Guest Post: Silence and ‘Pragmatism:’ Skirting bail conditions in the UAPA

[This is a guest post by Nitika Khaitan.]


The denial of bail to Safoora Zargar last week drew fresh attention to harsh conditions in the Unlawful Activities Prevention Act 1967, which make it exceedingly difficult to secure bail. Under S. 43D(5) of the Act, no person accused of certain UAPA offences can be released on bail if the court finds reasonable grounds to believe that the accusations against her are prima facie true. Amidst overly broad definitions of these offences, and a low prima facie threshold, how then have courts granted bail? Sometimes, by narrowly interpreting offences or holding that the evidence against the accused is contradictory. At other times, as is the focus of this post, by simply leaving out any mention of the Act or its mandate altogether.

In 2016, for instance, the Supreme Court granted bail to the Dalit activist Angela Sontakke, accused of being a member of the Communist Party of India (Maoist), which is banned as a terrorist organisation. The Bombay High Court had earlier held that her bail was barred by S. 43D(5), since she appeared to be an active member unlike some of her co-accused (who had thus been granted bail by a different High Court bench). While allowing Sontakke bail, the Supreme Court order records that she is charged with offences under Chapters IV and VI of the UAPA, which attract S. 43D(5). But the order doesn’t mention the section. It doesn’t even briefly refer to the evidence against her, let alone record a different prima facie finding from the High Court’s. It speaks merely of balancing the serious charges against her with the facts that she is a woman, has spent years in custody and has yet to see her trial begin.

This is far from the only order that reads as if S. 43D(5) doesn’t exist. In 2017, while granting bail to three Kabir Kala Manch activists accused in the same case as Sontakke, the SC doesn’t even mention the UAPA. Other orders mention just the section number. In the 2017 bail plea of Malegaon blast accused Lt. Col. Prasad Shrikant Purohit, his counsel contended that S. 43D(5) wouldn’t apply since the blast occurred before the amendment that enacted the section. The SC order holds that this plea must be considered at the time of trial and not now. Without excluding the application of S. 43D(5) though, the SC proceeds to effectively ignore it. (The judgment also, oddly, refers to the state as having “rights” to investigate, instead of calling it what it is, a power.)

The SC’s reasoning for granting him bail reads like an order under ordinary law. The SC refers to prima facie satisfaction in support of the charge as one of the factors to consider (true for regular bail), not as the factor that S. 43D(5) elevates above all else. The only other time the Court uses the phrase is in holding that there is a “prima facie case for release on bail,” decidedly not the finding it is mandated to return. Attempts to hunt for the missing reasoning elsewhere in the order fail. The SC does say that there are “variations” and “material contradictions” in chargesheets filed by different investigating agencies (this was also discussed in the Bombay HC order granting bail to another Malegaon blast accused, Pragya Singh Thakur). But before one can infer that this is what led the SC to believe a prima facie case wasn’t made out, the order promptly states that these contradictions too need “to be tested at the time of trial and this Court cannot pick or choose one version over the other.” Almost as if to overcompensate for its missing finding on the evidence, the order repeats thrice on the same page that “at the stage of granting bail, a detailed examination of the evidence” need not be undertaken. (The general proposition is correct, but as held by the SC in the context of another law imposing similar restrictions on bail, “The duty of the court at this stage [of bail] is not to weigh the evidence meticulously… However, while dealing with a special statute… the court may have to probe into the matter deeper”). The order ends by going beyond the usual caveats and emphasises that the grant of bail here “shall be no consideration for grant of bail to other accused persons in the case.”

In none of the cases above did the Court say it was using its extraordinary powers to grant bail where other courts, in light of S. 43D(5), would have been unable to. How do we read the Court’s silences in these orders? Explicitly engaging with S. 43D(5) of course has its pitfalls. As the Andhra Pradesh HC recognised, at the stage of bail, taking the view that the accusations against an accused are not true could dent the prosecution; while taking the opposite view may be akin to “pre-judging the charges.” But even if we allow for the possibility that the Court wanted to refrain from making any observations that would influence lower courts, to not even mention S. 43D(5) in an appeal from a HC that has rejected bail on these grounds goes too far. That this violates the Supreme Court’s own pronouncements is trite. See, for instance, its 2019 decision making clear that courts must apply their mind to the prima facie truth of the accusations. More importantly, while the SC’s orders above indicate an obvious unease with the years in custody that harsh bail conditions inflict on people, they also reflect an unwillingness to fix this unease with anything besides ad-hoc measures, falling far short of the jurisprudence a constitutional court could choose to build.

In the cases above, long years of incarceration played a key role in the Court’s reasoning in favour of bail—over five years for Sontakke, close to four for the Kabir Kala Manch activists and eight years and eight months for Purohit. (This same concern, and elision of the S. 43D(5) mandate, is evident in some High Court orders as well. A 2019 Bombay HC decision, for instance, partly engages with the lack of grounds to prima facie believe the allegations made for certain offences. But for other alleged UAPA offences, the HC simply states that they are punishable with merely two, seven and ten-year imprisonment terms, and the accused had already served nearly four years in jail.) In implicitly acknowledging the injustice of such pre-trial incarceration, while refraining from any systemic change, these SC orders mirror its earlier decisions in the context of other laws with onerous bail conditions.

In 1994, in the context of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the SC noted that “to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable” and “if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.” But noting also that the constitutionality of similarly restrictive bail provisions in the Terrorist and Disruptive Activities (Prevention) Acts, 1985 and 1987 (TADA) had been upheld earlier that year, the Court asked itself, “What then is the remedy?” The Court passed a “one-time” order. It directed all undertrials charged with certain offences to be released on bail, if they’ve spent a certain number of years in custody. The Court said that given the percentage of acquittals under the Act, “we cannot be oblivious to the fact that many innocent persons may also be languishing in jails.” But nothing in the order of course was “intended to interfere” with the future grant of bail by lower courts, which would continue as restrictively as before and presumably also lead to many innocent persons languishing in jails till another one-time SC order.

In a similar order two years later in the context of TADA (Shaheen Welfare Association v. Union), the Court even more explicitly recognised that “when the release of undertrials is severely restricted as in the case of TADA” and a speedy trial is “not practical, release on bail… may, in some cases, be necessary to meet the requirements of Article 21.” Acknowledging that “many of the under-trials may be found to have completed the maximum punishment provided by law by being in jail without a trial,” the Court again offered a “pragmatic approach” / “one-time measure.” The Court divided TADA undertrials into different categories based on whether they were roped in for possession offences or overt acts directly attracting TADA sections, or by virtue of vicarious liability and conspiracy provisions; and directed release on bail on different conditions for each category. The Court recognised that it was overriding the ordinary operation of TADA by creating these classes but held that “while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick.”

What of pragmatism and justice after the one-time measure then? In Shaheen Welfare Assn., the Court recognised that stringent bail conditions “can be justified… on the presumption that the trial of the accused will take place without undue delay.” The Court had then focused on the inadequacy of Designated Courts set up to try TADA cases as the cause for this undue delay. But gross delay is of course pervasive, not exceptional. While upholding TADA’s constitutionality, the Court had also recognised that TADA was often unscrupulously invoked merely to deny bail. It stopped, however, at terming this sheer “misuse and abuse” and merely exhorting prosecutors and courts to do their job better. But what of the extensive material to show that misuse and abuse are woven into the provisions of extraordinary laws? Particularly in the context of the current repository of most of TADA’s provisions, the UAPA, under which the ‘independent’ authority set up to sanction prosecution is appointed by the executive itself.

Despite repeatedly being confronted with the reality that onerous bail conditions equal years of incarceration without guilt, courts have more often than not resorted to elision and ad-hocism. In a series of decisions from November 2019, the Punjab and Haryana High Court called this out. These decisions were delivered in the context of harsh bail provisions for some offences in the Companies Act, 2013, which prohibit release on bail unless the court is satisfied of reasonable grounds to believe that the accused is “not guilty” of the alleged offence amidst other conditions. The High Court orders state that there is an “inconvenient question, which has not been shown… to have been answered by any court so far, including the Hon’ble Supreme Court. The question is – for how long an accused can be kept in custody on the basis of non-fulfillment” of restrictive bail conditions? The HC order decries “unfortunate situations where a court may not even find the moral courage or the legal sanctity to tell to the accused that he shall have to wait in custody till conclusion of the trial, despite and in face of the legislative policy contained in provisions of Section 436A of the Cr.P.C.” S. 436A of the CrPC mandates the release of under-trial prisoners if they have been incarcerated for half the maximum term of imprisonment for their alleged offence. S. 436A itself carves out an exception for offences punishable with death, but non-obstante clauses in special laws like the UAPA exclude the benefit of S. 436A even for offences punishable with imprisonment for three years. Despite such non-obstante clauses, the HC emphasises that years of custody without trial “cannot be used to curtail the liberty of an accused in violation of Article 21” and poses more inconvenient questions—“In such a situation the court would do substantial justice; or would stick to the [bail] conditions…Even if the courts are to stick to such condition; then how much injustice to the accused would be sufficient to off-set or to balance” the conditions? The HC goes on to hold that unless these questions are “categorically answered to say that till the conclusion of the trial such a person cannot be released on bail,” the onerous conditions cannot be held to be mandatory. (Also see the same bench’s 2018 decision with respect to NDPS cases).

