Crisis reveals the real capacity of the state and the quality of governance. The COVID-19 pandemic in India killed lakhs of people across the country. The corpses in the Ganges exposed the emptiness of our rhetoric on development and underlined the harsh Indian reality. Human dignity suffered in life as well as in death. Article 21 of the Constitution, talking about the right to life, appeared a dead letter to the citizens. More than a health crisis, we are in a political crisis, a civilisational crisis. Belatedly, the Centre has now come out with a new vaccination policy. The direction of the top court and the criticism from the public has had some impact. Better late than never.
Laws are devices to be used appropriately in critical situations as a means of social engineering. The state can use its laws for the betterment of the people or to their detriment. It can use or misuse its offices and choose to help or punish its citizens. Two aspects were notable in the conduct of the executive: a lack of accountability and a convenient misuse of the pandemic period.
Certain restrictions like enforced physical distancing might be valid and necessary in view of the health crisis. But the pandemic cannot give carte blanche to the government to do as it pleases without accountability or legitimacy. Literature on freedom during the time of COVID-19 makes for a wonderful read. Leslie Francis recently wrote an essay titled Negative freedom in crisis times. (Utah Law Digital Commons, 2021). She rightly says that the court is concerned with the question of whether "the public health interest is sufficiently strong to override presumed individual liberties". During an epidemic, the state can take away one’s freedom to form a crowd. But it cannot book somebody for being a whistle-blower. It cannot shoot the messenger because the message is unpleasant to the government.
Throughout the pandemic, till the court actively intervened, the Centre showed little or no seriousness in the matter. A Bench headed by Justice DY Chandrachud on April 30 asked if the Centre had ever considered invoking Sections 92 and 100 of the Patents Act and issuing compulsory licenses to the firms to ensure adequate production and supply of vaccines. These provisions are meant to be used during a health emergency. Also, these are provisions that work against monopolisation of production, which the country cannot afford right now. On May 31, the same Bench asked the Centre to place its vaccine policy before the Court. The Court also asked how the Budget allocation of Rs 35,000 crore has been spent so far and why it cannot be used for the vaccination programme. A Division Bench of the Kerala High Court asked why a part of the enormous surplus money that the Reserve Bank granted to the Centre cannot be utilised for vaccination. It required the court to tell the rulers as to how they should act and correct themselves. Democracy always needs judicial vigilance and executive sensitivity.
International media also questioned the nation’s policies relating to the pandemic. Economists, academics and writers have widely written about what could be done differently to improve lives in a health crisis. In a democracy, criticisms are measures to keep the executive under check. The announcement of the new vaccine policy demonstrates this principle.
One would expect the executive to be prepared with responses and expertise since they fall within the exclusive domain of its policy. The Centre's reaction, initially, was characterised by ill-equipped approaches and failure of governance. It was also intolerant towards any dissent and was more interested in suppressing criticism than assessing its merit.
The government also made use of the pandemic period to evade the consultative process and clamp down on civil liberties. The Centre's hurry in implementing the Citizenship (Amendment) Act in an indirect way is an example. It issued a notification on May 28, inviting the minorities in Afghanistan, Bangladesh and Pakistan to seek Indian citizenship. This happened while the matter is pending before the Supreme Court and when the rules under the Act are yet to be framed. This also shows the priority of the executive when there is enormous suffering in a health emergency.
The administrator’s action in Lakshadweep, which curtails the freedom of the islanders, is yet another instance. Even before the enactment of draft regulations and laws, the protesters in the island were arrested and detained, though for a short while. The islanders say that they have not been consulted prior to the drastic changes about to be implemented, altering the future of the island dramatically.
All these and many other episodes displayed a spiteful state. A responsible government ought to have concentrated on the war against the virus rather than against the people. The Constitution, by way of Directive Principles, provides for a blueprint for governance with a sense of compassion and fraternity. Article 38 persuades the state to "eliminate inequalities in status, facilities, and opportunities". Article 39 dreams about equitable distribution of resources. It dislikes "concentration of wealth and means of production to the common detriment". This could presently mean encouraging a large number of firms to produce vaccines for a cheaper price and ensuring free access to it. Even Article 51A(h) incorporated during the Emergency has a contextual relevance. It appeals “to develop the scientific temper, humanism and spirit of inquiry”.
To overcome the pandemic, the government needs to prepare better with adequate health expenditure and a well-defined policy when it comes to health. It should also ensure just and equitable implementation of the revised vaccine policy.
(The writer is a lawyer, Supreme Court of India and can be reached at kaleeswaramraj@gmail.com. Twitter: @KaleeswaramR)