High Courts in many States are seized with public interest litigations on the administration of governmental response to Covid. The Supreme Court has taken suo motu cognisance, too. The alleged cause is utter neglect and abdication of duty by governments at the Centre and the States. But, in my opinion, jurisdiction of the courts is not the solution.

The areas of concern are lack of availability of Remedesivir, a medicine prescribed for Covid treatment in hospital care; shortage of oxygen cylinders and ventilators; lack of dedicated Covid beds and hospitals with facilities like intensive care units; apart from the important issue of declaration and enforcement of a lockdown. Various legislation that already hold the field, ranging from laws governing drugs, explosives, hospitals and disasters, are getting scant attention.

To my mind, neither the appearing counsel nor the Solicitor General of India is inviting the attention of the courts to several vital facets of this controversy. Foremost is the role of the constitutional courts. The prerogative writs that can be issued by the Supreme Court and the plenary powers vested, are for enforcement of fundamental rights conferred by Part-III as laid down in Article 32 of the Constitution. Although it is said that the power of the High Courts to issue writs under Article 226 is wider, it is undisputed that those approaching these courts must possess a legal right and must demonstrate a corresponding legal duty of any state authority. Nobody is willing to answer these basic questions that go to the root of the matter.

First, the core issue of the fundamental and legal rights. It is loosely stated that Part-III of the Constitution contains Articles 14 and 21 and these guarantee equality before law and equal protection of laws and protection of life and personal liberty, thereby conferring a fundamental right to be enforced. This is fallacious. Indeed, the present crisis is because of mishandling by the health machinery. However, that alone is not sufficient to rush to courts and look upon them as our saviours. The courts do not function in a vacuum nor can they take cognisance of matters concerning our health only on sympathetic grounds. The real question: do we have a absolute and unfettered right which we can enforce through the courts.

Article 21 guarantees the right to life and personal liberty and that may include, after its expansion, access to healthcare. However, is it the obligation and duty of the governments and public health officials to provide medical aid and assistance utilising public monies and funds? In other words, should healthcare be free for all? Is there an obligation on the State to create and maintain complete health infrastructure guaranteeing assistance and aid in case of illness and disease? Is it the Constitutional philosophy and ideal that the State shall, within the limits of its economic capacity and development, make effective provision for old age, sickness and disablement?

Consider Article 41 appearing in Part IV titled ‘Directive Principles of State Policy’ — these principles are not justifiable but they are fundamental to the governance of the country and it is the duty of the state to apply these in making laws. The next question, therefore, is whether provision of medical aid and assistance the only duty and priority of the government. The ideal is that it should facilitate the provision of the same. Even in Covid-19, the state arranges for diagnosis and treatment, either free or at subsidised rates, in public healthcare facilities only to further the constitutional goals and ideals. Governments have assisted patients in securing facilities for treatment even in private healthcare facilities. Is there anything beyond all this which the government is mandated to do?

Issuing directions

Second, and more importantly, if there is no statute holding the field, courts cannot legislate in the garb of issuing directions and passing orders. Even if the Supreme Court passes orders under Article 32 read with Article 142, it can only be to safeguard fundamental rights and to do complete justice while doing so — not to create an ad hoc legal regime and take over the role of the legislature. Even the executive power of administering and enforcing existing laws cannot be taken over. The power to issue a writ of mandamus or a command of that nature is only to activate the executive to discharge and perform its public duties and statutory duties.

A public duty is one in the discharge of which, the State, the public or the community at large has an interest. If there is a statute that outlines the duties and responsibilities of the executive during an epidemic, then, the erring or dysfunctional executive can be commanded by appropriate orders and directions. The court can indeed also monitor the enforcement. However, in exercising these powers, the courts cannot create a new duty or widen the scope of an existing duty. They are not expected to take over the functions of the government even in a severe health crisis.

Judicial power has in-built limitations. Judicial power is not conferred to run government affairs. Judicial power will not enable the court to ignore the will of the legislature. Elected and chosen representatives make laws, which are to implemented by the executive. Where there is a dispute about the meaning of the law or where fundamental and legal rights of the citizens are violated in its administration, then alone the constitutional court steps in. Merely because the nature of the proceedings is a public interest litigation, this essential legal position does not undergo any change.

Article 50 gives guidance — it separates judiciary from executive. It is the duty of the State to separate the judiciary from the executive in the public services of the State. In the circumstances, everyone must be cautious. As members of the public we have a higher responsibility, not to disturb the constitutional discipline. Constitutional morality demands that even those approaching the court must exercise restraint. Today’s health crisis should not encourage people to bring every aspect of health care administration and management to the court.

Assuming that the suffering public has none to look to for support and assistance and are forced to approach the courts, we must still realise that the judiciary does not have a cure for every disease. Access to healthcare may be integral to Article 21. However, the court cannot command the state to make a law or rule to take over private hospitals or to make available healthcare in private sector free of charge. Given its multiple obligations and responsibilities to the public, the court cannot command the State to spend public funds only to build health infrastructure or to augment the existing one.

Public-private or exclusive-private is the health infrastructure model accepted even in India. Likewise, courts cannot by a judicial fiat direct distribution of drugs and medicines free of cost, even if they are essential commodities. The pricing regulation in place is already aimed at there being no profiteering and to make medicines affordable. In government hospitals, the economically weak can be assisted by the officials procuring and providing them. Same is the case with vaccines.

Free healthcare for the entire population may be a dream but that cannot be realised through courts. Court orders ought to have a binding effect and must be capable of implementation. Judges and lawyers should not call upon the State to do that which is virtually impossible.

The writer is a retired judge of the Bombay High Court

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