In the context of the UAPA as well, certain High Courts reflect a more sustained engagement with these questions. In a 2014 decision, the Andhra Pradesh HC lays out, colourfully, the cautious and delicate approach needed with provisions like S. 43D(5), comparing it to “the care which a cat is expected [to take] while carrying the kitten in its mouth from one place to another.” The order dilates for several paragraphs on motivated prosecutions; emphasises that “an accused cannot be equated to a convict, even before the trial is conducted;” and goes on to lay out guidelines for courts to appropriately form the prima facie opinion required by S. 43D(5), while taking concerns of liberty seriously.

Such guidelines ultimately may not make too much of a difference—the inherently low threshold of S. 43D(5) no doubt ties the hands of lower courts. Till more authoritative pronouncements on these bail conditions, thus, the road ahead looks bleak. But as I’ve argued in the context of a different set of provisions under the UAPA, judicial logics often defer to state ones with anti-terror laws, accepting the need for extraordinary measures to combat ‘extraordinary’ threats, and making any such authoritative pronouncements unlikely. The history of personal liberty, as a judge from another time had said, is largely the history of insistence upon procedure. Not so with S. 43D(5), where liberty has oft been secured by ignoring it.


[The author thanks Jawahar Raja and Chinmay Kanojia for their help as always with locating UAPA orders; and Sanya Kumar and Megha Bahl for their incisive comments.]

Coronavirus and the Constitution – XXIII: Judicial Approaches Towards the Right to Food [Guest Post]

[This is a Guest Post by Sanjay Parikh, Sr. Adv. and Sanjana Srikumar].


The order passed by the Delhi High Court, on 27.04.2020, raises important questions regarding the State’s obligation to ensure faithful implementation of right to food, what should be the court’s normal approach while dealing with the right to food, and what it should do in an extra-ordinary situation like the present pandemic, so that no one goes hungry. The Delhi High Court was considering an application for urgent reliefs in Delhi Rozi Roti Adhikar Abhiyan v. Union of India, a pending case that challenges the notification making Aadhaar mandatory for receiving benefits under the National Food Security Act. The primary issue is that right to food cannot be made dependent on Aadhar registration because both operate in different fields, the right to food being non-derogable. The application, however, was limited to urgent reliefs on the basis of field reports, which showed the failure of the food security machinery in Delhi during the COVID-lockdown. The problem aggravated because the government failed to constitute ‘grievance redressal authorities’ under the Act and also implement transparency measures to ensure that ration shops and other food distribution centres remain operational and distribute ration without any delay.

The High Court accepted the argument of the petitioner that right to food will be effective only when transparency and accountability become a part of the system, which, inter alia, mean that the Government must show, by putting the information in the public domain, that the ration has actually reached the people. The Court directed that the Government shall ensure that ration shops remain operational on all seven days at fixed timings and that food distribution shall be ensured to both PDS and non-PDS individuals (persons without ration cards). To safeguard compliance, several interim directions were passed including the supervision and monitoring by the Sub-Divisional Magistrate of each district; uploading information on food grains distributed to PDS and non-PDS persons on a daily basis; constitution of a provisional grievance redressal mechanism, where action taken in response to complaints shall be uploaded on the website; and wide publicity of compliance with the directions of the Court.

While the petition as well as the present application remain pending and the manner in which statutory and constitutional issues are considered remains to be seen, this case raises questions about the manner in which Courts should evaluate State’s compliance with regard to the right to food, as mentioned above. This issue came up specifically in the context of starvation deaths and hunger prevailing in the KBK Districts of Orissa (in Indian Council of Legal Aid & Advice v. State of Orissa, W.P.(C) 42 of 1997) which the State Government was attributing to drought and other related causes, but not the State’s failure. The litigation in the KBK case, which lasted up to ten years including continuous monitoring by the NHRC, presents interesting lessons to consider the questions of State’s obligations vis-à-vis the right to food.

The Right to Food as the Right to Transparency

 In the KBK case, the State denied that there was hunger or starvation deaths owing to State’s negligence. The blame was put on recurring   drought or other natural causes. The deaths were attributed to diseases like malaria, diarrhea and eating of leaves by the tribals. For justifying that ‘food’ existed, the State had shown the presence of utensils in the homes of those who died due to starvation. The strange logic was that the existence of utensils would prove the presence of food! The Special Rapporteur appointed by the NHRC to find out the correct facts, however, noticed utter poverty, prolonged malnutrition and non-implementation of Government schemes. The cause was not drought but the Government’s inaction and total disregard with respect to its accountability as a welfare state. The NHRC thus evolved a mechanism, which ensured transparency, accountability, and a monitoring system, so that food is provided to all who need it, in time and without any break. Transparency brought in the desired result, namely, that the right to food was not made dependent on mere assertions of the government based on the figures and schemes, but that food actually reached the needy, and that fact was ascertainable in the public domain.

There is thus a direct nexus between the right to information and transparency with effective implementation of right to food. Prof. Amartya Sen in this context pointed out that one of the reasons for Bengal Famine of 1943 was the silencing of honest reporting and independent media. That is why participation of civil society becomes important. It helps in disseminating the information about relief and ensuring that it actually reaches its destination. It also helps in providing suggestions for how the system can be improved. After all, the endeavor of the State coupled with its duty ought to be that no one should go hungry. Such a focus requires recognition of the right to food as a bundle of rights consisting of allied rights including the right to transparency, as well as the recognition of the interdependence of socio-economic rights and civil and political rights. In K. S. Puttaswamy (Privacy-9j.) v. Union of India, [(2017) 10 SCC 1, para 269], Chandrachud, J. stressed upon how transparency – as opposed to opacity – helps in realization of rights by the poor, for whom they are meant:

Capture of social welfare benefits can be obviated only when political systems are transparent and when there is a free flow of information. Opacity enures to the benefit of those who monopolize scarce economic resources. On the other hand, conditions where civil and political freedoms flourish ensure that governmental policies are subjected to critique and assessment. It is this scrutiny, which sub-serves the purpose of ensuring that socio-economic benefits actually permeate to the underprivileged for whom they are meant. Conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive.

The measures for transparency, in fact, are specifically stressed upon in the National Food Security Act [Section 12(2)(b),(d); Chapter VII: Grievance Redressal Mechanism]. Existence of grievance redressal mechanisms, social audit and constitution of vigilance committees are necessary for effective implementation of the Act. In Swaraj Abhiyan v. Union of India [(2016) 7 SCC 498], the Supreme Court recognized the significance of creation of these statutory authorities, as opposed to knee-jerk reactions by Courts as ad hoc measures.

In this context, provisions such as Section 54 of the Disaster Management Act, 2005, which criminalize “false alarm or warning as to disaster or its severity or magnitude, leading to panic”, do so without adequately defining these terms- that is, clarifying whether reporting contrary to government data may be classified as false. For example, providing information about people suffering from hunger, or the number of migrant workers walking without food, cannot be criminalized. This information may contradict government data but it should be realized that this alone brings in improvement. The government cannot suppress the data regarding sufferings of the people and those succumbing to it. The Supreme Court order dated 31.03.2020, which referred to these provisions and directed media houses to refer to information provided by the State, albeit without intending to stifle free debate on government measures, only adds to further uncertainty regarding the ability to report on State action and contradict State data during disasters. In the absence of mechanisms to ensure State obligations to provide continuous data, the enforcement of socio-economic rights would remain elusive.

Evaluating State failures

 In the COVID pandemic, the State is insisting on precautionary measures, which are necessary, but is failing to address the consequences and its impact on the poor. The migrant workers, who suffered during prolonged lockout were found begging for food. They travelled several hundred kilometers on foot to reach their homes. They are now without any resources. They could not reach in time during harvesting and therefore, not much is left with them for sustenance of the family. They are uncertain about their return to the urban areas for survival. These very reasons cause hunger and starvation. The duty of the welfare state and courts in this situation becomes important. To prevent the perpetuation of the cycle of hunger, the State has a heavy obligation to act immediately with plans of action. In doing so, the State must adhere to what Prof. Amartya Sen has called as the ‘entitlement approach’ i.e. ensuring right of a person to command food legitimately, through available legal means, as a part of ‘bundle of commodities’, to avoid hunger or starvation. The NHRC in the KBK Case had proceeded with this approach i.e.to not only fight with existing hunger but also to prevent its occurrence in future. This approach, in analyzing hunger from the perspective of the failure to ensure legal entitlements, squarely places the onus on State machineries to ensure the protection of life despite extenuating circumstances- drought, illiteracy, unemployment or the present calamity. The NHRC endorsed this approach and adopted a rights-based view with comprehensive monitoring of social security schemes rather than a policy-based food availability view. This idea has also subsequently gained legislative acceptance with the enactment of the National Food Security Act as well as the right to food litigation in PUCL (PDS Matters) v. Union of India & Ors.(2013) 2 SCC 663.

