Modi Government Finally Finds The Spine To Tell The SC To Back Off And Mind Its Own Business

Better late than never. On Monday (10 May), the Narendra Modi government decided enough was enough and told the Supreme Court to back off and stop meddling in what are essentially executive responsibilities on Covid management. One hopes the higher judiciary gets the message.

This is not to suggest that the Centre or states handled the Covid crisis well. Scenes of people desperately seeking oxygen and hospital beds for their near and dear ones suggest that the government did a bad job in this second wave.

But, if the government goofed up, it can also take corrective action, especially since there is a high price to pay politically for letting people die without proper healthcare. And it cannot be anybody’s case that the court will do any better. It can neither generate more oxygen in its premises nor open hospital wards in places under its direct jurisdiction. The courts do not have a magic lamp that can be rubbed and solutions delivered pronto.

In an affidavit filed with the court, not only did the Centre push back against judicial interference, but used straightforward language to do so. A Times of India report quotes the Centre as saying this to the court:

“In the context of a global pandemic…there is little room for judicial interference. Any overzealous, though well-meaning, judicial intervention may lead to unforeseen and unintended consequences. In the absence of any expert advice or administrative experience, leaving the doctors, scientists, experts and executive very little room to fund innovative solutions on the go…”. (Italics mine)

In short, the government told the courts it had no business to put itself in the driver’s seat on Covid management. It indirectly warned that if the courts inserted themselves into the picture, they may have to take responsibility for the outcomes.

For good measure, the affidavit added: “In times of such grave and unprecedented crisis, the executive functioning of the government needs the discretion to formulate policy in the larger interest… In view of the unprecedented circumstances under which the vaccination drive is devised as an executive policy, the wisdom of the executive should be trusted…. The executive, having access to all relevant information in consultation with all stakeholders and domain experts, must have some free play in the joints, in the larger public interest.”

Translated, this means courts cannot know what to do in a crisis, and should not pretend they do.

The Centre also declined to share the information the court asked for on the oxygen crisis. It said: “In view of the constitution of an NTF (National Task Force) and its terms of reference, the central government respectfully defers its response on the issues mentioned in the SC order pertaining to generation, availability, procurement, allocation, supply (and) logistical plans for transportation of oxygen to states, its delivery by states to hospitals, and the manner of its administration to Covid patients.” The government defended its vaccination policy, including dual pricing.

Translation: let us do our jobs, and sharing detailed information with the courts will not make this job any easier to do.

The surprise is not that the Centre finally pushed back against judicial adventurism, but that it took it so long. Also, one wonders why the government was so keen to grant the Supreme Court the benefit of “well-meaning” interventions, when anyone with any amount of commonsense will tell you that well-meaningness must be demonstrated in your own areas of responsibility, and not areas that are someone else’s responsibility. It is always possible to sound virtuous in the context of another person’s crisis rather than your own.

It is troubling that a popularly elected government, which is accountable to the people, has to plead with the Supreme Court that it should be allowed to do its job, and it “should be trusted.”

Over the last decade or so, the Supreme Court has been hyperactive not in its core area of delivering quick justice, but in taking up high-profile public interest litigation (PIL) and making grandiose statements against the state.

Among other things, it has indiscriminately cancelled licences in the 2G and coal block allocation scams, causing huge damage to the economy, imposed taxes on SUVs entering Delhi, and banned liquor bars on highways, among other things. Now, the court wants to decide how the country should manage Covid.

Sorry, Milords, this is none of your business. Your job is to interpret the law, and any intervention should be about delivering justice to the wronged, not running the nation.

Having found its spine after a long time, the Modi government must push back on other fronts too and tell the courts where to get off. There is nothing more unedifying than to see the courts try to do other people’s jobs instead of their own.