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Health Rule of Law

COVID-19 and the Indian Supreme Court

In ordinary times the Constitution is of course very important,but it is in times of crisis that the Constitution and the mechanisms to enforce it, are tested. That is why in the current context the failure of the Supreme Court becomes even starker

Mihir Desai 26 May 2020

Supreme court

This article is not about the efficacy of the video conferencing hearings or about how many or often judges should sit for hearings during this lockdown. It is about how, the Higher Courts and especially the Supreme Court, have dealt with the various Petitions filed concerning COVID 19 and how our Courts, especially the Supreme Court have let down both the Constitution and the people of India.

Let me make two things very clear. It is true that some Petitions lack any substance and have been rightly dismissed. Second, a number of Petitions did not require the Supreme Court or High Courts to play the role of being scientific experts or medical doctors or even policy makers. They simply required certain actions or inactions to be tested on the touchstone of fundamental rights and directive principles and on the claims of Federalism and State Accountability. Maybe it was too much to ask. The signs of judicial deference to the Executive and Legislature have been there for quite some time. The willingness to transfer judges unpalatable to the Executive, the manner in which the issues of Kashmir, unbridled arrests under Unlawful Activities Prevention Act (UAPA) and the anti- Citizenship Amendment Act (CAA) agitation have been dealt with, especially by the Supreme Court, are reasons enough for some  human rights lawyers to consider renouncing legal practice. The way Habeas Corpus Petitions concerning Kashmir have been dealt with has rendered meaningless the most important of all instruments for the pursuit of legal justice. Similarly, the political bonds issue has been put in cold storage. But then what can we expect when a Chief Justice of India presides over his own hearing concerning allegations of sexual harassment? Though the trickle-down theory has never worked for the economy, it does work in the judiciary. If the Supreme Court keeps its hands off many cases, the High Courts also tend to follow suit, and also follow the same route, more often. Nevertheless, many Judges across High Courts have stood up to the Executive and called it to accountability in various ways. I will look at some of these orders also.

Kashmir, CAA, UAPA are overtly political issues. Of course they are issues that should be handled within the confines of our Constitutional principles but the Supreme Court has failed to do even that. But COVID-19 is primarily a non-political issue (or so it would appear) which affects virtually the entire population and more so the poor and marginalised, since, for them social distancing is a mirage, access to affordable health care is a chimera, and access to food and other essentials even in non-lockdown periods is never certain. Everyone agrees that COVID-19 should be contained, that the poor should get food and money, that affordable healthcare should be provided to all, at least in these times.

It has become very clear in the last two months that the biggest impact of the lockdown has been on the poor, the migrant labour, children, women, Dalits, Adivasis, transgenders, sex workers and other marginalised sections. They constitute more than 70% of our population. If the Courts are unable to do anything for those, who in this national crisis are jobless and without adequate food or shelter, then the judiciary can hardly be said to be delivering justice, indeed that it has miserably failed. The judiciary has its own limitations but this cannot excuse or justify its total failure to even listen to these marginalised sections many of whom are dying of hunger. Rather it reflects a complete surrender to the Executive which is not just an institutional failure but a personal failure of the judges.

The present health crisis could not have been anticipated and the initial reluctance of the Supreme Court to intervene is something one can comprehend. Though even this is also not entirely correct because on March 16, 2020 much before the lockdown became a reality, the Supreme Court took suo motu action in the context of COVID-19, to the decongest jails and other correctional homes and issued notices to all states and asked them to respond. On March 23 they directed each state and Union Territories to appoint High Powered Committees to make recommendations concerning release of certain under-trials and convicts for the period of lockdown. Possibly due to the pressure of having to report to the Supreme Court such High Powered Committees were constituted and a large number of prisoners were released. One may question whether a sufficient number of prisoners have been released or not, but the fact that the states got activated because of the Supreme Court cannot be denied. This was a living example of what some judicial prodding could achieve. In fact on April 13, when the matter came up again, the Supreme Court also directed---yes directed---that those in detention centres in Assam should be released after 2  and not 3 years of detention as was happening till now. Better still, the bond/surety amount was reduced from an earlier Rs 1,00,000 to just Rs. 5,000. This was a clear and welcome policy intervention by the Supreme Court that was done despite opposition from the Centre.

These were however exceptions. On most other issues the Supreme Court failed. The initial reluctance of the Court can be put down to uncertainty about what was happening given the global nature of the pandemic and a kind of wait–and-see attitude. But when this crisis continues week after week and month after month and it is obvious that there are huge numbers starving and pregnant women and children are walking hundreds of kilometers to get home, then the refusal of the Supreme Court to intervene is not just a delayed response to a new situation but a complete abdication of responsibility. If suo motu action could be taken about prison congestion much before the lockdown started, surely similar suo motu actions could and should have been taken on issues of food and migrant workers. Forget Suo Motu---even when these issues are brought to its notice, time and again they have been completely disregarded.

Some of the questions which arise while assessing the performance of the Courts are: first, what is the obligation of the State concerning fundamental rights and directive principles at the time of crisis especially for the poor? Second, could the Courts at all have gone into the issues pertaining to policy matters, scientific and medical expertise and carrying major financial implications for the government?. Third, what should the Courts have done, both procedurally and substantively to help out especially migrants, the poor and other marginalised sections  in terms of food, shelter, medical help and travel?
 

Obligation of the State: Socio Economic Rights

First things first: By providing affordable health care, free rations, free travel to migrants and some cash in hands of the poor, the Government is not performing acts of charity. It is merely complying with its obligations to the people who have a right to receive this, particularly during times of health and other emergencies. International conventions say so, the Indian Constitution says so, and it is the very foundational principle of a welfare state.

Even before the Disaster Management Act, 2005, right from 1880 onwards there have existed famine/scarcity codes which provide for relief obligations during calamities. Due to international pressure and commitments, there are various occasions when a law is passed not with any intention of implementing it but to comply with such commitment. In 2005, the National Disaster Management Act was passed in order to show compliance with the Hyogo Framework for Action which was adopted by the United Nations in 2005 for disaster risk reduction worldwide. Subsequently in 2015, when the Sendai Framework for Disaster Risk Reduction (2015-2030) was adopted by the United Nations calling upon states to take further action---a National Disaster Management Plan was adopted  by India in 2016. Under the Act, disaster management includes relief, rescue and rehabilitation. It is the responsibility of the Central Government to allocate funds for mitigation, etc. A National Executive Committee and State Executive Committee are to make resources available for drinking water, essential provisions, health care and services in affected areas. The Central Government is required to create two separate funds namely Disaster Management Response Fund and Disaster Management Relief Fund. Neither of these has been created in all these years. The Central and state governments also have the power to procure provisions without complying with bureaucratic procedures. In addition, there are Guidelines for minimum standards of relief prescribed by the National Authority. Of course much of this deals with minimum conditions in relief camps but even here sufficient and nutritious food including milk for children and lactating mothers is to be supplied to all and 3 litres of drinking water per day has to be given and there is no distinction on the basis of whether the person has a ration card or not. Similarly, in 2008 the National Guidelines for Management of Biological Disasters were framed. These also deal with pandemics and preventive and quarantine measures. These Central Guidelines also mention:

“The Epidemic Diseases Act was enacted in 1897 and needs to be repealed. This Act does not provide any power to the centre to intervene in biological emergencies. It has to be substituted by an Act which takes care of the prevailing and foreseeable public health needs including emergencies such as BT attacks and use of biological weapons by an adversary, cross-border issues, and international spread of diseases. It should give enough powers to the central and state governments and local authorities to act with impunity, notify affected areas, restrict movement or quarantine the affected area, enter any premises to take samples of suspected materials and seal them.”

Bear in mind that this is after the Disaster Management Act, 2005 was brought in. Even according to the Central authorities there is no law existing for matters concerning quarantine, lockdown, restriction of movement. The question remains whether the current lockdown, restriction of movement, quarantine etc. are at all legally well founded. There are general and broad powers to the Central and state government to issue directions for mitigating a disaster but no particular power for the actions presently taken and whether these actions are at all legally sustainable is an issue. But let us proceed on the assumption that the lockdown, quarantine, etc. are legally permissible.

In any case the obligation to take care of the poor during disasters is already prescribed under the law. While there is no specific fundamental right to food, health care, shelter, etc., Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty without procedure established by law, has been given a wide interpretation by the Supreme Court which has broadened the definition of life to not just include “mere animal existence” but the right to live with human dignity which includes right to shelter in Olga Tellis v. B.M.C. (1985 3 SCC 545), Chameli Singh 1996 2 SCC 549), the right to livelihood in PUDR (AIR 1982  SC 1473), right to adequate health care in Paschim Banga Khet Mazdoor Samiti (1996 4 SCC 37), right to clean drinking water in A.P. Pollution Control Board (2001 2 SCC 62), right to food, etc. Thus it is not merely a moral or legal obligation of the State to look after the people but also the right of the people to demand and obtain these very essentials from the State.

The obligation of the State to protect and provide for the population during the time of calamities is an accepted legal principle since the time Grotius proclaimed it in the 16th Century. In Levine v. Milne Citing (424 US 577) and  Dandridge (39 USA 471), the U.S Supreme Court  said "[w]elfare benefits are not a fundamental right, and neither the state nor federal government is under any sort of constitutional obligation to guarantee minimum levels of support."  We, however, do not follow the American model where welfare benefits are not treated as rights.

In India there are not less than 300 Judgments of the Supreme Court which reiterate that India is a welfare state. In addition, there are a large number of directive principles which have been converted into statutes and therefore acquire the status of implementable rights. These include the National Food Security Act, Street Vendors Act, National Rural Employment Guarantee Act, Unorganised Sector Workers Social Security Act, Maintenance and Welfare of Senior Citizens Act, Prohibition of Employment of Manual Scavengers Act, Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, and various laws concerning women, children and Dalits. The implementation of these laws is altogether another matter. But as a legal regime the welfare state exists by virtue of the Constitution as also various enactments. This reality has reinforced the use of public interest litigation.

There is another argument I wish to advance. Even if these rights - right to food, right to drinking water, right to subsistence, etc. - are treated as directive principles of state policy not enforceable in law, during public emergencies they acquire the flavour and substance of fundamental rights. Just as some of the civil liberties and fundamental rights may be curtailed to deal with the disaster, similarly such disaster elevates many of the  directive principles to the level and status of fundamental rights especially the rights concerning healthcare, food, drinking water, etc. There is a theory propagated by the Italian theorist Giorgio Agamben which speaks of the State acquiring and expanding its powers in what he calls the ‘state of exception’ especially during emergencies.

“Within these times of crisis Agamben addresses how this prolonged state of exception operates to deprive individuals of their citizenship, and individual rights. In a state of exception the government has extended levels of power and authority than in the past. With this new level of extended authority there is a blurred distinction between what is legal and illegal, public and private.

States of exception come into being when there is an increase in government power in supposed times of crisis. In order to enact a state of exemption one person or government must make a case to the public that this has to happen. The citizens of the state are told that this extension of power beyond where the law had existed in the past is vital to ensure the safety and wellbeing of the state and the citizens that reside in it.

The subjects living in a state of exception do not have any legal status, as stated by Agamben they are seen just as living human beings and not a legal being. Individuals are not only deprived of their citizenship but also denied making their own decisions regarding their life. Citizens in a state of exception are much like prisoners., the parallel can be seen in both circumstances where someone of a greater authority is regulating their lives. Citizens are told that these changes in power and authority must be made for their own good, although in most circumstances the individual or body of government is exempt from their own laws.” Pingback: State of exception | Law and Society@Kwantlen

The people on whose behalf the powers are exercised by the State have likewise a right under emergencies to insist on the legal enforcement of directive principles during extra-ordinary times. 

While it is true that during such states of exception many civil liberties are curtailed, it is jurisprudentially required that during such times those human rights (such as right to food, water, etc.) which are directly impacted by curtailment of the civil liberties transform into fundamental rights---and not just as negative rights but positive rights---casting an obligation on the State to meet them. Failure to do so would amount to a total negation of the Constitution which no juridical system can accept. So if my fundamental right/liberty to move around or carry on my vocation is substantially curtailed (as in the present case) the directive principles, namely right to food, right to shelter, healthcare, etc. push themselves into being fundamental rights making it an obligation of the State to provide me with these facilities and allowing me, like in the case of other fundamental rights, to approach the High Court or even directly the Supreme Court for enforcement of these rights. This is where one sees the failure of the Supreme Court and many of the High Courts.

In ordinary times the Constitution is of course very important but it is in times of crisis that the Constitution and the mechanisms to enforce it are tested. That is why in the current context the failure of the Supreme Court becomes even starker.
 

Judicial Powers

Two questions arise. One, whether the judiciary has the powers to tell the Executive what to do and what is the extent of this power. Second, what could the judiciary have done in these times.

The Supreme Court has been repeatedly saying it cannot substitute its own wisdom for that of the Executive and it cannot interfere in policy matters. Second, that the Supreme Court is not an expert on medical or scientific or economic subjects.

