Coronavirus and the Constitution – XXXIV: The Bombay High Court [Guest Post]

[This is a guest post by Adv. Manoj Harit.]


In the life of a noisy democracy like India, issues fanning large-scale outrage are commonplace. Easy and widespread access to social media accentuates the outrage. Frenetic, sarcastic, or fervent calls to the Hon’ble Supreme Court of India follow as matter of course. As a consequence, public-spirited persons rush to the highest Court, invoking Article 32 of the Constitution.

But while Article 32 grants the right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred by Part III of the Constitution, Article 226 goes a step further, insofar as it empowers the High Courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. [Emphasis mine]

Thus, it is manifest that the power conferred by virtue of Article 226 is to enforce the rule of law and to ensure that the State and other statutory authorities act in accordance with law. The words ‘for any other purpose’ are for a specific reason. It is an attempt by the framers to anticipate unforeseen obstacles, if any, that may hinder or curtail the power of High Courts to do justice, review executive actions / decisions, and safeguard the primacy of Rule of Law.

The raison d’être of Article 226 has been particularly evident during the pandemic, at High Courts across the country. Article 226 and judicious exercise of the power conferred by it upon the High Courts has played a vital role in alleviating the sufferings of the citizens, especially the poor and marginalized. The High Court of Bombay has been an important actor, and has handed down a series of orders that are both legally well-founded, and within the spirit of the Constitution.

During the pandemic and the unending lockdowns, the High Court of Bombay was petitioned to intervene when adivasis were denied food rations, when non-Covid patients were facing neglect and apathy, against onerous conditions that were put upon the migrant workers for return travel to their home States, when there was denial of rations to people who did not hold ration cards, against unlawful and wavering directives of the Municipal Corporation with respect to burials of cadavers of suspected / confirmed Covid-19 infected individuals, against non-implementation of RBI guidelines on interest / repayment moratoriums by the Banks, against Air India not keeping the middle seat vacant and thereby risking lives of flyers, on multiple issues on spread of Covid-19 amongst the various correctional homes (admirably, the CJ Bench did not use the words jails or prisons), against imposition of Orders u/s 144 of CrPC by the police authorities, on welfare measures for pet animals, on Covid-19 testing protocols for frontline health workers, on non-availability of crop loans to the farmers & germination problems in soya bean seeds – to mention a few examples.

More than 150 orders have been passed by the High Court of Bombay, exercising powers under Article 226 of the Constitution during the pandemic. A closer look at the orders reveal the working of a Constitutional Court, compassionate and public spirited advocacy, and importantly, a fair and reasoned response from the Attorney-General, representing the State of Maharashtra. The Ld. Attorney General and Senior Advocates representing the Municipal Corporation of Greater Mumbai did not treat the petitions as ‘adversarial’ litigations, and proffered due deference to the suggestions made by the Petitioners (probably due to the disposition of the Bench). Some examples follow:

Ration and Food Supplies

In PIL-LD-VC-14 of 2020, when apprised of lack of ration and food supplies to tribal & adivasi people residing in Thane, Palghar & Nashik Districts of Maharashtra – where the people in remote areas were denied benefits under the Antyodaya scheme for not possessing ration cards, and, the applications for getting ration cards were not being processed due to lockdown – the High Court issued directions to District Supply Officers of Thane & Palghar Districts (both the Districts have a significant population of the Adivasis & the marginalized) to commence work on processing the ration card applications immediately, and further, directed the State to ensure that lack of ration cards did not deprive the citizens of food rations. The petition was kept pending with further directions to the State to submit, on Affidavit, the progress made, thereby keeping the State on its toes. It is the power of High Court under Article 226 that keeps a leash on the executive. And by keeping the petitions pending, the Executive is compelled to take appropriate actions in order to face the Court on the scheduled date. This acts as a catalyst in resolving the issues faced by the citizens. The files move with seemingly miraculous speed in the bureaucracy when the Court date is dangling like the “Sword of Damocles”.

Migrants

In PIL-CJ-LD-VC-11-2020, an important issue was raised: that “the migrant workers who have submitted applications for leaving the State availing Shramik Special trains and buses during the continuance of the Lockdown, have been left in the dark about the status of their applications and that till such time they can board the trains/buses to leave for their native places, they have been made to live in cramped and unhygienic shelters, without being provided with food and other essentials.”

The Additional Solicitor General representing the Union of India informed the Hon’ble Court that the Apex Court was seized of the matter and had already passed an order dated May 28, 2020 on the issue of migrant laborers. The High Court of Bombay, with due deference to the fact that the issue was actually being dealt by the Apex Court recorded that “at this stage, neither are we empowered nor do we wish to make any order contrary to the spirit of the order of the Supreme Court.” But the power of Article 226 and the spirit of Constitution compelled the High Court to further direct the State Government:

… however, having regard to the peculiar local conditions, we consider it fit and proper to call upon the State to file a report indicating therein how the plight of the migrant workers, who have been assembling at the railway stations/bus stands in Mumbai and places around it, are being addressed. In fact, we have come across photographs in newspapers showing congregation of migrant workers not only on railway platforms but also on the streets adjoining the railway stations. Such congregation, if allowed, would run counter to the object, for which the Lockdown has been imposed. The report shall, inter alia, indicate the whole procedure that a migrant worker is required to follow in order to be eligible for leaving this State, the likely time within which he could board a train/bus, the nature of shelter he is provided with during the waiting period as well as provisions made available to him for his sustenance.

Burials

The issue of the burials of cadaver of Covid-19 infected individuals brought out the pragmatic approach of the High Court. [LD-VC-46 OF 2020] In a multi-pronged and multifaceted litigation, the High Court was called upon to review executive action/s, balance the fundamental right to life of people with radically differing contentions; and, also with the right to dignity in death.

The facts:

The Municipal Commissioner, Mumbai had come out with a Circular dated March 30, 2020 under Regulation 10 of the Maharashtra COVID-19 Regulations 2020, issued under Sections 2, 3 & 4 of the Epidemic Diseases Act, 1897. It mandated cremation of the cadaver, irrespective of religion. For those wanting a burial, an option of taking the cadaver out of the city limits of Mumbai was provided. It created instant furor & outrage. By evening, an amended Circular was issued, permitting burials in Mumbai, provided that the ‘burial grounds are large enough so as not to create possibility of spread of virus in the neighbouring area’. Both the Circulars were challenged by rival petitioners – those opposing burial permission in city burial grounds and those supporting it.

On April 9, 2020 another Circular was issued in continuation of the aforesaid Circulars. Through this Circular, names and mobile numbers of the persons to contact in case of requirement of burial of a cadaver of a Muslim, and also, the list of the burial grounds were provided.

The aforesaid Circular dated April 9, 2020 was also challenged by some Petitioners claiming that the list of kabrasthans appended to the circular dated April 9, 2020 included 3 (three) kabrasthans, which are close to the Petitioners’ residences. It was contended that burial of the cadaver of a COVID-19 infected individual in a kabrasthan in the vicinity of their residences is likely to endanger their lives as well as others residing nearby and accordingly, they prayed that the Respondents (State of Maharashtra and the Corporation) might be restrained from allowing burial of the cadaver of any COVID-19 infected individual in the relevant burial grounds.

