It's been more than a year since the first case of COVID-19 was reported in
India but as per the prevailing outcry in the whole country it seems that
government has not just only failed in insuring necessary medical aid to the
citizens of this nation but has also failed in understanding and examining the
gravity of this pandemic and how much loss it can cause to one's life.
The government may become a mute spectator in such critical situation but it is
not the case of Indian judicial system.
Till now 11 High Court have reacted on
mismanagement being caused during the on-going second wave of COVID-19 in a very
strict manner, some High Court have even gone to the extent of warning the
responsible officers of Union Government and State Government to insure the
necessary medical facility in their respective territorial jurisdiction
otherwise the Court will act like never before and put such officers behind the
Though the Indian judicial system has acted in a very assertive manner but such
directions and orders are always a dead letter till they are not being executed
at root level, and this is what is happening in current scenario. Hon'ble High
Court may direct the State authority to insure the regular supply of medical
oxygen in every hospital of district or may direct to insure the uninterrupted
supply of medication like Remedesivir injection, Tocilizumab or Favipiravir but
what will happen if the executing authority refuses to comply such order?
the responsible officers does such dereliction of his duty during the time of
such a undeclared medical emergency situation, where lacks of lives are
dependent on the government machinery?
However, as it has rightly been said that at several occasions, attaining a
decree only proves to be less than half the battle won. Execution of court
decrees is not an unchartered territory which has not had its fair share of
controversy under law. A decree is precisely the trophy that a claimant litigant
eyes at the time of approaching a court of law.
The troubles faced by a decree
holder, in bearing the fruits of long-fought justice, due to inordinate delay in
execution of decree/order is not a new issue faced by them. In this pandemic
even after getting a judicial order for insuring right to health it serves for
no value as the executing authority's are sitting hand on hand without any fear
In the case of Ram Jawaya Kapur v. State of Punjab
it was held that it is not
possible to frame an exhaustive definition of executive functions. Ordinarily
the executive power connotes the residue of governmental functions that remains
after legislative and judicial functions are taken away and 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 and the executive pillar of democracy which
failed to timely comply the directions and orders issued by the judiciary. One
would only laugh at us that we have enough to spend on elections and very little
to spend on public health.
As per the Constitution, Judiciary is meant to be independent in its field and
there can be no interference with the judicial functions either by the executive
or by the legislature. The Indian Judicial system works in a manner which
excludes the existence of arbitrariness, of prerogative or even wide
discretionary power on the part of government. It is generally accepted that
there are 3 main categories of governmental functions
- The Legislature i.e., Parliament,
- The Executive i.e., President and
- The Judiciary i.e., Supreme Court, High Court & other subordinate Courts
For proper functioning of the government it is essential that all these 3
pillars of democracy work in coordination with each other under the umbrella of
Rule of law and if not then surely the State will face Constitutional crises
making whole Sate lawless.
Right To Health & Constitution
The concept of Right to health was evolved by Hon'ble Apex Court in the matter
of CESC Ltd. vs. Subhash Chandra Bosewhere the Hon'ble Court held that right
to health must be considered an aspect of social justice informed by not only
Article 21 of the Constitution, but also the Directive Principles of State
Policy and international covenants to which India is a party.
Supreme Court in Devika Vishwas vs. Union of India
reiterated that right to
� is a facet of right to life
guaranteed under Article 21 of
Constitution of India. Hon'ble Apex Court while dealing with the aforesaid
matter held that the right to health is an integral part of the right to life
and the same does not requires any sort of repetition. But the question that
pops up in the mind of citizens of this country is whether the State has
fulfilled its responsibility by insuring such the right to life and health to
every citizen of this nation during this COVID-19 pandemic?
Given the recent
State of affairs surely the answer will be negative as due to second wave of
COVID-19 India is going through a pathetic situation. It is evident that
citizens are struggling to get a bed, oxygen support, injection and other
medical facility in hospital which depicts on the face of record that system has
miserably collapsed. Around 11 High Courts of this nation have taken cognizance
of such alarming situation prevailing in their respective territorial
jurisdiction and have directed the State to ensure citizens their right to
But whether directions given by Hon'ble High Court are being complied by the
State Government? If, yes then why huge hue and cry is made out by public at
large on daily basis for non-availability of medical facility?
The truth is that
the order passed by the third pillar of democracy i.e. judiciary have become a
dead letter in present scenario and despite issuance of various writs, orders,
directions by the Hon'ble Court the State Government is working in their own
wisdom without even caring about what the judiciary has called us to do.
