"Hon'ble Lordships, There Is An India Beyond Delhi"

This article first appeared on Law Beat and has been republished here with permission.

Hon’ble Lordships,

There is a India beyond Delhi.

This shouldn’t come as a surprise to your Lordships as many of you have practiced in different courts across the country and have been a part of various High Courts as Hon’ble Judges and even Chief Justices. You have been a part of not only the judicial framework but also a part of the culture of the States wherein you resided during such tenure. And there is no doubt that with every High Court, you have dispensed justice as if it was your parent High Court and the people, your own.

However, the Covid-19 crisis and the Delhi centric hearings taking place before the Hon’ble Delhi High Court and the Hon’ble Supreme Court make us wonder if Delhi is little more Indian than rest of India. And such fears may not be misplaced.

Statements such as ‘Delhi Represents the Nation’ and ‘Delhi must be given its oxygen quota [fixed by Court] by whatever means’ may have been off-the-cuff and unintentional but do convey a sense of priority for Delhi. The direction, no matter how conveniently worded, to the Centre was to ensure 700 MT of oxygen to Delhi at any cost.

There was a special preference given to Delhi which was not available for other States. It was indicated that Delhi is more entitled than others.

Let us take this example, Madhya Pradesh, like Delhi, has no oxygen producing units of its own. However, with proactive coordination with industrialists and transport traders, it was able to secure few plants, containers, transport and continuous supply. It was proactive in making request for Oxygen Express. While it is still touch and go for Madhya Pradesh, the government acted in the nick of time.

In Delhi, the High Court and the Supreme Court have directed the Central Government to bring oxygen to Delhi’s border. No such privilege was extended to Madhya Pradesh.

Hopefully, the Centre will let us know if the same was at the cost of another State that was proactive in booking transport and supply and did not have the privilege of being Delhi. In fact, a report suggests that Rajasthan, Punjab, Jammu and Kashmir and Jharkhand are likely to be affected by such diversions of oxygen supply to Delhi on behest of Hon’ble Courts. Maybe we all are equal, but Delhi residents are little more equal than others.

Similarly, Uttar Pradesh has been battling with shortage of oxygen and Remdesivir injections.

There was a shortage of oxygen in Manipur (which was attended to by Assam in the spirit of cooperative federalism).

There have been incidents reported in Rajasthan where Remdesivir has been out of stock in entire districts. In fact, Rajasthan has been asked by the Hon’ble Supreme Court to wait till next Monday to plead its grievances.

The severity of the oxygen crisis in Punjab is apprehended to be underreported. Chhattisgarh has seen high levels of positivity rate.

The crowding of senior citizens outside vaccination centers in Mumbai may be more dangerous than political rallies, considering the age group is more vulnerable.

Yet, the hearing before the Hon’ble Supreme Court was limited to Delhi. There is urgency only for Delhi. This reminds me of a political slogan that may be suitably modified- Delhi is India and India is Delhi.

To be fair to the Hon’ble Supreme Court, they did refer to Mumbai briefly, another Metropolitan to commend its ‘Model’. However, the commendation rebels against the fact that Mumbai was the epicentre of second wave, the deaths are highest in Maharashtra and that there are enough statistics to show that Mumbai allowed the second wave to go unchecked for months with its alarmingly low testing. I will believe that the model being referred to was limited to utilisation of oxygen.

However, maybe a mention of Assam which has almost become self-sufficient in oxygen through prompt coordination with industries or Odisha, which has supplied oxygen to many States would have been better.

But then, maybe these States are a victim of tyranny of distance and are not as glamorous as the ‘City That Never Sleeps.’ Maybe, their Lordships are guided by the limited reading of a section of media.

Individually, these instances may not mean much. Collectively, they indicate that the Hon’ble Courts are governed by the factors of proximity and self-preservation.

They are likely to react when the deaths are closer to home and have more attention of the media. And there may not be anything extraordinary about it. The Hon’ble Justices are humans as well. They are affected by what they see, hear and read in the media. The closer the calamity, swifter the response. However natural, the swift reaction may cause harm to the interest of other States who are reeling under the same pressure.

There is a difference between seeking all possible resources and all resources. The hearings do indicate that ‘all resources’ are meant for Delhi and other States, have to divide whatever is remaining. This cannot be allowed to continue; not the hearings, rather the perception. The perception that Hon’ble Courts in Delhi will prioritise Delhi at the cost of others will only damage the institution more.

Maybe the situation could have been different, had there been regional benches of the apex Court and such regional benches would have been seized of the region-specific concerns.

Maybe it could have been different if the Hon’ble Courts in Delhi were not accessible to only a select few lawyers. Maybe it would have been different if Courts did not let their territorial jurisdiction get better of the need to be fair and equitable to other States. The states may compete in the spirit of cooperative federalism, courts shouldn’t.

Post-script

I have not spoken of the inherent problem of Courts directing and micro-managing day to day affairs of the Executive.

I will not speak of the fact that lawyers have decided to replace the wisdom of doctors in managing the pandemic.

I will not speak of the discussion in a High Court (and not ICMR) as to whether Dexamethasone is an alternative to Remdesivir.

I will not speak of the fact that government officials are spending more time before the Courts rather than actually working to save lives. Because these are issues concerning a larger debate on judicial activism and whether it has reached a destructive stage.

I have not spoken of the much-required audit of the Courts to determine how judicial delay has added to the misery in the pandemic.

The unilateral offer of a corporate to produce 1000MT of oxygen per day was delayed by 5 crucial days on account of Hon’ble Court’s indecisiveness. To put things in perspective, such quantum of oxygen is 300 MT in excess of the per day requirement of Delhi.

There are numerous roads, highway and public infrastructure projects in abeyance due to judicial battles and processes. Maybe, and just maybe, the flow of oxygen and medical help could have been better with better means of transport and supporting infrastructure.

There are hundreds of undertrial prisoners suffering in jail attributable to judicial delays and are now at the mercy of the pandemic in overcrowded jails. Yet again, these are matters of judicial conduct that require a larger debate and maybe better times.

I have specifically not referred to the Bengal violence escaping the attention of the Courts and the otherwise hyperactive Bar. I will not go into the fact that the Hon’ble Supreme Court has refused to even list the petition on Bengal violence for hearing.

As I stated above, maybe the proximity of courts determines the value attached to deaths. Yet, I have to remain silent. I know the moment I seek to draw attention to the same, the concerns will be dismissed as political. I can only hope that the Courts will use their discretion equitably, and equally.

There is a lot to be spoken. However, in an ideal world, such criticism would call for a debate and not contempt. We are not in ideal world. Therefore, the author issues her/his unconditional apology for any feelings that may have been hurt and any disrespect that may have been inferred. There is no intention to lower to the majesty of the Hon’ble Courts or commit any contempt.

Praying for a safe and happy vacation for Hon’ble Lordships.

Yours faithfully,

A non-Delhi resident,

India

[The author is a lawyer and chose to stay anonymous for personal reasons]