Many intervention applications were also filed. The Court allowed those applications and heard the interveners too.

The Issues Before the Court

Did the Municipal Commissioner, MCGM have an authority to issue the amended circular and its legality and propriety?;

Which of the 3 Circulars issued by the Municipal Commissioner, MCGM conformed with the guidelines issued on the subject by WHO and Government of India, and, hence, sustainable?;

Was the right to life of the Petitioners as guaranteed under Article 21 was adversely affected due to the burial of cadavers of COVID-19 infected persons in the burial grounds surrounded by dense population, including the residences of the Petitioners?;

The Court’s Analysis:

On Issue (a) & (b) : As the Petitioners, Interveners and the State were making differing contentions on the issue, the Court ‘analyzed’ the WHO and Government of India Guidelines on the question of management of cadavers of suspected/confirmed COVID-19 infected individuals. After a detailed analysis, the Court concluded (paragraph 24):

Analysing the said recommendations, it becomes clear that even according to the WHO, there is no evidence of persons having developed infection of COVID-19 from exposure to the cadaver of a suspected/confirmed COVID-19 individual. That apart, the recommendations of the WHO are further clear on the point that people who have died because of COVID-19 infection can either be buried or cremated. Such recommendations also throw light on the procedure to be observed at the time of burial of the deceased. Those who handle the cadaver have to adopt precautionary measures. Those are intended to protect them from being infected. A detailed procedure to be observed at the time of burial is also laid down. Observance of such detailed procedure at the time of burial is, in our view, sufficient safeguard from exposing the near and dear ones of the deceased who would choose to assemble at the kabrasthan/cemetry for having a last look at the deceased and to bid him a final good-bye”.

In paragraph 25: the Court asked itself a question:

“If indeed risk from a dead body would endanger the lives of human beings, the risk involved in treating COVID-19 infected patients by the medical and the para-medical staff, who are the frontline workers to combat the virus, would be much greater. Are such staff shying away from treating COVID-19 patients? The answer must be an emphatic ‘no’.

In paragraph 26, the Court made up its mind based upon the material before it:

… the order of the Municipal Commissioner rather than being founded on scientific data or material appears to have been dictated by considerations which are extraneous. The order refers to a community leader and to what was brought by him to the notice of the incumbent Municipal Commissioner. We have no hesitation in our mind that such incumbent, instead of referring to what the community leader had brought to his notice, would have been well advised to proceed for a scientific management of disposal of cadavers of suspected/confirmed COVID-19 infected individuals in accordance with the recommendations of the WHO and the GoI guidelines.

Thereafter, in Paragraph 27 & 28 the Court declared the earlier Circular dated March 30, 2020 directing that burial should not be allowed for containing spread of COVID-19 and that the dead bodies of COVID-19 patients should be cremated at the nearest crematorium irrespective of their religion, to be unsustainable. The Court further held that though the exercise of powers under Regulation 10  of the Maharashtra COVID-19 Regulations 2020 did not appear to be legal, the Municipal Commissioner could have resorted to it, provided such a measure had the sanction of the existing protocols for management of COVID-19, or was such a pivotal measure, otherwise widely acknowledged, which was not included in the GoI guidelines.

In view of the aforesaid, in paragraph 27, the Court observed that “we, thus, hold the action of the Municipal Commissioner in preventing burials to be illegal and unauthorized and hence, the amended circular cannot be operated to the detriment of the members of the community for whom burial of the dead is part of the religion they profess, practice or propagate.” Noticeably, in the very next paragraph, the Court demonstrated that it is alive to the precedence of ‘deference to the executive action in matters of policy’. The Court observed that “the Municipal Commissioner, being a creature of the 1888 Act, is bound by its terms and a decision has since been taken which conforms to such provisions read with the GoI guidelines. It is indeed a matter of policy whether to close down a place for disposal of the dead. Unless any decision shocks the conscience of the judicial review Court, it ought to stay at a distance.”

However, in this case, intervention was justified, because:

The amended circular was drastic in its operation but without any scientific basis for it to rest on and since it did not have statutory sanction, the circular dated April 9, 2020 notifying 20 (twenty) out of several kabrasthans/ cemeteries for burials was a timely move to restore sanity. To err is human but taking lessons from mistakes and rectifying the situation was the call of the moment. Proper management of disposal of dead bodies ought to have been worked out consistent with the recommendations of the WHO and the GoI guidelines as well as the sentiments of the members of the communities for whom burial of a dead member of such community is an integral part of their religious belief and faith. Though such management was initially lacking, but ultimately better sense must have prevailed upon the incumbent Municipal Commissioner who left no stone unturned to remedy the situation.

As regards to the legality of the amended Circular dated April 9, 2020, the Court held it to be in continuation of the earlier Circular, and, not a review thereof. Therefore, it did not suffer from any legal infirmity.

On issue ( c ) : the Court rejected the contention of the Petitioners that their right to life under Article 21 was under threat due to the burial of cadavers of COVID-19 infected persons in the Kabristans in the vicinity of their residences, for being misconceived and misdirected and without a scientific base or foundation.

It is thereafter that the Court invoked preambular promise of fraternity by observing that:

“We have found the petitioners to be rather insensitive to others’ feelings. The founding fathers of the Constitution felt that the people of India would strive to secure to all its citizens FRATERNITY, assuring the dignity of an individual. That is the preambular promise. In Parmanand Katara (Pt) vs. Union of India & Ors., reported in (1995) 3 SCC 248, it has been held that right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death. Right to a decent burial, commensurate with the dignity of the individual, is recognized as a facet of the right to life guaranteed by Article 21 of the Constitution. There is, thus, no reason as to why an individual who dies during this period of crisis because of suspected/confirmed COVID-19 infection would not be entitled to the facilities he/she would have otherwise been entitled to but for the crisis. Should the extant guidelines for disposal of the cadaver of an individual infected by COVID-19 be adhered to and the cadaver properly handled and placed in special covers to contain any kind of spread, we find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites”. [Emphasis mine]

 

It is, even if not framed so, a balancing of the Part III rights of the living, with that of the dead, although, the dead were unidentified, and not before the Court. That for me, is Article 226 in all its importance.

Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic Judicial Review [Guest Post]

[This is a guest post by Aakanksha Saxena.]


This blog has previously dealt with orders of the Gujarat and Karnataka High Court as recent exemplary instances of constitutional courts practising dialogic judicial review during the ongoing COVID-19 pandemic and lockdown crisis. Subsequently, the Bombay High Court was faced with the question of whether, in view of the scarcity of certain components of personal protective equipment (“PPE”) such as surgical masks, N-95 masks, hand sanitisers and gloves, the prices of such components were required to be capped – specifically that of N-95 masks. In the course of proceedings culminating in its 9th June 2020 Order, the High Court continued the welcome trend, by (1) throughout the course of hearings, identifying where the respective governments were lacking in their response to the issues raised, and (2) posing pertinent questions with the aim to elicit a positive approach in respect of the policy expected to be framed, all while refraining from judicial overreach and ensuring executive accountability. The Order and the approach leading up to it are a far cry from the decisions seen at the beginning of the national lockdown, which reflected a degree of judicial deference to the executive that has come under great and justifiable critique.   