Unfortunately, recently, the Supreme Court has left this right to the policies of the State, without even examining the policies and without discharging its constitutional obligation that right to food or the right not to remain hungry is the basic right of a person, which a welfare state in a democracy is bound to implement.

 State justifications and resource constraints

Whether resource constraints can be pleaded by the State while dealing with the right to food, remains a relevant question. The answer depends on the nature of the right, which as mentioned above, is non-derogable, basic and fundamental in its implementation. The United States Presidential Commission on World Hunger, established to investigate the problem of hunger and malnutrition in the world, examined extensively the data on hunger world- over and also reviewed the national and international existing programs, both private and public. The Commission in its recommendations (1980) stated that the right to food was the most basic of all human rights, without fulfillment of which the protection of other human rights would be a mockery. The report noted:

Whether one speaks of human rights or basic human needs, the right to food is the most basic of all. Unless that right is first fulfilled, the protection of other human rights becomes a mockery for those who must spend all their energy merely to maintain life itself… Unless all governments begin now to act upon their rhetorical commitment to ending hunger, the principle that human life is sacred, which forms the very underpinnings of human society, will gradually but relentlessly erode.

 The fiscal or the resource crunch argument cannot be cited by a welfare state to justify non-fulfillment of its obligations. In adjudicating issues of hunger and starvation, it is essential for Courts to adopt approaches that consider the right to food justiciable and enforceable, to refrain from reliance on the State’s stand of the adequacy of its measures, and to foster processes that ensure accountability and transparency.

It is also apposite to emphasize here that the right to food has been recognized as the ‘minimum core obligation’ of the State party under the International Covenant on Economic, Social and Cultural Rights. What this obligation means, has been explained in the General Comment No. 3 on ‘The Nature of State Parties’ Obligations’ by the UN Committee on Economic, Social and Cultural Rights as follows:

…Article 2 (1) obligates each State party to take the necessary steps “to the maximum of its available resources”. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

 

It is thus clear that the concept of minimum core obligation is in consonance with the ‘entitlement approach’ which Prof. Amartya Sen explained and NHRC followed in the KBK Case. Right to food involves utilization of all the resources by the State at its disposal and therefore, failure to prevent hunger or starvation must invite judicial scrutiny where State must discharge its onus of adhering to the minimum core obligations. However, despite reference to the above standard, Courts have given deference to State’s limitations, even in the cases of core obligations. For instance, the South African Constitutional Court, in Minister of Health v. Treatment Action Campaign, has found that socio-economic rights do not create positive right enforceable irrespective of the State limitations considered and that “it is impossible to give everyone access even to a ‘core’ service immediately.” Similarly, the Indian Supreme Court in Swaraj Abhiyan (supra, para 114), while correctly rejecting State justifications regarding fiscal failures, reiterated that “in matters involving financial issues and prioritization of finances, this Court should defer to the priorities determined by the State” These approaches are antithetical to the core principles of the Covenant on Economic, Social and Cultural Rights, which are treated as part of Article 21 under our Constitution.

In the COVID situation, with the problems escalating in future, the first and foremost duty of the State is to ensure that on account of inadequacy of food or deficiency in implementation, nobody should suffer from hunger or succumb to it. The courts have to be extremely alert in ensuring that the due and timely performance of constitutional obligations is not left on the executive’s will. The right to food must be taken as a right based entitlement and not left as a policy matter of the State. This approach alone will be able to prevent deaths due to hunger and malnutrition in the days to come, which if not tackled properly, will be worse than the pandemic.


[The research for this post draws from an upcoming publication by Mr. Parikh on judicial approaches to hunger in the KBK districts.]

Coronavirus and the Constitution – XVII: The Supreme Court’s Free Testing Order – Some Concluding Remarks

I am grateful for all the engagement with my initial post on the legitimacy of the Supreme Court’s order mandating free testing for Covid-19. Some of these have been published as responses and rejoinder in this series (unfortunately, for reasons of space, I could not publish all). In this concluding post, I want to briefly address and clarify some of the core issues that have emerged – both on the blog and in the public domain – over the course of the discussion.

Let me start by reiterating that the Supreme Court’s order should have stated that private labs would be reimbursed by the State for free Covid-19 testing, and that a mechanism for this ought to have been worked out before the interim order was passed. That is a significant lacuna in the order. In what follows, I base my arguments on the premise that the State is indeed paying for free testing.

The Policy/Budget Argument 

The argument that has been most frequently made is that the Court’s order is an impermissible intervention into the policy sphere – and a violation of the separation of powers – because it effectively directs the government on how and where to spend its (finite?) resources. To this, there is a straightforward answer: the effective enforcement of almost any right depends upon creating infrastructure, which costs money. For instance, the right to vote requires polling booths and voting machines. The right to free association and assembly presumes the existence of policing. And so on. Consequently, the budgetary argument gets things back to front: the question is not whether a Court order interferes with the budget and is therefore illegitimate, but whether the Court order does or does not enforce a constitutional right. If it does, then the impact on the budget is a collateral issue. The whole point about enforceable rights is that – to go back to Ronald Dworkin – they act as “trumps” against policy goals. In the present case, therefore, the key issues are twofold: what rights are at play (I have argued that these are the rights to equality read with the right to health), and whether lack of access to testing constitutes an infringement of these rights (I have argued that the nature of the coronavirus pandemic is such that it does).

The Parade of Horribles Argument

It is then argued that there is no principled justification for restricting the scope of the Court’s order to free Covid-19 testing alone, and that the logic of the argument essentially requires free and universal access to healthcare. Now, to start with, I do not think that framing universal access to basic healthcare as a constitutional right is necessarily far-fetched: in countries all over the world, State responses to coronavirus have revealed that a lot of what seemed beyond the realm of possibility, practicality, or feasibility, was actually nothing more than a constraint of political ideology (Spain’s experiments with a universal basic income being a classic example). Consequently, while the modalities of effectuating a universal right to free basic healthcare requires the kinds of policy decisions that elected representatives make (a point that I shall come to later in this piece), the fact that free Covid-19 testing belongs to the same family of arguments that view healthcare as a constitutionally guaranteed right is not a disqualification.

However, that said, the argument for free Covid-19 tests does not automatically translate into a constitutional right to an NHS-style healthcare system, even as a necessary logical consequence. This is why, in the initial post, the point was made that what is at stake in this case is the right to health read with the right to equality. I specifically say this because of the nature of the pandemic, which – when combined with the national lock-down – means that the wealth-based barriers to testing affect not just the sufferer, but clusters of low-income neighbourhoods. The issue of testing, therefore, is directly related to structural or systemic discrimination (based on socio-economic class); it is not simply about an individual right to healthcare that is defeated because of financial barriers.

The Path Independence Argument

In his post, Goutham Shivshankar argued that we could accept that there exists a basic right to health, but that at the same time, there are different ways to achieve that (free testing being only one of them). According to this argument, while the right exists, the pathway towards it is a question of policy, which is up to the government to decide.

This tracks a familiar objection against the enforcement of socio-economic rights, and there are two responses to this. The first is that the Court’s order was an interim order, and was made in the presence of government counsel. If the government had an alternative pathway towards enforcement of the right to health, that could have been put forward during the hearing (indeed, socio-economic rights cases are normally dialogic in character, for exactly this reason).

However, there is a more important point here, which is that even in socio-economic rights cases, there is a “minimum core” – or a threshold – that is non-negotiable. For the reasons discussed in my initial post (summarised above) – as well as in Karan’s post – it is my view that in the case of the Covid-19 pandemic, testing is that minimum threshold, without which the right becomes illusory. Shivshankar takes the example of an alternative method – that the government provides testing kits and then allows Rs. 500 to be charged for the tests. I disagree strongly with the argument that because poor people spend Rs. 500 on quacks anyway, they should have no problem spending Rs. 500 on a test; however, that apart, if we slightly tweak the example, this is actually an excellent demonstration of how the Supreme Court’s order does actually allow for path-independence, subject to a threshold: because the government could choose to provide the testing kits and then reimburse private labs Rs. 500 per test – or it could reimburse them the full cost. What the Order says is that there should be no price barrier for accessing testing, as that is the threshold of enforceability; how that is accomplished is left to the government.

The Unintended Consequences Argument

It has then been argued that the Order is effectively unimplementable, and will lead to unintended consequences: for example, the government might stop buying PPE equipment, or testing kits, or dramatically reduce testing to make up for the budget shortfall; to address that, then, the Court will be sucked deeper and deeper into a policy vortex, and end up “supervising the pandemic.”