At first blush this may sound sensible but it is a complete abdication of judicial review. Let us look at a few instances over the last 40 years of the Supreme Court’s decision-making history. When the Supreme Court found that the law did not deal adequately with foreign adoptions it laid down detailed binding guidelines for  Indian children being adopted by foreigners (Laxmikant Pandey AIR 1987 SCC 232). In  D.K. Basu’s case, detailed directions were given about the rights of the arrestees and accused. Similarly in Visakha’s judgment (1997 6 SCC 241) the Supreme Court effectively legislated on matters concerning sexual harassment at the workplace. The Court gave directions on how children of sex workers should be educated (Gaurav Jain AIR 1990 SC 292).  The Court ordered vehicles over 15 years to be discarded (M.C. Mehta 1999 6 SCC 12), gave a completely “scientific” direction that vehicles should use CNG (M.C. Mehta  1999 6 SCC 9). In the Azad Rikshaw Pullers Case (AIR 1981 SC 14) the Court asked the Punjab National Bank to advance loans to rickshaw pullers and set out an entire scheme concerning repayment of loans. In Common Cause (1996 1 SCC 753) it gave directions on how blood should be collected and transfusion free from hazards be made: this was total usurpation of medical science.  Furthermore, the SC prescribed a detailed procedure for fee structure in professional colleges. Lest it be thought that this was a 20th century phenomena given up in the 21st century, in Savelife Foundation (2016 7 SCC 194) directions were given considering the treatment of good Samaritans in accident matters. The Supreme Court has also directed the Government to implement the river linking project, which because of this policy direction suddenly became the most important project in the country. Let us not shy away from the fact that whenever the Supreme Court wants to lay down a policy it does so (whether scientific, economic or whatever) and whenever it does not, it reverts to the mantra ‘we don’t interfere in policy matters.” I can go on and on. Were not these issues meant only for the legislature or for the Executive? In any event, the Supreme Court itself has observed in various judgments that while it would ordinarily not interfere in policy matters, it would certainly do so if the policy was arbitrary or in violation of any fundamental right.

The whole purpose of Constitutional Courts is to oversee the decisions of the Legislature and Executive or what is called  judicial review. Even if the judges only watch the most sensational and pro-government elecronic television channels and source their news through twitter they would know that there is a huge problem of starvation on a massive scale and of migrant workers totally left in the lurch by the Executive. These are the two most important issues which the Supreme Court should have taken up on a suo motu basis as soon as the crisis began or soon after. They could have issued various directions and appointed independent authorities to verify the claims of the Government rather than accepting whatever the Solicitor General said, even if it was in an affidavit. What was needed was an active Supreme Court.

There are orders which a sensitive Supreme Court could have easily passed without interfering in policy decisions and without becoming doctors or scientists.

First, the Court should have appointed an Amicus to assist the Court (without displacing the given Petitioner), an approach adopted by the Supreme Court itself in various matters. Amicus could have independently verified the claim of the Government and assisted the Court. That would have required the august institution to function determinedly as an independent sentinel of the Constitution.

Second, the Court should have appointed independent observers/committees to visit random places to verify the claims of the Government. This again is an approach adopted by the Constitutional Courts in many cases. Way back on February 28, 1982 the Supreme Court acting on a letter, sent Commissioners to quarries in Haryana to see if bonded labourers were actually working there. The Commissioners verified this and thus started the famous bonded labourers case. This practise of independent fact finding has been followed by the Supreme Court in many cases over the decades.

Independent verification of government claims is all the more important during the COVID period because the country is under a lockdown. It is not easy for citizens to visit various places to file reports. They can only give anecdotal information. We are faced with a situation where the entire country is under lockdown, the Government is making bombastic claims, the media is constantly reporting major cases of starvation and the humongous problem of migrant labourers. But the Court does not pay attention to the  media and no one else is allowed to go out to conduct a study. This is the ideal situation wherein independent observers should have been appointed by the Court to verify the claims of the Government. But that would mean the Court had at least an iota of doubt about the veracity of the claims of the Government when in fact the Court is busy giving plaudits to the Government and believing whatever they say. So the question of having independent observers does not arise. At the very least the Supreme Court could have done what the Karnataka High Court did by an order asking the Legal Services Authority at various district levels to visit the sites and file reports, which were duly filed and allowed the Court to do a reality check and pass further excellent orders.

The Supreme Court readily accepted the Government’s contention on March 30, 2020 that migrants were travelling because of the outbreak of ‘fake news’ and further on April 4, 2020 the Court accepted the Government’s contention that not a single migrant was now on the streets. When after a month---by which time some newspapers were read and some other news channels watched---it could not be denied that migrants were still travelling by foot, the Court responded by saying it could not do anything and dismissed the Petition.

When a Petition came before the Court that a large number of poor persons not having ration cards were not being given ration, the Court could have very well directed that all poor persons be fed. This is not a question of policy- and if it is, it would be irrational and arbitrary and a violation of Article 21and the fundamental right to life.

Similarly, the Court ought to have directed the Railways not to charge any fare from the migrants who were anyway without money. This is what a Constitutional Court is required to do during crisis times.

As recently as in 2018 the Supreme Court in the suo motu case of Inhuman Conditions of 1382 Prisons (2018 18 SCC 777) directed the Central Government to form a committee presided over by a Supreme Court Judge to make recommendations on prison conditions and kept the matter alive for further orders. In fact as mentioned earlier in this paper, this was done by the Supreme Court even after the COVID crisis began so that prisoners could be released for a temporary period.

The other thing which the Supreme Court should have done was to use its power of continuing mandamus to at least make the Government answerable in various cases.  This power, which has been regularly employed by the Constitutional Courts is at times used to issue mandatory directions and at times used to push, plod and embarrass the Government to act. The latter is done in a manner where the Court facilitates resolution of issues by keeping the case alive and making the Government answerable through various means including asking for repeated status reports, appointing independent commissions to oversee what is happening, asking the Government officers and advocates to sit with the Petitioners lawyers and civil society groups to find a solution, suggest measures which becomes difficult for Government to refuse to accept. This is precisely how some of the High Courts have proceeded in the present crisis and with excellent results as will be pointed out here.

The classic earlier example of this was the PUCL’s Petition on Right to Food which lasted from 2001 for nearly 15 years wherein the Supreme Court passed various orders which helped large numbers of poor people and ultimately led to the enactment of the Food Security Act, 2014. During this period, regularly and repeatedly, the Court without  there being any law on the subject, enforced directions (many times coyly agreed to by the State and Central Governments) concerning mid-day meal schemes, anganwadi schemes, maternity benefits, starvation deaths, etc. Policies were converted into legal rights and minimum allocations of food grains and supplementary nutrients were prescribed in great detail. Significant "interim orders" have been passed from time to time. For instance, the Supreme Court has passed orders directing the Indian government to: (1) introduce cooked mid-day meals in all primary schools; (2) provide 35 kgs of grain per month at highly subsidized prices to 15 million destitute households under the Antyodaya component of the PDS; (3) double resource allocations for Sampoorna Grameen Rozgar Yojana (India's largest rural employment programme at that time, now superseded by the Employment Guarantee Act),; and (4) universalize the Integrated Child Development Services (ICDS). Moreover, decentralisation was ordered on a large scale to avoid corruption and involve the local communities. [See the website of Right to Food Campaign for further details.]

The Supreme Court appointed independent commissions to monitor the implementation of its orders and regularly report back to the Court. Finally after the enactment of Food Security Act, the Petition was disposed of. Despite the best efforts of the Court, the Petitioners, the Commissioners and the Right to Food Campaign a lot still remains to be done but reasonable success was achieved at the ground level.

This is just one example of the Supreme Court using its powers for betterment of millions of people. Unfortunately the same enthusiasm is missing now. Let us now look at what the Supreme Court has performed in the COVID related cases.

 

Supreme Court and COVID related issues

Since March, 2020 a large number of individuals and organisations have approached the Supreme Court concerning the impact of COVID-19. Many of the Petitions, such as the prayer to declare financial emergency, are frivolous. Some others have prayers requiring high levels of medical or other expertise, which the Supreme Court does not have, cannot be gone into. On the other hand, a number of issues have been raised in the Supreme Court which it could have and should have entertained but failed to do so. The basic approach of the Supreme Court has been to either say that the Government is doing very good work and therefore the Court should not interfere or to say that these are matters concerning policy which cannot be interfered with. Essentially the Supreme Court has been highly deferential towards whatever the Central Government says, especially through the Solicitor General; and when pushed, the court will at the most request the Central Government to consider the issue raised in a Petition. No timeline is given  nor any guidance as to what are the factors to be taken into account while considering the issue. No questions are asked and no concerns expressed; the Petition dies a natural death. Let us now look at some of the crucial issues dealt with by the Supreme Court concerning COVID-19.
 

A. Migrant Workers

Under the Migrant Labour Act all migrant labourers are to be registered and if experience is anything to go by, not even 10% of them are actually registered. Most of these workers are daily wage workers working in various industries such as construction work, brick kilns, etc. While there is no official data for the inter-state migrants in the country, some estimates for 2020 have been made by Professor Amitabh Kundu of the Research and information System for Developing countries. His estimates, which are based on the 2011 Census, NSSO surveys and Economic Survey of India, show that there are at least  65 million inter-state migrants. By conservative estimates, 30% of them are casual workers and another 30 per cent work on a regular basis but in the informal sector. A study by the Centre for the Study of Developing Societies (CSDS) and by Azim Premji University in 2019 estimates that 29% of the population in India’s big cities are daily wage earners. This is the number of people which, logically speaking, would want to move back to their states. Despite the complete failure of the Central and State Governments to enforce the migrant workers legislation the Central Government should have enough knowledge about this problem. The March 24, 2020 lockdown may have come as a bolt from the blue for the people but for the Central Government one assumes it was a planned action. Much before this date, the World Health Organisation (WHO) had declared Covid-19 a pandemic. Flights had been stopped, the virus had spread within India, the circus of clapping from balconies had begun and some of the states had already effected lockdowns. Way back on  January 31, 2020 the Central Government had banned the exports of various Protective Personal Equipments (PPE). From the first week of March the Supreme Court had begun to run on a very limited urgent hearing basis. Any efficient Government would have anticipated the rush of migrants to home states and planned for it. If one could finally allow migrants to go back after 37 days of lockdown---by which time there was widespread spread of the virus---one could have allowed them to go back from March 24, itself. These are the questions which the Court should have put to the Central Government. Let us see what the Court actually did.

On March 25, 2020, thousands of migrants started walking. On March 26, Alakh Srivatsav filed a Petition in Supreme Court stating that a large number of migrants are walking on the roads to reach their home states and they should be sent to government shelters and provided food, water and medicine. Another similar petition was also filed. Both these Petitions came up for hearing on March 30 and the Court asked the Central Government to file a Status Report. On March 31, a Status Report was filed and the Court heard the matter. The Status Report mentioned that from January 7, itself the Central Government had started making all preparations including hospital preparedness. Meanwhile on March 29, the Central Government issued a direction that migrant workers should not be allowed to move and they should be kept in State Government shelters and provided food, drinking water, etc. The Central Government said that nearly 6 lakh migrant workers were placed in government shelters and about 22 lakh persons were provided food. What would happen to crores of other migrants was of course a question which the Supreme Court did not pose. Incredulously, the Solicitor General made a statement that as of 11 a.m. on March 31, not a single migrant was walking!  The Status report stated that migrant workers were travelling because of panic created by fake news. This was an astonishing claim but the Court accepted all these submissions. On top of this endorsement the Court said that adequate steps have been taken so that all migrants are safe and sound. The Solicitor General also made a statement that within 24 hours, trained Counsellors will visit each of the relief camps/shelter homes. Even after more than a month most of the shelter camps have yet to see a counsellor, trained or otherwise. The matter was then adjourned to April 7.

Furthermore, in the same Petition an application was made to direct the Government to requisition hotels, resorts, guest houses to house migrants. The Central Government said it was doing this and so the application was disposed of. Finally, the matter came up on April 27, 2020 when additional applications were filed by the Petitioner. The Court disposed of the entire matter stating that the Central Government will consider the suggestions of the Petitioner and that the ‘interim relief’ granted on March 31, 2020 will continue as final relief. But this ’interim relief’ did not say anything except that the Central Government should keep on doing what it was doing. In the Court’s book on migrants, Chapter 1 is hereby closed. Closure of Chapter 1 of migrants.

On April 2, 2020 the Supreme Court took suo motu notice of a letter written by MP Mahua Moitra concerning the situation of migrants of which she personally had taken note of. For some reason this Petition was dismissed on April 13, 2020 for reasons that are left unclear. Now Chapter 2 is closed.

On April 3, another Petition concerning migrants came up for hearing. This was filed by Harsh Mander whose work has given him a great deal of knowledge about ground realities. This Petition sought payment of wages to the migrants pointing out the humanitarian crisis caused by the lockdown. The Centre was asked to respond on  April 7. On that date the matter was adjourned with the Chief Justice remarking that if the migrants are being fed why do they need money. Maybe it was overlooked that even poor migrants once in a while have tea, have bath with soap, have to wash clothes with soap, have to send money to their villages for their families. Anyway the matter finally came up on April 21. The Solicitor General claimed that all migrants were being fed, provided ration, etc. Harsh Mander filed an Affidavit annexing reports by the civil society organisation SWAN based on ground level information that a large number of migrants were still lacking basic facilities. But the Court, it seems, orally observed that it could not place reliance on private studies when the Government is giving a completely different picture. So the Court did what it does in such matters. It asked the Union of India to look into the material and take steps as the Central Government found fit. The Petition was disposed of. Chapter 3 is now  closed.