 Background and Scope of the PIL

The PIL had been filed seeking a host of directions, including a ceiling on the prices of certain goods declared as “essential commodities”, stemming from concerns of hoarding and rampant black marketing of PPE (“PIL”). On a reading of the PIL petition,  it is clear that the primary reliefs prayed for were against the Maharashtra State Government. During previous hearings of the matter, submissions were in fact made by the Union of India, to the extent that the Centre had already placed a ceiling on the price of certain components of PPE, but as far as the N-95 masks were concerned, the issue of a price ceiling had been raised with the Centre by the State Government, and no response had been received. As a result, the Court by an Order granted the Centre time to take instructions specifically on this question, and file an affidavit containing its reply. Thus, while accepting the policy framed by the Centre in respect of price caps for certain PPE goods, the Court remained attuned to the concerns raised in the PIL qua the N-95 masks, which had not been included by the Centre in its formulation, despite having been declared an essential commodity by the Ministry of Consumer Affairs, Food & Public Distribution, with the very object of prevention of hoarding, black marketing and profiteering.

Final Reliefs

Eventually when the matter came up for hearing, the Petitioners apprised the Court of an order dated 11.2.2020 issued by the Central Government, which included medical devices intended for human use within the meaning of drugs under the Drugs and Cosmetics Act, 1940, which would then mean that goods such as N-95 masks fall within the purview of the Drugs (Price Control) Order, 2013 (“Control Order”). Order 20 of the Control Order places an express duty on the executive to “ensure that no manufacturer increases the maximum retail price of a drug more than 10% of the maximum retail price during preceding 12 months; and where increase is beyond 10% of maximum retail price, it shall reduce the same to the level of 10% of maximum retail price in the next 12 months”. Order 19 of the Control Order vests discretion in the Government to fix thr ceiling price or retail price of any drug for such period, as it may deem fit. 

It was established by the Petitioners that the 11.2.2020 Order and consequently the Control Order were not taken into consideration in decisions of the NPPA dated 15.5.2020 and of the Ministry of Chemicals and Fertilizers dated 21.5.2020. Vide its Order dated 15.5.2020, a direction had been passed by the NPPA directing manufacturers /importers /suppliers of the N-95 Masks to maintain parity in prices for non-government procurements and to make available the same at “reasonable” prices, without taking into account that the Control Order itself indicated what price determination was to be followed. It was opined that a price cap was not needed at the time, since the government was directly procuring the said masks from the major manufacturers. “Reasonable prices” therefore, was evidently a vague term deployed by the NPPA, which would have created unwanted discretion in the hands of the manufacturers /importers /suppliers. Where the decision had already been taken placing N-95 masks in the same category as hand sanitisers, gloves, and surgical masks, the distinction in imposing a price ceiling was arbitrary and unjustified.

The Centre sought to support the NPPA decision by way of its affidavit, and further pointed out that the price of masks had since been further reduced by 47%. Given the circumstances, the admitted position on record of reduction in price might have arguably justified judicial deference to executive policy-making, and given a quietus to the matter.

However, the High Court, on a close reading of the affidavit noticed that notwithstanding the reduction in prices, the Government was itself considering imposing a ceiling on the price of PPE. In this background, the High Court correctly directed that instructions be taken on whether the Central Government would revisit and reconsider the question of imposing a cap on the price of N-95 masks. When an affirmative statement was made in this regard, the High Court appropriately finally directed that the Central Government was required to take a fresh decision, by including consideration of the Control Order and the relevant provisions of the EC Act, and other relevant aspects, within a period of 10 days to 2 weeks.

Summing Up

The progress of the price-capping PIL before the High Court is another clear example of how constitutional courts ought to engage in judicial review by setting up an effective dialogue with the executive. Without passing directions in the nature of policy decisions (which were sought by the PIL), the High Court at every stage raised pertinent questions after analysing the stand and submissions on behalf of the government. 

The ongoing lockdown has considerably and unpredictably impacted the right of access to justice on the one hand, and given rise to several instances of grave infractions of constitutional, civil, and socio-economic rights. The rapidly changing developments have led to excessive delegated legislation by way of orders and notifications issued by the Central and State Governments, and a simultaneous deluge of PILs being filed, highlighting concerns where policy is not forthcoming. The need of the hour has therefore been that courts engage with the executive, to ensure that policy is adequately framed, and where framed that it is lawfully justified.

The High Court, in its decision, not only completely complied with precedent on price fixation laid down in Pallavi Refractories v. Singareni Collieries Co. Ltd., (2005) 2 SCC 227, but also by the formulation of relief in the Order placed accountability on the government to ensure that a timely decision is taken (failing which the problem would likely exacerbate) and communicated to the petitioners. The objective, viz. of ensuring that PPE components remain available and affordable was emphasised so as to be kept in mind by the government while reviewing its policy, without any overreaching directions being passed.

Postscript

In the aftermath of the Bombay High Court’s order, a decision by the central and state governments remains to be taken on the issue of the N95 mask price ceiling, pending which no further hearings have taken place in the PIL. The time directed for this decision to be made having lapsed, it remains to be seen whether the High Court will now hold the Centre to a higher degree of accountability, or, in the event of an absence of policy decision making, decide the question itself.

Coronavirus and the Constitution XXXII: Payment of Wages and Judicial Evasion in a Pandemic

Two days ago, on this blog, we discussed the pending challenge before the Supreme Court to the government’s directions requiring employers to pay wages to their workers during the nationwide lockdown imposed under the Disaster Management Act. At the time, the matter had been reserved for orders; today, the Supreme Court passed an order that can only be described as bizarre: it refused to rule on the legal issues before it, postponed arguments to the end of July (seven weeks from now), directed employers and employees to “negotiate” between themselves, but in the meantime extended its interim orders preventing any coercive action against employers for not complying with the direction to pay wages. In effect, therefore, the Court made the wages direction unenforceable without holding it to be illegal or unconstitutional, at least for the foreseeable future.

What reasons did the Court provide for this failure to decide? It said that the issues raised had to be decided “together”, and could not be given “piecemeal consideration.” (paragraph 29) With respect, this is bogus. A perusal of the orders in the case reveals that the lead petition – Ficus Pax Private Lts. v Union of India was taken up for hearing on 27th April 2020, which – at the time of writing – was forty-seven days ago. On that day, the Court granted the Solicitor-General two weeks time to reply. The matter was then taken up on 15th May 2020, when notice was issued, made returnable in a week. It was taken up for a third time on 26th May 2020, where the Court noted that the Union’s counter had not been filed, and granted it another week, specifically in order for the Union to clarify its stand. A fourth hearing took place on 4th June 2020, where the Court observed that the counter affidavit had been filed, and that the hearing was complete.

