‘Courts are meant to scrutinise … they should ensure compliance with legislative mandates and thereby protect citizens’

When a crisis hits a nation, all three organs of government – legislature, executive and judiciary – are supposed to rise to the occasion to provide succour to distressed citizens. Senior Advocate and Congress leader Kapil Sibal discusses their performance during the pandemic with Dhananjay Mahapatra:

In the Covid crisis, how have the legislature, executive and judiciary responded?

It is the executive that failed us. There was no effective national plan to deal with the pandemic. The National Disaster Management Authority headed by the PM under the Disaster Management Act, 2005, seemed to have abandoned our distressed citizens during the first phase of the pandemic. No authority, neither the executive nor the Supreme Court, monitored the minimum requirements to be provided in the relief camps in relation to shelter, food, drinking water, medical cover and sanitation. The court showed no urgency to make sure that the state honoured its primary responsibility towards its citizens. And the legislature is no longer an institution that is allowed to debate and discuss, nor are parliamentary committees effective forums which require bipartisan inputs for dealing with matters of national concern. Brute majority has taken over its deliberations.

The second phase has exposed the government’s complete lack of foresight in the way they have been caught napping. SC is now trying to streamline processes to protect people. Kudos to it for its present efforts. My concern is that despite its best efforts people will continue to suffer. Ramping up capacities to manufacture vaccines cannot happen overnight. When available, to vaccinate a billion people is no easy task. Even if access to oxygen is streamlined, availability of beds, ICUs in hospitals, especially in rural India, and a shortfall of health workers will present a real challenge.

SC was seized of the crisis last year through  many PILs. As the highest court of the country, was it successful in protecting the rights of distressed people and industry?

I am deeply disappointed with SC in displaying confidence in government assurances during the first phase of the pandemic. Courts are meant to scrutinise, to ensure compliance with legislative mandates, and protect citizens. The court failed to do this in the first phase. During the second phase the court is now alive to the reality of the executive’s incompetence and lack of foresight. In situations like a national calamity a ‘continuing mandamus’ approach is a necessity. I congratulate the court for showing sensitivity to the heart-rending scenes that we are all witnessing.

You had represented many of these PILs – from seeking to ameliorate migrant workers’ plight to giving incentives to industries for revival. Was the SC receptive to these ideas?

Sadly not. The court was oblivious to the plight of migrants and the conditions in which they were managing to survive. It spent most of its energy in allowing for and monitoring transportation of stranded migrants. As far as the sectors of the economy beleaguered by the pandemic, the court again acted on the advice of the Kamath Committee and the decisions of RBI. Not that the court can make economic policy prescriptions. But they can scrutinise RBI’s own reports and seek answers. But they chose not to do that. The migrants lost and many MSMEs will not survive. Besides, availability of credit provided little help to sectors of the economy which found it difficult to survive.

What was the approach of the government to problems pointed out by the PILs in SC?

The government was in denial. Had the Supreme Court not taken up the matter suo motu they would have continued to be in denial. Government continues to say there is no shortage of oxygen even today. Even today government has made no effort to declare vaccines as an essential commodity to control their pricing. An ordinance should be promulgated to prevent hoarding and black marketing of oxygen cylinders and other items.

What should be the role of SC in such a crisis?

Continuing mandamus is the only answer. Besides this, fixing of accountability. There should be a Commission of Enquiry fixing accountability of individuals and institutions. Today the court is doing a commendable job.

This year SC has actively taken over monitoring of national issues while giving freedom to HCs to deal with state-level issues arising due to Covid pandemic.

I have already indicated the two different approaches of SC. One proactive, the other receptive to government assertions, reticent and relatively inactive. The constitution of the benches makes all the difference.

What is the way forward for SC?

The institution seems to be losing the confidence of the people. That is the common refrain. It is by their actions alone that the lost confidence can be restored.



Views expressed above are the author’s own.


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