On April 18, 2020 a Petition was filed by Jagdeep Chhokar for allowing the migrants to go back to their parent states and for the Governments to make arrangements for this. This came up on April 27, 2020 for hearing. On that day the Court asked the Union to place on record protocol, if any, for travel of migrants. Meanwhile on April 29, the Central Government decided to allow the travel of migrants and of course then substantially modified this on May 1, 2020. In any case on May 4, an application was filed in this Petition raising grievances against the travel charges which were being demanded from the migrants. The Court disposed of the entire Petition by holding that it could not go into the issue of charges for travel.  Closure of Chapter 4.

By April it was clear that a large number of migrants had died of exhaustion and starvation. On May 16, migrants who were going towards their home state died when a speeding train ran over them. An immediate application was made by Alakh Alok Srivatsava bringing this and various other incidents to the notice of the Court and asking the Court to intervene in the matter and direct the District Magistrates to ensure that those who are walking are provided with shelter and food so they do not walk. One of Judges remarked that the submission was based purely on newspaper reports. What was the Petitioner to do in the time of lockdown--- follow each and every migrant who was walking? In, shall we say, a truly sublime observation, another Judge remarked that how could the Supreme Court stop people from walking. The Solicitor General with his characteristic insensitivity remarked that what can the government do if people are not willing to wait their turn for train travel. The point which was totally missed of course was that people were walking because they were not getting food or water; they were walking because they did not have money to buy train tickets; they were walking because no one was certain as to when their turn would actually come to travel by train. The Application was dismissed. Chapter 5 closed.

One can extend to the maximum one’s benefit of doubt and  accept that in the initial week of the lockdown the Supreme Court felt that the Government was doing its best. But within 7 days things became clear. We do not have to have site visits to understand the problem. One needs to only look at newspapers, social media and even those news channels which one would ordinarily never watch, to understand the reality. Even today, after the starting of the trains, tens of thousands of migrant workers are walking towards their home states. They have not been paid wages for the lockdown period and the State Government  has supplied food to only a small percentage of migrants. Even today, despite the Centre and states making false claims, migrants have had to pay for their full train tickets. Nearly 200 persons have died trying to reach their home states. It is difficult to believe that the Supreme Court is not aware of this. On the one hand there is lockdown so it becomes difficult for individuals and organisations to go out and study the situation. When they do and make reports these are ignored and whatever the State says is believed. When Courts see their roles as assisting the Executive and disbelieve the lived reality of people, when they fail to exercise their jurisdiction which is embedded in the law and jurisprudence of the last 40 years, it compels the question, what then are Courts meant for.

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, contains various provisions pertaining to the employment of inter-State migrant workmen and to provide for their conditions of service. The Act provides for the registration of establishments employing migrant workers. Section 6 prohibits employment of inter-State migrant workmen without registration and without the establishment obtaining a certificate of registration. Section 8 provides for the licensing of contractors who employ migrant workers. The licence may contain such conditions including the terms and conditions of the agreement or other arrangement under which the workmen will be recruited.

Under the Act, the government is obligated to keep a complete record of all the establishments employing migrant workers, contractors providing migrant workers for employment and migrant workers in every state. It should therefore be possible for the government to identify each migrant worker working under any establishment and ensure that he/she is paid their wages. This is of course if the Act was at all implemented.

The only good order in respect of migrants that the Supreme Court has recently passed was the recent stay against the Orissa High Court judgment. The Supreme Court stayed the order which directed that no migrant will be allowed into Orissa unless at the point of boarding from the initial destination outside Orissa, such a migrant has been tested negative for COVID 19. This was impossible under the present circumstances and the Supreme Court rightly stayed it. But one wonders whether such a stay would have been granted if instead of the Union of India  challenging the Orissa High Court order, a migrant or a civil society organisation had raised the challenge?

During all these hearings should not the Supreme Court have at least once asked the Central Government as to why they did not make any plans for migrants before imposing the lockdown? Should not the Supreme Court have once asked the Central Government, that, if on March 24, when the spread of the virus was limited, migrants were effectively not allowed to travel, then why after the virus has spread so much on April 29, were they allowed to travel? The Supreme Court has let tens of millions of migrants down and thereby also the Constitution.

On the other hand, like during the emergency of 1975-77, some of the High Courts have been much more proactive about peoples’ rights. Some of the orders of High Courts from Karnataka, Bombay, Tamil Nadu, Andhra Pradesh, Uttar Pradesh and Gujarat are some examples. Of course one would have to say that, though, by and large, High Courts have also followed the Supreme Court in deferring to the Executive, one still finds important exceptions.

On April 3, 2020 the Karnataka High Court issued an order directing the District legal Services Authorities to visit various shelters set up across the State for migrants and file a report with the Court. This monitoring itself activated the State to ensure proper provisions.

On May 12, the Karnataka High Court made the following observations:

“Another important issue is of the migrant workers requiring to pay the train fare. As per the order of the Ministry of Railways dated May 2, 2020, the State Government which arranges for “Shramik” special trains is expected to pay the train fare. In the State of Karnataka, the policy of the State is to collect the train fare from the migrant workers. In case of some States, the concerned State Governments have agreed to pay the train fares of the migrant workers who are returning to the said States from the States in which they are working.

10. Prima facie, it appears to us that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own State only for the reason that he has no capacity to pay for the transport. The reason is that inability to pay is due to loss of livelihood.

11. The Central Government through the Ministry of Railways will have to look into this issue, especially when the Home Secretary of the Government of India by his letter dated May 11, 2020 addressed to the Chief Secretaries of all the States has stated that the State Governments should cooperate with the Central Government for running more number of “Shramik” special trains so that the travelling of the migrant workers is facilitated at a faster rate. Even in the last paragraph of the said letter, the Home Secretary of the Central Government has urged the Chief Secretaries to receive all “Shramik” special trains without any hindrance and facilitate faster movement of the migrant workers to their native places. If the migrant workers are unable to pay the train fare, it will be impossible to facilitate their travel at a faster rate. Therefore, apart from the Central Government, even the State of Karnataka must look into the issue and take immediate decision on the question of paying railway fare of those migrant workers who are not able to travel due to their inability to pay.

12. The State Government and the Central Government, during this difficult time, must appreciate the major contribution made by the migrant workers in a large number of public projects as well as private projects which have contributed to the improvement of the infrastructure in all the States and the improvement of the economy. At a time when the migrant workers who have made such a huge contribution are facing distress, both the Central and State Government must come forward to help them to ensure that at the earliest, they return back to their home States. Ideally, no migrant worker should be deprived of an opportunity to travel back to his home State if he wishes to do so. Therefore, it will be appropriate if the State Government immediately convenes a meeting of all the Trade Unions, Employers’ Associations and NGOs in the State with a view to ascertain whether any contribution can come from the Employers’ Association, Trade Unions and NGOs which can be used for bearing the Train fares of the migrant workers who are not in a position to pay the train fare.

……The Central and State Government must find the solution on this issue which will ensure that the rights of those migrant workers who wish to go back to their respective States are not infringed only because they are in distress and are not in a position to pay the travelling charges.

14. The responses of the State and the Central Government on these aspects shall be placed on record on the next date, that is, on May 18, 2020.”

The matter was finally kept on May 21, 2020 for arguments under Articles 14, 19 and 21 of the right of migrants to be paid train fare for travelling to their home states. On that day the State Government filed detailed written submissions and the matter was directed to be kept on May 26, for final hearing. The Court again prima facie observed that non payment of fares would violate the fundamental rights of migrants. Looking at the mood of the Court the Government on May 22, announced that it would bear the train fare of all migrants who wanted to return to their home states.

 

On May 15, 2020 the Andhra Pradesh High Court passed an order in respect of migrants who were walking towards their home states. The State Government argued that they had set up tents/outposts at regular distance to help walking migrants. The Court ordered

  1. that these outposts should have at least one doctor, drinking water, dehydration salts and glucose packets. Each such outpost should have a standing ambulance;

  2. mobile toilets should be provided at regular distance and sanitary pad dispensing machines should be provided at every alternate outpost;

  3. adequate food should be provided to migrants who are walking on the national highway;

  4. national highway authority buses and police patrol vans should be utilised to transport these migrants to the nearest shelter homes;

  5. pamphlets should be printed in Hindi and Telugu for giving to these migrants the addresses of the nearest shelter homes and various phone numbers;

  6. Nodal officers should be appointed and each shelter home should be supervised by one officer and help of even non-governmental organisations should be taken to ensure that food, medicines actually reach these shelter homes. Report of compliance should be filed by 22.5.2020.

On the same day the Madras High Court passed the order which needs to be quoted extensively:

“7. One cannot control his/her tears after seeing the pathetic condition of migrant labourers shown in the media for the past one month. It is nothing but a human tragedy. When the lock down was announced at the end of March 2020, lakhs and lakhs of migrant workers were stranded throughout the country.  Most of the workers lost their jobs, no shelter is said to have been provided apart from lack of supply of adequate food.  After waiting for a considerable time, they started migrating to their native states by foot. It is very unfortunate that those persons were neglected by all the authorities. The heart breaking stories are reported in the print as well as visual media that millions of workers were compelled to start walking to their native States with their little children carrying all their belongings over their head, surviving on the food provided by good Samaritans, as no steps were taken by the Governments to help those migrant workers. It is also reported that some people starved to death due to hunger. …”

“8. It is not only the duty of the native State of the migrant workers but also the duty of the States where they were working to care for their safety and well being. India is a welfare State and Article 21 of the Constitution of India is paramount and safety and security and supply of food are important. This Court is well aware that Covid-19 is not only a national crisis but also an international crisis. But, it is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers.

“9. There are a number of toll gates available and those toll gates should have been made as checking points to provide food, shelter and medical help to the migrant labourers. However, it is very pathetic to note that neither the native States nor the States through which they were walking all along took care of them and failed to provide even the basic amenities such as food and shelter and even if they had been provided, they were negligible.

“10. First of all, relevant data of those persons who were working as migrant labourers in all States have to be collected; The host State in which they were working should be made accountable for the safety and well being of the migrant labourers, for which all the States are expected to act in unison, rendering assistance to those poorer sections.  This Court is aware that yesterday, the Central Government has come out with relief measures including rental housing facility, free food grains without ration card. 

“11. The newly impleaded respondents are directed to answer the following queries.

1. Whether any data is being maintained by the Government of India regarding the details of migrant workers working in each State/Union Territories in India?

2. If so, what is the number of migrant workers in each State/Union Territories in India and the details regarding their nativity?

3. What is the number of migrant workers stranded in each State/Union Territories in India as on today?

4. What are all the assistance provided to those migrant workers by the      Respective States as well as the Union Government?

5. Whether those migrant workers are allowed to cross the State borders or prevented from crossing the borders and if they are prevented, whether they are provided with basic amenities such as food, shelter and medical assistance?

6. How many migrant workers died on their way to the native States?

7. To which States/Union Territories, the deceased workers belong to?

8. What are the relief measures/compensation provided to the families of those migrant workers who lost their lives on their way back to their native States?

9. How many migrant workers in each State/Union Territories have been evacuated from their working States to their native States through buses/trains throughout India?

10. What are all the steps taken to transport the remaining people to their native States?

11. Whether migration of people is one of the reasons for the spread of Covid-19?

12. Whether the Central Government has instructed the respective States/Union Territories to provide financial assistance, job opportunities in their native State/Union Territories for the labourers who migrated from other States?”

“Both the Central Government as well as the State Government have to file

their reply.”

Similarly, the Gujarat High Court on 11.5.2020 took Suo Motu Notice of the plight of migrants and observed:

“6. The   Indian   Express”   has   published   a   news   item   titled as ‘Migrant workers made to wait for 19 hours in Gujarat to board a train to UP’. It appears that the migrant workers are suffering the most.  They are desperate to go back to their homes i.e. to their native States across the country. We appreciate the efforts of the State authorities which are being made to transport the migrant workers to their respective States by way of Trains, Buses, etc. However, it seems that before they are able to board the Train or a Bus they have to suffer like anything for     hours together in this scorching heat of almost 45 degrees.

The State Authorities should come forward with some modalities or plans to smoothen and ease the process so that the migrant workers may not have to wait for hours and hours together before they are able to board the trains or bus.

7.We also take notice of the news item published in the Indian  Express dated 11th May 2020 titled as ‘Stop migrant workers walking  home, take them to shelters: DGP’. It appears from the news item that the Director General of Police State of Gujarat has asked the police to stop any worker seen walking and take them to the nearest shelter home. We would like to know how many shelter homes are functional as on date across the State of Gujarat and at which places. The shelter home should also provide for food and water, more particularly, having regard to the scorching heat. Everyday hundreds of migrant workers with small children are to be seen in different parts of the State, more particularly on the highways. Their condition is pathetic. As on date they are living in the most inhumane and horrendous conditions. As we have observed earlier, although all the necessary steps are being taken by the State Government, yet we are of the view that few more modalities need to be worked out at the earliest to ease the suffering of the people at large.

