For the better part of April and May, crematoriums were overwhelmed as thousands of dead bodies burned on funeral pyres in mass cremations across the country every day. More and more graves were dug for those that had to be buried. As if those weren’t enough, the whole world saw pictures of vultures, crows and dogs nibbling at the decomposed remains of thousands of corpses floating in the Ganga in Bihar and Uttar Pradesh. Patients were left to fend for themselves, citizens left gasping for oxygen, vaccines were out of stock and hospitals were out of beds even as the number of deaths continued to be underreported. The cost of both living and dying went up. India endured a Covid apocalypse. A man-made one!
But even as the country’s healthcare systems crumbled and institutions virtually failed the nation, there was no accountability. Frustrated by the Election Commission holding elections in five states in the midst of the raging pandemic, the Madras High Court observed that the Commission’s officers must be booked for murder; the Allahabad High Court remarked that the death of Covid patients due to lack of oxygen supply was no less than “genocide”.
The government and several institutions of the State paid absolutely no heed to warnings against holding super-spreader events. They allowed religious festivals and election rallies drawing millions of people to go ahead. Union Health Minister Harsh Vardhan had declared earlier this year that India was in the “endgame” of the epidemic. In fact, until April, the government’s task force on Covid-19 had not met in months. Callousness was the reason why our very own government presided over a self-inflicted national catastrophe. Criticism was only inevitable.
But is criticism enough? Especially when bureaucrats and elected leaders to Offices of the Union’ are grossly negligent in their actions that subsequently leads to the deaths of thousands of innocent citizens? Will statements like “things got out of control, we take complete responsibility” or a mere apology be enough when their decisions have wreaked havoc on citizens? Are the courts’ harsh remarks a mere show of symbolism or are they hinting towards a lacuna in the law? We argue that it’s the latter.
Intriguingly, why is it that legislators are very eager to hold the rest of us accountable for what we choose to do in our lives whereas they expect us citizens to ‘move on’ when things go wrong on their part. Common citizens are fined, imprisoned and even killed for disobeying the law whereas politicians get away with an apology, public criticism or in some cases, a resignation at the most. The unfairness of this model demands the criminal prosecution of leaders elected to public offices and bureaucrats for mishandling a crisis. The rule of law cannot apply disproportionately against citizens in a democracy.
Such is the case only in Public Law where those taking sensitive decisions in key positions have no accountability whatsoever if their decisions lead to such a havoc as transpired during the second wave of Covid-19 in India. In Corporate Law, for instance, the courts ‘lift the corporate veil’ to hold the ‘key managerial personnel’ (KMP) of a company liable for fraud or improper conduct. We do that even in International Humanitarian Law. What stops us from using the same principle in Public Law?
This is not an exaggerated idea. The case of Iceland Prime Minister Geir Haarde is a good example. After the infamous financial crash of 2008, a Truth Commission was set up which found the Prime Minister responsible for failing to take necessary action to respond to a coming crisis. He was found grossly negligent in failing to even hold meetings with his cabinet and inform them about the impending danger. Following this, a Court of Impeachment was set up to try him and he was convicted. He challenged the decision before the European Commission on Human Rights, which later upheld the conviction.
There are, however, strong arguments against prosecuting political leaders and government officials post a crisis. Some argue that the prospect of criminal liability could weaken decision-making during a crisis and that an ex-post facto rationalisation is inaccurate. But these arguments also hold true for a company and its managers as well as for citizens who we hold liable irrespective. Why are political leaders any different then?
If rule of law is to be protected, the rise of populism prevented, accountability must be sought. Above all, if citizen’s trust in State institutions is to be restored, then leaders holding public offices and government officials need to be booked for being grossly negligent.
We cannot wait for the voter to decide for every wrong by exercising his right to vote once in five years. This is clearly a flawed idea and does not belong to this century.
(Anurag is a student at National Law University, Visakhapatnam and an ‘Impact Fellow’ at Global Governance Initiative; Anshumaan is a student at National Law University, Odisha)