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Would heads roll for death of 159 innocent children?

The nation wants to know many things every day of the week.

On June 24, we had the spectacle of 129 deaths (now 159 and tragically still counting) of children in the recent spread of encephalitis in Bihar, being raised in a PIL, at the instance of two advocates. Justices Sanjeev Khanna and B.R. Gavai were shocked 'beyond words' as they expressed “What is going on? These deaths cannot be going on like this. We need answers?” The judges have sought answers from the Central and state governments within a week.

The nation wants to know many things every day of the week. But the one thing that is evident is that we owe it to the majesty of the Supreme Court of India, undoubtedly, the most powerful institution in the world, as the late lamented Justice Antonin Scalia of US Supreme Court, once said on a visit to India. But for the intervention by the top court such things do not get flagged of, as they need to be, to catch the nation's eyeballs.

It is all very well to talk about judicial activism, judicial overreach and unelected tyranny on the assumption of powers by the Supreme Court. But, nothing else a conscientious institution can do, in the face of total abdication of its responsibilities and accountability by the executive. The Supreme Court cannot throw up its hands and say, we cannot be seen to be interfering in such affairs of the state which rightly vests in them. The judges may be violating the oaths they have taken, to swear by the Constitution of India.

Let us get real. The health conditions in Bihar, of the poor, previously christened as a Bimaru state, are poor. A tour of the government hospitals on most television networks is a guided tour of cursed destinations for the afflicted. It is pathetic to see drainage water overflowing into wards and doctors
compelled to work in totally less than congenial conditions. Who would like to work in such conditions? There is so much competition among the young and aspirational over Neet and after the struggle to achieve success, they are expected to work in such hospitals. Utterly despicable environment provided to even the medical personnel.

A not so funny tweet put it, “I am absolutely certain most of the afflicted and dead went to hospital in not so bad health and picked up all that is wrong there and then died due to the same. It was the treatment meted out to them that killed them”. One is unable to discount the truth in this cynical mode.

And the powers that be in the executive will obviously appoint a committee and come up with explanations and this too will pass, until the next one hits us harder. Plague on such attitude and approaches. What can the Supreme Court then do? The state and Central governments may file their 'customary reports of whitewashing' as Justice V.R. Krishna Iyer talked of such responses. Is the Supreme Court expected to direct a team of specialists to be formed immediately to attend to the sick or a team of experts to be formed to collate details of the dead and give a report on the why of it as well?

Or as another tweet said, “Can the judges please adorn doctor clothes and attend to the sick themselves rather than issue directions which is passing the buck to the irresponsible”. The tweets are not meant to be amusing. They are meant to convey where we are today. It is just two institutions in that order - armed forces and judiciary - which stand tall in India, with politicians forming the rearmost rear in the hierarchy of institutional ranking, as commissioned in a report, recently by Aziz Premji Foundation. Considering the standards that Aziz Premiji has set in his personal, public, business and philanthrophic life, if he were by some miracle, anointed to handle this crisis, even the dead could be revived. That is the level of confidence he infuses. At the other end of the spectrum is a real possibility that if the public authorities continue their bungling ways, the mounting deaths may see no hasty end.

The core question to ask is accountability. Would and should any heads roll to assuage the wailing and mourning of the bereaved. And if per chance the Supreme Court gets proactive, as it ought to and may be wont to, in such a pathetic situation, we may have Cassandras baying that the top court was going beyond the call of its duty. Yes, the Supreme Court may have exceeded its constitutional remit on many an occasion. Yes, we had the Supreme Court intervening even in a military operation in the troubled state of Jammu & Kashmir. In 1993, the court issued orders on the conduct of military operations in Hazratbal, Kashmir, where the military had as a matter of strategy restricted the food supplies to hostages. The court ordered that the provision of food of 1,200 calorific value should be supplied to hostages. Commenting on this, an Army General wrote: “For the first time in history, a court of law was asked to pronounce judgment on the conduct of an ongoing military operation. Its verdict materially affected the course of operation.” And deservedly the court got its due brickbats.

But truth to tell, more often than not, it is the utter apathy of the other two branches of a democratic polity viz. executive and legislature that compels the Supreme Court to step into the vacuum. “It is not always out of its volition” as Fali S. Nariman famously said. It is all very well to cite Justice Jackson of the US who said: “The doctrine of judicial activism which justifies easy and constant readiness to set aside decisions of other branches of government is wholly incompatible with a faith in democracy and in so far it encourages a belief that judges should be left to correct the result of public indifference it is a vicious teaching.”

In the US there must be 'standing' or locus standi for the aggrieved to pick up such causes and move the court of law. Just consider the zero tolerance immigration policy of Donald J. Trump. It has led to 'incarceration of thousands of innocents including a 7 month old' as New York Times reports. Yet, the courts are quiet and it is only the Senate and House of Representatives which is challenging it. Thank heavens for the 'judicial overreaching rule of law in India and the
powerful interventionist inclination of our constitutional courts' as a dissertation on constitutional limits of our top court, calls it.

Such wake up calls for the executive have come and gone to no avail. The tragedy is that this would not be the last time such a death dance takes place. And this would not be the last time our Supreme Court is constrained to intervene. Ideally, one would rather see the end to such deaths and the possible end to need for judicial overreach by the unelected tyrannical regime as well.

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