The Stay next Door

- BY Areeb Uddin Ahmed There always exists, a remedy to appeal, but some appeals are too obvious and some stay orders might hinder the spirit and structure of proceedings before the forums. It was quite visible that how the Election Commission had failed to keep a check on covid-19 protocols, whether it was Uttar Pradesh or any other state.

We all know, how hard it is for someone to get their case listed and heard, but recently, this Special Leave Petition was filed by the Election Commission, on some oral observations by the High Court. Ironically, the Supreme Court, said that the oral remarks made by Madras High Court against the Election Commission of India on April 26 attributing the COVID-19 situation in the country to the poll body, "were inappropriate and harsh."

The Madras High Court had said that the ECI was singularly responsible for the COVID-19 situation in India and that it should probably be put on murder charges for failing to ensure compliance of COVID-19 protocol during election rallies.

The government of Uttar Pradesh appealed against the order of the Allahabad High Court where the court expressed its concern over the healthcare situation in Rural areas and termed it as - Ram Bharose.

"If this is the state of affairs of treatment at medical College in the city like Meerut then the entire medical system of the State pertaining to the smaller cities and villages can only be taken to be like a famous Hindi saying‘Ram Bharose’."

- Allahabad High Court, May 17 (Re-Suo Moto)

It is the second time, in the same proceedings (Re: Suo moto) that the government has appealed against the directions of the High Court. Last time, the High Court imposed a partial lock down through a judicial order in five major cities across Uttar Pradesh, but the government went in appeal against the order and the same was stayed by the Supreme Court.

The partial lockdown order - The court came down heavily on the authorities for not managing the degrading situation of the the state, and held that authorities are to be blamed for the chaotic situation.

"Those in the helm of affairs of governance are to be blamed for the present chaotic health problems and more so when there is a democracy which means a government of the people, by the people and for the people..If popular government has its own political compulsions in not checking public movements during this pandemic, we can not remain mere passive spectators."

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The Court, therefore, issued the certain orders to the State authorities to be enforced in the cities of Prayagraj, Lucknow, Varanasi, Kanpur Nagar and Gorakhpur and declared a partial lock down through a judicial over reach.

The question whether it was a judicial overreach or not, was tabled again and again, but if we keep in mind the situation of the state, the lock down order was the 'need' of the hour. In this regard, Justice Govind Mathur, Former Chief Justice of Allahabad High Court, expressed his concerns in an interview with Bar and Bench:

"I fail to understand what was the occasion for the State of Uttar Pradesh to not adhere to well-reasoned directions issued by the Allahabad High Court. I don't know why the State government considers the judiciary as a rival. Judiciary is another face of the State. That order was not at all any effort to overreach and that order was very well reasoned order giving each and every detail."

- Justice Govind Mathur, Former Chief Justice, Allahabad HC

The Allahabad High Court has passed a series of stringent orders/directions, and came down heavily on the state government for not ‘handling’ the covid-19 situation across the state of Uttar Pradesh. Things went so bad, that the court termed the situation in the state as a ‘genocide’, because people were dying and there was a shortage of oxygen and other basic medical needs.

In most of the cases, the Apex Court has stayed the order of the High Court, without ‘staying the proceedings’ but such a convention hinders the confidence of the judges at the High Court. At present, an undeclared/undefined lock down has been imposed in Uttar Pradesh, and the same suggestions was tabled by the High Court (against which the government had appealed), but till date the Lock down is there, but not through the judicial wing, but from the executive one.

When the ‘Ram Bharose’ remark order was being heard by the Supreme Court, it was submitted by Tushar Mehta (SG) that “such remarks demoralize the spirit of doctors and para medical staff who are working day and night and are trying their level best to take full care of the rising number of corona patients.”

Even if we stop there for a minute, does these remarks hinder the confidence of the health workers or it appealed the state authorities to improve/ develop the rural areas where the condition is worsening, especially in those towns which were brought on record by the state government counsel - which includes a major town ‘Bijnor’.