However, State action to subvert Court judgments is neither new, nor confined to the domain of socio-economic rights; recall classic examples where, following Court judgments to desegregate a swimming pool, city municipalities chose to close the swimming pool altogether rather than allow white and black people to swim together. The objection here is of a similar kind, and the answer is of a similar character: there exist enough tools under existing judicial review mechanisms for a Court to be able to gauge when a change in government policy is directly designed to circumvent its orders – indeed, just the basic requirement of asking the government to justify the change in policy will often reveal that there was no good reason for it other than circumvention (in this case, for example, consider the vast amount of money that has already gone into the PM-CARES fund); limited judicial enforcement to prevent that does not damage the separation of powers.

Conclusion

Readers of this blog will be aware that I am no fan of the Court’s past record when it comes to supervising government policy under cover of an expansive interpretation of Article 21. However, for the reasons advanced above, I am not convinced that an Order designed to mitigate the discriminatory impact of a price-barriers to testing in the context of a nationwide lockdown, which itself was designed to tackle a global pandemic, is an overreach. There are a number of factors about the Covid-19 pandemic, and the State’s responses to it, which – in my view – justify this Order.

It is clear, however, that we have not heard the last of this. The mechanism for reimbursement remains to be worked out, and various applicants have moved the Court asking – inter alia – that free testing be restricted to low-income groups. I will conclude by voicing my skepticism about this intuitively plausible solution: the whole point of a right is that it is universal in character. The point is defeated if you start means-testing in order to identify who deserves or does not deserve to access the right. If, therefore, the prior arguments in this essay are sound, free testing should be universal, and not selective (to the equally universal question of how do we pay for it – the State’s powers of progressive taxation exist for exactly that).

 

Coronavirus and the Constitution – XVI: The Supreme Court’s Free Testing Order – A Response (3) [Guest Post]

[This is a guest post by Dhvani Mehta and Akshat Agarwal.]


The Supreme Court’s interim order on free testing by private labs has led to a lot of controversy while raising several interesting constitutional questions. Gautam Bhatia in his defence of the order argues that the coronavirus pandemic is not only a public health issue but also an issue of equality. Of course, all public health issues are ultimately questions of equality: a public health system should provide equal access to a uniformly high quality of healthcare goods and services. However, as has already been argued, this applies to all healthcare conditions, not merely the current pandemic. A weak public healthcare system always has a disproportionate, and therefore, unequal impact on the poor. Such inequality cries out for a universal healthcare system with access for all. Under such a system, this question of free testing would not have to be debated at all.

However, under an imperfect health system like India’s, with a fuzzy jurisprudence on the components of the right to health, singling out the right to access a diagnostic test for a particular disease (even though it is novel), on the ground of affordability, sets the precedent for piecemeal litigation that aims to make up for the deficiencies of public healthcare one disease at a time.

This is not to say that the public healthcare system cannot be made to account for its failings in court–the right to equality itself has been used effectively to guarantee access to treatment for vulnerable groups like HIV/AIDS patients and persons affected by leprosy. Accountability and transparency are key components of the right to health, and must be used in court to require the State to provide reasoned explanations for the deficiencies of its public healthcare system. However, if the Brazil experience is anything to go by, right to health cases that demand free access to a specific drug or treatment may be used perversely by those with the resources for such litigation, with the effect of skewing health spending priorities away from diseases that disproportionately affect the poor.

In our opinion, the outcome of the Court’s order is the right one. Individuals should not have to bear the costs of the test (We agree with Bhatia that the cost should be borne by the State). This seems especially justified in a scenario where the State is mandating testing, with potential legal liability for failing to get tested (in Delhi and Uttar Pradesh, this could attract a penalty under section 188 of the Indian Penal Code). However, we believe that it is justified primarily on the grounds of public health, rather than the right to health or equality.

In particular, we argue that:

  1. The denial of a free test to an individual does not necessarily violate their right to health, given the nature of the disease, at least for asymptomatic patients
  2. The argument that the right to a free test is grounded in the right to equality is essentially an argument for the right to access to universal healthcare, which must logically be extended to all healthcare goods and services, and not an issue of price discrimination, as has been argued in the petition and by Bhatia
  3. The focus of the petition on the right to free testing is a red herring. It takes attention away from the more significant issue of access to treatment and expanding testing criteria.

Link between the Right to Free Testing and the Right to Health

 The denial of a free test to a person violates their right to health if it prevents them from obtaining the care they need. This is unlikely to be the case for asymptomatic persons, who do not exhibit any signs of the disease. Such persons are by definition not affected. There is no specific guidance for the management of asymptomatic patients apart from general precautions to prevent the spread of the disease that are available in any case through public advisories. Rather than the right to health of such patients, it is the right to health of persons around them that may be violated if they are infected because of a lack of testing.

It would be incongruous, however, to argue that the right to health of one person creates a right in another person to get tested in order to not be a carrier. Instead, this is more simply understood as a restriction on this other person i.e. one individual’s right not to get infected requires another person to obtain a test. This is a restriction that is imposed in the interests of the right to health of millions of individuals, collectively recognised as a public health interest. This interest requires certain individuals to be tested. This requirement cannot be equated with a right to access a free test.

The question is admittedly different for symptomatic persons, where the denial of a free test has direct consequences for their health. However, as we argue next, this is better characterised as the denial of universal healthcare, rather than discrimination on the basis of the price of a specific diagnostic test.

Right to Equality as a Right to Access Universal Healthcare

The argument for testing as an equality issue is framed as, “a price-based Covid-19 test disproportionately impacts not just individual people who cannot afford it, but the people around them as well. In a situation of lockdown, where travel is effectively forbidden, the implication of this is that the danger is disproportionately served upon low-income clusters of people.”

As we understand it, this argument states that the lack of testing available to the poor will cause a greater spread of the disease among them. This, in itself, is a disproportionate impact. However, when this is coupled with their lack of access to quality treatment, the impact is exacerbated. This boils down to an argument about the right to access universal healthcare. Before going there, though, a crucial evidentiary burden must be satisfied.

It must be proved that for people who are eligible to get tested under the ICMR criteria, the State is unable to provide adequate testing. These persons are then forced to approach private labs for testing. This assumes that the public health infrastructure is currently inadequate to provide free testing to everyone who is required to be tested. In present times, however, there is inadequate data to conclude that public healthcare facilities are unable to meet testing demands. It is also difficult to conclude the exact extent of reliance on private labs and whether the lack of access to them due to associated costs is effectively preventing patients who are required to be tested from getting tested for Covid-19.

Beyond general averments, the petition before the Court does not provide any specific evidence to this effect. In any case, assessing such evidence would take the court beyond the scope of its competence. This is because the question of access to a free test is a public health, not rights-based issue.

The right in question is that of the right to access universal healthcare. It is hard to see how the Court could ground the right to a free Covid-19 test under this head, without extending it to other healthcare goods and services.

Free Testing as a Red Herring

In light of the specific WHO guidance, it can be nobody’s case that large scale testing for Covid-19 is not essential. In India public health facilities have been testing free of cost and before the Court’s order, the government has also urged private laboratories to provide tests free of cost if possible. In fact, access to Covid-19 testing has also been made freely available to PM-JAY beneficiaries. Thus, it is well acknowledged that testing is important.

However, merely focusing on free testing is a red-herring since effective management of the Covid crisis requires a combination of strategies. At the level of the individual, it would mean timely access to trained health workers and healthcare facilities with sufficient means to deliver quality treatment. At the level of public health, effective management would mean public health strategies aimed at quarantine and containment accompanied with public communication to retain trust in the State and the healthcare system.

Preventing the spread of the disease will also require expanding the criteria for testing. Granting the right to a free test while limiting the persons who are able to avail of it can only go so far.

We believe that the right to access universal healthcare is an integral component of the right to health. However, the ramifications of this are so massive that it is an issue that deserves weighty legislative consideration rather than fragmented, and potentially unequal, decision-making in court.

Coronavirus and the Constitution – XII: The Supreme Court’s Free Testing Order – A Response (1) [Guest Post]

[This is a Guest Post by Bastian Steuwer & Thulasi K. Raj.]


Gautam Bhatia starts his defense of the Supreme Court’s interim order directing the Government to provide free testing for COVID-19 with an important observation. “The coronavirus pandemic is a question of public health, but it is also a question of equality.” He concludes by saying that “the order was morally, ethically, and constitutionally justified.” We would criticize this defense. Three questions are significant here. (1) What, if anything, is special about Covid-19 as opposed to other threats of livelihood, including poverty (or the equality question), (2) Will the order actually help? (the implementation question) and (3) whether the order violated separation of powers (the encroachment question).

On the first question, we object to the idea that the equality clause of Article 14 mandates free testing. The argument in favor of free testing relies on the fact that high prices for testing, like the price cap of Rs. 4,500 previously introduced, mean that poor citizens will be disproportionately exposed to risks of dying from COVID-19. In the worst-case scenario, people will die because they were too poor to test themselves, or close associates. This is a striking injustice. But is COVID-19 is really special in this regard?

