With the nationwide lock-down extended until May 3, with another set of directions issued under the National Disaster Management Act, and a number – and range – of petitions of various kinds before the Supreme Court, it is perhaps worth taking a quick step back and returning to some first principles: in particular, to discuss afresh the role of the judiciary in the context of an executive-led response to a public health crisis.
I want to frame this essay around the issue of accountability, and what that means in this concrete context. According to a narrow version of accountability – let us call this “electoral accountability” – legitimacy is conferred upon government through the mechanism of periodic elections. The accountability of the government is tested – and renewed – through the electoral process. It follows from this that in the intervening five-year period, the government is taken to act upon the basis of a continuing mandate, and is not subject to any other form of accountability. If the government makes mistakes – for example, in its handling of the pandemic – it will be punished at the ballot box at the next elections.
This idea of accountability has been articulated, in particular, to criticise some of the Court’s interventions (such as its initial order on free Covid-19 testing, which now, of course, it has walked back on), and to praise its otherwise deferential attitude towards the government during this time (on the issue, for example, of migrant labour). The Court has not been elected to “manage the pandemic”, this argument goes, and it is not “accountable” to the people for the consequences of its decisions (such as free testing). Consequently, it should stay out of the way and let the government do what it is doing.
This articulation of accountability, however, does not correspond with the complexity of a republican democracy, where the Constitution consciously splits power between three branches of State (I ignore for the purposes of this essay the conundrums posed by Fourth Branch institutions such as the CAG, and the press). The government – and by government, I now specifically mean the executive – is accountable to the two other branches when it comes to the question of day-to-day administration. The first is Parliament (or the state legislatures, as the case may be) – the actual representative bodies – that have the power of oversight and scrutiny, and to ensure that the executive is operating in accordance with the lawful power that has been vested in it. The second is the judiciary, which is tasked with ensuring that the government’s actions respect constitutionally guaranteed rights, and are non-arbitrary (in the administrative law sense).
Now the first thing to notice about how the Covid-19 crisis has been handled in India is that the one of these three branches – Parliament – has been entirely bypassed. As I have written in some detail elsewhere, the two laws invoked to deal with the pandemic – the NDMA at the federal level and the EDA at the state level – have wide umbrella clauses that are of the “whatever it takes” variety: they essentially allow the executive to take any steps that it deems necessary in order to contain the “disaster” or the “epidemic”, as the case may be. Consider for a moment just what that means: even an Emergency declaration under the Constitution requires subsequent ratification by the Parliament. If, therefore, the government wanted to formally use the Constitution’s Emergency powers to deal with Covid-19, it would be subjected to a degree of Parliamentary scrutiny that is greater than the scrutiny it is subjected to through invoking the NDMA (that is, none)! Furthermore, ratification is not the only job Parliament plays: although its role in lawmaking has been vastly diminished in recent years, especially with the anti-defection law in place, Parliament remains the forum where the country’s elected lawmakers can debate what the government is doing; Parliamentary Questions are effective ways of extracting information from otherwise recalcitrant government Ministers; and Parliamentary Committees are vital tools of legislative oversight. All of this, it is important to note, has been bypassed through the invocation of the NDMA and EDA, leaving opposition leaders to hold press conferences and – as the Solicitor General would say – “prepare tweets” on the issue as their only ways of getting their points across. In fact, forget Parliamentary accountability – as all the Orders under the NDMA are signed by the Home Secretary, it is unclear the extent to which even the collective responsibility of the Cabinet is at play.
This is important for two reasons. The first is that accountability is a two-way street. The government – at both the federal and the state levels – has insulated itself from legislative accountability, which is an essential feature of the checks and balances envisioned under our democracy. Its case, then, for being given a free hand on the basis of “electoral accountability” is thereby weakened. And the second is that the effective eclipse of Parliament essentially leaves the judiciary as the only formal State organ that is positioned to act as a check on, and review, government action. And it is crucial to note – again – that what we are talking of is not judicial review of legislation (where there is a strong presumption of constitutionality, and a direct link with the issue of representation), but of executive action purportedly under the cover of an enabling legislation (the presumption in favour of which, accordingly, is diluted).
