Coronavirus and the Constitution – XXXVIII: One Year On

The first Indian national lockdown in the wake of Covid-19 was announced on 24th March, 2020. The management of the pandemic by the central and state governments is a matter for the history books (although, of course, the pandemic is not yet over). Over the course of the past year, however, these governments’ far-reaching actions – aimed at containing the pandemic, but with numerous spill-over effects – raised numerous constitutional issues. These involved, for example, civil rights, access to healthcare, the rights of migrants, and so on. On this blog, there have been thirty-seven posts examining the interface between Covid-19, state action, the Constitution, and the Courts. One the first anniversary of the lockdown, it is a good time to take stock.

Pandemic Management by Decree

The greatest concern remains how Covid-19 turned into a cover for executive aggrandisement, both at the central and at the state level. At the centre, this involved the invocation of the Disaster Management Act of 2005, and a somewhat extended interpretation of its provisions, to arm the central government with wide-ranging powers over everyday life. At the state level, the several state governments invoked the colonial Epidemic Diseases Act, to exercise similar powers over their territories (including the arguably ultra vires “sealing off” of certain districts from time to time). This, in turn, was supplemented by the liberal use of Section 144 of the Code of Criminal Procedure to restrict movement in specific areas.

At all levels, therefore, Covid-19 was managed by an interlocking set of executive decrees, passed under broadly-worded laws, and leaving no scope for the representative bodies – parliament of the state legislatures – to debate or to question these moves. It is, of course, trite to say that the legislature in India has become effectively moribund, and even a functioning Parliament and State Assemblies would have scarcely made a difference to the handling of Covid-19. That is true enough, but the formal exclusion of deliberative representative bodies from the management of a criss by invoking broadly-worded laws remains a matter for concern, whatever the state of those bodies: as Abhinav Sekhri put it, it took us into a space of “permanent crisis governance“.

Civil Rights and Proportionality

That Covid-19 was – and remains – a public health crisis that would require governments to take far-reaching measures – many of which would have a severe impact on everyday life and on civil rights – is unquestionable. But what is equally unquestionable is that Covid-19 does not accord governments a carte blanche to suspend Part III of the Constitution altogether. State action violating rights would still need to conform to the principles of proportionality, albeit with the rider that the importance of the State goal (preventing the spread of a global pandemic) would necessarily allow the government a wide degree of leeway in fashioning measures to deal with the problem.

That said, throughout the pandemic – and especially in its early stages – there was a range of dubious State action that arguably fell foul of the proportionality standard. These included, for example, curfews, public disclosure of the private details of quarantined individuals, restrictions on individual movement, compelling quarantined people to upload “selfies” to a government portal, the notorious Aarogya Setu App (with its Aadhaar-esque mandatory-voluntary nature), and bans on vehicular movement. Unfortunately, most of these measures escaped judicial scrutiny. The exception was Odisha’s vehicles ban, which was modified by the Odisha High Court in a measured and well-reasoned judgment, that is a good example of the application of the proportionality standard in a public health emergency.

Equality and Non-Discrimination

Pandemics do not discriminate between the rich and the poor, but the State certainly does. A lockdown, for example, has a severely disproportionate impact, depending on the socio-economic status of a person. “Work from home” jobs statistically track along socio-economic lines (the higher paid your job, the more likely it’s a job that can be done from home), and the forced closure of all establishments has a direct impact on the right to life and livelihood of migrant workers, living on daily payments, in particular. The decision to impose a hard national lockdown, therefore, raised important constitutional concerns around equality and non-discrimination. Note that this does not mean that the lockdown should not have been imposed (scientific evidence shows that lockdowns are essential to breaking the chain of transmission of the virus). What it does mean, however, is that once the lockdown was imposed, the State had an affirmative obligation to deal with its discriminatory impact – and that its failure to do so merited constitutional scrutiny.

Unfortunately, however, the unequal and discriminatory impacts of the lockdown were given short shrift; for example, the Supreme Court passed a cursory judgment failing to properly engage with the multiple equality concerns with the UGC’s Circular on the conduct of examinations. Secondly, PIL requiring the State to guarantee the payment of minimum wages to workers affected by the lockdown was not taken seriously by the Supreme Court, with the Court – unfortunately – indicating that it viewed the issue as a matter of “policy” (the rights to equality and to livelihood are not matters of policy).

Eventually, it was the government that took action, with a regulation under the Disaster Management Act requiring payment of wages to workers for a certain period of the lockdown. In one of the most unfortunate orders to be passed during the pandemic, the Supreme Court effectively stayed this provision (ironically, the only provision the Court stayed under the DMA was the one provision that sought to protect workers’ rights) – and then buried the case by adjourning it while asking the employers and employees to “negotiate” (as the old saying goes, a mediation between the sword and the neck). Thus, the regulation requiring the payment of wages to those who had suffered from job loss because of the lockdown was judicially nullified.

By contrast, the Supreme Court’s decision in the Gujarat Mazdoor Sabha case – where the State of Gujarat’s attempts to cut back on labour protections by citing Covid-19 as an excuse were turned back by a thoughtful and closely-reasoned judgment – stands out precisely because, for once, the Court refused to accept Covid-19 as a carte blanche for the curtailment of rights, especially on the basis of vague invocations of “public emergency”. One wishes that this judgment had been the exception, and not the norm, as we shall see below.

The Supreme Court’s Deference

The Supreme Court’s excessive and undue deference to the executive was starkly visible in multiple separate instances. First, despite legitimate constitutional and legal concerns, PILs challenging the PM-CARES fund were dismissed as frivolous and ill-founded. It is telling that to this day, we do not know the breakdown of spending under the PM-CARES fund, something that should be anathema to any jurisdiction styling itself a constitutional democracy.

