Executive Silence and the Unconventional Role of the Judiciary

During COVID-19, the Court has gone beyond its adversarial role, taking on the role of rights-based forum and 'nudging' governments.

Justice D.Y. Chandrachud, in the early part of the suo moto COVID-19 hearings he presided over, strongly stated that a free flow of information was absolutely crucial in managing the pandemic. As much as the citizenry itself had taken charge on social media to share information of resources and best practices, there has been a notable silence from the Executive.

During the second wave in other countries such as the United States and the United Kingdom, Executive branches have had regularly appearing spokespeople relaying information and attempting to have consistent messaging. Randeep Guleria, director of AIIMS and member of the national taskforce, is one of the faces of public health in the country. Despite this, the AIIMS guidelines have come under a mountain of scrutiny, with the Centre proceeding to contradict the efficacy of some of the drugs. However,  by then, public panic had settled in and sales were being done at a premium when medicines were scarcely available. Guleria himself contradicted the efficacy of Remdesivir a couple of weeks after AIIMS had submitted it as an anti-viral countermeasure and provided no reasoning as to why that information was either not known or withheld.

In the wake of the numbers and the tragedy behind them, the Executive has remained silent. While the oxygen crisis was raging and vaccine shortages abound, allegations of the Centres complicity have been met with little to no official response. During the ongoing suo moto COVID-19 hearings, the Solicitor General representing the Centre has repeatedly stated that no one could predict the intensity of the second wave including the Centre. And that allocation of resources was being done by a central control room with a robust formula.

Spokespeople with contradictory information and snippets from a courtroom that remains closed to the general public have become the only sources of public discussion. In this time of crisis, the voice (and often, the theatre) of Courts across the nation have taken Centre stage. With our television screens being inundated with ‘debate’, the Courts remain the most vocal (if not the only) source of accountability and discourse.

CJI Bobde initiated the suo moto proceedings. Justice Chandrachud, took over after CJI Bobde’s retirement. Prior to a pause in hearings as Justice Chandrachud recovered COVID, he stated that the role of the court was to act as a forum for dialogue between the various parties present: he did not want the COVID hearings to be adversarial, instead dialogic.  However, the Bench did not use that as a reason to shrink away from holding the state accountable. Specifically, with regard to the Centre’s vaccine policy, and its accessibility for the illiterate, rural and marginalised persons. The Supreme Court has also pulled the government up on issues like differential drug pricing and enactment of welfare schemes for stranded migrant workers, and even ordered the initiation of the Atma Nirbhar Scheme for said workers.

Since the beginning of 2020, the Court has instituted nine suo moto proceedings relating to COVID, eight of which were instituted in 2020. Seven of the nine cases are pending, continuing to provide forums for an evolving discussion. These subjects include ensuring the creation of a comprehensive vaccine policy, care for orphaned children and even aid to litigants who cannot physically appear to represent themselves. The Supreme Court has passed 70 orders during the course of the suo-moto proceedings with 24 so far in 2021. This is despite the effect of the second wave on the Supreme Court itself (with 50% of the staff testing positive in early April) and the advancement of the Court’s summer vacation on request from the Bar Association.

Meanwhile, according to the Press Information Bureau website, since January of this year the Office of the Prime Minister has made 10 press releases relating to COVID Policy and 18 press releases regarding reviews of existing policies. The Ministry of Health and Family has primarily been providing regular updates on the number of cases, rate of vaccination as well as providing public service announcements on recommended practices. However, they have made no major policy announcements since March 30th when the Minister for Health and Family Welfare, Harsh Vardhan, announced the National Policy for Rare Diseases, 2021.

Across the country, High Courts have also participated in ensuring accountability for the larger public benefit. The High Courts in Bombay and Delhi are hearing cases on differential pricing for COVID treatments in private hospitals. The Telangana High Court recently stayed the state government’s circular which disallowed ambulances carrying COVID-19 patients from entering the state, calling it a blatant violation of fundamental rights. These are just a couple of examples of the courts taking it upon themselves to be accessible forums for most COVID related grievances.

However, this presents a double-edged sword. Some argue that there could be long-term effects of this potential judicial overreach into the executive role. This criticism largely stems from the idea that the Courts are overstepping their bounds by making suggestions on policy to State governments during the course of an oral hearing. However, others argue that while the judiciary is not the forum for the making of hard policy and legislation, in many cases the Courts are being forced into these roles. A cursory look at the situation would suggest that ignoring cases because the subject matter isn’t strictly under the Courts’ purview would increase the crisis by an order of magnitude as the citizenry, quite simply, would have nowhere else to turn to.

The best summation of this current judicial response could possibly be gleaned from Justice Chandrachud’s comments on his first day presiding over the suo moto court hearing. Whether it be public health, free speech, economic and social disparities or even the possibility of conflicts between two arms of governance, J Chandrachud implored that the Courts must also evolve and adapt to the ways they can help alleviate the nations burden.

This is representative of the ‘bounded-deliberative approach’ he invoked in the Courts May 31st, 2021 order. This theory has been borrowed from Sandra Fredman’s “Adjudication as Accountability: A Deliberative Approach”. She argues that Courts must place decision makers in positions where they must establish that they’ve fulfilled their human rights obligations. Referring to the Court’s order on April 30th, Chandrachud stated that it was with this approach in mind that they directed the Union to reconsider its policies on issues like vaccination policy and oxygen supply.

In directing the Union away from more rigid approaches and towards an evolving, dynamic, more human rights oriented approach the courts have subtly maneuvered the Union’s stance in a manner akin to a real-time example of ‘Nudge Theory’. This was theorized and published by behavioral economist Richard Thaler and legal scholar Cass Sunstein. In their book titled ‘Nudge‘, they make the argument for indirect suggestions and positive reinforcement as effective ways to influence decision-making. The Bench has stated till kingdom come that these hearings were a forum for discussion and not adversarial. By placing heavy focus on best practices for upholding human rights, the Court has managed to gear the parties towards an approach that’s more prepared to adjust alongside an ongoing crisis.