Coronavirus and the Constitution – X: Rights, not Policy

On 1 April, a PIL was filed in the Supreme Court, asking – inter alia – that the State ensure “payment of minimum wages to migrant workers … whether employed by establishments, contractors, or self-employed.” The crux of the PIL was that because of the nationwide 21-day lockdown declared by the government under the National Disaster Management Act, migrant workers had effectively been deprived of their right to livelihood under Article 21 of the Constitution, and that extant relief measures did not address the plight of a substantial number of those workers. In a hearing earlier today, the Supreme Court indicated its unwillingness to “interfere … for the next few days”, and scheduled a hearing for Monday, the 13th of April (incidentally, one day before the scheduled end of the lockdown). During the course of the hearing, the Chief Justice indicated on a few occasions that this was in the realm of government policy, and that the Court could not substitute its wisdom for the wisdom of the government.

Taking Rights Seriously

In light of this, it is important to address a few issues. To start with, nobody seriously disputes the fact that the Court cannot frame policy (although, as we all know, the Court has not been averse to doing that at times, which is why – by now – it is difficult not to be cynical whenever policy is invoked to justify a hands-off approach). Nobody, therefore, is asking the Court to “supervise the pandemic.” However, while the task of dealing with the pandemic is undoubtedly the job of the central and several state governments (and the several legislatures, although the invocation of the NDMA and the EDA have enabled governments to bypass parliamentary oversight), specific decisions taken by the government(s) in the course of its pandemic policy are exercises of State power; and where State power infringes upon constitutionally-guaranteed rights, that is when judicial review comes into the picture. This distinction – between the government’s overall pandemic policy, and specific violations of rights in the course of enforcing that policy – appears to have been elided during today’s hearing.

Indeed – and in particular – there are two core constitutional rights that have been affected by the implementation of the lockdown, when it comes to migrant workers. The first is the right to equality. As is well accepted by now in Indian constitutional jurisprudence, a violation of the right to equality is determined not by looking at the intent of State action, but by its effect. The effect of a lockdown – with the shutting of establishments and physical workspaces, and bans on transportation – is disproportionately felt by workers whose job description makes “work from home” [“WFH”] impossible. This disproportionate impact, in fact, is directly linked to socio-economic class (a relevant ground under equality law, as held by the Supreme Court in State of Maharashtra v Indian Hotels and Restaurants Association): a recent study (albeit in the context of the United States) demonstrated visibly that the percentage of workers with the ability to work from home increases proportionately with income status. Consequently, a nationwide lockdown has a disproportionate impact upon the livelihood of one set of people (and migrant workers fall within that set), and prima facie attracts Article 14; this means, in turn, that there exists a positive obligation upon the government to mitigate the disproportionate impact that has been caused by its own decision to order and enforce a lock-down.

The second – and more obvious – right is the Article 21 right to life (that, as we all know, includes the right to livelihood). It is here that the question of payment of wages – the specific relief sought in the petition – becomes particularly important. It is reported that when the issue was raised before the Chief Justice, he responded by asking “why wages are required when meals are being provided by the government?” Now, there are a few problems with this statement: among other things, as it was pointed out to the Court, not all the migrant labourers have access to the government-provided meals. However, the more serious issue is this: the loss of livelihood caused to the migrant workers is a direct result of State action – that is, the decision to close down all establishments and transport in order to enforce the lockdown. Is the lockdown a question of policy? Yes. Does State action during the course of the lockdown infringe with the Article 21 rights of migrant labourers? Yes. Consequently, does the judiciary have a responsibility to closely scrutinise state action, subject it to rigorous judicial review, and ensure that it is compliant with constitutional standards? Evidently, yes. That purpose is hardly served through off-the-cuff statements such as “if migrant labourers are being fed, why do they need wages?”*

Now, the argument here obviously is not that the Court is expected to come up with a policy for “supervising the pandemic.” However, there are two things: first, the Court is fully capable of addressing the narrow and specific questions of Article 21 rights raised in the petition: it was pointed out, for example, that the requirement that migrant labourers collect their wages “at their place of work” was chimerical, given the transport shut-down and the rules of social distancing; consequently, it was the government’s obligation to ensure payment at the place where the migrants were quarantined or had been stopped while traveling back to their home villages. This is not a policy argument – this is a core issue of the enforcement of Article 21 rights, because – to repeat – the infringement of Article 21 in this case is a direct result of State action. 

And secondly, the Court is entitled – and indeed, ought – to scrutinise the government’s response, and examine whether it complies with the reasonableness and proportionality standards under Article 21. Note, yet again, that this is not equivalent to the Court “substituting its wisdom” for that of the government; what it does require, however, is that the statements made by the Solicitor-General in Court, and the government’s affidavits, be subjected to rigorous scrutiny, and that the government’s law officers be required to justify state action under constitutional standards. That, ultimately, the Court finds State action to be in compliance with Article 21 is a different matter; that does not mean, however, a carte blanche to the government, as has been the case in the hearings so far.

Justice Khanna’s Unheeded Advice 

In recent months, the judgment in ADM Jabalpur has been brought up a lot, including on this blog. The reason for this is simple: the government has taken a lot of “extraordinary” measures, justified them by invoking “extraordinary” circumstances, and the Court’s response has been circumspect at best. Now, naturally, it is not my purpose here to draw any kind of analogy between Indira Gandhi’s Emergency and Covid-19: the former was a political play for power, the latter is a public health crisis.

The point I want to make is this. Justice Khanna’s legendary dissent in ADM Jabalpur is often taken to be an indictment of the Emergency itself. It was not. Justice Khanna agreed with the Majority to the extent that the validity of the Emergency could not be tested in a court of law. He was willing to assume that the executive authorities were acting in good faith. But – and here is the crucial point – his core argument in dissent was that what mattered was not the good intentions of those in power, but that rights were most at threat – and most in need of protection – when those in power invoked good intentions in times of crisis, to overreach. As he noted: “experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent …  [the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law.”

Thus, from the perspective of fundamental rights, it is not relevant here whether the circumstances under which the government has invoked extraordinary powers are genuine or fake: that is left to the verdict of history (as was the Emergency). What is relevant here is that the fact that the government has effectively invoked extraordinary powers (and there is no doubt that a nationwide lockdown is extraordinary, even though it has been done through an executive decree) is enough reason for the Court to assume its role of the “sentinel on the qui vive.” For this reason, the Court’s seeming desire to express support for the government in hearings, instead of holding it to account, is an abdication of its functions at a time when it is needed the most.

*As an aside, there is a somewhat surreal quality to this discussion: for the last three decades, the Supreme Court has repeatedly stated that “the right to life does not merely include an ‘animal existence’, but a life with dignity.” However, when the time comes to give those statements meaning, the Court asks why wages are necessary if food is being provided. This, unfortunately, only gives grist to the mill of critics who have repeatedly argued against the judicial expansion of Article 21, on the basis that not only is it unenforceable at the crunch, but also dilutes the core meaning of the right to life and personal liberty.

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