Justice is retrospective – it can only punish what has happened, restore what is already lost and reconcile what was once broken.

In that way, justice – taken to be broader than just retributive – is a means for fairness, closure and wherever possible, moving on. This, in part, was understood at the end of the Second World War. The International Military Tribunal at Nuremberg was constituted, almost with desperation, to hold some party accountable for the destruction and human suffering.

It was the first time in human history that there was an institutionalised attempt to apportion blame to individuals and hold them accountable for acts committed during the conflict.

The idea of transitional judicial mechanisms, be it formalised international tribunals or community-based truth and reconciliation commissions, is vastly seeded in the idea that the end of the conflict is conflictual itself. It is marked by ruined institutions, collective trauma and grief and disposition to slip back into conflict.

Under the larger ambit of national (re)building, the advocates of these mechanisms have articulated multiple goals for these institutions – truth-finding, telling and accepting, ending impunity and breeding deterrence and most importantly, punishing misdoers.

War against Covid-19

As we battle the second wave of Covid-19 within our homes, the situation for India is no different than the Second World War. This “war” is marked like all others by families decimated, children orphaned, with a stench of helplessness abound. However, unlike other wars, the enemy here is as much an invisible virus as it is the state that served to be grossly inadequate to discharge its foremost duty of protecting its civilians against it, and rather ended up thrusting them in its way.

The state – through its vestiges and leaders – has already equated the pandemic to war in its chest-thumping bravado. At the beginning of the lockdown, Prime Minister Narendra Modi equated the war against Covid-19 to the Mahabharata. A few months later in November 2020, Health Minister Dr Harsh Vardhan, stated that we are “living in a phase of a silent war”. “Covid-warriors” or “frontline workers” is the phraseology that abounds in mass media, including especially by the government.

The crux, however, is that war has ramifications. It has victors, it has the defeated, and at the end of the war, it has accountability for violence. The question of accountability looms large. Are those who indulged in illegal hoarding of essential medical equipment and profiteered off scarce medical supplies and oxygen in the black market responsible for India’s Covid-19 crisis? Or, is the dereliction of duty by the state the violent culprit here?

Covid-19 patients at Lok Nayak Jai Prakash hospital in Delhi. Photo credit: Danish Siddiqui/Reuters

From the nationwide lockdown that was instituted on March 24, 2020, with merely four hours of notice, to the export of more than 6.6 crore vaccine doses to 93 countries under “Vaccine Maitri” without taking into account the rising Covid-19 cases and inevitable shortage of vaccines in India itself, there has been what economist Raghuram Rajan famously called as “policy by jhatka” all along.

The truth is jhatka seems to shock, overwhelm, and as it did in demonetisation, cause collateral damage. This also included the duty to use scientific rigour as the optimal tool to fight the pandemic. However, recent reports indicate that the state willfully ignored the advice of its own scientific task forces including the Indian SARS-CoV-2 Genome Sequencing Consortia.

In fact, around the same time in February when the expert scientists from the country were sounding an alarm bell of the new variants, the Union health minister was seen at the launch event of the alleged curative medicine against Covid-19 – Coronil by Patanjali. Against public demand and scientific rationale, election rallies were conducted in various states and the once-in-12-year Kumbh Mela was allowed which attracted lakhs of devotees, and now might as well be the world’s largest superspreader event ever as per global experts like Ashish Jha from the School of Public Health at Brown University.

Holding state accountable

The imputation of the blame must closely follow where the responsibility first rested. One-sided frustration of the social contract by the state can often push the citizen into dismay and destruction. Many High Courts have geared up to rectify this imbalance of power. The Madras High Court, while hearing a plea on counting of votes in an assembly constituency, lambasted the Election Commission of India for the failure to guarantee the following of Covid-19 protocols and orally remarked that “officers of the Election Commission should be booked for murder”.

The Allahabad High Court recently stated that the death of Covid-19 patients due to non-supply of oxygen was no less than a genocide. Photo credit: Reuters/Adnan Abidi

Both the Delhi High Court and Supreme Court, while deciding matters pertaining to oxygen allocation to states have, in separate instances, rendered instructions to the governments to secure supply of facilities on a “war footing”. The Allahabad High Court took it a step further and stated that the death of Covid-19 patients due to non-supply of oxygen was a “criminal act” and no less than a “genocide”.

The responsibility of the judicial setup is to dispense justice in all its entirety, which includes the right to know (and further embraces the right to truth), the duty to preserve the memory and guarantees of non-recurrence. However, it cannot stop here. Apart from the omissions and acts of the state, there is also the aspect of ethical failure that has to be addressed.

The wilful disobedience, or even ignorance, of human rights and the apathy toward the loss of lives that the authorities are exhibiting, even as thousands die in India on a daily basis due to deprivation of basic healthcare, is nothing short of a crime against humanity. Let alone a resignation, it is the lack of remorse and empathy on behalf of higher officials, as well as the continuous shifting of responsibility, which is the salt in the wounds of every single individual who has experienced loss during the pandemic.

The absence of a system for holding the wrongdoers responsible is conspicuous. The analogy of the war being perpetrated by the governments and the courts needs to be extended to seeking accountability and retribution on behalf of the citizens who these vestiges represent.

The pragmatic would think of the feasible. Statutory establishment of a special court or fast-track Bench to prosecute officials and individuals who have not only partaken in negligence with reference to the implementation of Covid-19 protocols, but those who have also profiteered and reaped the benefits from the misery of the common citizen could be a starting point. We have seen this happen for specific offences like child sexual abuse, narcotic offences, and even for cases against sitting lawmakers.

If a criminal liability approach would be enough is an open question. But a special court would allow an expeditious culmination of trial singularly focused on Covid-19 crimes. Whether it be a Nuremberg-style tribunal or a truth commission committed to fact-finding, collective healing and memorialisation, reconstruction after the Covid-19 tsunami needs a firm foundation of a semblance of justice.

Viktor Frankl, an Austrian psychiatrist and Holocaust survivor himself, poignantly noted that “purpose” was one of the elements that could help one survive through the most dire of situations. Purpose to punish, correct and prevent a repetition of the vast devastation we see today.

Abhinav Verma is a lawyer and a public policy professional working in innovations for health systems strengthening.

Radhika Roy is a lawyer and a legal journalist, currently an Associate Editor at LiveLaw. Her main interests lie in the field of constitutional law, human rights, gender justice and digital rights.