Every day people die in India because they are too poor. People starve because they cannot afford food, people die from preventable diseases because medicines or hospital treatments are too expensive. Let us focus just on health-related inequalities. India’s health care system is highly privatized with private, out-of-pocket, spending making up three quarters of the entire health expenditure. Testing for breast cancer, for example, can cost between Rs. 1,000 and 2,000. Chemotherapy, if needed, can cost up to Rs. 20,00,000. The rich can afford this and may live, the poor die. Now the Government could make cancer testing and treatment free at delivery for everyone. If COVID-19 tests have to be given for free because not doing so leads to increased mortality risks for the poor, why is the Government not also required to make cancer treatment free? The inequality in accessing medical treatment is as much as question of equality as the question of accessing tests for COVID-19.

Now, poverty is a significant economic and political concern. Unfortunately, the court cannot do much about it. It is not institutionally designed to fight poverty or bad healthcare. This is why in spite of the rights inflation through PIL jurisprudence that India has, we could not achieve much through the courts in terms of welfare measures, be it in education, food security, or health. What this tells us is that it is a mistake to read the equality guarantee of Article 14 to require taking over measures to combat the mortality risk to the poor. This is not to say that the question of making tests available is not one of equality. Equality is a political value that by far transcends the boundaries of Article 14. It would be a disservice to the value of equality to limit it to the narrow range that is captured by “equality before the laws.”

The second question concerns the actual utility of the order. Remember that mandating the Government to provide free and universal health care would be too expensive. Governments would have to cut costs elsewhere to make up for the increased health care expenditure. It may need to reduce spending on education or spending on policing. Alternatively, the government would need to increase taxes. The same applies to COVID-19 testing as well. While the Supreme Court order directs tests to be made available for free, it did not specify how many tests should be performed. Private labs could shut their testing facilities instead of working for free. The Supreme Court may mandate the Government to pay for private testing as well. But the testing regime would nevertheless be at the discretion of the Government. If the Government now has increased costs of testing, it may well decide to reduce the overall number of tests by passing more stringent testing requirements. Remember that this will be a direct consequence of the order. The end result would be the opposite of the WHO’s strategy of “test, test, test”. All of India’s population, including the poor would be worse off.

As a result, the Court may decide to mandate a given number of tests. But that would amount to the Court taking over the governance of the pandemic. This gives rise to the third problem – the court breaches separation of powers and encroaches in the realm of health policymaking. There are various approaches towards how to protect a country from a pandemic. Some require more testing, others require less testing. Assume, for example, that India were to test at the same rate as Germany. Germany tests around 50,000 people per day. That would correspond to over 800,000 tests a day in India. This is more than 6 times the number of total tests India has performed during the entire pandemic. At an assumed low cost of only $5 or roughly Rs. 400 per test, this is a daily expenditure of Rs. 32 crore. Furthermore, what tests should be used? Given global demands, tests are difficult to come by and different tests have various rates of detection. How should we trade-off spending more for tests while testing fewer people with less reliable tests that can test a larger number? How should the Government spending be allocated between testing and economic relief packages? These are the important and relevant policy details. It requires knowledge of, at least, epidemiology, economics, and bioethics. Judges have expertise in none of them. Unlike Governments, they are not democratically legitimized to make these difficult trade-offs. Often, judicial encroachment is not the solution to bad governance or less efficient policy making. Judges are experts at the law, not at governance.

Let us conclude by pointing out that the greatest threat to equality is the enormous disparity between rich and poor that is created by our economic system, unjust tax laws, and inadequate welfare state. The COVID-19 crisis makes this injustice even more vivid. But this fight has to be fought politically and not in the courtroom. The Supreme Court cannot solve this crisis.

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.

Coronavirus and the Constitution – IX: Three Curious Bail Orders

On the 3rd of April, a Supreme Court bench of L. Nageswara Rao and Deepak Gupta JJ, passed a brief order directing “interim stay of the directions in paragraph 15 and 16 of the order dated 31.03.2020 in S.B.Criminal Miscellaneous Second Bail Application No.17767 of 2019.” The case arose out of the High Court of Rajasthan – and extraordinarily – involved the High Court (through its Registry) appealing to the Supreme Court against an order passed by its own judge

What warranted this bizarre situation? On 31st March, a single judge of the Rajasthan High Court passed an order effectively holding that bail applications and applications of suspension of sentence could not be heard during the lockdown period, as they did not constitute “extremely urgent matters.” The Single Judge noted that (a) sending notice via police personnel (in cases of bail applications under the SC/ST Act) would increase the risk of Covid-19 spreading; (b) as public transport had been shut down, police personnel could not be expected to use their private vehicles to serve notice; (c) the complainants would find it difficult to engage lawyers if they wanted to oppose bail; (d) bail orders would have to be sent to the courts below, and sureties would have to appear; consequently, according to the Court, “the release of one accused or convict shall risk the life of many and would adversely affect the measures taken by the State for complete lockdown.” Noting further that on a report from the Director-General it was clear that there was no “overcrowding” in prisons and that there were regular medical check-ups, the Court directed that no bail or suspension of sentence matters be listed until the withdrawal of the lockdown.

Now, it is important to note that by directing that no bail or suspension of sentence matters could be listed for hearing before the lockdown ends, what the Single Judge effectively did was to judicially suspend Article 21 of the Constitution for the class of under-trials and convicts within the State of Rajasthan. Note that, after the passage of the 44th Amendment, this is something that not even the government is allowed to do, even if it formally declares an Emergency (which, in this case, it hasn’t). Interestingly, there are some very direct parallels between the Single Judge’s order and the judgment in ADM Jabalpur: in ADM Jabalpur a specific argument had been made that the suspension of the remedy of habeas corpus during the Emergency amounted to the effective erasure of Article 21, since without a remedy, there was no question of the right being in existence. Justice Beg dismissed the argument on the sophistic basis that the right remained in existence, and it was only the ability to enforce it that had been kept in abeyance. ADM Jabalpur stands overruled, but – as we have seen too often in the recent past – its underlying logic has not gone anywhere.

While the Supreme Court – as noted above – (mercifully) stayed this grossly illegal order, on the very same day, a Single Judge of the Bombay High Court passed a similar order, citing similar reasons in order to refuse to entertain a bail application until the end of the lockdown period. Indeed, he went even further, noting that the “mere fact that the accused is undergoing either pre-trial or post-trial detention, does not warrant entertainment of the regular bail application on the occasion of Lockdown declared by the State.” The Court went on to hold that an individual released on bail might infect other people in his or her attempts to get back home, and thereby defeat the purpose of the lockdown and of social distancing.

Both the Rajasthan and the Bombay High Courts, in essence, cited administrative difficulties in enforcing bail orders to justify refusing to hear bail applications altogether, during the lockdown period. As I have indicated above, these orders are wholly illegal, as they amount to a judicial suspension of Article 21 rights. They also reflect a deeply distorted judicial approach to fundamental rights: the Bombay High Court openly declared that the “mere fact” that an individual was in detention (and thereby deprived of liberty) was not a serious enough reason for “urgency”; thus, for all the sermonising that the Higher Courts engage in when it comes to Articles 14, 19, and 21 being the “golden triangle” of the Constitution, when it comes to the crunch, it is bail applications that are the first to be consigned to the scrap heap as collateral damage during the lock-down, on grounds of administrative difficulties (indeed, if transport for “essential services” is permitted during the lockdown, does not the enforcement of constitutional rights count as an “essential service”?) . The Higher Courts have also, over the years, expanded the scope of “life and personal liberty” to include all manner of things; but when it comes to the heart of that constitutional article – actual physical bodily liberty, the stark, literal difference between being in jail and being free – the courts now turn around and tell us, effectively: “no big deal.”

As I had mentioned in a previous post, during the course of South Africa’s 21-day lockdown, Chief Justice Mogoeng issued a Directive specifying that subordinate courts would remain open for urgent matters including “bail applications and appeals or matters relating to violations of liberty, domestic violence, maintenance and matters involving children.” It is interesting to note that in CJ Mogoeng’s Directive, bail applications come first in an inclusive definition of what might constitute an “urgent matter”. I would respectfully suggest that a clarification from the Supreme Court on similar lines would go a long way towards ensuring that issues of personal liberty are not tossed aside during the lock-down period.

Such a clarification would also – it is hoped – prevent orders of the kind issued by the Bombay High Court today, where bail granted by a lower Court was stayed (one wonders, if bail matters themselves are not “extremely urgent”, how an application to stay a bail order is, but be that as it may). The Sessions Court had granted bail to two IL&FS directors on the basis of their advanced age, and the threat of Covid-19. One of the arguments made by the State before the High Court, it appears, was that the State High-Powered Committee had only recommended the release of offenders who were facing sentences of below seven years (which these two directors were not). However, surely the fact that offenders of a certain category should be granted automatic bail does not preclude a Court from applying its own mind and allowing a bail application in other cases! In other words, it appears that the fact that the Supreme Court and the High Powered Committee have recommended the release of a certain category of offenders because of Covid-19, that is now being made the basis of arguments that the Courts should automatically refuse bail to offenders who fall outside that category. This, it hardly needs to be said, is a very dangerous path for the law to take.

