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[This is a guest post by Aditya Phalnikar.]


Yesterday the Madras HC impleaded the Union of India as well as the Tamil Nadu government in a petition under A. 226. After noting the condition of migrant workers in TN in this order, it posed a series of questions to the impleaded respondents. One of these questions ordered the respondents to produce a list of measures that would be taken to transport migrant workers to their native states. While the order is otherwise commendable in its pro-rights approach, the framing of the question gives the impression that arranging transport for the workers is a matter of policy. Despite the fact that trains have been started now towards this end (see this), I argue here that these trains were a matter of entitlement for migrant workers under their right to move freely under A. 19(1)(d). A step towards this argument was taken by the Karnataka HC recently (see this). It noted that the State governments should either a) convene meetings with NGOs and other trade associations to arrange for the fares of migrant workers who couldn’t pay for themselves or b) pay these fares themselves (paras 11 and 12). But this does not paint the full picture. The Ministry of Railways had already ordered state governments to pay the fare of the workers (para 9), and the court only ordered the government to convene a meeting with the NGOs and associations, not to take any particular decision based on the rights of the workers.

Traditionally, citizens have been able to communicate with the State in two ways: via the electoral ballot, and via the judiciary. The latter functions supposedly as a counter-majoritarian institution, and protects the rights of all citizens (for an argument which gives more substance to the judiciary as the only effective and continuous check on the State, see this post). The obvious question that arises is this: in what manner can migrant workers communicate with the State about their treatment? They can, of course, express their displeasure by voting for another party in the next General Election. But the more immediate remedy – that of enforcing fundamental rights – will require the determination of two prior questions: firstly, can a fundamental right exist as a claim upon State resources to do something for the claimant? Secondly, how will judicial enforcement of this right be limited, keeping in mind the doctrine of separation of powers?

Proving a Positive Obligation

The traditional way of comparing Parts III and IV of the Constitution was to state that the former was negative in character, excluding certain aspects of the individual from State control, while the latter imposed positive (but non-justiciable) obligations upon the State to carry out its welfare duties. However, this distinction has been challenged by scholars in many places. For example, it has been argued that all rights require costs for their enforcement, and hence the distinction between the two effectively collapses (see p. 741 here). Most recently, however, even the SC has started to challenge this notion. In Indibility Creative Pvt. Ltd. v Government of West Bengal, the petitioners had approached the SC under A. 32 alleging infringements of their rights under A. 14, 19(1)(a) and 21, because the film they had produced had been taken off screens by the Kolkata police, citing law and order concerns (para 4 of the judgment). Writing for the Court, Chandrachud J., held that the rights of the petitioners had been violated. Since the film had already received certification by the CBFC, state authorities could not act as ‘self -appointed guardians of public morality’. Their duty is to ensure law and order, which extends to ensuring security for the cinema houses as well as the film patrons. Speaking about the positive and negative aspects of freedoms under A. 19, Chandrachud J. noted:

The freedoms which are guaranteed by Article 19 are universal. Article 19(1) stipulates that all citizens shall have the freedoms which it recognises. Political freedoms impose a restraining influence on the state by carving out an area in which the state shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the state. But, apart from imposing ‘negative’ restraints on the state these freedoms impose a positive mandate as well.

…In the space reserved for the free exercise of speech and expression, the state cannot look askance when organized interests threaten the existence of freedom. The state is duty bound to ensure the prevalence of conditions in which of those freedoms can be exercised. The instruments of the state must be utilized to effectuate the exercise of freedom. When organized interests threaten the properties of theatre owners or the viewing audience with reprisals, it is the plain duty of the state to ensure that speech is not silenced by the fear of the mob. (paragraph 18) (emphasis mine).

 

The SC has employed a similar line of reasoning in Indian Medical Association v Union of India (paragraph 108) and Inspector (Mahila) Ravina v Union of India (paragraph 9) (also see this post). As such, even civil rights under Part III (and specifically under A. 19) have a positive dimension. Of course, in Indibility, the Court was enforcing a pre-existing right of free speech (citing decisions such as Romesh Thapar), whereas in the present case, the existence of a right itself is contended. Another notable difference between the present situation and Indibility was the type of state action. In that case, the state was engaging in an act (as opposed to an omission) by forcing the take-down of the movie from theatres. As opposed to that, there have been no physical barriers as such preventing migrant workers from going home. As such, this case cannot assist us in fully making out a right for migrant workers to lay a claim upon State resources. But these lines of cases offer one crucial insight: the responsibilities of a State do not merely end at ensuring that restrictions on fundamental rights conform to grounds laid out under A. 19(2)-19(6). Apart from that, the State has to ensure a meaningful exercise of the rights in themselves. For example, in Ravina, the High Court, in relation to Article 21, stated that ‘the right (to reproduction and child rearing) is an essential facet of Article 21; it is underscored by the commitment of the framers to ensure that circumstances conducive to the exercise of this choice are created and maintained by the State at all times’ (Indibility extends this positive obligation to Article 19 as well). Hence, the first question is answered in the affirmative: migrant workers can lay a claim upon State resources to ensure the meaningful exercise of their fundamental right (in this case, the right to freedom of movement guaranteed under A. 19(1)(d)). This statement must be fitted with a caveat, however, which the next part of this blog will attempt to flesh out.

