[This is a guest post by Amlan Mishra.]
In an order delivered two days ago, the Odisha High Court has partially lifted the de-facto ban on movement of vehicles without prior permission of the police. The court held that access to essential commodities stood hindered for people because of this ban, unless the state could put a mechanism in place to make these commodities available near the consumers. It is interesting to note that there has been no official notification, communication or publicized s. 144 order regarding such a ban. The authorities had decided that this was an effective way to implement the social distancing protocol. Accordingly vehicles were being ‘confiscated’ by the police if they were found to be moving without proper passes. The police seemed to argue that walking to the nearby marketplace was the best option for the people. I will show that in lifting the complete ban, the court understood the true meaning of proportionality, and recognized the disproportionate impact it would have on certain groups of people.
Proportionality of movement restrictions
Previously, it has been argued on this blog that a complete curfew like ban on ‘individual movement’ has not been contemplated under the NDMA Act or the Epidemic Diseases Act. The EDA, however, gives broad powers to the state government to control movement of individuals. Gautam Bhatia has rightly pointed out that the ban on individual movement is proportionate only if it allows for exceptions like movement for purchase of essential commodities. Relying on a much more pointed UK regulation, Bhatia has argued that proportionality mandates the following restrictions: “if you are (a) an individual, or a group of two people, (b) are stepping outdoors for a listed activity, or (c) have another reasonable ground for making essential travel, then that is permitted.” Inherent here is the idea that the pandemic spreads by human contact, not by the mere act of stepping out, thus a complete ban on movement cannot pass the test of proportionality.
Accordingly, the Odisha High Court has held that a complete ban on the use of vehicles for buying essential commodities will not pass the threshold of proportionality. The ban is therefore subject to ‘satisfactory explanation by riders’. It performs the balancing exercise thus:
“Until any particular guideline and proper arrangement are brought in the matter of above, there should not be complete ban of movement of two wheelers and relaxation may be made subject to satisfactory explanation by such riders. This may not be construed to be a complete lifting of Ban. As it is for the complete lockdown situation, people of the State are also in serious misery and complete ban of movement of two wheelers in absence of system making availability of essential commodities at the walk-able distance will add further to the miseries of the people.”
Interestingly, the state government had been constantly telling people that proper arrangements have been made to provide them essential goods at close quarters. Arrangements for a few delivery vans etc were being made, according to the police. But the court did not seem satisfied by these assurances. Inherent here was the idea that lived realities of the people did not endorse the assumption that proper arrangements had been made by the government. This approach of the court needs to be juxtaposed with the ‘trust’ that constitutional courts increasingly repose in the executive when it comes to emergencies, even when the question involves fundamental rights. This order provides a welcome departure from the trend of courts camouflaging these questions as matters of policy, or appealing to the best judgement of the executive.
Disproportionate impact on some groups
The order also notes that while asking people to ‘walk’ may seem innocuous it has disproportionate impact on some groups over the other:
Keeping in view the precarious condition prevailing in the State having no particular mechanism in the matter of availability of vegetables, medicines and other such usable items within walkable distance for all, collection of same involves different category of people including Senior Citizens, women and persons unable to ride cycle may be forcing many people to move to particular areas for such collection.
This is also a welcome acknowledgement by the court that walking long distances to get essentials may have disproportionate impact on some groups over the other. As has been argued elsewhere in this blog: for the purposes of constitutional adjudication the ‘effect’ of the restrictions on rights matter, not the intention of the government. The effect test is also an established precept of anti-discrimination law, whereby disproportionate impact of a measure on a particular group because of any immutable feature/choice (gender etc) falls foul of the constitution. This action must be appreciated in the background of the Supreme Court’s distasteful remarks questioning the need to ensure payment of wages available to workers (a group disproportionately affected by the lockdown).
Seizure of vehicles and levy of fine
Interestingly, the court also lays down that seized vehicles should be immediately released, upon taking an undertaking from the driver, and such vehicles should be allowed to pass at least ‘thrice’ thereafter, without any levy of fine or punishment. This assumes special importance in light of State Amendments that have recently increased fines and the duration of imprisonment under the EDA. The court appears cognizant of the fact the ultimate determination of whether a particular movement is for ‘essential goods’ or not would fall on the policemen on the ground. A three time leeway to previous offenders was accordingly given to shrink the room for arbitrariness.
Notably, once the government assured the court that vending stalls have been set up in all residential areas of the twin-cities of Bhubaneshwar and Cuttack, this order was modified to allow this leeway only to ‘disabled persons’ and ‘senior citizens’. The modification of the order shows that the court’s role through crucial is limited to plugging access to fundamental rights and limiting arbitrariness.
Overall, the order ticks many boxed of what constitutional courts are expected to do in these times: question ‘adequacy’ of measures taken by the executive; balance rights with the emergency of the situation; lastly acknowledge and mitigate disproportionate impact of measures on vulnerable groups.