This situation is obviously a threat to constitutional mechanism and has
dismantled the system based on Rule of Law.
The doctrine of rule of law proved to be an effective and powerful weapon in
keeping administrative authorities within their limits and it served as a
touchstone to the test of administrative action and this principle is
recognized as a cardinal rule of democracy that every government must be
subject to law and not law subject to the government. However high a person
may be the law is always above him.
Madison also proclaimed:
The accumulation of all powers, legislative, executive and judiciary, in the
same hands, whether of one, a few or many and whether hereditary,
self-appointed or elective may justly be pronounced the very definition of
Covid-19 And The Issues Faced By Citizens
Firstly, the patient suffering from COVID-19 are not getting admission in the
hospital and if somehow or other, the patient succeeds in securing admission in
the hospital then he is denied from proper treatment as hospital administration
fails to provide medical oxygen support and other medical facilities to the
patient. This clearly depicts the arbitrary conduct which has been adopted by
the Hospital Administration and State being regulating authority is also just a
mute spectator in this whole scenario due to reason best known to them. This
conduct of Hospital Administration and State is completely against the law laid
down by Hon'ble Supreme Court in the matter of in Balram Prasad v. Kunal
wherein the Hon'ble Court held that right to life and personal liberty
under Article 21 of the Constitution also includes right of patients to be
treated with dignity as observed by this Court.
The Supreme Court in the matter of State of Andhra Pradesh v. M/s Linde India
decided that Medical Oxygen IP and Nitrous Oxide IP fall within the ambit of
Section 3(b)(i) of the Drugs and Cosmetics Act, 1940 Act. The Constitution Bench
of the Supreme Court in Navtej Singh Johar and others vs. Union of India
held that right to health and health care is one of the facets of right to life
under Article 21 of the Constitution of India.
The right of the citizen to
adequate healthcare emanates from the dignity and sanctity of the human life
which belongs to all of them. Health, besides being a fundamental right, is a
basic human right, which no popular government can afford to negate. It also
includes an obligation on the State in ensuring access to all the citizens
inflicted with disease of Coronavirus with life-saving means and drugs such as
Oxygen and Remdesivir in this case.
In any case the obligation to take care of the poor during disasters is already
prescribed under the law. While there is no specific fundamental right to food,
health care, shelter, etc., Article 21 of the Constitution which provides that
no person shall be deprived of his life and liberty without procedure
established by law, has been given a wide interpretation by the Supreme Court
which has broadened the definition of life to not just include �mere animal
but the right to live with human dignity which includes right to
shelter in Olga Tellis v. B.M.C.
, Chameli Singh & Ors. vs. State of U.P
the right to livelihood in PUDR vs. UOI
, right to adequate health care in
Banga Khet Mazdoor Samiti vs. State of W.B.
, right to clean drinking water
in A.P. Pollution Control Board vs. Prof. M.V. Nayudu
, right to food, etc.
Thus it is not merely a moral or legal obligation of the State to look after the
people but also the right of the people to demand and obtain these very
essentials from the State.
Courts Imparting Their Duty
- Hon'ble Madhya Pradesh High Court will dealing a suo-moto proceeding in
the matter of Re: (Suo Moto) vs. Union Of India & Others stated that:
Ordinarily these matters lie in the domain of the Executive, who has the
responsibility to resolve all the identified problematic issues. However,
despite being cognizant of its jurisdictional limitations, this Court, in an
extraordinary situation like the present one, when they are brought to its
notice, cannot just play a silent spectator.
Thereafter, the Hon'ble Court laid down a 19 point guideline, which was
required to be followed by the State and Hospital Administration in letter and
spirit. The Court dealt various issues like availability of beds, need for
increasing the same, supply of Remdesivir injection, fixing time limit to
produce results of RT-PCR and Rapid Antigen test, continuous supply of medical
oxygen, charging reasonable and not hefty amount for treating COVID-19 patients,
etc. The Hon'ble Court stated that in such a grim situation it can anyway play a
role of catalyst by reminding the State of its duties.
- Hon'ble Delhi High Court in Maharaja Agrasen Hospital Charitable Trust
vs. Union of India &Ors., while dealing with a plea filed by hospital
administration for want of medical oxygen vide order dated 24.04.2021 held that,
since hospital have several patients in ICU, and their lives are at stake and
the hospital is demanding for Oxygen on immediate basis, Their requirements have
to be noted duly by concerned officers of State including the Nodal Officer
appointed for COVID-19, Further the Court also fixed responsibility on the Delhi
Police to prevent any untoward incident.