Secondly – and in what will undoubtedly go down as a moment of great infamy – when the Supreme Court was petitioned about the severe difficulties faced by migrants due to the sudden and unplanned lockdown, first accepted the Solicitor-General’s statement that there were no migrants on the road, and then passed an extraordinary order blaming migration on “fake news”, and praising the government for its efforts in tackling Covid-19.

Thirdly, acting on a petition before it, a bench of the Supreme Court in April 2020 ordered that Covid testing be made free of cost. While the order had gaps, in my view – as I argued at the time – given the nature of the Covid-19 pandemic, it was legitimate (but see here, here, here, here, and here) for the extensive debate that this sparked upon the blog). However, upon various private bodies moving the Court, and at the instance of the State, it did a complete – and wholly unreasoned – volte face, changed its own order, and while appearing to introduce a means-testing requirement, effectively killed it. Now, there is a debate to be had over whether the Court’s initial order was right or wrong. What is troubling, however, that in a matter as important as this – involving the right to equality and the right to health during a global pandemic – the Court provided no reasons for its flip-flops. Indeed, it accorded no judicial scrutiny to the most basic of factual claims – for example, that Rs 4500 as the price for a test had been determined after consulting experts (reports showed that no experts had been consulted), or of a causal link between making testing free (or cheaper), and the availability of tests.

Thus, both in the migrants’ case and in the free testing case, the issue was not that the Court interfered – or declined to interfere – with questions of policy; it was – as I argued here – that the Court failed to hold the government to account in following its own policies; this does not require judicial activism, but classic, old-school judicial scrutiny, scrutiny that was made all the more necessary because of the bypassing of Parliament, leaving the Courts as the only checking bodies left. The Court’s failure to do so effectively created a situation of Caesarism: i.e., rule by acclamation, not under democratic checks and balances. But the larger issue it revealed is perhaps even more important: at present, under our Constitution, there is no consistent standard for the recognition and enforcement of socio-economic rights. While this has always been known, it was the (often failed) attempts to actually enforce these rights during Covid-19 that brought the point home.

The High Courts’ Vigilance

There was, however, a marked difference in how the several High Courts approached their responsibilities during the pandemic – demonstrating, perhaps, that in public health emergencies that are managed at a more localised level, High Courts might be in a better position to adjudicate a range of issues involved. . For example, the Delhi High Court passed an important order regarding the implementation of the right to food, and keeping open PDS shops, during the pandemic. The Madras High Court passed a good order on the right to movement of migrant workers.

Most importantly, in a series of excellent orders, the Karnataka and the Gujarat High Courts held the State governments to account on issues involving the rights of migrants, medical care, food, shelter, and other grave lapses in pandemic management. The actions of the Karnataka and Gujarat High Courts stand out as models of judicial engagement with State action during the pandemic: both Courts engaged in dialogic judicial review, i.e., not substituting judicial wisdom for State policy, but by holding the governments to account for their failure to protect constitutional rights during the pandemic (unfortunately, in the Gujarat High Court, one of the judges hearing the case was swiftly replaced, and the hearings died a quiet death). Both Courts, for example, asked the State governments to file affidavits, and it was quickly found, on a reading of those affidavits, that the governments were failing on their own terms. The Courts’ orders were then premised on a rectification of those failures, and indeed, directing the government to act to mitigate those failures. It is in this way that the High Courts engaged in dialogic judicial review, and ensuring executive accountability under the Constitution on a continuing basis.

The Bombay High Court also engaged in dialogic judicial review when considering the issue of price-capping N-95 masks, closely engaging with information provided by the government, on its own terms. There were also thorough and detailed orders passed on access to food, migrant rights, and the right to a decent burial.

The Conclusion

Whenever we face an emergency of any kind, it becomes particularly easy to argue that rights are a luxury that cannot be afforded in times of existential threat, and that the State must be given complete leeway to tackle the emergency as long as it lasts. It is also tempting to turn the truism that the Courts should not get into the day-to-day management of the pandemic, into an excuse for judicial abdication. Tempting as it is to make these arguments, history has also repeatedly shown us that it is wrong-headed; not only is it more than possible to handle emergencies while being protective of basic rights, it is also the case that executive aggrandisement of power during an emergency inevitably becomes permanent, with emergency and normalcy eventually bleeding into each other.

There is little purpose in knowing history if we do not intent to learn from it. In this context, the invocation of the DMA and the Epidemic Diseases Act to manage the pandemic via executive decree is the repetition of an old story, which recurs every time there is an emergency. One can only hope that after the pandemic is over (of which there is no sign so far), we will be vigilant about the expansion of such executive rule into daily life.

Secondly, the pandemic has revealed the hollowness – in a sense – of India’s Article 21 jurisprudence. Ultimately, when it came to the crunch, the grand rights to livelihood, food, and health meant very little in practice, especially at the Supreme Court: the migrant and free testing cases are testament to how, in the enforcement, these rights are paper tigers.

Thirdly, however, there are reasons for optimism as well. The Supreme Court’s judgment in Gujarat Mazdoor Sabha was a classic example of the role a vigilant judiciary can play in stopping a government that tries to use the pandemic as a cover to cut back on workers’ rights. And the orders of the Karnataka and Gujarat High Courts provide models of dialogic judicial review, and the walking of the delicate tightrope between judicial abdication on the one hand, and the judiciary (wrongly) trying to “manage the pandemic” on the other. As we eventually emerge from the pandemic, there is a lot to reflect on – and to learn – from the legacy of this past year, and about the role of courts and of rights in a crisis.