Governance from the Courts (Authority/Subversion)

The MFT category of authority/subversion is triggered by a quest for order and stability in society. Yet, a democratically elected government could hibernate during a crisis, when it knows that its authority is not likely to be subverted (weak opposition, crisis often prevents mobilization, and so on). The constitutional separation of powers and the role of the judiciary¹⁹ on such occasions are imperative for the reestablishment of social quality in public life. The inaction of the Union Government of India during the pandemic on criminal matters and how Supreme Court of India stepped in to take action is an example of this moral foundation.

While the first wave of the COVID-19 crisis made the federal state visible through its extraordinary lockdown measures, the second wave made it invisible. As the number of reported positive cases crossed 200,000 per day (early April 2021), hospitals had no capacity to admit patients. Even in hospitals where beds were available, the necessary items, such as oxygen and life-supporting machines, were absent. As the hospitals were running out of life-supporting beds (ventilators, oxygen beds), individuals kept sick loved ones at home, and started procuring medical essentials from the black market. Chaos and mismanagement prompted social activist Arundhati Roy to write an open letter to Prime Minister Modi (dated 4 May 2021) titled “We Need a Government. Desperately. And We Don't Have One.”²⁰ The judiciary took suo moto cognizance of the crisis, and intervened stating that the court could not be a “mute spectator,”²¹ and took it the executive role of government and health policy matters into its own hands.²² This was clearly an example of the Supreme Court entering into the role of the executive, and challenging the well-established principle of the separation of powers.

The judiciary may err if it attempts to deal with matters of resource allocation and efficacy (Bilchitz 2003; Govindjee 2019). But, when the government fails to design a resource allocation mechanism, there is a grave danger to the rule of law. The rule of law, wherein even the highest individual is not above the law, crumbles when citizens are left to their own devices to manage their health during a pandemic. Competition based on raw political resources exhibit “naked preferences” over the rule of law (Sunstein 1984). In a society like India with deep economic and social inequality, pandemics leave vulnerable citizens to look on while well-off citizens grab the available resources (be it a hospital bed or a respectable funeral).

Previous paragraphs may raise the question as to whether the Indian government is dysfunctional. In fact, past policy initiatives undertaken by the Indian government show a tremendous political will to achieve the objectives it sets out for itself. Protests were erupting in the country against the Citizenship Amendment Act when COVID-19 reached India. The government used the cover of the pandemic to evict all protesting groups from the streets. The Indian Parliament passed legislation to replace existing farm laws, against which massive protests erupted in the month of October 2020, alleging that new laws and regulations were providing profit opportunities for the corporate houses at the expense of farmers. Despite the eleven rounds of discussions with farmer unions between October 2020 and January 2021, a middle ground could not be found, and farmer protests continued. Two other laws—one on the environment and another on labor—have also been regressive, and their introduction during the pandemic saved the government from the protest it would have faced, had they been introduced in non-pandemic times. In the first week of June 2021, the central government implemented strong information technology rules, where big social media giants like Facebook and Twitter were forced to reveal information that the government asked for.

Why did a strong government that could implement these laws appear weak when there was a health crisis? From the history of privatization (explained above), it could be discerned that the rich class that could subvert (or at least challenge) governmental authority would take private healthcare, and the poor classes would fail to mobilize while they would be seeking emergency healthcare, going from one hospital to another. The priority of the government was clearly on matters that were not pandemic-related.

A litmus test for the misplaced priority of government was the legal battle that took place on the Central Vista Project (a construction project to replace the existing Parliament and Ministerial Secretariat buildings with a cost very similar to what the Union government had allocated for vaccines in the annual budget of 2021–2022). The case was filed in court: the plaintiffs wanted to delay the project during the national health crisis that was the pandemic. The response of the government was that they had a legal right to their executive actions. Though the petitioners lost the case in court, in the public arena,²³ and among public intellectuals, the priorities of government casted a strong sense of doubt as to whether the authorities were going ahead with the project in the public interest: they started to think that they were just pursuing their own self-interest.

In the movement from justice to goodness, Ricoeur identifies a paradox of legal justice based on the contradiction between legal coercion and ethical reconstruction (Kandil 2018). Governmental inaction and the success of the rule of law, through the intervention of the Supreme Court (as explained above) is an example of the paradox of legal justice.

The MFT pillar of authority/subversion, along with care/harm (which we discuss next), supports the SQT normative factor of the equal value of human beings. However, while the authority/subversion pillar generates a systemic mechanism, the care/harm pillar generates a societal mechanism for promoting equal value.