How then can the Court turn around on the 12th of June 2020, and say that because the issues cannot be considered “piecemeal”, the Union would be given time to file a more detailed counter-affidavit, with the hearing set for the end of July? Were four hearings not enough for the Court to achieve clarity on the exact scope of the case, for parties to file written submissions, and for arguments to take place – especially given how time-sensitive this litigation is (involving payment of wages to people living – literally – from paycheck to paycheck)? This becomes all the more inexcusable when we remember that if you pare it down to the essentials, all this case involves is a pure question of law: was the direction for the payment of wages, passed under the DMA, legal? This is a legal question that has one of two possible legal answers: “yes” or “no”.

The Court’s order, however – as I noted in the first paragraph – did not merely delay the hearing. It delayed the hearing in a way that effectively skewed the case in favour of the employer. This is because, from April itself, the Court had passed orders directing that no coercive action be taken against employers who were violating the wages direction. In the 12th June order, the Court directed that this interim order remain in place; thus, it immunised the employers for (at least) a further seven weeks from requiring to comply with a direction that still remains presumptively legal and valid. Consider, also, what the direction was: the payment of wages for a total of fifty-four days (until the government withdrew it); the class of people most affected by it are precisely those for whom non-payment of wages is – quite literally – an existential issue; we have already seen, in this context, the large-scale migration (and the suffering that that has unleashed), predominantly caused by the closure of industry and the absence of livelihood options for workers who already exist in an extremely precarious economic situation. So it is unclear what purpose is served by the Court deciding at the end of July the issue of wages that were payable in the month of April, to those particularly dependent upon monthly payment.

This, therefore, is a classic case of judicial evasion: the Court refrained from answering the legal question before it, but its refusal to answer created a status quo where one party benefited at the expense of the other (a decision by refusing to decide). Up until now, this technique was clearly seen in civil rights cases involving individuals against the State; unfortunately, it now seems to have bled into labour law cases pitting employers against employees.

In order to justify its refusal to decide, the Court framed its task as one of balancing the claims of the employers and employees, in a context in which each needed the other. With respect, this is – again – bogus; because that balance was already struck by the government in the wages direction, where it ordered the payment of wages for a temporary and time-bound period (which was not even the full length of the lockdown). Now, in litigation, the limited remit of the Court was to find that the balance had been correctly struck – and uphold it – or to find that it was irrational or arbitrary, and strike it down.* But it was most emphatically not the Court’s task to suspend the operation of the direction – and then compound this by directing the employers and employees to negotiate with each other for the next seven weeks, until the matter could be heard again.

This last part of the order – i.e., requiring employer-employee negotiation – is perhaps the most astounding part of the entire story, because here the Court entirely reversed the balance that the government had chosen to strike in the wages direction. The very fact that the government issued the wages direction in the first place was because, in its view, an open negotiation between employers and employees – “collective laissez faire“, in the words of Kahn-Freund – would not have protected the interests of the latter; the reasons are obvious, and they rest in the vast differences in power between the two parties. When, therefore, the Court stayed coercive action and directed negotiation, it was not achieving any kind of “balance”: rather, it was overturning the government and holding in favour of the employers, without even the courtesy of a reasoned judgment or a finding of illegality.

What explains this? It is my submission that – as pointed out in the previous post – the wages direction was so inextricably bound up with the rest of the lockdown regulations, that it would have been very difficult for the Court to strike it down without the lockdown itself (legally) unraveling; furthermore, the inequity of a situation in which numerous rights violations by the government over the last two months had been nodded and winked at, while the only effective legal measure in support of vulnerable sections had been struck down, would have been too stark to stomach. Thus, we have a via media where, in the finest traditions of judicial evasion, the stronger party wins, but it wins through an indirect maintenance of the status quo rather than a direct judgment that would require the Court to actively hold in favour of the stronger party.

This is, for obvious reasons, unfortunate.


* On this point, it is important to note that even in contexts not involving big industries, the law often imposed a basic notice-and-one-month-wages obligation on employers; for example, Section 39 of the Karnataka Shops and Establishments Act requires that prohibits dismissal of any employee without one month’s notice or payment in lieu of wages; so it is difficult to see how the wages direction went particularly beyond even the existing legal framework in requiring payment of wages for fifty-four days, far from radically altering the balance of power between employer and employee.

Coronavirus and the Constitution – XXXI: The Payment of Wages Order

On March 29th 2020, the Home Secretary – acting in his capacity as the Chairperson of the National Executive Committee under the Disaster Management Act – issued an order requiring, inter alia, that “all the employers, be it in the Industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their work places, on the due date, without any deduction, for the period their establishments are under closure during the lockdown.” The context of the Order is important: this direction was one of five directions passed in light of the fact that, after the announcement of the nationwide lockdown on March 24th, there had been large-scale movement of migrant labourers back to their home-towns. Mandatory payment of wages was one measure to forestall this movement, along with other measures such as suspension of rent for a month, a temporary ban on evictions, and so on.

This order was challenged before the Supreme Court in Ludhiana Hand Tools Association v Union of India. After granting a temporary stay on coercive action against businesses that were not complying with the order, the Court heard arguments, and judgment is expected later this week.

The primary argument of the employers turns upon the contention that the Disaster Management Act does not grant the central government the power to compel the payment of wages to the workers. The order itself invoked section 10(2)(l) of the DMA, and the employers argue that this provision only enables guidelines to government authorities, not private entities. Petitioners also contend that Section 65 of the Disaster Management Act, which allows the National Executive Committee to “requisition resources” in order to ensure a prompt response, and is followed by Section 66, which compels the payment of compensation in case of requisition, is the only provision under the DMA which authorises the government to impose obligations on private parties is Section 65. This (or so the argument goes), on its terms, does not allow a direction for the mandatory payment of wages; and that in any event, even if it does, the terms of Section 66 have not been complied with.

Now, as a legal argument, this contention is very clearly flawed. There are two reasons for this. The first is that the series of guidelines and orders issued on and after the 24th of March 2020 have not been issued under Section 65 of the DMA, but under Sections 10 – in particular, 10(1) and 35 of that Act. Previously on this blog, we have critiqued these sections for being over-broad and enabling executive carte blanche; however, as long as these sections remain on the statute books, the power of the government to act remains within the framework of the DMA (Section 35, in particular, authorises the government to take measures that are “expedient” for the purposes of the Act).

More importantly, however, the point is this: the impugned direction in the order of 29th March cannot be severed from all the other directions that have been passed by the NEC under the framework of the DMA. These directions – that constitute the warp and the weft of the lockdown itself – impose obligations upon private parties. These include, for example:

  1. The order of closure of shops and establishments, which gave rise to this controversy in the first place.
  2. Orders restricting the movement of individuals between state borders.
  3. Orders imposing “night curfews.”
  4. Orders banning public gatherings.
  5. Orders mandating social distancing.

Examples can be multiplied, but the basic point is that if the Court was to hold that the payment of wages direction is unconstitutional because the DMA denies to the government the power to impose obligations upon private, then it would necessarily follow that the lockdown itself – which is nothing more than a web of interlocking obligations imposed upon private parties – is itself unconstitutional, as a whole.

