Coronavirus and the Constitution – VIII: A Critique of the Supreme Court’s Migrants Order [Guest Post]

[This is a guest post by Aakanksha Saxena.]

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In light of the continuing difficulties being faced by migrant workers across the country, and the lack of clarity on the status of shelters set up for them, this post is a critique of the Supreme Court’s 31^st March Order, which approved of the steps taken so far by the Central Government, and also of the direction contained in the same Order to the media to refer to and publish the official version of the Union Government with respect to Covid-19.

Two Civil Writ Petitions were filed by advocates practising in the Supreme Court, in light of the dire difficulties being faced by the large number of migrant workers / labourers across India, as a result of the nationally imposed lockdown to battle the spread of Covid-19. The lockdown was announced by the Prime Minister on 24^th March 2020, and continues to be operational, for a period of 21 days. The petitions, inter alia, detail how thousands of workers, and in several cases, their families, were being compelled to walk large distances to reach their respective homes (the usual means of transport also having been suspended by the lockdown).

When the Petitions were first listed on 30^th March 2020, the Union was directed to submit a response. On 31^st March 2020 (less than 24 hours later), the Union of India submitted a “Status Report” that has been referred to extensively by the Supreme Court, while giving its directions in the Petitions. While the Status Report has separately been made available, as recorded by the Supreme Court’s order, it purportedly deals with the following issues:

• Various steps taken to prevent the spread of COVID 19, including early steps by the Union of India;
• Institutional response to the management of the spread of the virus;
• The constitution of an expert group to provide guidance under the aegis of NITI Aayog, and comprising “experts from cross sections in the medical field and public health fraternity”;
• Various other measures of the Union Government in dealing with the needs of the lower strata of society;
• Schemes formulated to ensure that persons in need are taken care of;
• Status of shelters set up for migrant workers.

Paragraph 52 of the Status Report, in particular, sets out the “Steps taken by the Central Government”, which covers advisories issued, suspension of transport, the lockdown itself, and the exceptions thereto.

• In order to provide food and shelter to the migrant workers and other homeless persons, the Central Government permitted State Governments to utilise the Disaster Response Fund on 28^th March 2020.
• Several directions were issued to the States to deal with the scenario of the migrant workers attempting to return to their homes (all the so-called measures appear to be suggestions and / or options for the State Governments to consider and implement in their own way).
• An advisory followed on 29^th March 2020 to ensure that the basic objective of “national social distancing” was not defeated, and therefore no more migration be permitted.
• Accordingly, state borders were sealed and states were to prohibit movement of people. Transportation of all goods was permitted to continue.
• Since the movement of workers continued to be noticed across the country, further directions were passed, including to keep migrants in the shelters for a period of 14 days and for payment of wages without deduction (admittedly therefore, despite the steps taken and the directions to the State Governments, the issue concerning the day-to-day living of the migrant workers continued to be precarious).

Further, widespread reports which had emerged prior to the Order (with video and / or photo evidence), covered in detail how police forces were beating people – including migrants – with batons, for breaking quarantine rules, and spraying persons on the road with disinfectant. This even prompted the UN Office of the High Commissioner of Human Rights to call upon the Indian police forces to show restraint and abide by international standards on the use of force and humane treatment in their efforts to respond to this pandemic. Reports abounded of the difficulties faced by workers in reaching their hometowns, including being stopped and questioned to the point of harassment, being made to pay for what were supposed to be free transport services, and often being inhumanly treated.

Two days after the Supreme Court’s order, news continued to be published on the continuing plight and helplessness of migrant workers being turned away by states at their borders and being chased away before finally being provided shelter, as has purportedly been envisaged by the Union Government. The Wire has also reported that the very evening the Supreme Court’s order was delivered, a group of labourers, having walked from Bengaluru to Vapi, were forced into an ill-ventilated truck and taken outside Gujarat into Maharashtra.

On the legal front, the following petitions / applications are also pending before the Court:

• The SC on 3^rd April 2020 issued notice on an allied PIL seeking directions to the Governments to ensure payment of wages to migrant workers during the lockdown period, and directed that the Union file a response prior to 7^th April, the next date for the listing of the Petitions.
• An application seeking conversion of appropriate premises for isolation and quarantine facilities, in view of the fact that the shelters set up by the governments for migrant workers didn’t have adequate sanitation facilities, was disposed of by the Court observing that while several ideas were being formulated, the Court and the Government could not hear all of them. It seems that the Court nonetheless directed that suggestions be forwarded to the SG’s office. The order on the application is awaited.
• It is also reported that the SC took up today a letter-PIL filed by Member of Parliament Mahua Moitra, in respect of similar issues, the outcome of which hearing was not known at the time of this article.

In light of all the above circumstances and background, I submit that the absolution granted by the Apex Court by according at the very first instance its satisfaction with respect to the purported measures of the Central Government, was at the very minimum, premature and ill-considered. While this blog has considered the responsibilities of legislators, the governments, and public health professionals in the time of the coronavirus, a heavy burden also lies on the SC to provide a dispassionate forum for redressal of urgent matters, involving constitutionally guaranteed rights, that arise in this difficult time. The institution’s role is based on the fundamental tenet that it must serve as a check on State power.

