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Spotlighting the role of courts in health policy processes: The role of the Delhi High Court in COVID-19 policy formulation

Spotlighting the role of courts in health policy processes: The role of the Delhi High Court in COVID-19 policy formulation

By Utkarsh Khare
on December 1, 2022

Courtrooms are not the first place our minds go when thinking about venues for “routine” policy engagement in the health sector. And yet, a growing body of work suggests that courts are tied up in a vast number of threads in health policy in low- and middle-income countries (LMICs), in some cases building on foundational judgments in many contexts regarding the right to health, and engaging in a range of critical policy topics from medical education to tobacco policy to grievance redressal between providers and patients.

This has been undoubtedly true (and perhaps even amplified in some contexts) during the COVID-19 crisis. Courts were crucial in shaping health policy in India since the start of the pandemic lockdowns in March 2020. During the deadly second wave of COVID-19 that began around April 2021, the ambit of courts in India had expanded well beyond testing policies into decisions on treatment price caps, oxygen supply management and vaccinations. In this article, we share emerging findings from our ongoing research examining the role of courts during COVID-19 in New Delhi, and suggest that the involvement of the courts reflects growing concerns about governance and accountability in the health sector and beyond.

By January of 2021, India had been reporting its lowest caseload since the start of the pandemic. Bolstered by the trend, authorities indicated that pandemic strategies had largely been a success and began to turn attention towards other matters. This premature declaration of victory would prove to be deadly. By April 2021 Indians witnessed a complete collapse in healthcare from an overwhelming surge of COVID-19 cases. Exact death tolls and case counts continue to be disputed, but some analysts suggest that millions of lives were lost in what was likely one of the country’s starkest humanitarian crises in recent history.

In the national capital of Delhi, hospitals ran out of oxygen and medication while crematoriums reported an acute shortage of firewood. Desperate healthcare providers began to approach the Delhi High Court for assistance.

The Court, to its credit, took  immediate cognizance of the issue and leapt into action. In a unique approach to pandemic management, the Court enjoined multiple petitions into a single case and began the arduous task of coordinating a highly decentralized and disparate policy response. The Court notified the Central Government, the National Centre for Disease Control, private oxygen suppliers along with the Government of Delhi as parties to the suit. The Court appointed an amicus curiae to assist with deliberations and ordered the Delhi government to produce daily Status Reports on how multiple aspects of pandemic management were faring. Issues flagged by the amicus in Status Reports were taken up by the Court in almost daily hearings, and deadlines for the resolution of bottlenecks were set. It cut through red tape and coordinated between stakeholders across levels of government and markets to enable and increase access to lifesaving medicines, oxygen and vaccines.

There is no doubt that these measures prevented an even greater loss of life and spurred systems to action. At the same time, this trend appears to raise critical questions about governance during the pandemic and how we can address these gaps during future health emergencies and in health systems more broadly.

For example, while the Serum Institute of India is one of the world’s largest vaccine producers, the Central Government’s insistence to run a digital registration platform meant that nobody without a smartphone or internet access could sign up for vaccines. The digital registration platform (COWIN) was itself prone to malfunction, which meant that even people with internet access were unable to register for a dose. One of the facilitators for improvements was an order from the Delhi High Court for the Central Government to take cognizance of the issue and implement corrective measures. In another instance, there were massive bottlenecks in oxygen delivery caused by uneven distribution of manufacturing and major disruptions to interstate transport where the court(s) had to intervene.

These cases also raise questions about where the court’s role begins and ends. Our early explorations into this topic suggest that the Delhi High Court had to thread this needle carefully, attempting to strike a balance between judicial activism and necessary intervention. In doing so, the Court in this instance appeared to more effectively undertake the role of a facilitator in a policy environment with multiple stakeholders who held diffused levels of responsibility. That said, questions arise about expertise on the ability of the courts to issue decisions on price caps or market mechanisms to control black marketing of medication. 

The reliance on the court to facilitate policy outcomes in the case of COVID-19 policy in India ultimately points to the fact that India needs a stronger health system and improved disaster preparedness and response structures, more empowered healthcare regulators and disaster management intervention. It is crucial to remember that the Third Estate should always be a last resort, rather than a first emergency response. 

Acknowledgements: Our thanks to Riddhi Dsouza for her feedback and suggestions on this piece.

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