Sack the Government – Let the Courts Rule.

JK has forwarded a WhatsApp comment which conveyed the essence of what’s happening in India today. A doctor writes a prescription to a patients and as hands it over, he says, I have written a medicine for you. But double check with a court.

Indian Courts have long helped yours truly to convince people who compared breakneck growth of China vis a vis the snail pace of India’s growth. This used to be one of the topics whenever I travelled abroad and in any conversation, over dinner, would ultimately end up comparing the two great countries. I used to emphasize that India is a true democracy and our courts help us to stay that way. Suppose the Government decides to pave a new eight lane express highway for 2000 miles (3600 kilometers). In China the construction would begin in about fortnight time. In India a villager whose hut is standing in the proposed highway, would write a Postcard which costed about 15 Paise or 0.2 cents, to the highest court of the land and the honorable judge would take suo moto action on it and would ask the Government to stop all construction activity till the villager’s concerns are addressed. If you assume one villager every 100 miles whose house is standing in the line of construction that is about 20 cases costing 3 Rupees which would stop an important infrastructure project. It need not be the villager’s house. It could be a small temple/church/mosque and the result would be the same.

I would then summarize, saying this is the price we are ready to pay for keeping our country a democracy. Every citizen, as a stakeholder, has same rights. Fortunately at that time, China was building world’s largest dam which would produce million of kilowatts electricity every minute and with it, the largest environment disaster, as well displacing millions of residents. We were building one of the largest dams in India at the same time on river Narmada. While we did not know much about the protests that happened in China over three gorges dam, for a decade Narmada Dam aka Sardar Sarovar Dam was in news every single day since the mid eighties. Endless court battles and agitations were happening. Ms. Medha Patkar who headed the Narmada Bachao Andolan (Save Narmada Movement) was in the headlines everyday as much as the prime minister of the day. I would ask them, could they recall the name of anyone who were protesting against the three gorges dam. Ms. Patkar was as famous if not more as Erin Brockovich. While Ms. Brockovich helped the residents of Hinkley, California years after the disaster happened in their town, Ms. Patkar was protesting so that no such disaster happened in India. It took us five years to get permission (not construction just permission) to increase the height of Sarovar dam by one meter and by the time China completed about 10% of the construction of three gorges dam.

So we were good. India would progress, albeit slowly, but we would keep everyone’s interest in mind or at least our courts would do. It did not matter to us one bit that millions of cases were pending at all courts across the country and the only time court would act with any swiftness was when a case like this came up or when a corrupt (allegedly) businessman or politician was about to be arrested and he would ask the court for an injunction for not arresting him. The other technique these people had was on the day of possible arrest they would suddenly develop severe pain in the chest and get admitted in the hospital.

But then COVID happened. So far we assumed that court had few definitive roles. A cheats B of some money. B files a case (Civil) and prays the court to give him/her justice. X allegedly murders Y and the prosecution asks for punishment for X (life or death) which is a criminal case. The third was the court would help us to understand the constitution and their interpretation of it. This happened mostly when Government passed a law or changed one and someone filed a case against it’s implementation. When COVID struck, the Courts assumed a new responsibility, instructing the Government on how to run the administration. They told the government what is a fair price of Test kits, how many they should buy from whom. This was on the first wave of infection. The ICMR (plays the role of CDC in COVID) tested and approved a rapid test kit which would help find out if someone had got COVID and developed antibodies or is in the process of developing antibodies or not exposed to virus at all. State Governments were allowed to import these kits (we had not developed these kits yet). Then the horror began. A trader filed a case in an high court that the import price was very high. The courts declared the price should be only 50% of what the state government had agreed to pay. Of course the market dynamics would not permit this and all the state governments who placed the order for import cancelled them. Here in lies the irony. Only the first couple of shipments would have to be imported. At the same time, we were developing the kits in India and this would have served as an excellent sero surveillance tool. State Government gave up this testing method all together. Today, the kit is available in India, made locally at tenth of the price originally quoted. But sadly no takers for this test. And this test method is still one of the simplest tool available for sero surveillance.

During the second wave, the courts and the learned judges took this activism to another level. Of course learned judges – if someone can write a nine hundred pages judgement without a comma or full-stop in incomprehensible English he/she must be well learned. No argument. They started dictating how much oxygen each hospital/district/state should get everyday. No consideration was given to production and logistics bottlenecks. Then they got into medicine. What should be the price and how this should be distributed. While a direction to the government to arrest black marketing of drugs is definitely welcome, the courts and the Government cannot decide the retail price of drugs arbitrarily. They passed severe strictures saying letting someone die for lack of oxygen amounted to genocide (Is it?). The Madras high court, (yes it is correct, the city is renamed as Chennai but the high court is still Madras High Court) declared that ambulances should not be queuing up outside the General Hospital (one of the biggest hospital in India and the oldest). Now these hospitals are built with enough capacity to handle emergencies, say a fire accident or a building collapse. In such emergencies many ambulances would arrive at the same time and they are built to handle that. But what we have seen during the peak of second wave was unprecedented. How were they going to implement this ‘no waiting’ order? A simple solution would have been to park the ambulances in the central station parking lot and with two people with walkie talkies one at the arriving hall in GH and one in Central station where the ambulances are parked would have solved the problem. No need for the court to simply declare ‘NO PARKING.’

And the list goes on. It is bit ironic that a body (Courts) which has 38 million cased pending in District courts, 5.8 million cases in state high courts and 67 thousand cases in the highest court is telling anyone how to run administration efficiently. If you file a civil case when you are twenty, you would be lucky if you get a third hearing of your case, when you are about to enter a hospital for ventilator support just after celebrating your eightieth birthday.

It is said that Indian democracy has four pillars, Legislature, Executive, Judiciary and Media. Looks like our courts have decided that one pillar is enough and they would take care of the rest. They can pass laws (Legislature), implement them (Executive), interpret what they passed is as per constitution (Judiciary) and then applaud them – no need to criticize (Media). The democracy, then, will be standing like the revolving restaurants standing atop a pillar, that you see in Shanghai or Vancouver. May look wobbly. But then, should that matter?

Cartoon Courtesy: Mr. Prasad