Further in the matter of Rakesh
Malhotra vs. Government Of National Capital Territory Of India And Ors, Hon'ble
Delhi High Court directed Central Government to dynamically review the
distribution of Remedesivir injection in the States and Union Territories on a
daily basis and in respect of other drugs required for the proper treatment of
patient from COVID-19 such as Tocilizumab, Favipiravir, Ivermectin,
Dexamathasone, Methylprednisolone, Dalteparin, Enoxaparin, HCQ and Baricitinib,
it was directed that Central Government must immediately reach out to the
manufacturers/patent holders/licensees of such drug, so as to forthwith ramp up
the production capacities.
- Hon'ble High Court of Chhattisgarh bench at Bilaspur while dealing a suo-moto proceeding directed
State Government to ensure that no patient loses life in this State, for
cessation of supply of Oxygen and if there is any chance of shortage then
immediate arrangements shall be made to stall or reduce the industrial supply
for a short while. Further, the Hon'ble Court also directed State Government to
consider fixation of ceiling of rates with regard to the COVID-19 treatment in
private Hospitals, so as to avoid exploitation of citizens by the private
- Hon'ble Gujarat High Court while dealing a Suo-moto proceeding laid
down a 14 point guideline to be followed by State Government at various
hospitals operating within Gujarat to fight with COVID-19 pandemic. It was held
that the availability of beds should be displayed by the hospital on real time
basis which means that as soon as the bed is occupied the number of vacant bed
should go down and as soon as the patient is discharged the of vacancy must
immediately be displayed. State must ensure that availability of oxygen is
sufficient to cater to the demand of COVID-19 patients. Further, the Hon'ble
Court when on commenting that.
The State has nothing to gain by hiding real
picture and hence suppression and concealment of accurate data would generate
more serious problems including fear, loss of trust, panic
amongst public at large and hence, real facts and figures must be provided to
public at large.
- Hon'ble Jharkhand High Court bench at Ranchi also while dealing suo-moto
proceeding directed State Government to maintain the adequate supply of
the life-saving drugs to treat the persons affected from Covid-19, to
maintain the adequate supply of oxygen in different hospitals both private
as well as Government and steps must taken to put control on black marketing
of life saving drugs in the interest of public at large.
- Hon'ble Karnataka High Court in a suo-moto proceeding directed State
Government to create a help desks outside the COVID hospitals in the various
cities for helping the COVID-19 patients who cannot be admitted in that
particular hospital. The help desks shall also provide information regarding the
availability of Remdesivir medicine in the Cities.
- Hon'ble Punjab & Haryana High Court in the case of Rishi vs. State of
Haryana reiterated that: Had the government strengthened the health system
in the past one year, people would not have been scrambling for hospitals, beds,
ventilators, oxygen, and medicines.
Court impleaded States due to a grave
situation arising in view of non-availability of essential drugs such as
Remdesivir and Tocilizumab.
- Hon'ble Patna High Court in the matter of Shivani Kaushik v. Union of
India deal with the deficient healthcare facilities and acute shortage of
oxygen in the State due to COVID-19 pandemic.
Admittedly, acute shortage of
oxygen is one of the greatest challenges which the healthcare system in the
State of Bihar is presently facing in the wake of sudden upsurge of COVID-19
cases. Hon'ble Court directed State of Bihar to ensure that continuous supply of
oxygen in the hospital is maintained and officials/ doctors of the said hospital
are not made to beg for oxygen before the officials of the State Government. Any
lapse on the part of the Stae, having consequence of irregular/short supply of
oxygen in the hospital, shall be viewed seriously by Court.
- Hon'ble Allahabad High Court In- Re Inhuman Condition At Quarantine
Centres And For Providing Better Treatment To Corona Positive dealt with
the acute paucity of oxygen, beds, injections including Remdesivir and further
deterioration in condition of patient by introducing painstaking mechanisms. The
Court strictly addressed that:
If even after seven decades of our attaining
freedom with so many heavy industries set up, we are not able to provide oxygen
to our citizens, it's a matter of shame.
- Hon'ble Bombay High Court suo-moto proceeding showed its disappointment
towards Union of India and stated that:
In a region which accounts for almost
40% Covid patients of the entire nation, the communication from the Ministry of
Health and Family Affairs should have been to the effect of increasing the
supply of liquid oxygen to the State of Maharashtra from the present practice of
110 metric tons per day to somewhere between 200 to 300 metric tons per day.