Worldwide, the outbreak of Covid-19 has triggered serious thinking and reflection about many of the social practices that we take for granted, including modern society’s obsession with incarceration, and our overflowing prison populations. It would be a pity indeed if the response of our courts was, instead, an even lesser regard for personal liberty, and an even more cavalier attitude towards the intersection of pandemics and mass incarceration.

Coronavirus and the Constitution – VIII: A Critique of the Supreme Court’s Migrants Order [Guest Post]

[This is a guest post by Aakanksha Saxena.]


In light of the continuing difficulties being faced by migrant workers across the country, and the lack of clarity on the status of shelters set up for them, this post is a critique of the Supreme Court’s 31st March Order, which approved of the steps taken so far by the Central Government, and also of the direction contained in the same Order to the media to refer to and publish the official version of the Union Government with respect to Covid-19.

Two Civil Writ Petitions were filed by advocates practising in the Supreme Court, in light of the dire difficulties being faced by the large number of migrant workers / labourers across India, as a result of the nationally imposed lockdown to battle the spread of Covid-19. The lockdown was announced by the Prime Minister on 24th March 2020, and continues to be operational, for a period of 21 days. The petitions, inter alia, detail how thousands of workers, and in several cases, their families, were being compelled to walk large distances to reach their respective homes (the usual means of transport also having been suspended by the lockdown).

When the Petitions were first listed on 30th March 2020, the Union was directed to submit a response. On 31st March 2020 (less than 24 hours later), the Union of India submitted a “Status Report” that has been referred to extensively by the Supreme Court, while giving its directions in the Petitions. While the Status Report has separately been made available, as recorded by the Supreme Court’s order, it purportedly deals with the following issues:

  • Various steps taken to prevent the spread of COVID 19, including early steps by the Union of India;
  • Institutional response to the management of the spread of the virus;
  • The constitution of an expert group to provide guidance under the aegis of NITI Aayog, and comprising “experts from cross sections in the medical field and public health fraternity”;
  • Various other measures of the Union Government in dealing with the needs of the lower strata of society;
  • Schemes formulated to ensure that persons in need are taken care of;
  • Status of shelters set up for migrant workers.

Paragraph 52 of the Status Report, in particular, sets out the “Steps taken by the Central Government”, which covers advisories issued, suspension of transport, the lockdown itself, and the exceptions thereto.

  • In order to provide food and shelter to the migrant workers and other homeless persons, the Central Government permitted State Governments to utilise the Disaster Response Fund on 28th March 2020.
  • Several directions were issued to the States to deal with the scenario of the migrant workers attempting to return to their homes (all the so-called measures appear to be suggestions and / or options for the State Governments to consider and implement in their own way).
  • An advisory followed on 29th March 2020 to ensure that the basic objective of “national social distancing” was not defeated, and therefore no more migration be permitted.
  • Accordingly, state borders were sealed and states were to prohibit movement of people. Transportation of all goods was permitted to continue.
  • Since the movement of workers continued to be noticed across the country, further directions were passed, including to keep migrants in the shelters for a period of 14 days and for payment of wages without deduction (admittedly therefore, despite the steps taken and the directions to the State Governments, the issue concerning the day-to-day living of the migrant workers continued to be precarious).

Further, widespread reports which had emerged prior to the Order (with video and / or photo evidence), covered in detail how police forces were beating people – including migrants – with batons, for breaking quarantine rules, and spraying persons on the road with disinfectant. This even prompted the UN Office of the High Commissioner of Human Rights to call upon the Indian police forces to show restraint and abide by international standards on the use of force and humane treatment in their efforts to respond to this pandemic. Reports abounded of the difficulties faced by workers in reaching their hometowns, including being stopped and questioned to the point of harassment, being made to pay for what were supposed to be free transport services, and often being inhumanly treated.

Two days after the Supreme Court’s order, news continued to be published on the continuing plight and helplessness of migrant workers being turned away by states at their borders and being chased away before finally being provided shelter, as has purportedly been envisaged by the Union Government. The Wire has also reported that the very evening the Supreme Court’s order was delivered, a group of labourers, having walked from Bengaluru to Vapi, were forced into an ill-ventilated truck and taken outside Gujarat into Maharashtra.

On the legal front, the following petitions / applications are also pending before the Court:

  • The SC on 3rd April 2020 issued notice on an allied PIL seeking directions to the Governments to ensure payment of wages to migrant workers during the lockdown period, and directed that the Union file a response prior to 7th April, the next date for the listing of the Petitions.
  • An application seeking conversion of appropriate premises for isolation and quarantine facilities, in view of the fact that the shelters set up by the governments for migrant workers didn’t have adequate sanitation facilities, was disposed of by the Court observing that while several ideas were being formulated, the Court and the Government could not hear all of them. It seems that the Court nonetheless directed that suggestions be forwarded to the SG’s office. The order on the application is awaited.
  • It is also reported that the SC took up today a letter-PIL filed by Member of Parliament Mahua Moitra, in respect of similar issues, the outcome of which hearing was not known at the time of this article.

In light of all the above circumstances and background, I submit that the absolution granted by the Apex Court by according at the very first instance its satisfaction with respect to the purported measures of the Central Government, was at the very minimum, premature and ill-considered. While this blog has considered the responsibilities of legislators, the governments, and public health professionals in the time of the coronavirus, a heavy burden also lies on the SC to provide a dispassionate forum for redressal of urgent matters, involving constitutionally guaranteed rights, that arise in this difficult time. The institution’s role is based on the fundamental tenet that it must serve as a check on State power.

It is understandable that the pandemic, in light of our population, and coupled with the boom of internet access and thus widespread dissemination of information has created a largely unprecedented situation; the situation still did not in any manner warrant either the blanket approval accorded by the Court to the Central Government, nor the sweeping directions based on vague and unsubstantiated assertions. Our Courts thankfully continue to keep their doors open for matters which cannot wait for the end of the lockdown, but that would also mean that the judiciary’s constitutional role to hold the executive and legislature accountable continues despite the unprecedented situation. It is important to note that:

  • This role would in no manner require the SC to interfere with the policy decisions that are being taken by the Central / State Governments and which are captured in the Status Report. The Central and the several State Governments naturally enjoy constitutional autonomy in the field of policy making and implementation to tackle the spread of COVID-19 and containment thereof.
  • However, the constitutional Courts are required to scrutinise and ensure that any such measures, and the reasonable implementation thereof, do not encroach upon fundamental rights. The legal standards under relevant constitutional articles, in this regard, are long-standing and well-settled.
  • In view of the continuing violations of the rights of the migrant workers – for example, the lack of basic food and shelter, the inordinate police action being taken to manage the crowds, the blatant violation of the right to dignity by spraying the workers with disinfectant en masse – the Court is expected to at the very least hold the Central Government (and, where applicable, state governments) continuingly accountable for the lawful implementation of the various measures purportedly being taken as per the Status Report.
  • While responses may be awaited as to whether the Status Report measures have been carried out, the Court could have at the outset recorded the admitted position that steps were still to be taken to guarantee basic amenities to all the stranded persons (paragraph 45 & 50 r/w 52 (XXIII)), an update on the lawful implementation thereof could be furnished on the next date of hearing (7th April 2020), and that the Government has a continuing responsibility to ensure no further rights violations take place.

After briefly setting out the purported contents of the said Status Report, the Order however changes tack and shifts seemingly the entire onus of causing the plight of the migrant workers solely on the dissemination of “fake news”. The Centre in the Status Report sought a specific direction (paragraph 56) “that no electronic / print media / web portal or social media shall print / publish or telecast anything without first ascertaining the true factual mechanism provided by the Central Government” as set out in the Status Report viz. the PIB Bulletin.

The only mentions of the purported issue being faced by the Government to justify the above direction are contained in mere assertions in the Status Report which are reproduced to their relevant extent below:

  1. Paragraph 20 – “deliberate or inadvertent fake news and/or material capable of causing serious panic is in the mind of the population is found to be the single most unmanageable hindrance in the management of the challenge.”
  2. Paragraph 41 – due to some fake and/or misleading news/social media messages, a panic was created.

However, the cause for the exodus of migrant workers actually appears (in large part, admittedly) to be as follows:

  • the Prime Minister announced a national lockdown on 24th March 2020 w.e.f. the next day, following which migrant workers were deprived of work and consequently livelihood for their basic sustenance.
  • The speech did not contain any information as to the availability of essential goods to these workers who had next to zero savings and lived a day-to-day existence.
  • Further, one by one, States began sealing borders, in some cases asking incoming persons to be tested prior to being allowed entry.
  • Several interviews have been given by such workers stating that they were choosing to return to their hometowns because the Prime Minister’s address to the nation was unable to dispel fears pertaining even to the 21-day lock down, let alone the apparent panic of a 3-month lockdown.