Or, to put it another way: in order to enforce the lockdown, the government imposed a series of obligations and restrictions upon a whole host of private parties and individuals, that have put them to a significant amount of hardship. It would be oddly asymmetrical if those restrictions were upheld, but directions to mitigate their impact upon some of the most vulnerable and marginalised segments of society, were struck down for want of power.

Now it may be argued that the distinction between the orders set out above, and the direction for the payment of wages, is that in the latter case, there is an already existing regime of labour law (set out in the Industrial Disputes Act and other laws) that governs this question. This argument, however, is flawed as well: the DMA has a general non-obstante clause (Section 72) that makes it prevail over inconsistent statutory provisions in other laws; however, the Industrial Disputes Act has a specific exception to its non-obstante clause for provisions that are more beneficial to workmen than what they may get under the ID Act; the impugned direction, it should be clear, falls squarely within the scope of the objection, thus obviating any need for adjudicating between seemingly conflicting laws.

Consequently, the challenge to the competence of the NEC in issuing the directions for the payment of wages cannot succeed. What of the substance of the direction itself? It may be argued that it violates Article 19(1)(g) (freedom of trade and commerce) by compelling employers to pay wages even when their shops themselves have been closed down. In this context, it is important to note the following: the source of the dispute is State action; in particular, the Order of 24th March 2020, mandating the closure of all shops and establishments for the duration of the lockdown. Now, imagine a situation in which the impugned Direction had not been passed. The result of this would be that workers would – effectively – be deprived of their right to livelihood (under Article 21), as a direct consequence of State action.

It is therefore clear that Article 19(1)(g) is not the only right at issue in the present case, but that Article 21 is involved as well. It is further crucial to note that Article 14 is also implicated: the ability and means to work from home is directly related to socio-economic class, and therefore the Guidelines of closure of 24th March disproportionately impacted workers who are already the most vulnerable and marginalised in society.

Now, in its recent judgment on the Right to Information Act, the Supreme Court noted that in case there was a clash of two fundamental rights, the doctrine of proportionality would apply. Proportionality – in such cases – requires a balancing exercise that ensures that neither of the two rights is effaced. It is clear that no Direction at all would deprive the workers entirely of their right to livelihood during the period of the lockdown, and thus effectively efface Article 21 during that time. On the other hand, it is not evident that a temporary order for the payment of wages would efface the right under Article 19(1)(g) (i.e., force permanent closure of business). To the extent that it does impose a burden upon employers – that also flows from State action – there is no doubt that the State ought to pay compensation. For that, however, there should lie a direct claim against the State for its failure to protect rights under Article 19(1)(g) after its own action has led to their deprivation. However, the remedy for that cannot be to throw the other party to the equation – the more vulnerable and marginalised party – to the wolves, by striking down the payment of wages order itself.

It is therefore my submission that under the existing legal framework, the Direction for payment of wages is legal; at the same time, however, there should be an enforceable fundamental rights claim made against the State for its failure to adequately compensate employers as a result of the lockdown that it imposed following the Order and Guidelines of 24th March 2020.

Coronavirus and the Constitution – XXX: PM-CARES Fund and the Right to Information Act [Guest Post]

[This is a guest post by Shloka Shah.]


On March 28, a public charitable trust in the name of the Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (“PM CARES”) was announced to combat the effects of the COVID-19 pandemic. On May 29, in response to an application filed under Section 6 of the Right to Information Act, 2005 (“RTI/Act”), the PM’s Office refused to divulge information about the Fund, stating that it did not fall under the ambit of ‘public authority’ under Section 2(h) of the Act. Through the Supreme Court’s (“SC”) analysis of the relevant provisions of the Act, I intend to counter this response, and analyze the exemptions available to a public authority from disclosing information.

Meaning of ‘Public Authority’

Access to information under the control of public authorities is a fundamental right guaranteed under Article 19(1)(a) of the Constitution. It is therefore imperative to understand its scope. Under the RTI Act, Section 2 states:

(h) “Public authority” means any authority or body or institution of self-government established or constituted—

a. by or under the Constitution;

b. by any other law made by Parliament;

c. by any other law made by State Legislature;

d. by notification issued or order made by the appropriate Government,

and includes any—

(i) body owned, controlled or substantially financed;

(ii) non-Government organisation substantially financed,

directly or indirectly by funds provided by the appropriate Government.

PM CARES is not a product of the first three clauses. Given that the legal origin of the Fund is shrouded in secrecy, as the trust deed has not been made public, application of the fourth clause is debatable. This line of reasoning has been argued before Court in the past on Prime Minister’s National Relief Fund (“PMNRF”) (more on this ahead).

What brings PM CARES under the ambit of this section is sub-clause (i). In D.A.V. College Trust & Management Society v. Director of Public Instructions the SC bench comprising of JJ. Deepak Gupta and Aniruddha Bose were faced with applicability of the RTI Act to a body not constituted under an act or notification made by the Government. Holding the section to be “inartistically worded”, the Court noted “a big gap” between the four clauses (a) to (d) (“first part”) and following two sub-clauses (i) and (ii) (“second part”). Applying the principle of purposive construction, the Court interpreted as follows, in paragraph 17:

We have no doubt in our mind that the bodies and NGOs mentioned in sub-clauses (i) and (ii) in the second part of the definition are in addition to the four categories mentioned in clauses (a) to (d). Clauses (a) to (d) cover only those bodies, etc., which have been established or constituted in the four manners prescribed therein. By adding an inclusive clause in the definition, Parliament intended to add two more categories, the first being in sub-clause (i), which relates to bodies which are owned, controlled or substantially financed by the appropriate Government. These can be bodies which may not have been constituted by or under the Constitution, by an Act of Parliament or State Legislature or by a notification. Any body which is owned, controlled or substantially financed by the Government, would be a public authority.

The scope of a ‘body owned or controlled’ by the Government was discussed by the SC bench comprising of JJ. K.S.P. Radhakrishnan and A.K. Sikri in Thalappam Service Co-op Bank Ltd. v State of Kerala:

A body owned by the appropriate Government clearly falls under Section 2(h)(d)(i) of the Act. A body owned, means to have a good legal title to it having the ultimate control over the affairs of that body, ownership takes in its fold control, finance, etc. (paragraph 35)

Elucidating further, the Court determined how to test such ownership or control:

We are of the opinion that when we test the meaning of expression “controlled” which figures in between the words “body owned” and “substantially financed”, the control by the appropriate Government must be a control of a substantial nature. The mere “supervision” or “regulation” as such by a statute or otherwise of a body would not make that body a “public authority” within the meaning of Section 2(h)(d)(i) of the RTI Act. In other words just like a body owned or body substantially financed by the appropriate Government, the control of the body by the appropriate Government would also be substantial and not merely supervisory or regulatory.

We are, therefore, of the view that the word “controlled” used in Section 2(h)(d)(i) of the Act has to be understood in the context in which it has been used vis-à-vis a body owned or substantially financed by the appropriate Government, that is, the control of the body is of such a degree which amounts to substantial control over the management and affairs of the body. (paragraph 44, 45)

That the PM CARES Fund is substantially controlled by the Government is evident from its management. The Board of trustees comprises of the Prime Minister as the ex-officio Chairman, and the Ministers of Defence, Home Affairs and Finance as ex-officio trustees. The trustees alone determine how the funds accumulated will be disbursed, as was made evident by the announcement of utilizing INR 3,100 crores on May 13.

