Updated: May 12, 2021 8:22:10 am
All of us now must cope with the aggressive resurgence of Covid-19, and find ways to live at the edge of finitude. Some have staggered into it as objects of mourning and obituaries. Others are cheating their way into survival. With the pandemic’s peak predicted in mid-May, even more doom and gloom cannot be ruled out. The recent oxygen crisis, breakdown of health services, and a sudden sense of being abandoned have aggravated the despair. As the poet Merion West writes, we live in a “Wilderness of whys/ Labyrinth of ‘I’s’ and ‘Discover to remember/ Devastate to flower/ Break to repair/ Put together to shatter.”
It is not that nothing is being done. A surge of humanism is visible everywhere. The entire Indian government establishment is hyperactive 24/7 and we constantly hear of Covid-19 diplomacy — the Prime Minister is talking with US President Joe Biden and his cabinet members are talking with their counterparts in other parts of the world. As a result, the US, UK, EU, and UAE have begun the processes of delivering humanitarian aid in kind. President Bidden clearly regards this as reciprocity of sorts: India helped the US with the vaccine and chloroquine supplies, now aid should flow to help India. All countries who rush with assistance speak of their “special relationship” with India. There is a latent sensibility that all are together in the fight against Covid-19. It would also be wrong to downsize the heroic role of the Indian diaspora and Indian caucuses.
The print, electronic, and social media depict, in words and images, the plight of India’s suffering humanity. In this global pharmacy called India, now abound tales of shortages of essential drugs, avoidable fatalities, hunt for hospitals and healthcare facilities, and lack of oxygen supply. The denial of dignity in death is headline news; the audio-visual archives of makeshift burial and funeral grounds haunt us all. The continuing saga marking the Bhopal Catastrophe now seems to be writ large across the nation. Increasingly, the present wave of Covid-19 has shaken the foundations of political legitimacy and the reign of the scientific estate. The view that the pandemic presents some kind of “emancipatory catastrophism” is wearing thin.
In this zodiac, the judiciary critically performs the role of democratic co-governance. The high courts have played a most notable part in nudging executive authorities to act more proactively in relation to the markets of health care. For example, in Rakesh Malhotra (2021), the Delhi High Court ruled that the “Central government should swing into action” at least to enforce the Indian Patents Law to issue the compulsory licence of rights, with fair compensation to patent holders. The judicial mantra is: “Lives of the people take priority over everything else”. The courts have kept a hostile judicial oversight over the oxygen shortage and super spreader events. The Calcutta High Court pulled up the Election Commission and the Madras High Court has shed all judicial reticence in wondering aloud about criminal proceedings against election officials for allowing violation of Covid-appropriate conduct. The apex court has also used its supreme suo motu powers to ameliorate the present plight.
The human right to health is poised against the right to religious practices and the right to democracy, but should not in pandemic times, Article 21 that guarantees the right to life and liberty, become paramount? That is already the executive rationale under the Pandemics Act and the national disaster management law and policy. How may the extravagant indictment of the judiciary as “judicial overreach” be then justified?
Even as we applaud overseas concern and aid at this time, we must also note the underlying conflict between humanitarian policy and business as usual (BAU). BAU promotes a hard patent regime at the WTO, which is indifferent to people’s suffering. In October last year, South Africa and India asked the WTO for a temporary TRIPS waiver for vaccines. They have received support from 100 developing countries for waiving certain provisions concerning copyrights, industrial designs, patents, and protection of undisclosed information. This move was recently endorsed by 175 former world leaders and Nobel laureates. And yet the US, EU, and other developed countries have blocked discussions despite — as pointed out by South Africa’s TRIPS negotiator Mustaqeem De Gama — the detailed explanations given by the co-sponsor of the move. Further, these “vaccines would not exist” without governmental funding of around $100 billion globally in “vaccine development”. Significant procurement policies have ensured “massive” corporate profits in any event.
Washington has belatedly shown signs of cooperation towards a “global solution”. The United States Trade Representative has talked of waiving patents to make vaccines available to all. However, the embedded ideology of “disaster” or even “toxic” capitalism prevails even in times of pandemic. BAU works to the advantage of “disaster profiteers” — as seismologist John Mutter shows — who plunder the world, putting profits over people. When “no one is looking”’, disasters become a “means by which the elite prosper at the expense of the poor.” Disasters demonstrate “how unjustly unequal our world has become”. The elite prospers, but the plight of the impoverished and the vulnerable steadily worsens.
The welcome humanitarian response invites pandemic reflexivity about the permanent state of economic aggression, within and across nations. BAU politics may thrive on rampant denialism, conspiracy theories, and uncontrolled aggression against political rivals and conscientious citizens — as happened recently in President Donald Trump’s regime. However, pandemic times require states everywhere to take people’s suffering most seriously and heighten the need for accountability. They require us never to conflate the rule of law with the rule by experts and demand only the performances of responsible sovereignty. If anything, the pandemic must help us learn to keep apart, to use the immortal phrases of the philosopher Judith Shklar “situations of misfortune” from “acts of injustice”.
This column first appeared in the print edition on May 12, 2021 under the title ‘Rein in covid profiteers’. The writer is professor of law, University of Warwick, and former vice-chancellor of Universities of South Gujarat and Delhi
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