The SC however, on the basis of the threadbare statements in the Status Report, and without any substantiation thereof in the oral arguments, went as far as to record and direct as follows:

  • The migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months.” Note, however, that no mention of the same is contained in the Status Report, and the assertion is entirely unsubstantiated.
  • A daily bulletin by the Government of India through all media avenues including social media and forums to clear the doubts of people would be made active within a period of 24 hours”. The daily bulletin can be accessed state-wise here. It is trite to mention that access to that bulletin is perhaps at its most limited when it comes to migrant workers (in respect of whom the Order has been passed), and therefore does nothing to achieve the purported objective of free and fair dissemination of information to the said category of persons.
  • We do not intend to interfere with the free discussion about the pandemic, but direct the media refer to and publish the official version about the developments.” The final direction, while apparently permitting continued independent reporting, amounts to compelled speech, as it directs the media to, at the very least, publish the government-sanctioned version of measures being taken to contain the spread of COVID-19.
  • The Court also mentioned that “… expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated.” This is arguably a disguised form of censorship of media content, as the standard of verification approved by the Court is the daily bulletin being published by the Government.

Thus, not only did the Court completely absolve the Central Government of any responsibility towards the alarming migration of workers to their hometowns, it also went as far as shifting the onus / blame and therefore the consequence completely onto the media. This direction contradicts longstanding precedent on the relevant issues of the right to freedom of speech and expression, as under:

  • The Court has, in the seminal judgment of Bijoe Emmanuel v. State of Kerala recognised the fundamental right to remain silent as part of Article (19)(1)(a). The 31st March Order however, transgresses upon this right by compelling the media to publish and reproduce what is the government’s speech and expression.
  • In Union of India v. Motion Picture Assn., the SC laid down that compelled speech is equally an infringement of the right to free speech, except to the extent permitted under Article 19(2). It was clarified that compelled speech would be within the ambit of the constitutional provisions if it furthers informed decision-making which is the essence of the right to free speech and expression. If, however, such direction compels a person to carry out propaganda or project a partisan or distorted point of view, contrary to his wish, it may amount to a restraint on his freedom of speech and expression. While the Court ultimately upheld the compelled speech in that case, presently, the direction to the media to publish a ‘government-verified’ version of the news amounts to a serious assault on the freedom of expression of the neutral and independent media, and as set out above, fails to achieve the objective of furthering informed decision-making, or even widespread dissemination of information.

A large part of public trust in the judiciary stems from the rule of precedent which requires courts to rely on precedent and settled legal principles to decide cases. In this case, there was no stated case for the Court to depart from precedent and in fact lay down what may amount to a dangerous precedent for the future.

This blog, after analysing the recent decision-making trends of the Apex Court, has observed that in matters where the highest political stakes are pitted against fundamental constitutional issues, the Court is only as strong as the Government is willing to enforce the Court’s directives. In that tussle, recent judgments seem to reveal that the Court often appears to hesitate in ruling against the government on politically sensitive matters, in the aid of continuing to maintain a working relationship with the government. The trend seems to have gone a step further in the Order where, based on unsubstantiated claims in a time of crisis, the Court  has compelled the Fourth Estate to carry government-approved missives about the crisis.

King Menelaus at the Bar of the Indian Judiciary

Mian Abdool Qayoom is the 76-year-old President of the Jammu and Kashmir High Court Bar Association. Since August 5 – the day the constitutional status of Jammu and Kashmir was altered – Qayoom has been undergoing “preventive” detention, under the Jammu and Kashmir Public Safety Act, which authorises detention for upto two years without trial. The ostensible basis of the detention has been that he would “motivate people to agitate against abrogation of Article 370.” Despite ill health (diabetes and a single kidney), Qayoom’s detention was extended last week. And on Friday, the Jammu & Kashmir High Court dismissed a legal challenge to his detention.

Among other things, in its judgment, the High Court took the view that the “subjective satisfaction of the detaining authority to detain a person or not is not open to objective assessment by a court. A court is not a proper forum to scrutinize the merits of administrative decision to detain a person.” This, of course, essentially gives absolute impunity to the State on the issue of detention: if “subjective satisfaction” is the standard, and the Court is not the “proper forum” to challenge detention, then – effectively – the right to personal liberty exists at the absolute discretion and mercy of the government. That, needless to say, makes the right meaningless.

Now what does one say about this? One could say that this line of “reasoning” parrots the executive supremacy logic that was at the basis of the ADM Jabalpur Case – a case that was allegedly buried “ten fathoms deep with no chance of resurrection” by the Supreme Court in 2017, except that ten fathoms is evidently not deep enough for a judiciary that wants to prove itself more loyal than the King (in fact, the High Court judgment quotes a number of cases – both before and after ADM Jabalpur – that foreshadowed and echoed its most notorious lines, including that of preventive detention being a “jurisdiction of suspicion”). After all, when the memo on overruling ADM Jabalpur hasn’t even reached some of the judges of the Supreme Court, how could it be expected to reach the still locked-down Kashmir, where it is anyway too cold for people to exercise their Article 19(1)(d) rights (according to a former Chief Justice of India)? One could say that far from being buried ten fathoms deep, or any fathoms deep, it has by now become abundantly clear that ADM Jabalpur is the dominant logic that that governs judicial action in India today, and that the High Court was at least refreshingly honest in giving that to us straight.

One could say all that, but there probably comes a point at which repetition grows tedious, and is necessary only in order to complete the record, rather than present any new or interesting insight about the workings of the judiciary today. But thankfully, the High Court has also given us something more to think about: it quoted the Greek “thinker” Sophocles, noting that “laws can never be enforced unless fear supports them.”

No quote exists, of course, without context. And a closer look at the context of the Sophocles’ quote that the High Court chose is perhaps more revealing than the actual order. A preliminary point, of course, is that the society that gave us the Melian Dialogue might not be the most reliable contemporary guide to ideas of law, justice, and morality; indeed, one would hope that the concept of law would have progressed somewhat in the 2500 years since the time of the classical Greeks.

More than that, however, is the specific background of the quote. These words – that the High Court paraphrases – are found in Sophocles’ play, Ajax. And Sophocles puts them into the mouth of Menelaus – the (semi-mythical) Greek king other contemporary playwrights denounced for his arrogance and cruelty, and who initiated a destructive and pointless ten-year war because his wife left him for another man. Not, perhaps, the model statesman whom you want expounding on the idea of law. And if the High Court had paid attention to Menelaus’ speech where the quoted words occur, a few lines above it would have found the following words: “‘tis a sign of wickedness, when a subject/ deigns not to obey those placed in power above him.” This is unsurprising: equating law with fear is the hallmark of societies where power flows from hierarchy and is kept by force.

Notably, in both cases, Menelaus s referring to the conduct of (the now dead) Ajax, and is refusing permission for burying his body. Ajax, in turn, had killed himself after going on a killing spree, triggered by his rage at being adjudged only the second-best Greek warrior when it came to massacring soldiers during the just-concluded Trojan War. After a lengthy dispute between Menelaus and another character, Teucer, the body of Ajax is indeed buried.

The literary, dramatic, and artistic merits of Ajax notwithstanding, here – in essence – is what the play is about: it is the aftermath of a destructive and unjustifiable war of aggression, where a soldier from the army of conquest massacres innocent civilians because he feels that he has not been credited enough for his role in the war, then kills himself, leading to higher officials having an argument – not about the massacre – but about whether his body should be given a burial (finally, it is). The higher official is angry – not because innocent civilians have been killed – but because his “subject” has disobeyed someone “placed in power above him.” But is finally persuaded to overlook the indiscretion, and impunity survives untouched. And it is within this context, this society, and this cast of characters, that we find the words the J&K High Court thought fit to apply to preventive detention in a 21st century constitutional democracy: “laws can never be enforced unless fear supports them.”

Perhaps the High Court did, after all, intend to make exactly this point: that we do live in the world of Ajax and Menelaus, and the world of the Melian Dialogue. Perhaps, then, we should applaud – once again – the refreshing honesty, topped off with a dash of literary flourish.

Or, perhaps the High Court would have been better served by remembering that the Greek army camps outside ruined Troy were not the best models for a constitutional democracy, and looked elsewhere in Sophocles’ ouvre; perhaps the legendary play Antigone, where a guard told another King:

“‘Tis sad, truly, that he who judges should misjudge.”

Mian Abdul Qayoom, meanwhile, remains in jail without trial.

Guest Post: The Abortion Petition – Some Key Questions

(This is a guest post by Gauri Pillai.)


