Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review in the Gujarat and Karnataka High Courts

Previously on this blog, we have discussed models of executive accountability in the context of the Covid-19 pandemic, and the role of judicial review during the crisis. As I have argued before, the debate has stemmed from the fact that in most of the cases to come before it, the Supreme Court has framed the issue in terms of a misleading binary: the Court (according to this binary) has one of two options: “take over” the management of the pandemic from the executive, or adopt an entirely quiescent posture towards the executive. Framed this way, this binary admits of only one answer: the executive is obviously better-positioned to deal with the pandemic, and therefore, the second option (quiescence) must be taken.

But, as others have pointed out on this blog, this is a false choice, and indeed, ignores the Supreme Court’s own prior jurisprudence on the question of socio-economic rights. There are a range of alternatives between usurpation and quiescence, that involve holding the executive to account in the judicial forum, without the judiciary necessarily taking over the executive role. Around the world, for example, scholars have articulated the concept of “dialogic judicial review“, where – in certain cases – the judicial forum is a site of dialogue between courts, citizens, and the government; often, the very process of the government being called upon to explain its decisions before the courts reveals important shortcomings in the decision-making process (as well as in the substantive nature of the decision itself), which can then be corrected.

In this context, two recent sets of orders by the Gujarat and Karnataka High Courts present us with examples par excellence of dialogic judicial review, and how it can make a difference to constitutional rights in the times of Covid-19. On 22nd May, the High Court of Gujarat passed a detailed order that dealt with the subject of medical care in the state, the transportation of migrant workers, questions of food and shelter, and so on. The order, authored by Pardiwala and Vora JJ, makes for fascinating reading. Its genesis was a previous order of 14th May, where the Court had put a set of questions to the state government of Gujarat, on the lines set out above. In response, the government filed a detailed affidavit before the Court, answering these questions. The affidavit covers the first twenty pages of the High Court’s order, and includes, inter alia, figures on the total number of migrants in the state (including the methodology used by the government to arrive at those figures), figures on the number of trains that had already left the state to carry migrant workers back home, payments made to various classes of constructions workers, specific work-related issues in Surat and Kutch, Memorandums of Understanding entered into between the state government and various private hospitals, and testing guidelines and discharge policies. In addition, the state government filed affidavits signed by medical officers, and progress reports on medical facilities.

On a study of the data, the Court found that (a) public healthcare facilities were overwhelmed and unequipped to deal with the pandemic; (b) for this reason, the state government had entered into MoUs with private hospitals, (c) but that nonetheless, in certain cases, private hospitals had levied exorbitant charges for treatment (see paragraph 45). On this basis, the Court first issued a direction that, in view of the public health crisis, it would not be open to private hospitals to refuse entering into the MoU with the government. Furthermore, while the state government had issued a notification on 16th May fixing prices and bringing a certain number of private hospitals within its ambit, that notification was ambiguous in what it covered. Additionally, the Court noted that certain specific private hospitals had been left out of the Notification, without any explanation. Consequently, the Court observed:

We would like to know from the respondents as to why the above named hospitals are not in the list. We would also like to know whether any talks were initiated in this regard with the management of the above referred hospitals. The hospitals we have referred to above are reputed hospitals and are capable of admitting thousands of patients in all … we direct the State Government to initiate talks with all the eight hospitals named above and enter into a Memorandum of Understanding in this regard. All the eight hospitals referred to above shall extend their helping hand in this hour of crisis. We are saying so because as days are passing by more and more cases of COVID19 positive are being reported. It is practically impossible now for the Civil Hospital, Ahmedabad and the SVP Hospital, Ahmedabad to admit all these COVID19 patients.

I cite this as one of the (many) examples of dialogic judicial review from the order, as it demonstrates the point with particular clarity: instead of framing policy, the Court examined existing government policy, and found that there was no discernible reason for its limited application, in the context of the pandemic and the accompanying right to health. The absence of a rationale for the decision-making process allowed the Court to then extend the scope of that policy further. In addition – and in stark contrast, for example, to the Supreme Court’s attitude in the free testing case – the Court specifically asked the government to explain (on the next date of hearing) the basis on which the government had worked out the rates of remuneration with private hospitals, and what facilities had been excluded and included. Notably, the Court did not set a particular rate or charge itself, but asked for an explanation of the decision-making process – and it will be interesting to see how that plays out when the matter is heard next, at the end of the month.

