“I will give you a talisman. Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man [woman] whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him [her]. Will he [she] gain anything by it? Will it restore him [her] to a control over his [her] own life and destiny? In other words, will it lead to swaraj [freedom] for the hungry and spiritually starving millions? Then you will find your doubts and your self melt away.” – Mahatma Gandhi

The Lion Capital of Ashoka with four Asiatic lions standing back to back, in effect symbolising power, courage, confidence and pride, also in effect symbolise the four pillars of Indian democracy – Executive, Legislature, Judiciary and Press. 

Though in relative terms, India is handling the situation far better than many of countries across the globe, the coronavirus pandemic crisis has brought out the inadequacies and shortcomings of the institutional framework of the democratic structure. 

Testing the response and governance on the touchstone of the test laid down by Father of the Nation, it begs the question whether we are doing enough for the last man standing in the row – the poorest, the weakest man/woman.

The Legislature, in effect, like an emergency is in limbo. The other institutions of governance are also far away from the path suggested by Mahatma Gandhi. 

Executive & Centre-State relations

The quasi-federal Indian Constitution nor any statute does not govern and clearly demarcate the powers and duties of the Centre and State Governments in times of pandemic.

The ministry of health put up for discussion the draft Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill, 2017. The draft Bill mentioned the role and responsibilities of the Centre and states in a medical emergency. The Bill, however, never saw the light of the day and the conundrum continues. 

Though the matters of public order and health are mentioned in State List, the Union Govt. relied upon the Epidemic Disease Act, 1897 and Disaster Management Act, 2005 to deal with the fast-spreading coronavirus pandemic.

Though no emergency was imposed by the Centre owing to implementation issues, Article 256 of Constitution prescribes once central law applies, the States must comply with the same and the Centre can issue directions and demand compliance. 

The perils of opacity and transparency in State action came to foray when the Centre issued a notification asking states to refrain from buying personal protection equipment, ventilators, and masks, making the States dependent on material supply only from Central Government. 

The COVID-19 crisis has hit the finances of the State harder. Indirect taxes on transport fuel, vehicle sales, alcohol, real estate transactions, electricity, and films & entertainment account for a bulk of state governments’ tax revenues. And most of these economic activities have either come to a complete halt or have reduced drastically in the past two weeks, resulting in a sharp dip in state revenues. The withholding of GST revenues of various States by the Centre is further adding to the financial woes of the state governments. 

There was further, serious lack of coordination between the Centre and various states, as well as a dearth of communication and coordination of best practices for implementation among the various states. 

Judiciary

The most essential public service and biggest check and balance on indiscriminate use of the power of the executive in a functioning democracy, the Judiciary, has been the biggest let-down among the four pillars of democracy. 

The courts are the last refuge for the voiceless and against the State excesses. In times of crisis, the Executive arm of the State could very easily slide into making a choice of convenience over constitutional safeguards. The migrant labour crisis and ensuing lack of empathy brought forth the ugliest face of human nature. With myriad opinions, predominantly criticising the poor daily wage migrant labourers for being insensitive to the call of lockdown and instead of walking down to their respective homes in various states. Different states reacted to the crisis differently, with some arranging for transports and rents and assurances, and some using excessive force and inhumane spraying of disinfectants on men and women etc. The crisis showed the deep divide of social and economic classes, with the well to do is totally insensitive to the misery of daily wage or migrant labourers. It is in situations like these where the necessity of the supervisory role of higher courts comes in. The Constitution assures fundamental rights and provides “right to life” under Article 21 which is often termed as “heart and soul” or “guardian angel of Indian constitution” to all citizens equally. 

The Supreme Court completely abdicated its responsibility as a guardian of the Constitution, where it left the respective States and Centre to deal with the crisis as they pleased. The duties of the Courts to insist on the application of mind by State action, free of malice and not arbitrary, is not for only the good times. It is at times of crisis like these, the onus is far more on the Courts to insist if not compel the State to satisfy the rigours of Article 14, 19 and 21 of Constitution of India. 

Press

It often happens that Governments follow their instincts of taking disproportionate steps against civil liberties during the period of crisis. The fourth pillar or fourth estate of democracy, Media/Press is supposed to guard against this tendency of the Government. The Indian media long before this epidemic itself had a questionable track record. In the wake of COVID crisis, many State Govts have imposed restrictions of sharing information without prior clearance from the authorities. The Press anyhow was always in approving of the State actions continuing its adulatory reportage. 

This is not the first time in India’s history that restraints have been imposed on the press in the wake of a serious public health crisis. The Epidemic Disease Act was passed in 1896 and India saw its first major sedition case against Bal Gangadhar Tilak for an article in his publication Kesari during the bubonic plague. 

The British Court in India conceived a new definition of ‘sedition’ far more dangerous and stringent standard than what was followed in England. It took India more than 66 years to come out of that broader confines of ‘sedition’ laws, until 1962 when the Supreme Court increased the threshold for application of sedition laws on an individual. 

Media outlets and Press are not doing any investigative journalism and though a time of crisis, are not questioning or criticising the actions/omissions of the respective State and Central Governments.  The role of media is extremely crucial in this hour of crisis, as it is the sole medium of communication and for the dissemination of information between the State and its citizenry. The press has abdicated its responsibility of being the voice of the people and instead is immersed in being the mouthpiece of the Government. 

In the wake of the novel coronavirus pandemic, fake news and rumours pose a serious threat to public welfare. However, indiscriminate use of coercion and power against civil liberties is not the answer as it may set dangerous precedents that may outlive the present pandemic. 

The COVID-19 crisis has bring to the foray the deficiencies of the various institutions, all at the same time. The end of the lockdown will again prop up the debate of institutional reforms as that alone is need of the hour if India wants to sustain as a growing and functioning democracy. We are still in the midst of the pandemic crisis. We can only hope that various institutions heed to the caution put forth by Benjamin Franklin – “Those who sacrifice liberty to secure a temporary safety, deserve neither” and come out stronger from this crisis

 RV Prabhat is an Advocate practising before the Supreme Court of India. 

rvprabhat9@gmail.com