This post examines the recent writ petition filed in the Supreme Court of India, challenging the constitutionality of certain provisions of the Medical Termination of Pregnancy Act, 1971 (‘Act’). The Act permits termination up to a period of 20 weeks. It requires the approval of one medical professionals for termination prior to 12 weeks, and two medical professionals for termination between 12 and 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the fetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped (Section 3(2)). If the pregnancy is caused due to rape, or failure of contraceptive device used by a ‘married woman or her husband’, it is presumed that there is grave injury to the mental health of the woman (Explanation, Section 3(2)). Beyond 20 weeks, the Act permits termination only if ‘immediately necessary to save the life’ of the pregnant woman (Section 5).

The Challenge 

The Act, the petition argues, imposes a severe restriction on women’s right to ‘reproductive choice’, that is, ‘the right to choose whether to conceive and carry pregnancy to its full term or to terminate, [which lies] at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health, recognised by Article 21 of the Constitution’. This is because termination, even within the first trimester, is permitted only upon fulfilling certain conditions, set out above; termination on account of fetal abnormality is allowed only up to 20 weeks; and finally, termination beyond 20 weeks is restricted to instances ‘immediately necessary’ to save the ‘life’ of the pregnant woman.

By critiquing these restrictions for being excessive, harsh and disproportionate, the petition mounts a challenge to the Act under Article 21. However, I argue, the petition does not interrogate, and dislodge, the assumptions that lie behind these restrictions. Instead, it takes these assumptions as given and works within them, to argue for more expansive rights.

The Presumption of Motherhood

The Act is premised on two fundamental assumptions.

First, the Act views women primarily as mothers, and pregnancy as natural and inevitable. This is indicated by provisions of the Act which allow abortions only under exceptional, adverse circumstances, suggesting that the default option for women is to continue with their pregnancy. It could be argued that women’s right to an abortion is restricted to exceptional situations in order to balance the interests of the woman against interests of the fetus. If so, the present framing of the Act implies that in exceptional, adverse circumstances, the interests of the woman take precedence over that of the fetus. However, in the absence of such circumstances, the interests of the fetus override that of the woman.

This framing assumes one of two things (or both): (a) in the absence of exceptional circumstances, women are happy to continue their pregnancy; and/or (b) in the absence of exceptional circumstances, women should be expected to continue their pregnancy. In case of (a), it is assumed that there would be no harm to women’s interests because women, under ordinary circumstances, would want to continue their pregnancy (and be mothers). For instance, in the landmark decision of Suchitra Srivastava v Chandigarh Administration, the Supreme Court observed, ‘the termination of pregnancy has never been recognised as a normal recourse for expecting mothers’. Since there is no harm to women’s interests, fetal interests are given priority. In case of (b), it is assumed that the harm to women’s interests from continuation is lesser than the harm to fetal interests from termination. This is premised on the assumption that even if the individual woman does not desire the pregnancy, pregnancy is natural and inevitable, something all women go through. Therefore, in the absence of exceptional circumstances, the harm from continuation of an unwanted pregnancy is minimal. As a result, in these circumstances, the harm to women’s interests from continuation of pregnancy is considered to be lesser than the harm to fetal interests from termination. Thus, the Act starts from a position where women are seen first and foremost as mothers, and pregnancy as natural, inevitable, and desired by all women. This assumption then influences the assessment of harm and balancing of interests carried out by the Act. This is not to say that no other considerations influence the balancing, but to highlight that the current framing of the Act suggests that presumptions regarding women’s role as mothers is one such consideration.

The petition appears to resist this narrative by asking for abortion on demand within the first trimester. However, a close reading of the petition reveals that the reason behind this claim is not the recognition that it is ‘normal’ for women not to be mothers, and opt for termination. Instead, the claim is made because the health risk to women from continuation of pregnancy is more than the health risk accompanying termination during the first trimester. Thus, even in asking for abortion on demand within the first trimester, the petition fails to dislodge the gendered assumption underlying the Act which views women as mothers, and pregnancy as natural and inevitable; instead, it merely works to expand the instances of termination permitted within this narrative.

A Strand in a Gendered Web

Second, the Act views abortion as an ordinary medical procedure, with no larger social import. This is obvious in the very title of the Act, which refers to ‘medical termination of pregnancy’, rather than ‘abortion’; the Statement of Reasons or Objects of the Act which describes abortions as ‘health measures’ to alleviate ‘danger to the life or risk to the physical or mental health of the woman’, and prevent ‘wastage’ of her life; the predominance given by the Act to the opinion of medical professionals, viewing them as co-decisionmakers along with the women; and, the reliance placed by courts on the decisions of Medical Boards—set up to weigh the risk of continuation of pregnancy against the medical risk of termination—in allowing abortions beyond 20 weeks, under Section 5 (see here, here and here). Women’s decisions to undergo an abortion are overridden if the Medical Board opines that the continuation of pregnancy is ‘less hazardous’ than termination at that stage (see here). Thus, the medical risk of termination becomes the primary consideration while making a decision under the Act.

This tendency to prioritise the medical risk of termination over other considerations, including the woman’s choice, is evident in the petition as well. For instance, the petition constructs the right under Article 21 in the following terms: ‘Where the termination of pregnancy itself does not involve risk to the physical life of the woman, her right to choice…[has] to be respected’. Similarly, as mentioned above, the petition argues for abortion on demand within the first trimester only because ‘there is no dispute [that] the risks involved when pregnancy is carried to full term far outweigh the minimal and negligible risks involved when pregnancy is terminated in the first trimester. Keeping this in view, the State cannot make any law restricting the right of the woman seeking abortion’ during the first trimester. In this sense, the petition follows the Act in viewing abortion primarily as a medical procedure, by respecting women’s choice only when medical opinion favours it.

However, this understanding of abortion is reductive, and ignores that at the centre of abortion lies a group of persons—women—who have been historically oppressed on account of their reproductive ability. The fact that women can reproduce is translated into the essentialist, universal assumption that women must. These gendered expectations, however, do not end at the moment of birth. Women are not only expected to bear children but also assume primary responsibility for their care. This largely unilateral responsibility of child-care has confined women to the domestic sphere, and maintained the distinction, and the hierarchy, between the public and private spheres. Motherhood and paid employment are constructed as incompatible. Several empirical studies demonstrate that the presence of young children in the house is associated with lower female workforce participation in India, with women quitting work after childbirth (see here and here). At the same time, childcare—women’s contribution in the home—has a low status in society. Though ‘reproduction entails incredible liabilities and workload, [it] is still considered to be of lesser value compared to men’s engagement in production that yields market value’. In this sense, pregnancy is not an isolated nine-month episode in the life of a woman; it is instead located within gendered structures of power, which require women to bear children and raise them, compelling them to sacrifice other opportunities they value, while, at the same time, devaluing their labour. Articles 14 and 15 provide constitutional grounding to this perspective on pregnancy. However, the role of these provisions is outside the scope of the specific argument being made by this post, and is thus not developed.

Against this context, abortion cannot be viewed as just another medical procedure. Instead, it should be seen as allowing women to take back control over their bodies and lives—control they have been historically denied, and on the basis of which they have been disadvantaged. This recognition is absent within the petition, which argues for permitting women to undergo termination only as long as there is no threat to their life or health. In this manner, the petition places abortion on the same page as other medical procedures, where the opinion of the medical professional is given overriding priority. Through this, women seeking abortions are seen merely as patients seeking medical care, stripping away the gendered social context of reproduction in India.

Thus, the Act is deficient because it is premised on two underlying assumptions: women as mothers, and abortion as an ordinary medical procedure. The petition, in challenging the Act as restrictive and unconstitutional, does not dislodge these assumptions, and shift abortion outside these narratives. Instead, it retains the framing offered by these assumptions, and therefore constructs a limited right to medical termination of pregnancy. This might be an intentional strategy, to ensure that the claim has a greater chance of being accepted by the court. However, it is important to question whether in making this concession and failing to interrogate these assumptions, the petition, even if granted, will result in real and effective reproductive control for women.

The Remedy

The remedies sought by the petition include striking down as unconstitutional Section 3(2)(a) to the extent it makes termination during the first trimester conditional; Section 3(2)(b) to the extent that it imposes a 20 week limit on termination in case of grave mental or physical injury to the woman, or fetal abnormality; and, Section 5 to the extent that termination beyond 20 weeks is permitted only when ‘immediately necessary’ to save the ‘life’ of the pregnant woman. If the approach I propose is adopted, and the fundamental assumptions underlying the Act are challenged, certain remedies—such as abortion on demand within the first trimester—would remain the same. Others could, however, differ. If the balancing exercise does not start with viewing women as mothers, and pregnancy as natural and inevitable, then the balance struck between the woman’s and fetal interests could change. Similarly, if abortion is not viewed as an ordinary medical procedure, a case could be made for why the choice of a woman who wishes to undergo termination even after being informed of the risk to health or life needs to be respected. These would change the very structure of the Act, by questioning the imposition of conditions and time limits. However, even if the specific remedies do not change, by challenging the assumptions underlying the Act, the petition, if accepted, could shift the discourse on abortion, and set us on the path towards meaningful reproductive choice for women.