Interestingly, the Supreme Court found some ‘force’ in the statements of Tushar Mehta and observed:

“The submission that such observations were not warranted and the same may create panic amongst the citizens of the State and nullify the endeavours of the State Government in doing whatever best they are able to do for control of the pandemic and give relief to the patients, has some force. While concluding, we may also mention that in matters which have transnational and international ramifications, the High Court should normally refrain from issuing directions in such matters, especially when such matters of national level are being considered by this Court in separate proceedings.” the court observed.

The Supreme Court might had not stayed the proceedings before the Allahabad High Court, but indirectly the confidence and the structure of the proceedings have been disturbed, keeping in mind, that initially it was a ‘Suo moto’ order.

Were the directions of the Allahabad High Court really impossible?

It’s rare that forums or courts shift their focus towards the rural areas/villages, but the Allahabad High Court has been continuously keeping a check on the development in the rural areas, in regard to the healthcare infrastructure to tackle the second wave of Covid-19

The following directions/observations were laid down by the court on May 17, but the implementation of the same has been ‘stayed’.

(i) Oxygen facility in nursing homes: All nursing homes should have an oxygen facility on every bed and every nursing home/ hospital which has more than 20 beds should have at least 40 per cent beds as Intensive Care Units.

(iii) Install ventilators and High Flow Nasal Cannula in Nursing Homes: The designated 40 per cent; 25 per cent should have ventilators, 25 per cent should have High Flow Nasal Cannula and 50 per cent of the 40 per cent reserved beds should have bipap machines. This should be made compulsorily for all the nursing homes/ hospitals in the State of Uttar Pradesh.

(iv) Oxygen plant to be installed: Every nursing home/ hospital which has more than 30 beds should compulsorily have an oxygen production plant.

(v) Enhance medical facilities in other Medical Colleges across the State: The Court said that apart from various institutes like Sanjay Gandhi Postgraduate Institute and the Universities like the King George’s Medical University and Banaras Hindu University, there are five more medical colleges in Prayagraj, Agra, Meerut, Kanpur and Gorakhpur. "These Colleges should have enhanced facilities as are there with the Sanjay Gandhi Postgraduate Institute within a period of four months. Emergency laws should be applied for the acquisition of land for them. Funds should be provided to them forthwith so that they graduate from a medical college to an Institute of the standard of the Sanjay Gandhi Postgraduate Institute. For this there should also be given a certain extent of autonomy."

(vi) Improve medical facilities in rural areas and villages: They should be given all kinds of pathology facilities and treatments should be made available in Community Health Centres which are at par to the treatment given by Level-2 hospitals in bigger cities. If a patient however becomes serious in the rural areas or in small towns then ambulances with all kinds of Intensive Care Unit facilities should be provided so that the patient can be brought to a hospital which has proper medical facilities in a bigger town.

Possible in Urban areas, impossible in rural

The said directions by the Allahabad High Court were more focused around developing the infrastructure in rural areas, where the infection has reached. The main contentions before the Apex court was - that the said directions were impossible, but if the same facilities are available to those people, who are residing in bigger towns and cities, then why not to the rural population?

This gap of rural and urban can only be filled, when there are equal opportunities and facilities available, and if Nursing homes are not well equipped, then it is the duty of the local authorities to keep a check. It is pertinent to note that the situation of Bijnor and other adjoining areas were brought on record by the District Magistrates of the concerned areas. Even the number of testing was very low in many areas.

Now, we can only hope that the rural population is equally equipped with all the medical equipments which are available in Urban areas. There have been many reports which suggest that the condition in these areas are worsening, and the aftermath of UP Panchayat Polls have been really horrifying, as most of the teachers/polling officers hail from the rural areas.

Each day, one family is being shattered, this virus has vandalized everything, from the healthcare system to 'minimum wages'. The said order passed by the Allahabad High Court did not undermine or hindered the emotions of our health workers, but it only asked the state to improve the facilities, which are yet not available, those workers, who have been serving in rural areas. While parting away, the only lines which truly reflects the current scenario are from - निठल्ले की डायरी - हरिशंकर परसाई, रामभरोसे का इलाज़