[WSMDiscuss] Supreme Court in the Time of Crisis: 'COVID-19 and the Indian Supreme Court': A very exhaustive scan

[Sukla Sen]

[Worth a close and careful read.
It's an extremely exhaustive scan of the role of the Supreme Court during
the ongoing crisis, in particular.

<<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.>>

(Excerpted from the article reproduced below.)

Also relevant:
<<Senior Advocate at the Supreme Court [and the President of the Supreme
Court Bar Association (SCBA)], Dushyant Dave, on Saturday (May 23) said
that in India now, nobody in the government is answerable to anyone and the
Judges who have the duty to hold the government accountable have failed in
this duty in the last eight weeks.

The Judges chose to sit silently in their ivory towers when great misery
befell on the citizens of India after a nation-wide lockdown was imposed at
a mere four hour notice, Dave said with despair, while speaking on the
subject of "Role of Judiciary in a pandemic" organized by the All India
Lawyers Union.

Seemingly perturbed by the Supreme Court's recent observations on migrants
workers where the Judges said, "How can we stop them from walking," during
one of the hearings, Dave said that the Judges have a "pious Constitutional
duty" to save every citizen of India.>>

(Ref.: <
https://www.barandbench.com/news/covid-19-pandemic-judges-have-singularly-failed-in-holding-the-government-accountable-since-the-last-8-weeks-dushyant-dave
>.)

Here it needs be pointed out that, in a reversal of earlier stand, the
Supreme Court has, now, (at least) taken up the case concerning the plight
of migrant workers, purportedly suo moto.

<<Taking suo motu cognizance of the “unfortunate and miserable conditions
of migrant workers walking on foot and cycles from long distances,” the
Supreme Court issued notices to the Centre and state governments on Tuesday.

A three-judge bench comprising justices Ashok Bhushan, Sanjay Kishan Kaul
and M R Shah observed that “although the government of India and the state
governments have taken measures, yet there have been inadequacies and
certain lapses. We are of the view that effective concentrated efforts are
required to redeem the situation.”

The intervention comes 10 days after another bench had declined to
entertain a public interest litigation on the ground that the court cannot
stop migrant workers from walking on the roads or on railway tracks.

“How can anybody stop this when they sleep on tracks? There are people
walking and not stopping. How can we stop it?” the bench had observed when
the petitioner referred to the Aurangabad accident in which 16 migrants
were killed by a freight train when they were asleep on the track.The
three-judge bench, in a U-turn of sorts, stated it was time “to extend a
helping hand to these migrant labourers.”

“They have also been complaining of not being provided food and water by
the administration at places where they were stranded. In the present
situation of lockdown in the entire country, this section needs succour and
help,” the court noted on Tuesday (May 26).>>

(Ref.: <
https://www.newindianexpress.com/nation/2020/may/27/sc-finally-steps-in-to-address-distress-among-the-migrants-2148481.html
>.)

The Court has commenced its session, through video conferencing, today at
13:30 hrs.
The Solicitor General, Tushar Mehta, is making submission.

In this context, also extremely relevant:

<<After months of inaction and deciding to leave the matter to the
government, the Supreme Court on Tuesday to[ok] note of the migrant
workers’ crisis during the ongoing COVID-19-induced lockdown.

The move came more than two months since a countrywide lockdown was
announced, that resulted in migrants having to travel out of the cities
where they worked in (mostly as daily wage earners) and towards their
native villages and towns, on foot.

On May 15, the Supreme Court had refused to entertain a plea by lawyer
Alakh Alok Srivastava, seeking a direction to the Centre to ask all
district magistrates to identify stranded migrant workers and provide
shelter and food to them before ensuring their free transportation home in
view of the incident at Aurangabad in which 16 workers were mowed down by a
goods train.

The court’s decision not to intervene then had led to widespread criticism.
*On May 25 night – the day before the court finally took a stand – a group
of senior advocates had written to Chief Justice of India S.A. Bobde and
other justices of the Supreme Court, detailing why it was so important for
the court to intervene* [emphasis aded].

Signatories include P. Chidambaram, Indira Jaising, Janak Dwarkadas,
Prashant Bhushan, Gayatri Singh, Sidharth Luthra and others.

“In the midst of the executive imposed Covid-19 lockdowns, the Hon’ble
Supreme Court cannot retreat into a self-effacing deference, leaving
millions of Indian citizens, especially those who are poor, vulnerable and
impoverished, to the mercy of the executive, reminding us of ADM Jabalpur
when detenues were left to the tender mercy of the executive with  “Diamond
bright Diamond hard” hope that something would be done,” they have said.

Read the full letter below (signed by 21 senior lawyers, including the
author of the article below).>>

(Ref.: <https://thewire.in/law/supreme-court-migrant-workers-lawyers-letter
>.)]

https://sabrangindia.in/article/covid-19-and-indian-supreme-court?fbclid=IwAR2523TPV2xQToJmxp1Ga6wkeYWhGN1S7Argh-cRkbOv_JOKsGgWNFSLQzI

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

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 at 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

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

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

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

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

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

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)
-- 
Peace Is Doable




-- 
Peace Is Doable
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