DISTINCTIVELY INDIAN DIALOGUE OVER HEALTH RIGHTS IN NORMAL TIMES AND PANDEMIC

Non-legislated right to health in the Indian Supreme Court (ISC) is still situated between non-justiciability and weak substantive rights. Neither did COVID-19 pandemic bring a substantive change, however, it did push the dialogic review to its limits, namely ISC was demonstrably categorical when it could act upon existing political will and assurances, issued strict interim orders, before pushed to reverse/modify them facing strong objections and disproved of policy with a strong rights language though with only a recommendation to revise it. Such diversity of judicial approaches, especially coexistence of categorical interim orders without rights analysis and extensively reasoned weak remedies seems counterintuitive at once, especially considering often similar influence over the political processes. Reflecting upon the pre- and post-pandemic health rights jurisprudence of ISC, and in light of SoP theory, this paper offers plausible explanations for such a peculiar order of things.