It is understandable that the pandemic, in light of our population, and coupled with the boom of internet access and thus widespread dissemination of information has created a largely unprecedented situation; the situation still did not in any manner warrant either the blanket approval accorded by the Court to the Central Government, nor the sweeping directions based on vague and unsubstantiated assertions. Our Courts thankfully continue to keep their doors open for matters which cannot wait for the end of the lockdown, but that would also mean that the judiciary’s constitutional role to hold the executive and legislature accountable continues despite the unprecedented situation. It is important to note that:

• This role would in no manner require the SC to interfere with the policy decisions that are being taken by the Central / State Governments and which are captured in the Status Report. The Central and the several State Governments naturally enjoy constitutional autonomy in the field of policy making and implementation to tackle the spread of COVID-19 and containment thereof.
• However, the constitutional Courts are required to scrutinise and ensure that any such measures, and the reasonable implementation thereof, do not encroach upon fundamental rights. The legal standards under relevant constitutional articles, in this regard, are long-standing and well-settled.
• In view of the continuing violations of the rights of the migrant workers – for example, the lack of basic food and shelter, the inordinate police action being taken to manage the crowds, the blatant violation of the right to dignity by spraying the workers with disinfectant en masse – the Court is expected to at the very least hold the Central Government (and, where applicable, state governments) continuingly accountable for the lawful implementation of the various measures purportedly being taken as per the Status Report.
• While responses may be awaited as to whether the Status Report measures have been carried out, the Court could have at the outset recorded the admitted position that steps were still to be taken to guarantee basic amenities to all the stranded persons (paragraph 45 & 50 r/w 52 (XXIII)), an update on the lawful implementation thereof could be furnished on the next date of hearing (7^th April 2020), and that the Government has a continuing responsibility to ensure no further rights violations take place.

After briefly setting out the purported contents of the said Status Report, the Order however changes tack and shifts seemingly the entire onus of causing the plight of the migrant workers solely on the dissemination of “fake news”. The Centre in the Status Report sought a specific direction (paragraph 56) “that no electronic / print media / web portal or social media shall print / publish or telecast anything without first ascertaining the true factual mechanism provided by the Central Government” as set out in the Status Report viz. the PIB Bulletin.

The only mentions of the purported issue being faced by the Government to justify the above direction are contained in mere assertions in the Status Report which are reproduced to their relevant extent below:

1. Paragraph 20 – “deliberate or inadvertent fake news and/or material capable of causing serious panic is in the mind of the population is found to be the single most unmanageable hindrance in the management of the challenge.”
2. Paragraph 41 – due to some fake and/or misleading news/social media messages, a panic was created.

However, the cause for the exodus of migrant workers actually appears (in large part, admittedly) to be as follows:

• the Prime Minister announced a national lockdown on 24^th March 2020 w.e.f. the next day, following which migrant workers were deprived of work and consequently livelihood for their basic sustenance.
• The speech did not contain any information as to the availability of essential goods to these workers who had next to zero savings and lived a day-to-day existence.
• Further, one by one, States began sealing borders, in some cases asking incoming persons to be tested prior to being allowed entry.
• Several interviews have been given by such workers stating that they were choosing to return to their hometowns because the Prime Minister’s address to the nation was unable to dispel fears pertaining even to the 21-day lock down, let alone the apparent panic of a 3-month lockdown.

The SC however, on the basis of the threadbare statements in the Status Report, and without any substantiation thereof in the oral arguments, went as far as to record and direct as follows:

• “The migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months.” Note, however, that no mention of the same is contained in the Status Report, and the assertion is entirely unsubstantiated.
• “A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours”. The daily bulletin can be accessed state-wise here. It is trite to mention that access to that bulletin is perhaps at its most limited when it comes to migrant workers (in respect of whom the Order has been passed), and therefore does nothing to achieve the purported objective of free and fair dissemination of information to the said category of persons.
• “We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.” The final direction, while apparently permitting continued independent reporting, amounts to compelled speech, as it directs the media to, at the very least, publish the government-sanctioned version of measures being taken to contain the spread of COVID-19.
• The Court also mentioned that “… expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated.” This is arguably a disguised form of censorship of media content, as the standard of verification approved by the Court is the daily bulletin being published by the Government.

Thus, not only did the Court completely absolve the Central Government of any responsibility towards the alarming migration of workers to their hometowns, it also went as far as shifting the onus / blame and therefore the consequence completely onto the media. This direction contradicts longstanding precedent on the relevant issues of the right to freedom of speech and expression, as under:

• The Court has, in the seminal judgment of Bijoe Emmanuel v. State of Kerala recognised the fundamental right to remain silent as part of Article (19)(1)(a). The 31^st March Order however, transgresses upon this right by compelling the media to publish and reproduce what is the government’s speech and expression.
• In Union of India v. Motion Picture Assn., the SC laid down that compelled speech is equally an infringement of the right to free speech, except to the extent permitted under Article 19(2). It was clarified that compelled speech would be within the ambit of the constitutional provisions if it furthers informed decision-making which is the essence of the right to free speech and expression. If, however, such direction compels a person to carry out propaganda or project a partisan or distorted point of view, contrary to his wish, it may amount to a restraint on his freedom of speech and expression. While the Court ultimately upheld the compelled speech in that case, presently, the direction to the media to publish a ‘government-verified’ version of the news amounts to a serious assault on the freedom of expression of the neutral and independent media, and as set out above, fails to achieve the objective of furthering informed decision-making, or even widespread dissemination of information.

A large part of public trust in the judiciary stems from the rule of precedent which requires courts to rely on precedent and settled legal principles to decide cases. In this case, there was no stated case for the Court to depart from precedent and in fact lay down what may amount to a dangerous precedent for the future.

This blog, after analysing the recent decision-making trends of the Apex Court, has observed that in matters where the highest political stakes are pitted against fundamental constitutional issues, the Court is only as strong as the Government is willing to enforce the Court’s directives. In that tussle, recent judgments seem to reveal that the Court often appears to hesitate in ruling against the government on politically sensitive matters, in the aid of continuing to maintain a working relationship with the government. The trend seems to have gone a step further in the Order where, based on unsubstantiated claims in a time of crisis, the Court  has compelled the Fourth Estate to carry government-approved missives about the crisis.