In the subsequent parts of its judgment, the Court focused on conditions at civil hospitals – and passed directions on their improvement – appointed a commission to examine the claims raised by reports about abuses in these hospitals, and passed another set of directions on immediate measures to be taken. Further lacunae were also pointed out in the testing process, but here the Court did not pass directions, but rather, advisory observations to the state government on questions of publicity and awareness. On the transportation of migrant workers – based on the government’s own admission that buses were unsuitable for such transport – the Court directed either the Railways or the state government to bear the cost of a one-way train ticket for those migrants who wished to return home. And finally, the Court extended temporary bail orders for another forty-five days.

The order of Pardiwala and Vora JJ exhibits some of the important features of dialogic judicial review: on an initial date, the Court put a series of questions to the government on its handling of the pandemic. The government responded with a detailed report. On the basis of a close study of the facts in the report, the Court (a) on some issues, passed directions tweaking the government’s policy, where it was under-inclusive in its protection of constitutional rights, without any rational basis underlying the decision-making process; (b) on other issues, put further questions to the government, which would be discussed on the next date of hearing; and (c) on a final set of issues, accepted the government’s stance (such as, for example on the legal prohibition upon using RERA money to pay construction workers). In addition, on issues involving core, immediately enforceable constitutional rights – such as temporary bail, and the freedom of movement (that had become a necessity as a result of the government’s own choice of lock-down) – the Court passed direct orders.

Something similar is visible in a set of orders passed by the Karnataka High Court, involving migrant workers. A bench of Chief Justice Oka and Nagarathna J. were seized of the matter. On 5th May, the bench passed an order on the issue of the transport of these migrant workers. The state of government of Karnataka filed written submissions in response. These were considered by the Court in a detailed order dated 12th May, 2020. The state government cited MHA orders, and a protocol for the inter-state movement of migrant workers, as covering the field. On this basis, the Court found that there was now a policy decision taken by the state government that migrant workers from other states could return home through special trains. Having noted this, the Court then observed that it was the burden of the state government to communicate this policy decision to the migrant workers in question.

This brought the Court to the question of train fares. Importantly, the Court framed this as a question of constitutional rights. It noted that the reason why migrant workers needed to travel back home – and, correspondingly, their desperate situation – was a loss of livelihood (paragraph 10). This loss of livelihood – as we have discussed above – was itself caused by the decision of the central and state governments to impose a nationwide lockdown to deal with the Covid-19 pandemic. Thus, with the link between State action and deprivation of constitutional rights clear, the Court noted that “prima facie, it appears 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 his transport.” The Court did not, however, pass an immediate order on the issue; rather, it asked the state government to take an “immediate decision” on the question of paying the railways fares of those migrants who were unable to pay, and to work out a schedule for the same. Importantly, it asked the government to place its response on these issues before it, within a week from the order.

It is important to note the aftermath of this: that the state government of Karnataka did formally agree to pay the rail fares of migrant workers. However, this was apparently partial, and applied only to migrant workers originally from Karnataka, who wanted to come back, and not the other way round. This policy was then questioned by the Court in a subsequent order, where it was reiterated that constitutional rights were at stake. In its most recent order – dated 22nd May – the High Court asked the state whether money from the National Disaster Response Fund could be used to pay for the fares*; the next date of hearing is 26th May (Tuesday). This, then, is a classic example of dialogic review in action: the High Court of Karnataka’s initial probing compelled a change in executive policy; nonetheless, the change was found to be insufficiently protective of fundamental rights, and at the time of writing, the executive is being called upon to justify itself in the judicial forum, with the Court itself playing a role in engaging with other possible solutions that could be found.

The set of orders passed by the Gujarat and Karnataka High Courts are granular and specific in nature. They deal with issues arising within state borders, and do not purport to offer grand solutions to the problems caused by the pandemic and the lockdown. However, this is precisely where their importance lies, within the framework of dialogic judicial review: they demonstrate clearly that the binary postulated by the Supreme Court’s orders on the subject is a false one. The task of the Court is not to frame policy, but nor is it to leave the field, especially in times like Covid-19, where individual rights are particularly vulnerable to exploitation. Here, the task of the Court becomes one of oversight and scrutiny, through the method of dialogue in the judicial forum. This dialogue, as we have seen, is a continuing one, and its continued articulation in following hearings will be important to follow.

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*Readers will recall the Chief Justice of India’s extraordinary observation, soon after the lockdown was announced, about why workers needed wages if they were getting two square meals a day. Interestingly, an observation by the Karnataka High Court in this order lays bare the hollowness of that statement. As the Court noted:

We must record here that it is not merely an issue of survival of the migrant workers who are unable to go back to their respective States because they do not have money, there are other needs of the migrant workers, such as their health, their families. The migrant workers who are staying in the State by leaving their families in the States of their origin are in precarious position because they are unable to send money for the maintenance of their respective families. These are all human issues which need to be addressed by the State Government as well as the Central Government, considering the concept of Welfare State.