Week of April 26, 2021

The Court looks at the vaccine shortage, considers sedition challenges, and more!

Apex Court Weekly is a weekly round-up of judgments, petitions, orders and notices as they develop at the Supreme Court of India (“the Court”). We also occasionally cover High Courts. We cover some stories that gather national attention and some that should. This update is written by Rahul Srivastava, J.D. candidate at Cornell Law School, and supported by the Cornell India Law Center.


Full bench to consider Court vacation

As India continues to battle the second COVID wave, the Court’s bar associations asked the Court to break for its summer vacation earlier than usual. Chief Justice Ramana referred the matter this week to a full bench for consideration. The Chief Justice has held preliminary discussions with the bar associations to begin vacation on May 8 instead of May 14.

The Court asks the government to end oxygen crisis in 2 days

India’s healthcare system is struggling to meet demand for oxygen as COVID patients of all stripes accumulate at hospitals. Both social and conventional news media is filled with stories of patients dying because of inadequate care, and particularly from the lack of oxygen. The Court took deployed its suo motu powers to issue a slew of directives to the government on fixing the oxygen supply crisis. It asked the central government to fix Delhi’s oxygen crisis within two days. It also asked both central and state governments to “seriously consider” instituting another lockdown.

Vote counting must go on

Uttar Pradesh panchayat election vote-counting was scheduled for May 2. More than 200,000 seats are up for grabs. During a special hearing on Saturday, the Court asked the government to go ahead with the vote counting as scheduled. Given the surge in COVID cases, the Court asked the Uttar Pradesh government to implement a strict COVID protocol at counting centers. Candidates, their agents, and election officials will have to present a negative COVID test before entering a counting center.


Where are the vaccines?

Continuing with mostly COVID related business this week, the Court flagged the vaccine shortage plaguing the world’s largest vaccine manufacturer. The government’s new vaccine policy granting eligibility to all adults also permitted states and private hospitals to employ differential pricing. 

A bench comprising Justices Chandrachud, Rao, and Bhat noted that state governments responsible for administering vaccines to young adults and negotiating with vaccine manufacturers may elevate prices to inaccessible levels for poor and marginalized communities. They found it illogical that the central government would administer vaccines for those above 45 years of age, while leaving states to procure vaccines for everybody younger. While refraining from directly commenting on the constitutionality of the policy, the Court observed that the policy may violate the right to public health under Article 21 of the Constitution. 

Under the current policy, the central government will receive 50% of vaccine doses at ₹150. State governments and private hospitals will pay ₹400 and ₹600 per dose for the cheaper Covishield vaccine.

The current COVID is overwhelming India’s hospitals. To make matters worse, India’s vaccination drive appears to be stalling as well. Vaccination centers in Mumbai were closed for three days amidst short supply, and reports suggest other states have run out of vaccines as well. 


Election Commission approaches the Court after Madras High Court’s criticism

The Madras High Court has not minced words during the second wave; it recently criticized the central government for sitting idly by for the last year despite being in lockdown. While criticizing the Election Commission for failing to enforce COVID protocols during the election process, the high court commented that election officials should be tried for murder for their failures during India’s recent state elections. The high court also called the Election Commission alone responsible for the second wave and noted that they should have stopped election rallies that may have become super-spreader events. Offended by those remarks, the Election Commission approached the Court to have the high court’s remarks removed from the record.

Court to consider challenge to British-era sedition law

Section 124-A of the Indian Penal Code penalizes sedition. A petition challenges the constitutional validity of the law, arguing that it infringes on the constitutional right to free speech under Article 19(1)(a) of the Constitution. The petitioners were charged with sedition for criticizing central and state governments on social media. The petition claims that the government has misused the law since the Court upheld its constitutionality in 1962. This week, the Court issued notice to the government on the case.


What kind of Chief Justice will Chief Justice Ramana be?

This article criticizes the Court under former Chief Justice Bobde’s tenure, arguing that the Court often deferred to state policy or was too slow to take up important cases– losing no time instead in flagging Prashant Bhushan for criticizing the Court. The author is cautiously optimistic that the Court may change tune during Chief Justice Ramana’s tenure, pointing to his activist positions as a Justice and early suo motu matters taken up during the second COVID wave.

The Court in the Modi years

While harshly criticizing Narendra Modi’s tenure as Prime Minister, this article takes a moment to acknowledge the Court’s role in facilitating some of the excesses of the Modi era. The author argues that successive Chief Justices have declined to protect minority rights, permitted restrictions on dissent, and even facilitated a dubious election-finance system. The article quotes constitutional scholars who call the Court in the Modi years an “institution that speaks the language of the executive and has become indistinguishable from the executive” and one that “has badly let us down in recent times, through a combination of avoidance, mendacity, and a lack of zeal on behalf of political liberty.”