A Caring Society and a Cold State (Care/Harm)

Human responses to fellow human beings in situations of violence or victimization are the triggers for the MFT pillar of care/harm. How far they raise political emotions in collective contexts varies among countries significantly. Contrasting the nature of society and state in India has been elaborated by several scholars who have studied India (Fukuyama 2011; Piketty 2020). Policy approaches to deal with poverty have also suffered from a “thick society and thin state” syndrome (Pellissery and Mathew 2013).

In the context of a “thin state,” one of the approaches that have become successful in India to deal with disasters is volunteerism. A cadre of “COVID warriors,” drawing from volunteers, was created. Media reports were full of heartening stories of the heroism of these volunteers. This is not to undermine the dedication that the medical doctors and nurses have shown. Over 1,400 doctors²⁴ and just as many health workers have died due to COVID-19 in India. Though at the individual level this dedication was visible, at the system level it was more of the harmful effects of the intervention that came to be known. In particular, this was visible when hospitals refused to admit COVID patients. In all the states we studied, the High Courts ordered 50 percent of beds in private hospitals to be reserved for COVID patients. In some states, the administration threatened private hospitals with closure if admissions were denied to COVID patients.

Among the six states we studied, Madhya Pradesh and Uttar Pradesh had very minimal arrangements to monitor bed availability, despite the respective High Courts directing the government to do so. There was huge gap between public information on bed availability and the reality on the ground. The Chief Minister of Uttar Pradesh claimed that there was no shortage of oxygen while hundreds were dying due to a lack of oxygen cylinders in the local hospitals. Compared to this situation, the states of Karnataka and Kerala²⁵ created what is called “COVID war rooms,” where dedicated teams of volunteers worked around the clock to take calls from patients, and to direct them for testing and hospital admission. These war rooms maintained real-time data on bed availability. However, in Karnataka this arrangement created a scam when employees at private hospitals colluded with volunteers in some COVID war rooms.²⁶

One important dimension of the care/harm pillar is specific to the doctor–patient relationship, which is an asymmetric power relationship. The issue, however, was fiduciary in nature. In privatized healthcare, this relationship becomes critical. During COVID-19, an important debate occurred in India among doctors as to whether CT scans could be used for COVID-19 diagnosis. Collusion between doctors and diagnostic clinics through the referral system is one of the hallmarks of the corrupt healthcare system in India (Priya and Ghodajkar 2018). Orders for expensive diagnostic procedures for COVID-19 and the overdoses of medication that this brought about are just one example of how the system as a whole did actual harm, while most individual doctors were, of course, caring.

Another instance of systemic harm was when several politicians argued that the COVID pathogen as a weak entity that could be prevented by cow urine (similar to Donald Trump's exhortation in the United States leading a few people to consume disinfectant. In India, the cow is holy animal because of its veneration in Hinduism) (Press Trust of India 2021). Some business endeavors also used this as an opportunity. At the peak of the second wave, there were reports of single-use PPE (personal protective equipment) PPE kits being resold by a biowaste disposal plant in the state of Madhya Pradesh.

Government Effectiveness and Treatment Pricing (Fairness/Cheating)

The societal trigger for the MFT pillar of fairness/cheating emerges from the human quest for equality, reciprocity, and proportionality. When these expectations are not met in a relationship, a sense of unfairness is experienced, and this experience could trigger hostile emotions toward those who perpetuate such unfairness. In a pandemic situation, when large numbers of members of society underwent similar suffering, there was a raised level of expectation of reciprocal cooperation from institutions (i.e., of the state, market, and society).

As the second wave was peaking, by early April 2021, the Central Drugs Standard Control Organisation (CDSCO) was aware that a health crisis was coming. It wrote to the drugs controllers of all regional states on 7 April 2021, informing them that, for drugs like Remdesivir, this crisis “may lead to its hoarding and black marketing.” Remdesivir vials are centrally distributed to the regional governments, and from there they are delivered to various hospitals. The drug is not available with pharmacists, and therefore individuals cannot and—during the pandemic—could not access it without first being hospitalized. However, doctors started prescribing Remdesivir when it was not available in the hospital.²⁷ The only way this was possible was the creation of a black market, where relatives of patients would access this medicine (and other like it) and make it available to the hospital. At the same time, it is important to note that the centrally distributed Remdesivir was only able to enter the black market through the hospital. Instead of administering the medicine to patients (and sometimes instead of returning medicines to the hospital after a patient's death), doctors or other employees deliberately pushed medicines to the black market for the purpose of profiteering. It is exactly for this reason that several hoarding cases were filed in court against doctors, ward boys, and members of hospital administrations.²⁸

In five of the six states that we studied, several politicians (particularly ruling party members) directly procured both medicines and vaccines. Media visibility of political leaders as saviors of the people dominated over the effectiveness of government machinery. This was particularly because the politicians sat on the boards of directors of many of the private hospitals. Some hospitals displayed the photographs of these political leaders on the banners advertising the vaccination drive. These systems of signaling to voters in a democracy came at the cost of strengthening public institutions and citizens’ faith therein.