It is even recognized as a ‘fund set up by the Central Government for socio-economic development and relief’ by the Ministry of Corporate Affairs (“MCA”) in a statement accepting contributions to the Fund as CSR under Section 135 of the Companies Act, 2013. Interestingly, the MCA categorizes such contributions under the ambiguous entry (viii) of Schedule VII, which relates to ‘social projects’, and not entry (ix), which relates to ‘contribution to the PMNRF or any other fund set up by the Central Government or the State Governments for socio-economic development and relief’, in spite of using those very words. One can only interpret this as a pre-emptive measure to bring the Fund outside the purview of Section 2(h), should it ever be (successfully) challenged in Court.

Since its genesis, the PM CARES Fund has attracted widespread comparisons with the PMNRF. They are analogous in their manner of creation (PMNRF was established subsequent to an appeal made by Pandit Jawaharlal Nehru to combat the effects of Partition), constituent members (PMNRF is also managed by the PMO), and recognized as public trusts liable for 100% tax exemption under Section 80G of the Income Tax Act, 1961. They are also not audited by the Comptroller and Auditor General of India (“CAG”).

In light of this, it becomes relevant to examine the Delhi High Court’s judgment in Prime Minister’s National Relief Fund v Aseem Takyar. The question of whether PMNRF could be interpreted as a public authority under Section 2(h) of the Act was placed before JJ Ravindra Bhat and Sunil Gaur, with the bench rendering a split decision. The matter is presently referred to a third judge.

Justice Bhat, recognizing that Government Servants holding positions in their ex-officio capacity, ipso facto does not amount to the Government exercising control, nonetheless differentiated this principle from PMNRF as follows:

[…] However, PMNRF is not managed by mere officers or government employees. It is PMNRF is headed by Constitutional Authority, i.e. the Prime Minister of India and administered by the Joint Secretary to the Prime Minister-as Secretary of the fund. In addition, who is assisted by the officer of the rank of a director. Furthermore, all disbursements from PMNRF are made solely on the discretion of the Prime Minister. He or she is a public authority and decisions taken by him or her with respect to operation of PMNRF cannot be said to be made in a personal capacity. The decisions of the Prime Minister in this regard must be taken to be official decisions. To say that the use of funds is a personal decision, is a half truth. No doubt, the decision of where to use the funds or make disbursements, is subjective and discretion dependent. However, the use of those funds are not for a personal purpose; rather it is always for some public purpose.

Additionally, recognizing that the three conditions laid down in Section 2(h)(d)(i) are distinct from each other, Justice Bhat brought PMNRF under the ambit of ‘public authority’. Therefore, the summary dismissal of the RTI application by the PMO’s Central Public Information Officer (“CPIO”) was not good in law.

Available Exemptions

The right to information is not absolute. It is fettered in part by Section 8 of the Act, which lays down ten exemptions from disclosure of information. The ones relevant here are Sections 8(1)(e), which protects information emanating from a public authority’s fiduciary relationship with another, and Section 8(1)(j), protecting personal information, the disclosure of which is irrelevant for public interest. Neither of these are applicable to PM CARES Fund.

In Central Board of Secondary Education v Aditya Bandopadhyay, the question for consideration was whether an examinee could review his corrected answer booklet from CBSE, which had rejected such request citing breach of ‘fiduciary relationship’ under Section 8(1)(e) of the Act. The bench comprising of JJ. R.V. Raveendran and A.K. Patnaik discussed as follows:

The term “fiduciary” refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term “fiduciary relationship” is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary).

While the Court ultimately held that no fiduciary relationship existed between the two, even if one were to assume its existence, the scope of Section 8(1)(e) only extended to prevent information from being disseminated to a third party:

There is no question of the fiduciary withholding information relating to the beneficiary, from the beneficiary himself. (para 44)

 

As a public charitable trust, the beneficiary of the PM CARES Fund is the public at large. Therefore, while the Fund may reserve furnishing information about specific third parties, general questions such as corpus of funds accumulated should not be rejected.

The test to determine the existence of a fiduciary relationship was discussed in Reserve Bank of India v Jayantilal Mistry. The SC bench comprising of JJ. Eqbal and Nagappan laid down a four-pronged test, consisting of (1) No conflict rule; (2) No profit rule; (3) Undivided loyalty rule; and (iv) Duty of confidentiality, the existence of all conditions being necessary pre-requisites. Noting that PIOs often misused Section 8 to defeat the purpose of the Act, the Court held:

[…]Since the RTI Act is enacted to empower the common people, the test to determine limits of Section 8 of the RTI Act is whether giving information to the general public would be detrimental to the economic interests of the country? To what extent the public should be allowed to get information? (para 65)

In relation to PM CARES, this question is best answered by Justice Ravindra Bhat in PMNRF (supra) itself:

In the present matter, the Fund does not offer any service to the donors or the beneficiaries. Furthermore, the relationship between PMNRF and the donors/beneficiaries does not take colour of a ‘fiduciary relationship’ as described above. The donors do not repose trust in PMNRF in conducting their business and the same holds true for the beneficiaries. On the contrary, the act of donation is an act of charity which is not sufficient to establish a fiduciary relationship. Therefore, the question of there existing a fiduciary relationship does not arise. Consequently, the defence of exemption sought by the Appellant under Section 8(1)(e) of the RTI Act is not sustainable.

As for Section 8(1)(j), a constitution bench of the SC comprising of JJ Gogoi, Ramana, Chandrachud, Gupta and Kaul in Supreme Court of India v Subhash Chandra Agarwal stressed on the need to strike a balance between right to information under Article 19(1)(a) and right to privacy under Article 21, with right to ‘informational privacy’ being recognized in K.S. Puttaswamy & Anr. v Union of India. Any invasion of an individual’s personal information, which does not warrant public interest (i.e., something to know in interest of public welfare, not merely something which is of interest to the public) can thus be protected. But even this is conditional – if on weighing the risks, the CPIO if of the opinion that dissemination of such information is vital, then he may proceed to make such information available. Thus ‘public interest’ is supreme.

It is important to note that in both reported RTI applications rejected by the PMO, no such information was sought. Additionally, the CPIO always has the option to ‘sever’ personal information under Section 10 of the Act. Public interest is clearly at stake, just as it was for PMNRF, as noted by Justice Bhat in his judgment (supra):

A disclosure of such information will ensure that the voluntary donations made by the citizen body is not appropriated by any government official. In this regard, the disclosure of the information sought by the petitioner indeed serves a public purpose. (para 35)

Conclusion

While the PMO’S CPIO continues to deflect important questions on the PM CARES Fund, and the SC continues to dismiss PILs questioning the legality of the Fund as frivolous and ‘having political colour’, giving petitioners the option to either withdraw or pay fines, some progress in the search for clarity comes from the Nagpur Bench of the Bombay High Court. On June 2, a division bench of JJ. S.B. Shukre and A.S. Kilor issued notice to the Fund’s trustees to file an affidavit stating their stand within two weeks, despite the Additional Solicitor General Anil Singh’s contentions that a similar petition was earlier dismissed by SC. The High Court differentiated based on reliefs sought, which included a periodical update on the quantum of funds accumulated, appointment of remaining trustees from opposing political parties and brining the Fund under the review of the CAG. With some glimmer of hope, it remains to be seen how the matter will unfold.