8.The State Government should keep in mind that they are at  present dealing with the most downtrodden, under privileged and  weaker sections of the society. They are all afraid. They are not afraid of COVID­19, but they are afraid that they would die due to starvation. In such circumstances, it becomes the paramount duty of the State Government to assure and repose confidence in the downtrodden class of people that they will be taken care of in the best possible manner. It is high time for the State Government to deal with this delicate situation very carefully and instill confidence in the minds of the people at large that they will be taken care of.”


The case was then kept on May 14, 2020 on which day the State Government filed two lengthy status reports. The Court again brought in focus the plight of migrant workers and reproduced the May 12, order of Karnataka High Court and asked the State to take action. Finally, on May 22, the Gujarat High Court passed a detailed  order running into 143 pages issuing various directions. Concerning migrant workers it directed the railways to waive one way fare for the migrants or the State Government to bear these expenses. This order is also very relevant for the way it comes down heavily on the State Governments health care facilities and condemns the way in which the private health care sector has been functioning only for profiteering. Various health care related directions are given in this order.   

Similarly the NHRC has recently taken suo motu action concerning the  migrant workers having to walk long distances. .

What the High Courts have been doing is prodding, pushing, embarrassing and asking probing questions. They are not disposing of the matters but demanding answers, actions. At times they are passing mandatory directions. This issue concerns the entire nation, a matter in which the Supreme Court ought to have done what some of the High Courts are doing.
 

B.  Food and Ration

With the lockdown it was clear that millions of people, not just migrants but even other poor persons who relied on daily wages and many of the millions who were below the poverty line, would need food and drinking water. A large number of workers overnight became jobless, many not even paid their previous wages.  Similar was the fate of the self employed such as hawkers, etc.  What will be done about this was not announced by the P.M. on his March 23, 2020 8 p.m. lockdown speech. This led to a massive rush for purchases which in itself would have caused some amount of virus spread.

Even today, after over two months of lockdown, for instance in Maharashtra according to a study, more than 96% of the poor have not been given government ration. There were two major problems. While free ration was announced it was available only if you first buy paid ration. Second, a large number of people in India do not have ration cards at all or their ration cards are in their villages and they are in the cities or they have the ration card but it is from a different state. In fact there is enough buffer stock lying in the FCI godowns to feed the entire population many times over and what the Government should have done was to release the stock and give totally free rations to people not just during lockdown but also for months after that. This was the only way of ensuring the enforcement of right to food as a fundamental right. 

So inevitably, petitions were filed in the Supreme Court saying people are not getting food. One Petition was filed by Jairam Ramesh for giving free food. This was disposed of since Jairam Ramesh had not approached the Government first before going to the Court. Why such a procedure was required is unclear. The Government knew about the paucity of food and water for millions. It did not require a Jairam Ramesh to write a letter to bring it to its notice.

A second Petition was filed by Aayom Welfare trust---a trust which was involved in relief work. In this Petition it was urged that the Government should also give rations to those who do not have ration cards and universalise access to the public distribution system. On April 30, 2020 this Petition was disposed of with the observation that this was a policy matter and the Court could not do anything and that the government may consider taking the matter up. So there ended the food issue of the people at least as far as the Supreme Court is concerned. The Supreme Court could have directed the Centre to provide rations to even those who do not have ration cards. It is a right to life question not just a question of coy abstinence from policy matters. The least the Supreme Court could have done was to keep the Petitions pending and push the Government to take steps. This is what some of the High Courts have done.

The Karnataka High Court started hearing the matter on March 30 and has been hearing it regularly till date. On the very first date it asked the State as to how (and not whether) the state will give food to children from the Anganwadi and mid-day meal scheme since anganwadis and schools were closed. The government had no option but to come up with a plan. As regards food to people without ration cards the Karnataka High Court referred to an earlier judgment of the Supreme Court in the case of Swaraj Abhiyan (2016 7 SCC 498) wherein the Supreme Court had held that during the time of drought it was enough to show an identity proof (and not necessarily a ration card) to get rations. Karnataka High Court held that this logic would apply even in current times. It asked the state government to take decision on this aspect by the next date.

On April 7, the Court again raised the issue of food to those without ration cards. The government said in certain parts they are providing food packages to such people. The Court asked the Petitioner to check from its volunteers whether this was done across the State. On April 9, the Court again pushed the government. The Court observed that many persons belonging to marginalised communities such as beggars, transgenders and sex workers may not have ration cards. It stressed the need of providing ration to those who did not have ration cards and free rations to those who could not afford but had no BPL cards. On April 13, when the state was again pushed it said it will place a comprehensive policy on food by April 16.

On April 16, the state government finally came out with its policy concerning food for those who did not have ration cards. This was divided into two categories. Those who were staying in government shelters will be provided cooked food while those who were residing in their own houses would be provided either food packets or raw food. On an objection by the Petitioners lawyer, the Court directed the state to specify the quantum of raw rations which will be provided and also asked the state to ensure availability of gas cylinders for cooking. The Court also asked the State to identify individually on war footing those who were without food. Finally, the Court expressed appreciation for NGOs doing selfless work during this period.

On April 24, the state gave details of rations to be provided for each person but said that free gas cylinders were not possible. The Court came down heavily on this and said that the state must consider giving one gas cylinder free for the poor. Earlier, the government had said that they will advertise in newspapers about availability of shelters for those who were homeless and the Court had observed that homeless people may not have access to newspapers so such advertisements were meaningless. The state now said they had started announcing the availability of shelters through public announcements from vehicles.

On May 5, the Court observed that the state government should consider extending its circular concerning non-eviction of workers also to trangenders and sex workers. On the next two dates the Court dealt with the issue of transport of migrant workers and the matter is kept alive.

The Nagpur Bench of the Bombay High Court adopted a very creative method to ensure that food and ration supplies are given to those not holding ration cards. On May 12, the matter came before it and the state cited the Supreme Court’s order which said it could not give directions for providing rations to those not having ration cards. It of course left it to the governments to decide whether such rations could be given or not. So the High Court looked at the state government’s policies. That government had issued a resolution on March 29, 2020 which spoke about provision of food, shelter and water to be provided to migrants, homeless and others who did not have essential items. The responsibility was placed on the district administration. The policy also mentioned cooked food. The policy did not make any distinction between those having ration cards and those not having ration cards.

The Corporation (a Respondent in the petition) came out with the case that there was a subsequent Government Resolution dated March 31, 2020 which permitted rations to be given only to ration card holders. The Court found a bold and novel way out. The Court observed that the March 31, 2020 G.R. did not refer to the March 29, 2020 G.R. and ordinarily if a Government Resolution has to be superseded it has to be specifically mentioned. Thus G.R. dated March 29, 2020 survived despite the G.R. dated March 31, 2020 holding otherwise and thus non-ration card holders were also entitled to all the benefits including free food.
 

Free Tests

It is obvious that testing for COVID is extremely crucial for detection  and treatment. While there are a few government laboratories where the test is available for free, there are a large number of private laboratories where the test has to be paid for. Payment is capped at Rs. 4,500/- per test. One has to be tested twice. So if one is in a family of four the minimum test charges would be Rs. 36,000/-. It was impossible for the poor to bear this. A Petition was filed in the Supreme Court.

On April 8, 2020 the Court passed an order stating that whether in Government or private hospitals the COVID-19 test should be free. Private hospitals immediately intervened through Mr. Mukul Rohtagi. Union of India through Mr. Tushar Mehta also supported the modification sought by private hospitals. The modification was that free testing in private hospitals will now be allowed only for those poor persons covered by Ayushman Bharat scheme. For others, the State may include such other economic categories as it thinks fit. At least ,more than 50 million poor persons in India are not covered by this scheme. The Government laboratories do not have enough testing kits. Thus a large number of poor persons cannot be tested even if they have symptoms. There is no reason why private laboratories which earn millions should not be asked to do some charitable work. Many of them are situated in charitable hospitals whose avowed purpose is public charity. At the minimum the Court should have asked the private hospitals to do these tests free and directed the Government to pay for these tests.
 

PM Cares Fund

Immediately after the announcement of the lockdown, the PM Cares fund was set up. There were three issues. First, whether the PM Cares fund should at all have been set up. Second, matters concerning the transparency and accountability of the fund. Third, whether the CSR benefit given to Corporates should be only for the PM fund and not for the CM’s (Chief Minister) fund. 

Section 135 of the Companies Act, 2013, requires all companies, having net worth of Rs. 500 crore, or turnover of Rs. 1000 crore or more or a net profit of Rs.500 crore or more during the financial year, to spend in that year, at least 2% of the average net profits of the company, in activities enumerated under clauses (i) to (xii) of Schedule VII of the Companies Act, 2013 which are primarily charitable activities.

The Central Government, by a Circular dated March 23, 2020, informed that spending of CSR funds for Covid-19 is a permissible form of CSR activity. It was declared that funds may be spent on activities enumerated under clauses (i) and (xii) of Schedule VII of the Companies Act, 2013. On March 28, 2020, an Office Memorandum was issued by the MCA notifying that all donations made to the PM Cares fund are eligible to be qualified as CSR expenditure under clause (viii) of Schedule VII.

Clauses (I) and xi are as follows

  • (i) Eradicating hunger, poverty and malnutrition, promoting health care including preventive health care and sanitation including contribution to the Swachh Bharat Kosh set-up by the Central Government for the promotion of sanitation and making available safe drinking water.

  • (xii) disaster management, including relief, rehabilitation and reconstruction activities

On April 10, 2020, the MCA in FAQ 2 has clarified that 'Chief Minister's Relief Fund' or 'State Relief Fund for COVID-19' is not included in Schedule VII of the Companies Act, 2013 and thus any contribution to such funds shall not qualify as admissible CSR expenditure.

On a perusal of clause (i) Schedule VII, it is evident that activities which promote health care, including preventive health care, would constitute CSR related activities. Thus, any contribution towards any activity promoting health care and preventive healthcare, would form a part of CSR related activities. The contributions made to State relief Funds, in order to mitigate the spread of Covid-19 would fall under this clause.

Thus ordinarily the CSR spent by donating to State funds/ CM funds to deal with COVID 19 should be permissible. But the Central Government says no. This would lead to Corporates funding the PM fund and avoiding CM funds. Mahua Moitra challenged this in the Supreme Court. On May 5, 2020 the SC refused to interfere by stating that this issue should be debated in Parliament and also that no corporation had challenged this. Which corporate house will dare to challenge this? In any event the matter was of public interest concerning as it did the interpretation of law and Constitution. The Supreme Court ought to have gone into it but did not.

There is also the question of why such a fund was needed when there already existed the PM’s national relief fund which is meant for disaster relief and has, it appears, in excess of Rs. 2200 Crores. In addition there appears to be no transparency and accountability as regards the PM Cares Fund except that the accounts will be audited. So another Petition was filed. Ordinarily such a Fund would be audited by the CAG and the report placed before Parliament. This Petition was dismissed by the Supreme Court on April 13, 2020 by saying that it was a misconceived Petition.

On the other hand, the Bombay High Court, Nagpur Bench on May 13, directed the Union of India to file a reply to a Petition which demanded a CAG Audit and full disclosure to the public of the PM Cares Fund.  On a slightly different issue, the Madhya Pradesh High Court and the Kerala High Court set aside the condition imposed by lower Court while granting bail that a certain amount should be deposited in the PM CARES Fund. On the other hand the Jharkhand High Court made such a deposit a condition for granting bail.
 

Conclusion

The refusal of the Supreme Court to exercise their power of judicial review in effective ways is not something which started with COVID 19 litigation. It has only became stark in recent times. Nobody was asking for the lockdown to be lifted; nobody was asking for the curtailments of civil liberties to be altogether removed; nobody was asking the Supreme Court to play doctor. The Petitions were filed essentially for the poorest of the poor who were dying by the hundreds not because of COVID but because of the job losses, because of complete lack of food, because of complete lack of planning for ensuring livelihoods during the lockdown.  Undoubtedly, this was an unprecedented situation in which the Government had to be allowed a certain freedom to act as it saw fit. But to completely abdicate its responsibilities towards the poor was something shocking.

The High Courts, like at the time of the 1975-77 emergency have shown much more enterprise and courage. Of course, not all High Court judges have responded with the same activism and there are many judgments of many High Courts which essentially follow the pattern set by the Supreme Court.

The Supreme Court’s role in respect of the Kashmir crisis or in dealing with NRC/ CAA, or the recent Delhi riots was clearly indicative of the times to come. It is not the case that in earlier years the Supreme Court has consistently been pro-people. In every decade there have been many judgments which cast a shadow on the Supreme Court’s functioning. Whether it was the Bhopal dispute or the issue of Narmada oustees; whether it was the retreat on labour jurisprudence in the 1990s or the criminal jurisprudence soon after; whether it was the Constitutionality of TADA, POTA and AFSPA or its continuing mandamus in Assam NRC; whether it was the Ayodhya dispute or the Hindutva Judgments; the Supreme Court’s role has come into question from time to time. 

Possibly, however, COVID-19 is the darkest phase in the history of the Supreme Court when it abdicated its responsibility at one go towards hundreds of millions of destitute and marginalised people and this record will take some beating in the decades to come.

