Friday, December 8, 2023

A “Helping Hand”, Not a “Critical Tongue”

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In recent judgments, the Gujarat High Court pulled up the state for the poor condition of hospitals, passed directions on the transportation of migrant workers and reminded it of its constitutional and statutory obligations

By Prof Upendra Baxi

The Gujarat High Court has always been known for its progressive and pragmatic tradition of adjudication. It would not be an exaggeration to say that besides contributing several justices and chief justices to the Supreme Court, it has been foremost amongst all in innovating judicial process and power. What we know as social action litigation (SAL), though unfortunately not distinguished from its Siamese twin, public interest litigation (PIL), was nurtured vigorously through the early judicial resource to suo motu jurisdiction by Justices PN Bhagwati, DA Desai and MP Thakkar. The first two were closely associated with Justices Krishna Iyer and O Chinappa Reddy and I have called them the Four Musketeers of the Constitution.

The history of the Gujarat High Court has yet to be fully written, and despite some notable constitutional hesitations and even backslidings, it will emerge as one of the foremost pioneers in the renovation of the democratic processes via the nudging function and pedagogical uses of the SAL processes. The heroic role of the Gujarat Bar and social activists will also be fully acknowledged when this cultural and social history is fully archived.

Undoubtedly, the political and administrative (executive in one word) apparatus dislikes and disapproves the newly-found judicial role. The executive would like unconstrained power to rule, which the courts find unconstitutional. They perceive the very indictment as a threat, dispossessing the legitimate power to rule. But High Courts and the Supreme Court have reiterated the inbuilt limits to judicial power. I am reminded of the question that then Gujarat Chief Minister Madhav Singh Solanki once asked me (I was then the Vice-Chancellor of South Gujarat University, Surat) whether justices ought to interfere with administration and my response was no, with the caveat “if any”.

The sinister Covid-19 pandemic raises this question poignantly anew. Should the judiciary have any role in the administration and policy of a national anti-Covid regime? The Gujarat High Court has been among the most aggressive of the 19 High Courts monitoring health measures under the auspices of basic constitutional and human rights to health and dignified life. 

For example, in a recent case, Justices B Pardiwala and Ilesh J Vohra (May 22, 2020) began their decision by stating that the “… issues also need to be seen through the anvil of the larger public health and public interest and not from the point of view of those upon whom these restrictions are sought to be imposed”. It directed the state to issue a notification making it mandatory “on all multi-specialist hospitals in Ahmedabad and the outskirts” to reserve 50% of beds for Covid patents. Coming down heavily on state-maintained hospitals, and particularly Ahmedabad Civil Hospital, it wondered aloud whether and how often the chief minister, health minister and chief secretary had visited it to verify the conditions prevailing there.

The Court summoned “resilient” and “dynamic” leadership and the role of “emotional intelligence” in these “testing times” for the ruled and rulers alike. It also passed a variety of other directions on transportation of migrant workers and provision of bail. This discourse ended up recalling the heroic role of the vessel “Carpathia” in helping 705 passengers of the sinking Titanic and asked all to emulate her heroic crew. Their Lordships observed in some fine detail that the “… tragic saga of the Titanic teaches us that our fate is uncertain, governed by the powerful forces of nature. The crashing of the Titanic was inevitable, but what was evitable was the loss of human lives. It is believed that if the other two ships had responded in time, all people on board the Titanic could have been saved. We face a similar tragedy today, in the form of a global pandemic caused by a contagious virus we barely have any power over. What we do have power over is ourselves”.

Surely, the Justices were right in implying that mere rearranging the deck chairs on the sinking Titanic did not constitute any kind of activism!

It is in this context that Chief Justice Vikram Nath and Justice JB Pardiwala in a suo motu proceeding (May 29, 2020) undertook a lucid and cogent analysis of the current state of the sinister global pandemic in the State. Besides some interim judicial directions, they offered a few remarks on the role of the political opposition and “commenting or entering into any debate with regard to Court orders that are being passed from time to time in Public Interest”.

Leaving ample scope for “constructive criticism”, the Court urged the political actors “not to bicker” but to “bind” as Covid-19 is not a “political” but a “humanitarian” crisis. By the word “political”, the Court meant that “politicising this issue” would “in fact be downplaying the widespread suffering it has caused”. It also signified “placing politics and political intent before the aim of helping and saving lives”. Put differently, Covid-19 times are not for business-as-usual competitive power politics which thrives on the imputation of “oblique motives” but they constitute extraordinary times which fore-grounded disinterested action “in the larger interest of the public” and “for the benefit of the lost and lonely and…those whose social backwardness is the reason for no access to the Court.”

The Court here is, in fact, talking of constitutionalising suffering espoused by SAL, whatever we may say about the PIL. The phrase “lost and lonely” reminds me of a phrase that Justice PK Goswami once used for the Supreme Court as becoming the “last refuge of the oppressed and bewildered”. That is not an expression that one would deploy for the middle class who try, through PILs, to tweak the extant legal system to their advantage.

The Court further observed: “People are least concerned about political ideologies and rivalries when their lives are at stake. There is a common threat and it is scary, and people want to see collaboration. They want to see their leaders come together and fight this together.” Their Lordships add that “most democratic countries that have been successful in dealing with this pandemic have one big thing in common: a spirit of cooperation between political parties   to fight a common unknown enemy,  the virus”.

And the Court went further in saying: “[W]e request one and all to be very careful from now onwards before commenting or entering into any debate with regard to Court orders that are being passed from time to time in Public Interest. Our message is loud and clear.”

As regards criticism of the government, it observed unambiguously that if the “State Government would not have been doing anything, as alleged, then probably, by now, we all would have been dead”. At the same time, it also said: “All that we are doing in this litigation is to keep the State Government   conscious and active by reminding [of] its constitutional and statutory obligations.”

There exist, of course, different ways of reading this judicial discourse. The traditional civil libertarian response is to read it as an assault on the right to free speech and expression and to point to its menacing overtones, and implicit threat of contempt action or other chilling effects on free speech. The political way is to suggest a strengthening of tendencies towards constitutional authoritarianism by weakening traditions of dissent by the opposition parties and civil society actors. But a third reading is possible which suggests that SAL jurisprudence reminds us all of our constitutional duties of (what I have elsewhere called)* democracy-reinforcing (demosprudential) socially response-able criticism.

The choice seems ours; but should we not (as the High Court has said) prefer to follow the example of folks on board the “Carpathia” when the nation is burning in Covid-19 fires?

*Upendra Baxi, “Demosprudence and Socially Responsible/Response-able Criticism: The NJAC Decision and Beyond”. (The Ninth Durga Das Basu Memorial Lecture WBNAJS, Kolkata), NUJS L.Rev. 9: 153-172 (2016).

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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