Now, once again – and to get a very obvious bad faith objection out of the way – this is not to say that the judiciary should take over management of the pandemic. Nobody is saying that, and nobody has said that. What it does mean, however, is that the judiciary bears a heavy constitutional responsibility in ensuring that there continues to exist a forum where the government is called to account for its actions, and is required to justify them – under existing legal standards (what, on this blog, we have referred to as the “culture of justification”). To understand what this means, let us take, for instance, the now-farcical performance of the bench of Bhushan and Bhat JJ in the case involving free Covid-19 testing. On this blog, there had been an extensive debate around the bench’s first order mandating free Covid-19 testing (under ICMR Guidelines). There had been a general agreement that the Order lacked clarity on the question of reimbursement, and that private labs could not be expected to carry out testing without clarity on that point. Within a few days, the same bench performed a complete – and unreasoned – U-turn, and passed an even vaguer Order – at the behest of the Solicitor-General – allowing private labs to charge from those who have the means of paying (this effectively means that everyone whom the government formally exempts from paying will have to pay). Now, in the Court, it was argued that the cap-price of Rs. 4,500 per test had been arrived at after consultation with a task-force of experts; however, as journalistic reports showed, there had been no such consultation – and indeed, the price cap of Rs. 4,500 had been fixed in consultation with a set of individuals that indicated a conflict of interest.
Now, leaving aside the issue of free testing for a moment – as we have discussed this extensively on the blog – is the Supreme Court expected to get into the nitty-gritties of price fixation? Certainly not. However, is the fact that the government has – allegedly – not consulted its own committee of experts in fixing the price a relevant fact? Yes – and this is not even a constitutional issue, it is an administrative law issue – it shows non-application of mind and arbitrariness. Is the fact that the individuals who were consulted about the price allegedly had a conflict of interest in the issue, a relevant fact? Yes – and once again, this is in the domain of administrative law and arbitrary State action. Moving into the domain of constitutional law, if the government was of the view that free testing (even under strict ICMR Guidelines) would hamper its availability to conduct enough tests because of budgetary concerns, surely that opinion was founded upon some economic basis? While the Court would not “substitute” its economic wisdom for that of the government, given that constitutional rights are involved, surely the government could be asked simply to account for this claim drawing a causal link between free testing and a drop in its ability to conduct tests? None of this is asking for anything that is beyond the government’s ability or will to provide – it is, very simply – basic public accountability, in a public forum.
However, as we have seen, the Bench did none of that. What it did do was pass two extremely cryptic orders – one of which made testing free (without any details), and the second of which walked back on that and effectively granted a carte blanche to both private labs and the government (barring one category of individuals already covered by government insurance). This, unfortunately, has nothing to do with appropriate judicial deference to elected bodies on the questions of policy; it has everything to do with the Court abandoning its role as the only remaining formal forum where the government can be called to account for its actions – even on the most basic standard of administrative rationality.
Similar abdication has been seen across the board in the weeks of the lockdown: as everyone knows by now, when the migrants’ issue first came up before the Supreme Court, the Court simply accepted the Solicitor-General’s statement that all migrants were – by that time – in quarantine or in shelters, and appropriately looked after. Multiple reports after that have demonstrated that that simply wasn’t true. What we have, therefore, is not so much the Court refraining from interfering with policy, but the Court failing to ask questions of the government about whether it is adhering to its own legal standards in implementing its policies. For example, detailed reports, choc full of facts and figures, show that state governments already have with them many thousand crores of rupees in the form of worker welfare cess that is not being used to alleviate the distress of of migrant workers; in other words, far from there not being money, there is money that has been collected specifically for purposes like this, which is not being used; surely it is the obligation of the Court to ask the State about this, especially if its primary justification is a lack of money?
Rather, what we have seen is repeated statements from judges praising the government(s) for their efforts, expressing “satisfaction”, and insisting on how good a job is being done. Now, that may be appropriate for a country where the judiciary is expected to act as a subordinate wing of government, but it is decidedly not appropriate for a country where the judiciary is one of the three “checks and balances” in the scheme of the separation of powers. Because you’re not “checking” or “balancing” anything if every statement made by the government is taken at face value, when even some basic questioning would reveal (as in the free testing case) internal inconsistencies.
To sum up: accountability under a republican democracy, committed to a system of checks and balances, is distributed accountability. Unlike a form of Caesarism, where accountability is limited to a form of periodic acclamation, republican democracy views accountability to be a continuing concept; in particular, the government is accountable to both Parliament and to an independent judiciary, under established legal standards. The handling of the Covid-19 crisis has taken Parliament out of the equation altogether, leaving only two bodies: the government and the judiciary. In such a situation, one would expect an independent judiciary to play its role of holding the government to account: in particular, not to take over administration or make policy choices (such as, for example, deciding upon a lockdown, or the length of it), but to ensure that (a) rights are respected, and (b) far-reaching actions are backed up by at least some legitimate form of reasoning (in its administrative law sense). The Supreme Court’s actions on both points so far, however, have been disappointing.