We, the people, have given ourselves a Constitution. We, the people, have constituted India into a sovereign, socialist, secular, democratic republic. We, the people, have elected government after government. We, the people, have consented to be governed by a government of laws and not men. We, the people, have been left to fend for ourselves in the fight against the coronavirus.
Estates of the realm
Taken together, the three organs of government – the Legislature, the Executive and the Judiciary – make up the three estates of social order. The Bharatiya Janata Party has a brute majority in the Lok Sabha and there is little to nothing that the Legislature can do to hold the Executive headed by the prime minister accountable for its response, or the lack of one, to the second wave.
Under the Constitution, the prime minister’s actions are to be scrutinised by the third organ of government – the Judiciary. Meaningful judicial review of Narendra Modi’s executive actions in handling the pandemic has not been forthcoming, as Modi’s vice-like grip has ensured that the Supreme Court and High Courts of the country dare not hold him or his government accountable. The three estates are under the thumb of one man – Modi.
The fourth estate is a free and independent press. While the prime minister’s predecessors – most notably Indira Gandhi – have captured the three estates, no Indian prime minister has had a hold over the media like Modi does. Freedom of the press is guaranteed by Article 19 of the Constitution, and the ruling dispensation at the Centre has ensured that this freedom is not exercised in a manner that is detrimental to Modi’s image as India’s Mahamanav (great human).
The full-frontal assault of the Modi government on the media has not been restricted to the domestic press. As the second wave turns into a tsunami, ravaging the nation and tarnishing Modi’s image “as a leader whose heart beats with the nation”, foreign newspapers have been targeted by Indian missions. Late last month, the Deputy High Commissioner to Australia slammed a local newspaper for having the audacity to “undermine” the Modi government over its handling of the pandemic.
While the four estates have been subjugated, constitutional bodies like the Election Commission, which have enjoyed the confidence of the public at large, have been filled with yes-men who have compromised the body’s institutional integrity. The fall from grace of the Election Commission was complete on April 26 when the Madras High Court observed that commission officials should probably be booked for murder for allowing political parties to hold rallies in poll-bound states.
On April 17, a day when India added over 2.7 lakh news cases, Modi was at a mega election rally in West Bengal’s Asansol, marvelling at how he could see “huge crowds of people” everywhere.
As the Great Human continued to show no signs of humanity, the fifth estate was swinging into action on social media. Millenials, often chided by members of the BJP for loose morals and wearing ripped-jeans, stepped into the breach and amplified appeals for oxygen, ventilators, beds, remdesivir and other life-saving medicines. But the fifth estate was not to be spared either. Uttar Pradesh Chief Minister, and potential Modi-successor Adityanath has ordered a crackdown on social media appeals for oxygen.
The message from those who govern us is clear: we will not help you; we will not let you help yourself; and we will certainly not let you help anyone else who is in need. Nowhere is this abdication of responsibility by those in power more strikingly evident than in Delhi, where the constitutional dumpster fire started by the BJP threatens to engulf India’s capital.
Neither proactive nor reactive
The courts across the country were finally woken from their slumber by the second-wave and the plethora of pleas filed before them by citizens and hospitals regarding the shortage of liquid medical oxygen. High Courts have now begun to hold State governments that were answerable to them accountable.
The Delhi High Court has finally started to ask questions of the Government in Delhi. Sadly, there is no clarity on who “the government in Delhi” is as the BJP has introduced legislation whereby the Aam Aadmi Party government in Delhi and the chief minister cannot take any executive action without the opinion of the Lieutenant Governor appointed by the Union government. Curiously, however, Tushar Mehta, the Solicitor General of India and one of the Union Government’s top law officers, wasted no time in laying the blame for the oxygen shortage in the national capital at the feet of Delhi Chief Minister Arvind Kejriwal.
Last fortnight, as Delhi’s hospitals were dealing with a crippling shortage of medical oxygen, they approached the Delhi High Court for relief. Mehta told the court that ensuring supply of oxygen to Delhi hospitals was “not my [Union government’s] job”. He chided the lawyer representing the Aam Aadmi Party to “not be a cry baby” and asked the Delhi government to put in place structures that would ensure a steady supply of oxygen to the national capital.
Curiously, Mehta then objected to the AAP government’s efforts to procure medical oxygen by bypassing the Centre and writing to an industrial house. Mehta’s grouse: “As a national response to Covid management, procurement of oxygen has to happen at the national level.”
It is this statement of Mehta’s that highlights the failure of the Modi government in fighting Covid. The national response to the second wave, until very recently, was simply non-existent. The citizens of this country have long given up hope of a proactive Union government. The proactive thing to do would have been to follow the lead of the government in Kerala, which thanks to foresight and planning since March of last year is an oxygen-surplus State and is helping meet oxygen demand in other States.
But what is the citizenry supposed to do when the Union government is neither proactive nor reactive? The Union government has finally “reacted” by filing a 200-page affidavit before the Supreme Court, setting out an action plan on how to fight the second wave. This affidavit comes at a time when India is running out of space to cremate its dead and parks are being converted into make-shift crematoriums. The affidavit reads more like a postmortem report and less like a national plan for combating Covid-19.
The Supreme Court says that it cannot remain a “mute spectator” as the second wave intensifies, but this is exactly what it has been since the pandemic began, as the Executive, backed by its Legislative majority, has ridden roughshod over the Constitution and its most vulnerable citizens. India is not faced with simply a healthcare crisis. This is a full-blown crisis of governance.
We, the people, need to heal. We, the people, need to get vaccinated. We, the people, need to use our vote and at the next available opportunity hold those in power accountable for their sins of omission and commission. We, the people, need to save our Constitution by electing a government of laws, not of men.
Abhishek Sudhir is the founder of Sudhir Law Review, a legal education website. He tested positive for the coronavirus in the second week of April, but made a full recovery thanks to the doctors and nurses whose care he was under.
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