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

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

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

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

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

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

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

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

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

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

This brought the Court to the question of train fares. Importantly, the Court framed this as a question of constitutional rights. It noted that the reason why migrant workers needed to travel back home – and, correspondingly, their desperate situation – was a loss of livelihood (paragraph 10). This loss of livelihood – as we have discussed above – was itself caused by the decision of the central and state governments to impose a nationwide lockdown to deal with the Covid-19 pandemic. Thus, with the link between State action and deprivation of constitutional rights clear, the Court noted that “prima facieit appears that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own State only for the reason that he has no capacity to pay for his transport.” The Court did not, however, pass an immediate order on the issue; rather, it asked the state government to take an “immediate decision” on the question of paying the railways fares of those migrants who were unable to pay, and to work out a schedule for the same. Importantly, it asked the government to place its response on these issues before it, within a week from the order.

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

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


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

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

 

Coronavirus and the Constitution – XXVI: Migrant Workers, Freedom of Movement, and Positive Obligations [Guest Post]

[This is a guest post by Aditya Phalnikar.]


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

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

Proving a Positive Obligation

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

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

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

 

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

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

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

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

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

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

Conclusion

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

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

Coronavirus and the Constitution – XXIV: Aarogya Setu and the Right to be Forgotten [Guest Post]

[This is a guest post by Karthik Rai.]


Introduction

While the Puttaswamy case recognized privacy as intrinsically embedded in Art. 21 of the Constitution of India, it was simultaneously conceded that health concerns would trump privacy considerations, if there were through necessary and proportionate intrusions into individuals’ privacy [paragraph 180]. In light of the Covid-19 pandemic currently gripping the world, one such purported governmental intrusion into the citizens’ privacy was the introduction of the ‘Aarogya Setu’ app (‘the App’) to track users’ movements and ascertain if they are at the risk of contracting the virus.

Let me briefly describe the App. The App obtains details regarding the users’ name, sex and medical antecedents, to mention a few, and its usage is propelled by mobiles’ Bluetooth and GPS services. These details, under certain circumstances, get uploaded onto the server which is then accessed by the government to respond appropriately. There had been various concerns with the privacy policy (‘Policy’) of the App which compelled the government to release an updated Policy with various changes. However, criticisms have still persisted – on its static Digital Identity Number (‘DiD’), its requirement of GPS being excessive and not in line with global standards, and its lack of transparency – all of them seemingly infringing privacy disproportionately.

However, through this piece, I provide a hitherto-unexplored perspective to the App’s Policy. First, I will be proving that the Policy contains a substantial phrasal fallacy, intentional or not; next, I will show this affects the RTBF and its related concomitants, undermining user privacy. Finally, I shall conclude with suggestions on how to alleviate the problem.

The Phrasal Fallacy and its Consequences

Clause 1(d) of the Policy (it can be accessed here) states that the App collects locational information in fifteen-minute intervals – basically, the App stores data about the places users visited. It also states when said data will be uploaded to the server. Clause 3(b) addresses data retention apropos information collected under Clause 1(d), and posits three different time periods for data retention, based on the category the data falls in:

Category 1: If the data is not uploaded to the server, not having satisfied the conditions mentioned under Clause 1(d), it gets ‘purged’ within 30 days from the App.

Category 2: If the data is uploaded to the server, two further situations arise:

If the person tests negative for Covid-19, the data will be purged from the Server within 45 days of upload.

If the person tests positive, the data will be purged from the Server within 60 days of being cured.

While Category 1 entails data deletion from the App, Category 2 concerns deletion from the Server. So, if a person’s data under Clause 1(d) has been uploaded to the Server, there is no provision providing for the deletion of the same information from the App, implying it could remain on the App, indefinitely.

Clause 1(d) stipulates three situations under which the data gets uploaded to the Server: when the person tests positive for Covid-19, when ‘self-declared’ symptoms indicate a probability of being infected, and/or when the self-assessment test returns a ‘yellow’ or ‘orange’ result.

The assessment is conducted by algorithms whose criteria are unclear. Therefore, reports have stated that misidentifications are highly possible. A similar mechanism is present in China, and such predictive data-assessment has been inaccurate. Therefore, even mere suspicion could lead to a ‘yellow’ outcome, mandating a data transfer to the server. This would then mean that the user falls within Category 2, and his/her data would be deleted from the server but would linger in the App indefinitely, without violating the Policy.

Clause 2(e) states that the data collected under Clause 1(d), will not be used for purposes other than those mentioned in Clause 2. However, under Clause 2, the use mandated for Clause 1(d) data is only for the replicated data uploaded onto the Server. So, no use has been prescribed for the original data the App collects, which means Clause 2(e) does not exactly apply to it. Thus, it could be used for anything as long as it is not uploaded to the Server. Additionally, the data present on the App is not even encrypted into DiDs.

Clause 1(a) data, which contains personal attributes like name, gender, etc., remain as long as the account remains. Clause 1(a) data is first ‘collected’ in the App and subsequently ‘stored’ on the server. Thus, both Clause 1(a) and 1(d) data, in many users’ cases, can remain indefinitely on the App (and thus the mobile), and an accurate map of the places the user has visited can be charted, easily combinable with his/her personal attributes.

The government recently issued a slew of directions in order to increase usage of the App, including making the installation of the App mandatory for all employees in both the private and the public sector. Astonishingly, the Noida police has stated that not having the App on your smartphone would constitute a crime, possibly attracting imprisonment. In light of these developments, it becomes all the more important to understand how the problematic Policy could proliferate privacy violations, contravening fundamental principles of data protection.

Purpose Limitation and the Violation of RTBF

Purpose Limitation (‘PL’), an essential prerequisite for data protection, states that the collection of data must be for a specific purpose. The ‘data principal’ – used to refer to persons whose data is processed – must know the reason for which they provide data voluntarily. Therefore, the limit of data usage by the government must be constrained by the informed consent of the user.

The Supreme Court has held in the Aadhaar judgement that purpose limitation is integral for executive projects involving data collection – unless prior permission is provided, third parties cannot be provided access to personal data [paragraph 166]. This principle is embodied in S.5 of the yet-to-be-implemented Personal Data Protection Bill, 2019 (‘the Bill’). PL, as stated earlier on this blog, enhances transparency in data processing, and helps examine the proportionality of the mechanism used to collect data for a specific purpose. Moreover, as Siddharth Deb writes, it prevents the emergence of permanent data ‘architectures’ based on interlinking databases without consent. Stemming from this is an implicit expectation of RTBF. In order to understand and appreciate the relevance of RTBF, it becomes pertinent to establish the jurisprudence pertaining to the same in India.

