We are seeing a lot of snippets of what judges are saying during cross examinations or hearings, their observations and questions. Does this actually amount to anything or will we have to wait for final orders to be passed to really judge the impact of these words?
No, the impact will be seen on the ground. Is the judiciary clearing up the mess or is it adding to the mess? So far, the judiciary has had a carefully calibrated programme of oversight of all that is going wrong on the ground. It has been trying to help where possible. It has been trying to cut through bottlenecks. It has brought officials together, asked for deadlines and action plans.
Ultimately, given the state of the country today, there is no other forum where there can be a hearing. Citizens are necessarily turning to the courts. And like the Supreme Court said, it cannot remain a mute spectator. The courts are charged with defending your constitutional rights, including your right to life. And if your right to life is being taken away, ignored or stifled through bureaucratic ineptitude or lack of bureaucratic vision, at times the judiciary has had to step in.
The thing is that various high courts are taking care of local-level conditions. The Supreme Court has this week made it clear that it will pass orders which do not supplant the high courts’ orders, but will be supplementing it. The Supreme Court will look at the macro picture, micro management is at the high court level. So, within the judiciary now there is a measure of coordination and control and that is also being transmitted down towards the administrations. What the judiciary has done so far is commendable.
Let’s take an example of a hospital that is afraid it will run out of oxygen. They knock at the doors of the high court and say do something. The high court rustles some oxygen for that night, but oxygen supply continues to be a problem. If what the high court has directed is eventually not carried out, then what are the powers of the court? To what extent can they hold the governments in contempt? What would be the logical conclusion of that endeavour?
The courts have to pass orders depending on the situation of the day. The courts do not manufacture oxygen. The courts can at best direct that oxygen be fairly supplied. If there is deliberate violation of the court’s order, the court can certainly take contempt for this. But the court has a moral authority which is much higher. All governments ultimately run on the rule of law and the expounders of the rule of law are the courts. And if a court says ‘do this’ and you have no reason to not, then you would probably be seen as a government not adhering to the rule of law.
Contempt, sending one officer to prison or finding another officer is not an adequate remedy. And it is of little solace to people who will lose their lives in the meanwhile. But if a court’s order can cut through various bodies and nods of administration, governments are bound to operate according to the rule of law. I would really welcome it. This is like that classic question that Napoleon once asked: how many divisions does the Pope have? The Pope may not have had many divisions, but the papacy has continued and Napoleon hasn’t.
What are you hoping to see from the many courts across the country and the Supreme Court? Do you hope to see that their intervention streamlines processes, that people will not be dependent on Whatsapp groups, social media, the random kindness of strangers or black marketers to save their loved ones?
I hope the court’s intervention is benign, productive and is not taken amiss by the administration, and it gets into the realm of further challenges. Today, the need of the hour is for all organs of the state to work reasonably in harmony. Wherever there is one administration which says ‘no, oxygen will be restricted to the state of production alone’ and there is another administration which wants oxygen, it is for the courts to step in and streamline such difficulties, ego fights and whatnot.
The court’s job is currently to lend a calming hand on the tiller of state. You do not want the ship of state to run aground in this calamitous situation. Courts have credibility. Courts, after all, reach their decisions after full hearings, after hearing all sides. As you rightly put it, this is the only place where there is some aspect of ‘
sunwai’. The Indian mind greatly respects
sunwai, greatly respects the very fact that they have been heard. So, giving voice to the voiceless, coming to reasonably considered thoughtful decisions and telling the administration to sort out their little messes, that is what I see the court’s job to largely be. Great judgements and all that may not come out of this particular exercise because this is also an emergency exercise. We are right at the top of the surge.