delhi Government. The notice was however discharged the next day, after compliance.
Yesterday, the High Court warned of criminal action against erring authorities in case, movement of oxygen supplies is obstructed. This was after several Oxygen Tankers being sent from UP and Haryana were blocked by the local authorities, given the requirement in those States.
The Bench also expressed concern over the acute shortage of hospital beds for treating critical Covid-19 patients in the capital city and asked the Centre to enhance availability on a priority basis.
"Forget common man on the street, even if I were to ask for a bed, it would not be available right now," Justice Sanghi remarked.
Govt can't negate basic human right to Health: MP HC
The Madhya Pradesh High Court issued a slew of directions to the State Government to ensure adequate healthcare and medical infrastructure for its citizens during the pandemic.
"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 right to good health," the Division Bench comprising of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan reminded the State.
It ordered the authorities to: (i) ensure continuous and regular supply of Oxygen and Remdesivir to all Covid hospitals, (ii) augment all such Hospitals that generally cater to medical needs of middle class/ poor/ below poverty line families, by providing the necessary equipment, (iii) fix rates to be charged by private Hospitals/ Pathological Labs/ Diagnostic Centres for treatment/tests, etc.
Those In Helm Of Governance Are To Be Blamed For Present Chaotic Health Problems: Allahabad HC
Expressing dissatisfaction at the measures adopted by the State Government to deal with the COVID-19 crisis, the Allahabad High Court passed a slew of directions.
The Court narrated the abysmal state of affairs of public health care system in major cities of Uttar Pradesh.
Referring to the statistics of hospital facilities in the city of Prayagraj, the Court said that the "medical health infrastructure that the government has developed in the past, can cater to the needs of less than 0.5% of the city population",
"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.."
"In any civilised society if public health system is not able to meet the challenges and people die for want of proper medication, it means there has been no proper development. Health and education go side-by-side. Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people".
The Court noted with consternation that VIP recommendations were needed to get RT-PCR tests, hospital admissions, oxygen cylinders etc.
Taking note of the immense pressure created by the pandemic on the health system, the Court ordered that lockdown be imposed in 5 major cities of UP for one week.
The UP government immediately challenged this direction before the Supreme Court next day. The apex court stayed the direction to impose lockdown, and called for a report from the State Government on COVID management.
Situation is very bad: High Courts seek to ramp up testing
The Patna High Court observed that RT-PCR tests are not being done at the desired rate. "The Court expects the respondents to step up the speed/pace of RT-PCR tests in the State," a Division Bench comprising of Justices CS Singh and Mohit Kumar Shah said.
It insisted that State should take all possible measures so as to ensure that persons coming from outside the State are either made to undergo rapid antigen test or they are able to show on the basis of the test reports available with them that they are not COVID positive. It also made significant observations on the shortage of medical facilities like Oxygen cylinders, Remdesivir injection, etc.
A Division Bench comprising of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma at the Uttarakhand High Court passed a slew of directions to prevent spread of Covi-19 in the State, including a direction to the Government to regulate the forthcoming Char Dham Yatra in the pilgrim cities.
It has also asked the State Cabinet to take policy decisions for tackling the COVID-19 pandemic.
High Courts have risen to the occasion timely
An overview of all the High Courts' orders reflects the tandem in which they aim to uphold the most basic value of the Constitution— human life and dignity.
The orders unanimously seek proper management of the Covid-19 pandemic in the most transparent manner— by keeping the public in loop regarding availability of medical infrastructure, proper testing, equitable distribution of essential supplies and services, checking hoarding and illicit trade.
To sum up, the High Courts have been vigilant in handling the crisis at the grass-root level.