(The author is a senior counsel in the Bombay High Court and has been appearing in several matters related to the COVID 19 pandemic and is also national vice president, People’sUnion for Civil Liberties, PUCL)

 

Related:

COVID-19 and the Indian Supreme Court

In ordinary times the Constitution is of course very important,but it is in times of crisis that the Constitution and the mechanisms to enforce it, are tested. That is why in the current context the failure of the Supreme Court becomes even starker

Supreme court

This article is not about the efficacy of the video conferencing hearings or about how many or often judges should sit for hearings during this lockdown. It is about how, the Higher Courts and especially the Supreme Court, have dealt with the various Petitions filed concerning COVID 19 and how our Courts, especially the Supreme Court have let down both the Constitution and the people of India.

Let me make two things very clear. It is true that some Petitions lack any substance and have been rightly dismissed. Second, a number of Petitions did not require the Supreme Court or High Courts to play the role of being scientific experts or medical doctors or even policy makers. They simply required certain actions or inactions to be tested on the touchstone of fundamental rights and directive principles and on the claims of Federalism and State Accountability. Maybe it was too much to ask. The signs of judicial deference to the Executive and Legislature have been there for quite some time. The willingness to transfer judges unpalatable to the Executive, the manner in which the issues of Kashmir, unbridled arrests under Unlawful Activities Prevention Act (UAPA) and the anti- Citizenship Amendment Act (CAA) agitation have been dealt with, especially by the Supreme Court, are reasons enough for some  human rights lawyers to consider renouncing legal practice. The way Habeas Corpus Petitions concerning Kashmir have been dealt with has rendered meaningless the most important of all instruments for the pursuit of legal justice. Similarly, the political bonds issue has been put in cold storage. But then what can we expect when a Chief Justice of India presides over his own hearing concerning allegations of sexual harassment? Though the trickle-down theory has never worked for the economy, it does work in the judiciary. If the Supreme Court keeps its hands off many cases, the High Courts also tend to follow suit, and also follow the same route, more often. Nevertheless, many Judges across High Courts have stood up to the Executive and called it to accountability in various ways. I will look at some of these orders also.

Kashmir, CAA, UAPA are overtly political issues. Of course they are issues that should be handled within the confines of our Constitutional principles but the Supreme Court has failed to do even that. But COVID-19 is primarily a non-political issue (or so it would appear) which affects virtually the entire population and more so the poor and marginalised, since, for them social distancing is a mirage, access to affordable health care is a chimera, and access to food and other essentials even in non-lockdown periods is never certain. Everyone agrees that COVID-19 should be contained, that the poor should get food and money, that affordable healthcare should be provided to all, at least in these times.

It has become very clear in the last two months that the biggest impact of the lockdown has been on the poor, the migrant labour, children, women, Dalits, Adivasis, transgenders, sex workers and other marginalised sections. They constitute more than 70% of our population. If the Courts are unable to do anything for those, who in this national crisis are jobless and without adequate food or shelter, then the judiciary can hardly be said to be delivering justice, indeed that it has miserably failed. The judiciary has its own limitations but this cannot excuse or justify its total failure to even listen to these marginalised sections many of whom are dying of hunger. Rather it reflects a complete surrender to the Executive which is not just an institutional failure but a personal failure of the judges.

The present health crisis could not have been anticipated and the initial reluctance of the Supreme Court to intervene is something one can comprehend. Though even this is also not entirely correct because on March 16, 2020 much before the lockdown became a reality, the Supreme Court took suo motu action in the context of COVID-19, to the decongest jails and other correctional homes and issued notices to all states and asked them to respond. On March 23 they directed each state and Union Territories to appoint High Powered Committees to make recommendations concerning release of certain under-trials and convicts for the period of lockdown. Possibly due to the pressure of having to report to the Supreme Court such High Powered Committees were constituted and a large number of prisoners were released. One may question whether a sufficient number of prisoners have been released or not, but the fact that the states got activated because of the Supreme Court cannot be denied. This was a living example of what some judicial prodding could achieve. In fact on April 13, when the matter came up again, the Supreme Court also directed---yes directed---that those in detention centres in Assam should be released after 2  and not 3 years of detention as was happening till now. Better still, the bond/surety amount was reduced from an earlier Rs 1,00,000 to just Rs. 5,000. This was a clear and welcome policy intervention by the Supreme Court that was done despite opposition from the Centre.

These were however exceptions. On most other issues the Supreme Court failed. The initial reluctance of the Court can be put down to uncertainty about what was happening given the global nature of the pandemic and a kind of wait–and-see attitude. But when this crisis continues week after week and month after month and it is obvious that there are huge numbers starving and pregnant women and children are walking hundreds of kilometers to get home, then the refusal of the Supreme Court to intervene is not just a delayed response to a new situation but a complete abdication of responsibility. If suo motu action could be taken about prison congestion much before the lockdown started, surely similar suo motu actions could and should have been taken on issues of food and migrant workers. Forget Suo Motu---even when these issues are brought to its notice, time and again they have been completely disregarded.

Some of the questions which arise while assessing the performance of the Courts are: first, what is the obligation of the State concerning fundamental rights and directive principles at the time of crisis especially for the poor? Second, could the Courts at all have gone into the issues pertaining to policy matters, scientific and medical expertise and carrying major financial implications for the government?. Third, what should the Courts have done, both procedurally and substantively to help out especially migrants, the poor and other marginalised sections  in terms of food, shelter, medical help and travel?
 

Obligation of the State: Socio Economic Rights

First things first: By providing affordable health care, free rations, free travel to migrants and some cash in hands of the poor, the Government is not performing acts of charity. It is merely complying with its obligations to the people who have a right to receive this, particularly during times of health and other emergencies. International conventions say so, the Indian Constitution says so, and it is the very foundational principle of a welfare state.

Even before the Disaster Management Act, 2005, right from 1880 onwards there have existed famine/scarcity codes which provide for relief obligations during calamities. Due to international pressure and commitments, there are various occasions when a law is passed not with any intention of implementing it but to comply with such commitment. In 2005, the National Disaster Management Act was passed in order to show compliance with the Hyogo Framework for Action which was adopted by the United Nations in 2005 for disaster risk reduction worldwide. Subsequently in 2015, when the Sendai Framework for Disaster Risk Reduction (2015-2030) was adopted by the United Nations calling upon states to take further action---a National Disaster Management Plan was adopted  by India in 2016. Under the Act, disaster management includes relief, rescue and rehabilitation. It is the responsibility of the Central Government to allocate funds for mitigation, etc. A National Executive Committee and State Executive Committee are to make resources available for drinking water, essential provisions, health care and services in affected areas. The Central Government is required to create two separate funds namely Disaster Management Response Fund and Disaster Management Relief Fund. Neither of these has been created in all these years. The Central and state governments also have the power to procure provisions without complying with bureaucratic procedures. In addition, there are Guidelines for minimum standards of relief prescribed by the National Authority. Of course much of this deals with minimum conditions in relief camps but even here sufficient and nutritious food including milk for children and lactating mothers is to be supplied to all and 3 litres of drinking water per day has to be given and there is no distinction on the basis of whether the person has a ration card or not. Similarly, in 2008 the National Guidelines for Management of Biological Disasters were framed. These also deal with pandemics and preventive and quarantine measures. These Central Guidelines also mention:

“The Epidemic Diseases Act was enacted in 1897 and needs to be repealed. This Act does not provide any power to the centre to intervene in biological emergencies. It has to be substituted by an Act which takes care of the prevailing and foreseeable public health needs including emergencies such as BT attacks and use of biological weapons by an adversary, cross-border issues, and international spread of diseases. It should give enough powers to the central and state governments and local authorities to act with impunity, notify affected areas, restrict movement or quarantine the affected area, enter any premises to take samples of suspected materials and seal them.”

Bear in mind that this is after the Disaster Management Act, 2005 was brought in. Even according to the Central authorities there is no law existing for matters concerning quarantine, lockdown, restriction of movement. The question remains whether the current lockdown, restriction of movement, quarantine etc. are at all legally well founded. There are general and broad powers to the Central and state government to issue directions for mitigating a disaster but no particular power for the actions presently taken and whether these actions are at all legally sustainable is an issue. But let us proceed on the assumption that the lockdown, quarantine, etc. are legally permissible.

In any case the obligation to take care of the poor during disasters is already prescribed under the law. While there is no specific fundamental right to food, health care, shelter, etc., Article 21 of the Constitution which provides that no person shall be deprived of his life and liberty without procedure established by law, has been given a wide interpretation by the Supreme Court which has broadened the definition of life to not just include “mere animal existence” but the right to live with human dignity which includes right to shelter in Olga Tellis v. B.M.C. (1985 3 SCC 545), Chameli Singh 1996 2 SCC 549), the right to livelihood in PUDR (AIR 1982  SC 1473), right to adequate health care in Paschim Banga Khet Mazdoor Samiti (1996 4 SCC 37), right to clean drinking water in A.P. Pollution Control Board (2001 2 SCC 62), right to food, etc. Thus it is not merely a moral or legal obligation of the State to look after the people but also the right of the people to demand and obtain these very essentials from the State.

The obligation of the State to protect and provide for the population during the time of calamities is an accepted legal principle since the time Grotius proclaimed it in the 16th Century. In Levine v. Milne Citing (424 US 577) and  Dandridge (39 USA 471), the U.S Supreme Court  said "[w]elfare benefits are not a fundamental right, and neither the state nor federal government is under any sort of constitutional obligation to guarantee minimum levels of support."  We, however, do not follow the American model where welfare benefits are not treated as rights.

In India there are not less than 300 Judgments of the Supreme Court which reiterate that India is a welfare state. In addition, there are a large number of directive principles which have been converted into statutes and therefore acquire the status of implementable rights. These include the National Food Security Act, Street Vendors Act, National Rural Employment Guarantee Act, Unorganised Sector Workers Social Security Act, Maintenance and Welfare of Senior Citizens Act, Prohibition of Employment of Manual Scavengers Act, Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, and various laws concerning women, children and Dalits. The implementation of these laws is altogether another matter. But as a legal regime the welfare state exists by virtue of the Constitution as also various enactments. This reality has reinforced the use of public interest litigation.

There is another argument I wish to advance. Even if these rights - right to food, right to drinking water, right to subsistence, etc. - are treated as directive principles of state policy not enforceable in law, during public emergencies they acquire the flavour and substance of fundamental rights. Just as some of the civil liberties and fundamental rights may be curtailed to deal with the disaster, similarly such disaster elevates many of the  directive principles to the level and status of fundamental rights especially the rights concerning healthcare, food, drinking water, etc. There is a theory propagated by the Italian theorist Giorgio Agamben which speaks of the State acquiring and expanding its powers in what he calls the ‘state of exception’ especially during emergencies.

“Within these times of crisis Agamben addresses how this prolonged state of exception operates to deprive individuals of their citizenship, and individual rights. In a state of exception the government has extended levels of power and authority than in the past. With this new level of extended authority there is a blurred distinction between what is legal and illegal, public and private.

States of exception come into being when there is an increase in government power in supposed times of crisis. In order to enact a state of exemption one person or government must make a case to the public that this has to happen. The citizens of the state are told that this extension of power beyond where the law had existed in the past is vital to ensure the safety and wellbeing of the state and the citizens that reside in it.

The subjects living in a state of exception do not have any legal status, as stated by Agamben they are seen just as living human beings and not a legal being. Individuals are not only deprived of their citizenship but also denied making their own decisions regarding their life. Citizens in a state of exception are much like prisoners., the parallel can be seen in both circumstances where someone of a greater authority is regulating their lives. Citizens are told that these changes in power and authority must be made for their own good, although in most circumstances the individual or body of government is exempt from their own laws.” Pingback: State of exception | Law and Society@Kwantlen

The people on whose behalf the powers are exercised by the State have likewise a right under emergencies to insist on the legal enforcement of directive principles during extra-ordinary times. 

While it is true that during such states of exception many civil liberties are curtailed, it is jurisprudentially required that during such times those human rights (such as right to food, water, etc.) which are directly impacted by curtailment of the civil liberties transform into fundamental rights---and not just as negative rights but positive rights---casting an obligation on the State to meet them. Failure to do so would amount to a total negation of the Constitution which no juridical system can accept. So if my fundamental right/liberty to move around or carry on my vocation is substantially curtailed (as in the present case) the directive principles, namely right to food, right to shelter, healthcare, etc. push themselves into being fundamental rights making it an obligation of the State to provide me with these facilities and allowing me, like in the case of other fundamental rights, to approach the High Court or even directly the Supreme Court for enforcement of these rights. This is where one sees the failure of the Supreme Court and many of the High Courts.

In ordinary times the Constitution is of course very important but it is in times of crisis that the Constitution and the mechanisms to enforce it are tested. That is why in the current context the failure of the Supreme Court becomes even starker.
 

Judicial Powers

Two questions arise. One, whether the judiciary has the powers to tell the Executive what to do and what is the extent of this power. Second, what could the judiciary have done in these times.

The Supreme Court has been repeatedly saying it cannot substitute its own wisdom for that of the Executive and it cannot interfere in policy matters. Second, that the Supreme Court is not an expert on medical or scientific or economic subjects.