Institutional Constraints and Minimum Cores: The Idea of Rights as Scales

The judicial enforcement of a positive obligation, whether it be in the form of a socio-economic right or a civil right, raises the important question about the limits of the judiciary. To what extent can the Court actually direct the State to allocate finances in a particular way? This issue has been partly dealt with in this blog here and here. The thrust of the argument in this post is the conception of rights as a ‘scale’. Similar to how integers are arranged on a scale, I argue that rights exist in a similar fashion. The state can take any action it deems fit to shift the position of the right to the negative side of this scale, provided it follows the grounds set out under A. 19(2)-19(6). On the other hand, a right can exist towards the positive side in any measure. When the right on the positive side of the scale comes dangerously close to becoming nil, however, the obligation of the state extends to ensuring this does not happen. Viewing rights in such a way will also help to better define the extent of judicial enforcement of a positive obligation which lies against the state. In this paradigm, hence, a right can be negative, or positive, but never nil. Gautam Bhatia has previously argued for conception of a ‘minimum core’- a modicum of a right which must be respected irrespective of budgetary constraints or any other policy argument, without which the right itself becomes illusory. A similar idea has been mentioned by scholars in the context of reconciling proportionality analysis with the idea of rights as ‘trumps’ (here M. Klatt speaks of a ‘centre of resistance’ of every fundamental right, which has a weight sufficient to ensure no countervailing principle can override it).

Before proceeding, it is also important to highlight how the idea of a ‘nil’ right is the only way to reconcile the aspect of a positive right as stated in Indibility and other cases with the idea that the judiciary cannot dictate policy, but only enforce rights. In the context of this reconciliation, it must be noted that the ‘courts cannot dictate policy and budgetary allocation’ argument rests on especially weak ground in this case. All judicial orders require some expenditure by the state. In this case, the claim of migrant workers wouldn’t be to create new services for them (which would involve larger finances, and would probably be violative of separation of powers): it would merely be to restore what it had taken away (in this case, train services). State expenditure incurred in pursuance of enforcing a legitimate fundamental right cannot constitute a violation of SoP: that is precisely the function of constitutional courts. This idea of rights as scales also makes explicit what is an implied assumption in the minimum core approach.

If the state indeed has a positive obligation to ensure an effective exercise of A. 19 freedoms, doesn’t this also mean that any other person can similarly exercise those freedoms during this pandemic? The answer, however, is no. Post Maneka Gandhi v Union of India and the rejection of the ‘silos’ approach of reading fundamental rights, each restriction (which, for the time being, we will assume includes an omission as well- though this is not true in all cases) must measure up to rights under every other Article as well. Hence, in the ‘scale’ paradigm, one of the reasons that a shift in the position of a right closer to nil creates an obligation on the State to expend its resources is because otherwise, rights under Article 14 and Article 21 are violated. The other reason is the one mentioned above: rights can never be nil; there must always be a minimum core. For example, it has been argued here that the free testing order for Covid-19 was important because holding otherwise would have violated a combined reading of the right to health along with Article 14, and made each of these rights illusory. In other words, the issue of testing was directly related to structural discrimination based on socio-economic class.

Secondly, the obligation created is very limited in nature. Any other person’s exercise of the right to movement could be validly curtailed under the ground of ‘in the interests of general public’ under A. 19(5). A similar situation will not arise for migrant workers because in the absence of any other alternative, their action of walking hundreds of kilometres is guided simply by the clear absence of choice. The obvious objection here is- what if the state decides to restrict their movement similar to that of everyone else? But this is a weak counter. All other people have a minimum set of rights: they are enjoying: food, shelter, clothing, minimum sanitation (as well as the possibility to work from home) etc even in the absence of any state assistance during the lockdown. If a similar restriction is placed upon the migrant workers, then there will automatically be an obligation on the State to provide equivalent resources to them to stay at the place where they are (this is precisely what Indibility states: the positive aspect of any freedom).

Conclusion

The combined answer to the questions posed at the start of this blog will read as follows: migrant workers can lay a claim upon State resources to ensure the meaningful exercise of their fundamental right (in this case, the right to freedom of movement guaranteed under A. 19(1)(d)). Such a right will be a limited right, exercisable only in certain situations so as to preserve the institutional integrity of the judiciary. One of the situations under which this positive obligation-based civil right will be exercisable is when doing otherwise would draw the right to a ‘nil’- or make the right illusory. This will also reconcile Indibility with the idea of policy (and budgetary allocation being a part of policy) being outside the jurisdiction of courts.

Trains have been started now. However, this discussion does not cease to have any force. On the contrary, with the pandemic here to stay, and the debate about socio-economic rights becoming more prominent, defining judicial powers to enforce positive obligations from the state in favour of citizens becomes more important than ever.