In the states of Uttar Pradesh and Karnataka, opposition parties pointed out the procurement of medicines, ventilators, and diagnostic equipment at a rate that was 500 percent above the market rate (News18 2020; PTI 2020). Our study of court cases showed that in all the states the High Courts directed the state government to issue a cap on medicines, hospital pricing, and treatment pricing. However, the will to implement them varied among the states. It was found in the inquiry that in one of the cases a female patient was charged 822 percent more than the fixed fee by a private COVID-19 hospital for a 24-hour stay (Chauhan 2021).

In a segmented system of healthcare, politicians have to reward the private sector, which gives them money for elections, as well as appear to be doing good for the voters. The vaccination policy of the central government clearly showed this double dependency. Though the media reported vaccine shortages, vaccines were available in private hospitals at exorbitant prices. Private hospitals had procured vaccines, whereas state public procurement systems failed to do so. Golf clubs, resident welfare associations, religious groups, private business groups, and even WhatsApp chat groups made arrangements with private hospitals for vaccinations. Where individuals were paying for vaccinations (often three times more than the stated price of the vaccine), there was no scarcity of vaccines. At the same time, there were no vaccines at government-supported Primary Health Centres (PHCs), which is where poor people went to get vaccinated. Thus, the segmented system not only perpetuated health inequality, but members of the middle class also accepted the payment of exorbitant prices as something they would have to live with if they wanted to be vaccinated or receive other medical services.

The origins of this uneven situation can be traced back to the vaccination pricing strategy that was allowed to take shape. The Union government refused to procure vaccines directly from companies. Instead, it allowed vaccine-producing companies to have a three-tier pricing system.²⁹ As different regional state governments were competing among themselves through tenders, prices went up. It was only due to the sustained intervention by the Supreme Court that the Union government announced a reversal of its vaccine policies. With effect from 21 June 2021, the central government would procure 75 percent of its vaccines from companies producing them in the country and supply them to state governments free of cost. This has enabled the state governments to provide free vaccines to the public. It is still worth noting that 25 percent of vaccines are reserved for private hospitals, who administer vaccines at a cost.

Fairness/cheating as an MFT pillar, along with liberty/oppression, supports the social justice normative factor of SQT.

Violence as Reaction to Governmental Intervention (Liberty/Oppression)

Haidt defines the liberty foundation of morality as “motivation to unite as equals with other oppressed individuals to resist, restrain, and in extreme cases kill the oppressor” (2013: 201). In the previous sections of this article, we have shown two trends that would trigger the need for common people to mobilize their righteous anger: the first is a segmented system of healthcare generating anger over being deprived of quality care that other citizens are enjoying; and the second is the inaction of the state, inaction that leaves citizens at the mercy of healthcare workers who are overburdened.

In the state of Madhya Pradesh alone, a report³⁰ found that out of 3,620 sanctioned posts of specialists only 765 were currently filled. Over 75 percent of required positions were vacant in the public health sector. In the same state, over 3,000 doctors went on public strike when the COVID crisis was at its peak, demanding adequate work conditions.

In all the states we studied, violence against doctors and nurses were reported. Most of these violent acts took place in private hospitals or in COVID care centers. In some instances, acts of violence were organized by family members when a patient passed away without getting an ICU bed or oxygen cylinder. In a bizarre incident, twenty-two patients were alleged to have died when a private hospital carried out mock drill by switching off the oxygen pipeline. Crowds gathered in front of the hospital in the city of Agra in Uttar Pradesh, and the local government sealed off the hospital.

Though violence is in conflict with the rule of law principle, the MFT principle of liberty/oppression is essential for a society to establish itself as anti-authoritarian. Populist anger contained in this element goes along with courage as a virtue. In turn, this supports the normative factor of social justice in SQT.

Graded Dignity (Sanctity/Degradation)

The sanctity/degradation principle is triggered when people want to protect themselves from disease, pollution, or uncleanliness, or when there is talk or impurity. It addresses the “broader challenge of living in a world of pathogens and parasites” (Haidt 2013: 179). In other words, this MFT pillar is important when it comes to the creation of a moral community. Liberal ideas primarily fueled by the harm principle of John Stuart Mill are “inadequate as the basis for a moral community” (Haidt 2013: 174), because Mill's principle fails to recognize people's sentiments. Overemphasis on the autonomous individual leads to a scenario where feelings, emotions, and ideas of purity and pollution are reduced, as they are merely considered as illusions that do not rationally fit within a utilitarian framework.