At first blush this may sound sensible but it is a complete abdication of judicial review. Let us look at a few instances over the last 40 years of the Supreme Court’s decision-making history. When the Supreme Court found that the law did not deal adequately with foreign adoptions it laid down detailed binding guidelines for  Indian children being adopted by foreigners (Laxmikant Pandey AIR 1987 SCC 232). In  D.K. Basu’s case, detailed directions were given about the rights of the arrestees and accused. Similarly in Visakha’s judgment (1997 6 SCC 241) the Supreme Court effectively legislated on matters concerning sexual harassment at the workplace. The Court gave directions on how children of sex workers should be educated (Gaurav Jain AIR 1990 SC 292).  The Court ordered vehicles over 15 years to be discarded (M.C. Mehta 1999 6 SCC 12), gave a completely “scientific” direction that vehicles should use CNG (M.C. Mehta  1999 6 SCC 9). In the Azad Rikshaw Pullers Case (AIR 1981 SC 14) the Court asked the Punjab National Bank to advance loans to rickshaw pullers and set out an entire scheme concerning repayment of loans. In Common Cause (1996 1 SCC 753) it gave directions on how blood should be collected and transfusion free from hazards be made: this was total usurpation of medical science.  Furthermore, the SC prescribed a detailed procedure for fee structure in professional colleges. Lest it be thought that this was a 20th century phenomena given up in the 21st century, in Savelife Foundation (2016 7 SCC 194) directions were given considering the treatment of good Samaritans in accident matters. The Supreme Court has also directed the Government to implement the river linking project, which because of this policy direction suddenly became the most important project in the country. Let us not shy away from the fact that whenever the Supreme Court wants to lay down a policy it does so (whether scientific, economic or whatever) and whenever it does not, it reverts to the mantra ‘we don’t interfere in policy matters.” I can go on and on. Were not these issues meant only for the legislature or for the Executive? In any event, the Supreme Court itself has observed in various judgments that while it would ordinarily not interfere in policy matters, it would certainly do so if the policy was arbitrary or in violation of any fundamental right.

The whole purpose of Constitutional Courts is to oversee the decisions of the Legislature and Executive or what is called  judicial review. Even if the judges only watch the most sensational and pro-government elecronic television channels and source their news through twitter they would know that there is a huge problem of starvation on a massive scale and of migrant workers totally left in the lurch by the Executive. These are the two most important issues which the Supreme Court should have taken up on a suo motu basis as soon as the crisis began or soon after. They could have issued various directions and appointed independent authorities to verify the claims of the Government rather than accepting whatever the Solicitor General said, even if it was in an affidavit. What was needed was an active Supreme Court.

There are orders which a sensitive Supreme Court could have easily passed without interfering in policy decisions and without becoming doctors or scientists.

First, the Court should have appointed an Amicus to assist the Court (without displacing the given Petitioner), an approach adopted by the Supreme Court itself in various matters. Amicus could have independently verified the claim of the Government and assisted the Court. That would have required the august institution to function determinedly as an independent sentinel of the Constitution.

Second, the Court should have appointed independent observers/committees to visit random places to verify the claims of the Government. This again is an approach adopted by the Constitutional Courts in many cases. Way back on February 28, 1982 the Supreme Court acting on a letter, sent Commissioners to quarries in Haryana to see if bonded labourers were actually working there. The Commissioners verified this and thus started the famous bonded labourers case. This practise of independent fact finding has been followed by the Supreme Court in many cases over the decades.

Independent verification of government claims is all the more important during the COVID period because the country is under a lockdown. It is not easy for citizens to visit various places to file reports. They can only give anecdotal information. We are faced with a situation where the entire country is under lockdown, the Government is making bombastic claims, the media is constantly reporting major cases of starvation and the humongous problem of migrant labourers. But the Court does not pay attention to the  media and no one else is allowed to go out to conduct a study. This is the ideal situation wherein independent observers should have been appointed by the Court to verify the claims of the Government. But that would mean the Court had at least an iota of doubt about the veracity of the claims of the Government when in fact the Court is busy giving plaudits to the Government and believing whatever they say. So the question of having independent observers does not arise. At the very least the Supreme Court could have done what the Karnataka High Court did by an order asking the Legal Services Authority at various district levels to visit the sites and file reports, which were duly filed and allowed the Court to do a reality check and pass further excellent orders.

The Supreme Court readily accepted the Government’s contention on March 30, 2020 that migrants were travelling because of the outbreak of ‘fake news’ and further on April 4, 2020 the Court accepted the Government’s contention that not a single migrant was now on the streets. When after a month---by which time some newspapers were read and some other news channels watched---it could not be denied that migrants were still travelling by foot, the Court responded by saying it could not do anything and dismissed the Petition.

When a Petition came before the Court that a large number of poor persons not having ration cards were not being given ration, the Court could have very well directed that all poor persons be fed. This is not a question of policy- and if it is, it would be irrational and arbitrary and a violation of Article 21and the fundamental right to life.

Similarly, the Court ought to have directed the Railways not to charge any fare from the migrants who were anyway without money. This is what a Constitutional Court is required to do during crisis times.

As recently as in 2018 the Supreme Court in the suo motu case of Inhuman Conditions of 1382 Prisons (2018 18 SCC 777) directed the Central Government to form a committee presided over by a Supreme Court Judge to make recommendations on prison conditions and kept the matter alive for further orders. In fact as mentioned earlier in this paper, this was done by the Supreme Court even after the COVID crisis began so that prisoners could be released for a temporary period.

The other thing which the Supreme Court should have done was to use its power of continuing mandamus to at least make the Government answerable in various cases.  This power, which has been regularly employed by the Constitutional Courts is at times used to issue mandatory directions and at times used to push, plod and embarrass the Government to act. The latter is done in a manner where the Court facilitates resolution of issues by keeping the case alive and making the Government answerable through various means including asking for repeated status reports, appointing independent commissions to oversee what is happening, asking the Government officers and advocates to sit with the Petitioners lawyers and civil society groups to find a solution, suggest measures which becomes difficult for Government to refuse to accept. This is precisely how some of the High Courts have proceeded in the present crisis and with excellent results as will be pointed out here.

The classic earlier example of this was the PUCL’s Petition on Right to Food which lasted from 2001 for nearly 15 years wherein the Supreme Court passed various orders which helped large numbers of poor people and ultimately led to the enactment of the Food Security Act, 2014. During this period, regularly and repeatedly, the Court without  there being any law on the subject, enforced directions (many times coyly agreed to by the State and Central Governments) concerning mid-day meal schemes, anganwadi schemes, maternity benefits, starvation deaths, etc. Policies were converted into legal rights and minimum allocations of food grains and supplementary nutrients were prescribed in great detail. Significant "interim orders" have been passed from time to time. For instance, the Supreme Court has passed orders directing the Indian government to: (1) introduce cooked mid-day meals in all primary schools; (2) provide 35 kgs of grain per month at highly subsidized prices to 15 million destitute households under the Antyodaya component of the PDS; (3) double resource allocations for Sampoorna Grameen Rozgar Yojana (India's largest rural employment programme at that time, now superseded by the Employment Guarantee Act),; and (4) universalize the Integrated Child Development Services (ICDS). Moreover, decentralisation was ordered on a large scale to avoid corruption and involve the local communities. [See the website of Right to Food Campaign for further details.]

The Supreme Court appointed independent commissions to monitor the implementation of its orders and regularly report back to the Court. Finally after the enactment of Food Security Act, the Petition was disposed of. Despite the best efforts of the Court, the Petitioners, the Commissioners and the Right to Food Campaign a lot still remains to be done but reasonable success was achieved at the ground level.

This is just one example of the Supreme Court using its powers for betterment of millions of people. Unfortunately the same enthusiasm is missing now. Let us now look at what the Supreme Court has performed in the COVID related cases.

 

Supreme Court and COVID related issues

Since March, 2020 a large number of individuals and organisations have approached the Supreme Court concerning the impact of COVID-19. Many of the Petitions, such as the prayer to declare financial emergency, are frivolous. Some others have prayers requiring high levels of medical or other expertise, which the Supreme Court does not have, cannot be gone into. On the other hand, a number of issues have been raised in the Supreme Court which it could have and should have entertained but failed to do so. The basic approach of the Supreme Court has been to either say that the Government is doing very good work and therefore the Court should not interfere or to say that these are matters concerning policy which cannot be interfered with. Essentially the Supreme Court has been highly deferential towards whatever the Central Government says, especially through the Solicitor General; and when pushed, the court will at the most request the Central Government to consider the issue raised in a Petition. No timeline is given  nor any guidance as to what are the factors to be taken into account while considering the issue. No questions are asked and no concerns expressed; the Petition dies a natural death. Let us now look at some of the crucial issues dealt with by the Supreme Court concerning COVID-19.
 

A. Migrant Workers

Under the Migrant Labour Act all migrant labourers are to be registered and if experience is anything to go by, not even 10% of them are actually registered. Most of these workers are daily wage workers working in various industries such as construction work, brick kilns, etc. While there is no official data for the inter-state migrants in the country, some estimates for 2020 have been made by Professor Amitabh Kundu of the Research and information System for Developing countries. His estimates, which are based on the 2011 Census, NSSO surveys and Economic Survey of India, show that there are at least  65 million inter-state migrants. By conservative estimates, 30% of them are casual workers and another 30 per cent work on a regular basis but in the informal sector. A study by the Centre for the Study of Developing Societies (CSDS) and by Azim Premji University in 2019 estimates that 29% of the population in India’s big cities are daily wage earners. This is the number of people which, logically speaking, would want to move back to their states. Despite the complete failure of the Central and State Governments to enforce the migrant workers legislation the Central Government should have enough knowledge about this problem. The March 24, 2020 lockdown may have come as a bolt from the blue for the people but for the Central Government one assumes it was a planned action. Much before this date, the World Health Organisation (WHO) had declared Covid-19 a pandemic. Flights had been stopped, the virus had spread within India, the circus of clapping from balconies had begun and some of the states had already effected lockdowns. Way back on  January 31, 2020 the Central Government had banned the exports of various Protective Personal Equipments (PPE). From the first week of March the Supreme Court had begun to run on a very limited urgent hearing basis. Any efficient Government would have anticipated the rush of migrants to home states and planned for it. If one could finally allow migrants to go back after 37 days of lockdown---by which time there was widespread spread of the virus---one could have allowed them to go back from March 24, itself. These are the questions which the Court should have put to the Central Government. Let us see what the Court actually did.

On March 25, 2020, thousands of migrants started walking. On March 26, Alakh Srivatsav filed a Petition in Supreme Court stating that a large number of migrants are walking on the roads to reach their home states and they should be sent to government shelters and provided food, water and medicine. Another similar petition was also filed. Both these Petitions came up for hearing on March 30 and the Court asked the Central Government to file a Status Report. On March 31, a Status Report was filed and the Court heard the matter. The Status Report mentioned that from January 7, itself the Central Government had started making all preparations including hospital preparedness. Meanwhile on March 29, the Central Government issued a direction that migrant workers should not be allowed to move and they should be kept in State Government shelters and provided food, drinking water, etc. The Central Government said that nearly 6 lakh migrant workers were placed in government shelters and about 22 lakh persons were provided food. What would happen to crores of other migrants was of course a question which the Supreme Court did not pose. Incredulously, the Solicitor General made a statement that as of 11 a.m. on March 31, not a single migrant was walking!  The Status report stated that migrant workers were travelling because of panic created by fake news. This was an astonishing claim but the Court accepted all these submissions. On top of this endorsement the Court said that adequate steps have been taken so that all migrants are safe and sound. The Solicitor General also made a statement that within 24 hours, trained Counsellors will visit each of the relief camps/shelter homes. Even after more than a month most of the shelter camps have yet to see a counsellor, trained or otherwise. The matter was then adjourned to April 7.

Furthermore, in the same Petition an application was made to direct the Government to requisition hotels, resorts, guest houses to house migrants. The Central Government said it was doing this and so the application was disposed of. Finally, the matter came up on April 27, 2020 when additional applications were filed by the Petitioner. The Court disposed of the entire matter stating that the Central Government will consider the suggestions of the Petitioner and that the ‘interim relief’ granted on March 31, 2020 will continue as final relief. But this ’interim relief’ did not say anything except that the Central Government should keep on doing what it was doing. In the Court’s book on migrants, Chapter 1 is hereby closed. Closure of Chapter 1 of migrants.

On April 2, 2020 the Supreme Court took suo motu notice of a letter written by MP Mahua Moitra concerning the situation of migrants of which she personally had taken note of. For some reason this Petition was dismissed on April 13, 2020 for reasons that are left unclear. Now Chapter 2 is closed.

On April 3, another Petition concerning migrants came up for hearing. This was filed by Harsh Mander whose work has given him a great deal of knowledge about ground realities. This Petition sought payment of wages to the migrants pointing out the humanitarian crisis caused by the lockdown. The Centre was asked to respond on  April 7. On that date the matter was adjourned with the Chief Justice remarking that if the migrants are being fed why do they need money. Maybe it was overlooked that even poor migrants once in a while have tea, have bath with soap, have to wash clothes with soap, have to send money to their villages for their families. Anyway the matter finally came up on April 21. The Solicitor General claimed that all migrants were being fed, provided ration, etc. Harsh Mander filed an Affidavit annexing reports by the civil society organisation SWAN based on ground level information that a large number of migrants were still lacking basic facilities. But the Court, it seems, orally observed that it could not place reliance on private studies when the Government is giving a completely different picture. So the Court did what it does in such matters. It asked the Union of India to look into the material and take steps as the Central Government found fit. The Petition was disposed of. Chapter 3 is now  closed.