The Hon'ble High Court further directed State Government to insure the
uninterrupted supply of Remdesivir drug and other life-saving drugs to State of
- Hon'ble Uttarakhand bench at Nainital in the matter of Anu Pant v. State of
Uttarakhandand another was pleased to issue various directions to the State
Government of Uttarakhand vide order dated 28.04.2021. Hon'ble Court directed
the State authority to update the availability of bed at online portal on real
time basis which means that as soon as bed is occupied by a patient the vacancy
of bed must go low and as soon as patient is discharged the vacancy of bed must
go high. Further also directed government to motivate the people to undertake
the plasma donation.
But implementation of such guidelines laid down by various High Courts is still
a far cry as executive has completely turned Nelson's eye to the orders passed
by abovementioned High Court, amongst others, is completely against the cardinal
principle of the Constitution that no one howsoever highly placed and no lofty
authority can claim to be the sole judge of its powers under the Constitution.
The Rule of Law requires that the exercise of powers by the legislature or by
the government or by the judiciary or by any other authority must be conditioned
by the Constitution.
In the matter of Lucknow Development Authority (LDA) v. M.K. Gupta
, it was held
by Hon'ble Supreme Court that Public authorities acting in violation of
constitutional or statutory provisions or any order passed by the Hon'ble Court
oppressively are accountable for their behaviour before the authorities created
under the statute like the Commission or Courts entrusted with the
responsibility of maintaining the Rule of Law.
But it is hereby stated that the
administrative authorities are working in utter disregard to the constitutional
or statutory provisions without having any fear of law, reason being the
judiciary has stopped taking strict penal action against the concerned officers
responsible for violation of constitutional or statutory provisions or any order
passed by the Hon'ble Court.
So far as Indian Law is concerned, the maxim, The King can do no wrong
never fully accepted. Absolute immunity of the government was not recognized in
the Indian Legal system in the past. Kings were always subordinate to the Rule
of Law and to the system of justice prevalent at the time. According to Manu, it
was the duty of the king to uphold the law as he himself was subject to law like
any other ordinary citizen.
But in present scenario I think the doctrine has
evolved a lot and now State Government being King
of their respective States
are doing not just wrong but a constitutional blunder by acting in their own
whims and fancies by not following the order passed by Hon'ble High Court.
only silver lining in the cloud is that the scientists have become successful in
formulating vaccine and as on date, but securing vaccination in a country having
population of more than 135 Crores is a very difficult task.
It must be kept in
The Government should be subject to law, rather than the law subjects
to the government but it is widely been observed that as of today the law is
being subject to the government and everybody is just a mute spectator.
Written By: Jayesh Gurnani
- Ram Jawaya Kapur v. State of Punjab; AIR 1955 SC 549
- CESC Ltd. vs. Subhash Chandra Bose (1992) 1 SCC 441
- Devika Vishwas vs. Union of India (2016) 10 SCC 726
- Balram Prasad v. Kunal Saha; (2014) 1 SCC 384
- Navtej Singh Johar and others vs. Union of India; (2018) 10 SCC 1
- Olga Tellis v. B.M.C.; (1985 3 SCC 545)
- Chameli Singh & Ors. vs. State of U.P.; (1996) 2 SCC 549
- PUDR vs. UOI ; AIR 1982 SC 1473
- Paschim Banga Khet Mazdoor Samiti vs. State of W.B.; 1996 4 SCC 37
- A.P. Pollution Control Board vs. Prof. M.V. Nayudu ; (2001) 2 SCC 62
- Re: (Suo Moto) vs. Union Of India & Others W.P. No.8914/2020
- Maharaja Agrasen Hospital Charitable Trust vs. Union of India &Ors.W.P.
- Rakesh Malhotra vs. Government Of National Capital Territory Of India
And Ors W.P. No. 3031/2020
- W.P.(PIL) No. 27 of 2020
- W.P.(PIL) No. 53 of 2021
- W.P.(PIL) No. 1301 of 2020
- Rishi vs. State of Haryana[CRWP-242/2021]
- Civil Writ Jurisdiction Case No.353 of 2021
- In-Re Inhuman Condition At Quarantine Centres And For Providing Better
Treatment To Corona Positive
- Suo-Motu P.I.L. No.4 of 2020
- [WP (PIL) No. 97/2019]
- Wade & Forsyth, Administrative Law (2009) 17-21, 289-287
(4th year law student, School of law, DAVV)
Please Drop Your Comments