One of the most gruesome experiences of the pandemic during the second wave was regarding the disposal of dead bodies. From a purely utilitarian point of view, what is being done to the bodies does not amount to harm. It is exactly here where emotions and sentiments bring a moral foundation for respecting dead bodies and giving them a decent burial or cremation. The way in which the pandemic brought pressure on India's burial infrastructure created graded dignity. Those who could afford the expenses of burial were able to respect their emotions toward the dead body of a relative. In all the states we studied, there were reports of relatives spending hours queuing at crematoriums to get a slot. The nadir of human dignity came when television screens displayed hundreds of semi-decomposed dead bodies being feasted on by vultures and dogs in the states of Bihar and Uttar Pradesh. Impoverished villagers, without resources to buy wood for cremation, had floated the dead bodies down rivers. Bribes were demanded both in public crematoriums as well as by middle-men to execute the task.

This inability to give loved ones a decent burial or cremation, at least for the poorer sections of society, is indicative of how the pandemic disintegrated the concept of a moral community. In normal circumstances, violent reactions and punitive measures could be expected for dumping dead bodies in common resources such as rivers. Those norms became irrelevant when coping with personal grief or guilt, which was conditioned on a class basis: the rich could cope, while poor people could not.

Systemic corruption does moral harm, and Mill's principle stating that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (1910) is too weak.³¹ The Ricoeurian conception of the good, going back to Aristotelian reciprocity, on the other hand, emphasizes good “with and for others” (Ricoeur 1994: 180). Ethical desire would prompt people to have a vicarious sense of respect. This interconnection between sanctity/degradation and the need to respect one another is how MFT reinforces the normative principle of human dignity in the SQT framework.

The Coming of the White Tiger for Relief (Loyalty/Betrayal)

“Finding your own people” is a game in politics as much as in society.³² This original trigger of the MFT pillar of loyalty/betrayal shapes the politics of relief. In a widely read book, Everyone Loves a Good Draught (1996), the system in which politicians, bureaucrats, and middle men flourish amidst the suffering of the poor was brought out vividly by the journalist/author Palagummi Sainath. COVID-19 was a reiteration of this lesson. A cohesive group³³ (with the loyalty principle as an internal incentive) of relief providers faced a widely dispersed group seeking relief.

In the context of the COVID-19 pandemic, all the states in India were forced to introduce relief programs of different types—food for people who had lost the capability to buy food for themselves, travel for people who were trapped due to lockdown, cash transfers for people who lost their livelihoods, a moratorium on loans for those who could not make their repayments, exemptions for those who could not pay their electricity bills, support for schoolchildren to be able to access online classes, and so on. However, in a democracy these relief measures are construed as a relationship between voter and politician. It is precisely here that the MFT principle of loyalty/betrayal operates (of course, this goes along with the care/harm principle we dealt with above). The requirements for substantial relief measures in India due to the COVID-19 pandemic were a major departure from previous modes of relief.

Two avenues existed in India to raise necessary resources and to distribute them when disasters took place—the PM National Relief Fund (PMNRF, created in 1948) and the National Disaster Response Fund (NDRF, created in 2005). In March 2020, when the COVID-19 pandemic struck the country, a new fund called The Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) was created. Unlike the other funds, the newly created fund (PM CARES) was exempt from transparency measures such as the right to information.³⁴ The cabinet was not consulted. Though the Prime Minister was declared as the chairman of the fund, there was no information available on who else may be the trustees of the fund. Tax exemption was provided to corporate houses and individuals who made donations to this fund; government employees were urged to contribute a portion of their salaries to the fund; and foreign donations³⁵ were accepted. However, the financial statements of the fund were audited by a private accounting firm.

A public interest case³⁶ was filed in the Supreme Court with an aim to bring more transparency to this new fund. Though the government declined to be transparent, holding the view that the fund was created under a registered charitable trust (and that it was not a public fund which was transferred to the government), the petitioners threatened prosecution over the former's use of the national emblem for a charitable trust. At this stage, the government admitted in the Supreme Court that the fund was public, but argued that it was exempt from transparency legislation such as the Right to Information Act. The Supreme Court refused to intervene in the matter, citing “financial planning as the prerogative of the government.”

The fund despite of being in operation for more than 18 months still has not revealed how much money it has received. Media reports suggest, loyal corporate groups to the ruling party have been leading contributors to the fund. Money raised has been spent for purchase of vaccines, for the welfare of migrants and for vaccine development.

Relief in contexts of disaster is an important tool for solidarity (Titmus 1970). However, in deeply divided societies, relief tools— coupled with political corruption—could solidify existing societal divisions. Solidarity as a normative factor may be most difficult to nurture to advance the social quality of deeply diverse societies.