On April 18, 2020 a Petition was filed by Jagdeep Chhokar for allowing the migrants to go back to their parent states and for the Governments to make arrangements for this. This came up on April 27, 2020 for hearing. On that day the Court asked the Union to place on record protocol, if any, for travel of migrants. Meanwhile on April 29, the Central Government decided to allow the travel of migrants and of course then substantially modified this on May 1, 2020. In any case on May 4, an application was filed in this Petition raising grievances against the travel charges which were being demanded from the migrants. The Court disposed of the entire Petition by holding that it could not go into the issue of charges for travel.  Closure of Chapter 4.

By April it was clear that a large number of migrants had died of exhaustion and starvation. On May 16, migrants who were going towards their home state died when a speeding train ran over them. An immediate application was made by Alakh Alok Srivatsava bringing this and various other incidents to the notice of the Court and asking the Court to intervene in the matter and direct the District Magistrates to ensure that those who are walking are provided with shelter and food so they do not walk. One of Judges remarked that the submission was based purely on newspaper reports. What was the Petitioner to do in the time of lockdown--- follow each and every migrant who was walking? In, shall we say, a truly sublime observation, another Judge remarked that how could the Supreme Court stop people from walking. The Solicitor General with his characteristic insensitivity remarked that what can the government do if people are not willing to wait their turn for train travel. The point which was totally missed of course was that people were walking because they were not getting food or water; they were walking because they did not have money to buy train tickets; they were walking because no one was certain as to when their turn would actually come to travel by train. The Application was dismissed. Chapter 5 closed.

One can extend to the maximum one’s benefit of doubt and  accept that in the initial week of the lockdown the Supreme Court felt that the Government was doing its best. But within 7 days things became clear. We do not have to have site visits to understand the problem. One needs to only look at newspapers, social media and even those news channels which one would ordinarily never watch, to understand the reality. Even today, after the starting of the trains, tens of thousands of migrant workers are walking towards their home states. They have not been paid wages for the lockdown period and the State Government  has supplied food to only a small percentage of migrants. Even today, despite the Centre and states making false claims, migrants have had to pay for their full train tickets. Nearly 200 persons have died trying to reach their home states. It is difficult to believe that the Supreme Court is not aware of this. On the one hand there is lockdown so it becomes difficult for individuals and organisations to go out and study the situation. When they do and make reports these are ignored and whatever the State says is believed. When Courts see their roles as assisting the Executive and disbelieve the lived reality of people, when they fail to exercise their jurisdiction which is embedded in the law and jurisprudence of the last 40 years, it compels the question, what then are Courts meant for.

The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, contains various provisions pertaining to the employment of inter-State migrant workmen and to provide for their conditions of service. The Act provides for the registration of establishments employing migrant workers. Section 6 prohibits employment of inter-State migrant workmen without registration and without the establishment obtaining a certificate of registration. Section 8 provides for the licensing of contractors who employ migrant workers. The licence may contain such conditions including the terms and conditions of the agreement or other arrangement under which the workmen will be recruited.

Under the Act, the government is obligated to keep a complete record of all the establishments employing migrant workers, contractors providing migrant workers for employment and migrant workers in every state. It should therefore be possible for the government to identify each migrant worker working under any establishment and ensure that he/she is paid their wages. This is of course if the Act was at all implemented.

The only good order in respect of migrants that the Supreme Court has recently passed was the recent stay against the Orissa High Court judgment. The Supreme Court stayed the order which directed that no migrant will be allowed into Orissa unless at the point of boarding from the initial destination outside Orissa, such a migrant has been tested negative for COVID 19. This was impossible under the present circumstances and the Supreme Court rightly stayed it. But one wonders whether such a stay would have been granted if instead of the Union of India  challenging the Orissa High Court order, a migrant or a civil society organisation had raised the challenge?

During all these hearings should not the Supreme Court have at least once asked the Central Government as to why they did not make any plans for migrants before imposing the lockdown? Should not the Supreme Court have once asked the Central Government, that, if on March 24, when the spread of the virus was limited, migrants were effectively not allowed to travel, then why after the virus has spread so much on April 29, were they allowed to travel? The Supreme Court has let tens of millions of migrants down and thereby also the Constitution.

On the other hand, like during the emergency of 1975-77, some of the High Courts have been much more proactive about peoples’ rights. Some of the orders of High Courts from Karnataka, Bombay, Tamil Nadu, Andhra Pradesh, Uttar Pradesh and Gujarat are some examples. Of course one would have to say that, though, by and large, High Courts have also followed the Supreme Court in deferring to the Executive, one still finds important exceptions.

On April 3, 2020 the Karnataka High Court issued an order directing the District legal Services Authorities to visit various shelters set up across the State for migrants and file a report with the Court. This monitoring itself activated the State to ensure proper provisions.

On May 12, the Karnataka High Court made the following observations:

“Another important issue is of the migrant workers requiring to pay the train fare. As per the order of the Ministry of Railways dated May 2, 2020, the State Government which arranges for “Shramik” special trains is expected to pay the train fare. In the State of Karnataka, the policy of the State is to collect the train fare from the migrant workers. In case of some States, the concerned State Governments have agreed to pay the train fares of the migrant workers who are returning to the said States from the States in which they are working.

10. Prima facie, it appears to us that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own State only for the reason that he has no capacity to pay for the transport. The reason is that inability to pay is due to loss of livelihood.

11. The Central Government through the Ministry of Railways will have to look into this issue, especially when the Home Secretary of the Government of India by his letter dated May 11, 2020 addressed to the Chief Secretaries of all the States has stated that the State Governments should cooperate with the Central Government for running more number of “Shramik” special trains so that the travelling of the migrant workers is facilitated at a faster rate. Even in the last paragraph of the said letter, the Home Secretary of the Central Government has urged the Chief Secretaries to receive all “Shramik” special trains without any hindrance and facilitate faster movement of the migrant workers to their native places. If the migrant workers are unable to pay the train fare, it will be impossible to facilitate their travel at a faster rate. Therefore, apart from the Central Government, even the State of Karnataka must look into the issue and take immediate decision on the question of paying railway fare of those migrant workers who are not able to travel due to their inability to pay.

12. The State Government and the Central Government, during this difficult time, must appreciate the major contribution made by the migrant workers in a large number of public projects as well as private projects which have contributed to the improvement of the infrastructure in all the States and the improvement of the economy. At a time when the migrant workers who have made such a huge contribution are facing distress, both the Central and State Government must come forward to help them to ensure that at the earliest, they return back to their home States. Ideally, no migrant worker should be deprived of an opportunity to travel back to his home State if he wishes to do so. Therefore, it will be appropriate if the State Government immediately convenes a meeting of all the Trade Unions, Employers’ Associations and NGOs in the State with a view to ascertain whether any contribution can come from the Employers’ Association, Trade Unions and NGOs which can be used for bearing the Train fares of the migrant workers who are not in a position to pay the train fare.

……The Central and State Government must find the solution on this issue which will ensure that the rights of those migrant workers who wish to go back to their respective States are not infringed only because they are in distress and are not in a position to pay the travelling charges.

14. The responses of the State and the Central Government on these aspects shall be placed on record on the next date, that is, on May 18, 2020.”

The matter was finally kept on May 21, 2020 for arguments under Articles 14, 19 and 21 of the right of migrants to be paid train fare for travelling to their home states. On that day the State Government filed detailed written submissions and the matter was directed to be kept on May 26, for final hearing. The Court again prima facie observed that non payment of fares would violate the fundamental rights of migrants. Looking at the mood of the Court the Government on May 22, announced that it would bear the train fare of all migrants who wanted to return to their home states.

 

On May 15, 2020 the Andhra Pradesh High Court passed an order in respect of migrants who were walking towards their home states. The State Government argued that they had set up tents/outposts at regular distance to help walking migrants. The Court ordered

  1. that these outposts should have at least one doctor, drinking water, dehydration salts and glucose packets. Each such outpost should have a standing ambulance;

  2. mobile toilets should be provided at regular distance and sanitary pad dispensing machines should be provided at every alternate outpost;

  3. adequate food should be provided to migrants who are walking on the national highway;

  4. national highway authority buses and police patrol vans should be utilised to transport these migrants to the nearest shelter homes;

  5. pamphlets should be printed in Hindi and Telugu for giving to these migrants the addresses of the nearest shelter homes and various phone numbers;

  6. Nodal officers should be appointed and each shelter home should be supervised by one officer and help of even non-governmental organisations should be taken to ensure that food, medicines actually reach these shelter homes. Report of compliance should be filed by 22.5.2020.

On the same day the Madras High Court passed the order which needs to be quoted extensively:

“7. One cannot control his/her tears after seeing the pathetic condition of migrant labourers shown in the media for the past one month. It is nothing but a human tragedy. When the lock down was announced at the end of March 2020, lakhs and lakhs of migrant workers were stranded throughout the country.  Most of the workers lost their jobs, no shelter is said to have been provided apart from lack of supply of adequate food.  After waiting for a considerable time, they started migrating to their native states by foot. It is very unfortunate that those persons were neglected by all the authorities. The heart breaking stories are reported in the print as well as visual media that millions of workers were compelled to start walking to their native States with their little children carrying all their belongings over their head, surviving on the food provided by good Samaritans, as no steps were taken by the Governments to help those migrant workers. It is also reported that some people starved to death due to hunger. …”

“8. It is not only the duty of the native State of the migrant workers but also the duty of the States where they were working to care for their safety and well being. India is a welfare State and Article 21 of the Constitution of India is paramount and safety and security and supply of food are important. This Court is well aware that Covid-19 is not only a national crisis but also an international crisis. But, it is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers.

“9. There are a number of toll gates available and those toll gates should have been made as checking points to provide food, shelter and medical help to the migrant labourers. However, it is very pathetic to note that neither the native States nor the States through which they were walking all along took care of them and failed to provide even the basic amenities such as food and shelter and even if they had been provided, they were negligible.

“10. First of all, relevant data of those persons who were working as migrant labourers in all States have to be collected; The host State in which they were working should be made accountable for the safety and well being of the migrant labourers, for which all the States are expected to act in unison, rendering assistance to those poorer sections.  This Court is aware that yesterday, the Central Government has come out with relief measures including rental housing facility, free food grains without ration card. 

“11. The newly impleaded respondents are directed to answer the following queries.

1. Whether any data is being maintained by the Government of India regarding the details of migrant workers working in each State/Union Territories in India?

2. If so, what is the number of migrant workers in each State/Union Territories in India and the details regarding their nativity?

3. What is the number of migrant workers stranded in each State/Union Territories in India as on today?

4. What are all the assistance provided to those migrant workers by the      Respective States as well as the Union Government?

5. Whether those migrant workers are allowed to cross the State borders or prevented from crossing the borders and if they are prevented, whether they are provided with basic amenities such as food, shelter and medical assistance?

6. How many migrant workers died on their way to the native States?

7. To which States/Union Territories, the deceased workers belong to?

8. What are the relief measures/compensation provided to the families of those migrant workers who lost their lives on their way back to their native States?

9. How many migrant workers in each State/Union Territories have been evacuated from their working States to their native States through buses/trains throughout India?

10. What are all the steps taken to transport the remaining people to their native States?

11. Whether migration of people is one of the reasons for the spread of Covid-19?

12. Whether the Central Government has instructed the respective States/Union Territories to provide financial assistance, job opportunities in their native State/Union Territories for the labourers who migrated from other States?”

“Both the Central Government as well as the State Government have to file

their reply.”

Similarly, the Gujarat High Court on 11.5.2020 took Suo Motu Notice of the plight of migrants and observed:

“6. The   Indian   Express”   has   published   a   news   item   titled as ‘Migrant workers made to wait for 19 hours in Gujarat to board a train to UP’. It appears that the migrant workers are suffering the most.  They are desperate to go back to their homes i.e. to their native States across the country. We appreciate the efforts of the State authorities which are being made to transport the migrant workers to their respective States by way of Trains, Buses, etc. However, it seems that before they are able to board the Train or a Bus they have to suffer like anything for     hours together in this scorching heat of almost 45 degrees.

The State Authorities should come forward with some modalities or plans to smoothen and ease the process so that the migrant workers may not have to wait for hours and hours together before they are able to board the trains or bus.

7.We also take notice of the news item published in the Indian  Express dated 11th May 2020 titled as ‘Stop migrant workers walking  home, take them to shelters: DGP’. It appears from the news item that the Director General of Police State of Gujarat has asked the police to stop any worker seen walking and take them to the nearest shelter home. We would like to know how many shelter homes are functional as on date across the State of Gujarat and at which places. The shelter home should also provide for food and water, more particularly, having regard to the scorching heat. Everyday hundreds of migrant workers with small children are to be seen in different parts of the State, more particularly on the highways. Their condition is pathetic. As on date they are living in the most inhumane and horrendous conditions. As we have observed earlier, although all the necessary steps are being taken by the State Government, yet we are of the view that few more modalities need to be worked out at the earliest to ease the suffering of the people at large.

8.The State Government should keep in mind that they are at  present dealing with the most downtrodden, under privileged and  weaker sections of the society. They are all afraid. They are not afraid of COVID­19, but they are afraid that they would die due to starvation. In such circumstances, it becomes the paramount duty of the State Government to assure and repose confidence in the downtrodden class of people that they will be taken care of in the best possible manner. It is high time for the State Government to deal with this delicate situation very carefully and instill confidence in the minds of the people at large that they will be taken care of.”


The case was then kept on May 14, 2020 on which day the State Government filed two lengthy status reports. The Court again brought in focus the plight of migrant workers and reproduced the May 12, order of Karnataka High Court and asked the State to take action. Finally, on May 22, the Gujarat High Court passed a detailed  order running into 143 pages issuing various directions. Concerning migrant workers it directed the railways to waive one way fare for the migrants or the State Government to bear these expenses. This order is also very relevant for the way it comes down heavily on the State Governments health care facilities and condemns the way in which the private health care sector has been functioning only for profiteering. Various health care related directions are given in this order.   

Similarly the NHRC has recently taken suo motu action concerning the  migrant workers having to walk long distances. .

What the High Courts have been doing is prodding, pushing, embarrassing and asking probing questions. They are not disposing of the matters but demanding answers, actions. At times they are passing mandatory directions. This issue concerns the entire nation, a matter in which the Supreme Court ought to have done what some of the High Courts are doing.
 

B.  Food and Ration

With the lockdown it was clear that millions of people, not just migrants but even other poor persons who relied on daily wages and many of the millions who were below the poverty line, would need food and drinking water. A large number of workers overnight became jobless, many not even paid their previous wages.  Similar was the fate of the self employed such as hawkers, etc.  What will be done about this was not announced by the P.M. on his March 23, 2020 8 p.m. lockdown speech. This led to a massive rush for purchases which in itself would have caused some amount of virus spread.

Even today, after over two months of lockdown, for instance in Maharashtra according to a study, more than 96% of the poor have not been given government ration. There were two major problems. While free ration was announced it was available only if you first buy paid ration. Second, a large number of people in India do not have ration cards at all or their ration cards are in their villages and they are in the cities or they have the ration card but it is from a different state. In fact there is enough buffer stock lying in the FCI godowns to feed the entire population many times over and what the Government should have done was to release the stock and give totally free rations to people not just during lockdown but also for months after that. This was the only way of ensuring the enforcement of right to food as a fundamental right. 

So inevitably, petitions were filed in the Supreme Court saying people are not getting food. One Petition was filed by Jairam Ramesh for giving free food. This was disposed of since Jairam Ramesh had not approached the Government first before going to the Court. Why such a procedure was required is unclear. The Government knew about the paucity of food and water for millions. It did not require a Jairam Ramesh to write a letter to bring it to its notice.

A second Petition was filed by Aayom Welfare trust---a trust which was involved in relief work. In this Petition it was urged that the Government should also give rations to those who do not have ration cards and universalise access to the public distribution system. On April 30, 2020 this Petition was disposed of with the observation that this was a policy matter and the Court could not do anything and that the government may consider taking the matter up. So there ended the food issue of the people at least as far as the Supreme Court is concerned. The Supreme Court could have directed the Centre to provide rations to even those who do not have ration cards. It is a right to life question not just a question of coy abstinence from policy matters. The least the Supreme Court could have done was to keep the Petitions pending and push the Government to take steps. This is what some of the High Courts have done.

The Karnataka High Court started hearing the matter on March 30 and has been hearing it regularly till date. On the very first date it asked the State as to how (and not whether) the state will give food to children from the Anganwadi and mid-day meal scheme since anganwadis and schools were closed. The government had no option but to come up with a plan. As regards food to people without ration cards the Karnataka High Court referred to an earlier judgment of the Supreme Court in the case of Swaraj Abhiyan (2016 7 SCC 498) wherein the Supreme Court had held that during the time of drought it was enough to show an identity proof (and not necessarily a ration card) to get rations. Karnataka High Court held that this logic would apply even in current times. It asked the state government to take decision on this aspect by the next date.

On April 7, the Court again raised the issue of food to those without ration cards. The government said in certain parts they are providing food packages to such people. The Court asked the Petitioner to check from its volunteers whether this was done across the State. On April 9, the Court again pushed the government. The Court observed that many persons belonging to marginalised communities such as beggars, transgenders and sex workers may not have ration cards. It stressed the need of providing ration to those who did not have ration cards and free rations to those who could not afford but had no BPL cards. On April 13, when the state was again pushed it said it will place a comprehensive policy on food by April 16.

On April 16, the state government finally came out with its policy concerning food for those who did not have ration cards. This was divided into two categories. Those who were staying in government shelters will be provided cooked food while those who were residing in their own houses would be provided either food packets or raw food. On an objection by the Petitioners lawyer, the Court directed the state to specify the quantum of raw rations which will be provided and also asked the state to ensure availability of gas cylinders for cooking. The Court also asked the State to identify individually on war footing those who were without food. Finally, the Court expressed appreciation for NGOs doing selfless work during this period.

On April 24, the state gave details of rations to be provided for each person but said that free gas cylinders were not possible. The Court came down heavily on this and said that the state must consider giving one gas cylinder free for the poor. Earlier, the government had said that they will advertise in newspapers about availability of shelters for those who were homeless and the Court had observed that homeless people may not have access to newspapers so such advertisements were meaningless. The state now said they had started announcing the availability of shelters through public announcements from vehicles.

On May 5, the Court observed that the state government should consider extending its circular concerning non-eviction of workers also to trangenders and sex workers. On the next two dates the Court dealt with the issue of transport of migrant workers and the matter is kept alive.

The Nagpur Bench of the Bombay High Court adopted a very creative method to ensure that food and ration supplies are given to those not holding ration cards. On May 12, the matter came before it and the state cited the Supreme Court’s order which said it could not give directions for providing rations to those not having ration cards. It of course left it to the governments to decide whether such rations could be given or not. So the High Court looked at the state government’s policies. That government had issued a resolution on March 29, 2020 which spoke about provision of food, shelter and water to be provided to migrants, homeless and others who did not have essential items. The responsibility was placed on the district administration. The policy also mentioned cooked food. The policy did not make any distinction between those having ration cards and those not having ration cards.

The Corporation (a Respondent in the petition) came out with the case that there was a subsequent Government Resolution dated March 31, 2020 which permitted rations to be given only to ration card holders. The Court found a bold and novel way out. The Court observed that the March 31, 2020 G.R. did not refer to the March 29, 2020 G.R. and ordinarily if a Government Resolution has to be superseded it has to be specifically mentioned. Thus G.R. dated March 29, 2020 survived despite the G.R. dated March 31, 2020 holding otherwise and thus non-ration card holders were also entitled to all the benefits including free food.
 

Free Tests

It is obvious that testing for COVID is extremely crucial for detection  and treatment. While there are a few government laboratories where the test is available for free, there are a large number of private laboratories where the test has to be paid for. Payment is capped at Rs. 4,500/- per test. One has to be tested twice. So if one is in a family of four the minimum test charges would be Rs. 36,000/-. It was impossible for the poor to bear this. A Petition was filed in the Supreme Court.

On April 8, 2020 the Court passed an order stating that whether in Government or private hospitals the COVID-19 test should be free. Private hospitals immediately intervened through Mr. Mukul Rohtagi. Union of India through Mr. Tushar Mehta also supported the modification sought by private hospitals. The modification was that free testing in private hospitals will now be allowed only for those poor persons covered by Ayushman Bharat scheme. For others, the State may include such other economic categories as it thinks fit. At least ,more than 50 million poor persons in India are not covered by this scheme. The Government laboratories do not have enough testing kits. Thus a large number of poor persons cannot be tested even if they have symptoms. There is no reason why private laboratories which earn millions should not be asked to do some charitable work. Many of them are situated in charitable hospitals whose avowed purpose is public charity. At the minimum the Court should have asked the private hospitals to do these tests free and directed the Government to pay for these tests.
 

PM Cares Fund

Immediately after the announcement of the lockdown, the PM Cares fund was set up. There were three issues. First, whether the PM Cares fund should at all have been set up. Second, matters concerning the transparency and accountability of the fund. Third, whether the CSR benefit given to Corporates should be only for the PM fund and not for the CM’s (Chief Minister) fund. 

Section 135 of the Companies Act, 2013, requires all companies, having net worth of Rs. 500 crore, or turnover of Rs. 1000 crore or more or a net profit of Rs.500 crore or more during the financial year, to spend in that year, at least 2% of the average net profits of the company, in activities enumerated under clauses (i) to (xii) of Schedule VII of the Companies Act, 2013 which are primarily charitable activities.

The Central Government, by a Circular dated March 23, 2020, informed that spending of CSR funds for Covid-19 is a permissible form of CSR activity. It was declared that funds may be spent on activities enumerated under clauses (i) and (xii) of Schedule VII of the Companies Act, 2013. On March 28, 2020, an Office Memorandum was issued by the MCA notifying that all donations made to the PM Cares fund are eligible to be qualified as CSR expenditure under clause (viii) of Schedule VII.

Clauses (I) and xi are as follows

  • (i) Eradicating hunger, poverty and malnutrition, promoting health care including preventive health care and sanitation including contribution to the Swachh Bharat Kosh set-up by the Central Government for the promotion of sanitation and making available safe drinking water.

  • (xii) disaster management, including relief, rehabilitation and reconstruction activities

On April 10, 2020, the MCA in FAQ 2 has clarified that 'Chief Minister's Relief Fund' or 'State Relief Fund for COVID-19' is not included in Schedule VII of the Companies Act, 2013 and thus any contribution to such funds shall not qualify as admissible CSR expenditure.

On a perusal of clause (i) Schedule VII, it is evident that activities which promote health care, including preventive health care, would constitute CSR related activities. Thus, any contribution towards any activity promoting health care and preventive healthcare, would form a part of CSR related activities. The contributions made to State relief Funds, in order to mitigate the spread of Covid-19 would fall under this clause.

Thus ordinarily the CSR spent by donating to State funds/ CM funds to deal with COVID 19 should be permissible. But the Central Government says no. This would lead to Corporates funding the PM fund and avoiding CM funds. Mahua Moitra challenged this in the Supreme Court. On May 5, 2020 the SC refused to interfere by stating that this issue should be debated in Parliament and also that no corporation had challenged this. Which corporate house will dare to challenge this? In any event the matter was of public interest concerning as it did the interpretation of law and Constitution. The Supreme Court ought to have gone into it but did not.

There is also the question of why such a fund was needed when there already existed the PM’s national relief fund which is meant for disaster relief and has, it appears, in excess of Rs. 2200 Crores. In addition there appears to be no transparency and accountability as regards the PM Cares Fund except that the accounts will be audited. So another Petition was filed. Ordinarily such a Fund would be audited by the CAG and the report placed before Parliament. This Petition was dismissed by the Supreme Court on April 13, 2020 by saying that it was a misconceived Petition.

On the other hand, the Bombay High Court, Nagpur Bench on May 13, directed the Union of India to file a reply to a Petition which demanded a CAG Audit and full disclosure to the public of the PM Cares Fund.  On a slightly different issue, the Madhya Pradesh High Court and the Kerala High Court set aside the condition imposed by lower Court while granting bail that a certain amount should be deposited in the PM CARES Fund. On the other hand the Jharkhand High Court made such a deposit a condition for granting bail.
 

Conclusion

The refusal of the Supreme Court to exercise their power of judicial review in effective ways is not something which started with COVID 19 litigation. It has only became stark in recent times. Nobody was asking for the lockdown to be lifted; nobody was asking for the curtailments of civil liberties to be altogether removed; nobody was asking the Supreme Court to play doctor. The Petitions were filed essentially for the poorest of the poor who were dying by the hundreds not because of COVID but because of the job losses, because of complete lack of food, because of complete lack of planning for ensuring livelihoods during the lockdown.  Undoubtedly, this was an unprecedented situation in which the Government had to be allowed a certain freedom to act as it saw fit. But to completely abdicate its responsibilities towards the poor was something shocking.

The High Courts, like at the time of the 1975-77 emergency have shown much more enterprise and courage. Of course, not all High Court judges have responded with the same activism and there are many judgments of many High Courts which essentially follow the pattern set by the Supreme Court.

The Supreme Court’s role in respect of the Kashmir crisis or in dealing with NRC/ CAA, or the recent Delhi riots was clearly indicative of the times to come. It is not the case that in earlier years the Supreme Court has consistently been pro-people. In every decade there have been many judgments which cast a shadow on the Supreme Court’s functioning. Whether it was the Bhopal dispute or the issue of Narmada oustees; whether it was the retreat on labour jurisprudence in the 1990s or the criminal jurisprudence soon after; whether it was the Constitutionality of TADA, POTA and AFSPA or its continuing mandamus in Assam NRC; whether it was the Ayodhya dispute or the Hindutva Judgments; the Supreme Court’s role has come into question from time to time. 

Possibly, however, COVID-19 is the darkest phase in the history of the Supreme Court when it abdicated its responsibility at one go towards hundreds of millions of destitute and marginalised people and this record will take some beating in the decades to come.

(The author is a senior counsel in the Bombay High Court and has been appearing in several matters related to the COVID 19 pandemic and is also national vice president, People’sUnion for Civil Liberties, PUCL)

 

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