The Right to be Forgotten: A Brief History

RTBF grabbed headlines after the popular Google Spain case, where a case was filed by a Spanish citizen against Google requesting the erasure of links that concerned forced sale of certain properties he owned due to debts, indicating financial hardships. The Court of Justice of the European Union ruled in the citizen’s favour by acknowledging that his right to be forgotten, and therefore his privacy, were being violated. Since the information had become “irrelevant” and “inadequate”, he had a legitimate claim to get such data removed under the EU Directive 95/46; thus he could be ‘forgotten’ from the internet [paragraphs 93-94].

However, the trajectory of the evolution of RTBF in India was slightly different, due to the absence of the right being grounded in statute. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, which was India’s first legal framework recognizing the need to protect the privacy of personal data, had no mention of RTBF. Therefore, contrasting judgements on RTBF emerged.

To exemplify, the Gujarat High Court in Dharamraj Bhanushankar Dave v. State of Gujarat held that there was no law under which the petitioner could claim that he had a right to ensure the removal, from the internet, of a court judgement he was a party to; therefore, his arguments were insufficient to establish a successful case of violation of Art. 21 of the Constitution. However, a judgement reported four days later, {Name Redacted} vs The Registrar General, recognized RTBF explicitly, though in a limited sense. The petitioner’s request to remove his daughter’s name from a judgement involving claims of marriage and forgery was upheld by the Karnataka High Court. It held that recognizing RTBF would parallel initiatives by ‘western countries’ which uphold this right when ‘sensitive’ cases concerning the ‘modesty’ or ‘reputation’ of people, especially women, were involved [paragraph 5].

However, it was only in the Puttaswamy judgement that RTBF was unequivocally recognized by Justice Kaul as residing in Art.21, which guaranteed privacy. He noted that the recognition of RTBF would imply that, if an individual desired to remove his/her personal data from the virtual space, it ought to be respected, if said personal information served no ‘legitimate interest’, was ‘incorrect’, or was not ‘necessary’ or ‘relevant’ [paragraph 69]. However, he did concede that RTBF was subject to reasonable restrictions based on countervailing rights like free speech [paragraph 69]. Similarly, in Zulfiqar Ahman Khan vs M/S Quintillion Business Media, the Delhi High Court recognized RTBF as ‘inherent’ in the right to privacy [paragraph 9], thereby ordering the removal of internet articles that would sully the plaintiff’s reputation ‘forever’ [paragraphs 7 and 8].

Applying RTBF to the App’s Policy

In light of the judicial interpretation of RTBF in India, especially post Puttuswamy, it is clear that, once the purpose of the data submitted is completed, data principles have a right to be erased without unwarranted intrusions into their privacy. This is embodied in S.20(1)(a) of the Bill. RTBF is founded on the dignity of an individual, which could be tarnished if the information is not erased.

In the instant case, personal data is uploaded by users to the App for a limited, specific purpose – to ascertain their health’s status. Once the purpose of this data is completed, an automatic deletion of the data collected must have been effected, as Prof. Schönberger suggests. Moreover, the data collected by the App constitutes ‘digital footprint’, as the data upload is by the principals themselves, and not by other parties. Thus, after the purpose is complete, neither public interest nor any violation of free speech will occur by deleting such information from the App. Thus, RTBF in this case should have been absolute.

However, if a user is denied this right by not deleting his/her personal information from the App, issues of identification of such persons arise. There have been instances of inter-app communication, wherein one app permeates another to extract information from the latter. This app then sends this data to an external server, which could be of another country as well. Then, the data could be used for any purpose. This could lead to microtargeting, finding out what medicines you use, etc., all of which violate privacy.

Besides, identification based on such data could precipitate widespread social media abuse. In South Korea, where similar surveillance methods were used recently, detailed timelines of people’s locations were uploaded on social media, with information like the place of residence giving reasonable indications of who the person was. A man was accused of infidelity after one of his locations on the app in Korea was near a brothel. Such online harassment impacts people’s psyche, and has also led to suicide.

The Right to Informational Self-Determination (‘RISD’)

RTBF is grounded in the fact that a citizen has control over his/her digital footprint, and thus no competing claim can use the information for anything else. Only the user has complete control over their data. The data principal must be equipped with the ability to retain personal control over personal information. In Puttaswamy, the judges emphasised the criticality of informed consent and informational autonomy, in line with European data privacy practices [paragraph 177], and any use of data contravening such consent would be ‘unauthorized’. Consent, therefore, is not a one-time permission, but must be obtained each time a new, specific use of the information is needed.

In the App, if the user tests ‘yellow’ or is Covid-positive, the information is uploaded to the Server from the App, voluntarily. However, 45 or 60 days after such information transfer, as the case may be, the purpose of sharing information is complete. The data principle had ascertained that only the government could control such information, and, that too, for a specific period, which has lapsed. Thus, RTBF automatically operates, and, respecting the users’ RISD, consent for further use of data should immediately terminate. However, since the App does not purge this information, users’ locational data could be illegitimately used for any purpose, by anyone. This violates their RISD.

Conclusion

The Supreme Court in Puttaswamy stated how the transgression of the right to privacy is subject to reasonable restrictions [paragraph 26, Sapre J.]. Therefore, the infringement must be backed by law, must be proportionate to the specific objective sought to be achieved, and must be the least intrusive measure.

There is no clarity on the legal underpinning behind the App; it can be surmised that it has been envisioned under either the vaguely-provisioned Epidemic Diseases Act, or the National Disaster Management Act, both of which provided extensive executive discretion. However, a chassis of clear regulations has not been designed to collect and reveal information about travel history, sex, etc. Thus, there is no specific law backing such executive action.

This is aggravated by the fact that the Bill has not been passed yet; thus, statutory grounds to regulate data collection and processing are still unavailable. Coupled with the fact that judges are deferential towards executive actions during such testing times, a challenge to the App based on Art.21 may not be sustained. Mere assurances by the government about protecting privacy will not suffice, as evidenced by Singapore, where, despite the government’s guarantees, user data was published in great detail, online.

It is not difficult, thus, to surmise that data protection is a desideratum for constitutional inspection. The Bill must soon be implemented and the App’s privacy policy recalibrated to pass the scrutiny of the Bill’s provisions, including RTBF, and purpose limitation. This would ensure a legitimate legal backing. Additionally, ensuring open access to the App’s source code is all-important. This would facilitate greater transparency and attenuate privacy flaws, thereby rendering the privacy intrusion by the App the least intrusive alternative.

Countries like China South Korea, which have managed to reduce Covid-19 cases through measures mirroring the App, have substantially infringed their citizens’ privacy, with the citizens condoning the same as a necessary trade-off to achieve greater efficiency of the measures. However, this institutionalizes the ‘culture of tolerance’ of repeated and excessive privacy violations, giving the government greater confidence to effect more blatant privacy violations in the future. Thus, in light of the abnormal times we are countenancing, the govt has to implement the Bill, recalibrate the Policy, and take other necessary measures to achieve an optimal trade-off between efficiency and privacy.

Coronavirus and the Constitution – XVIII: Models of Accountability

With the nationwide lock-down extended until May 3, with another set of directions issued under the National Disaster Management Act, and a number – and range – of petitions of various kinds before the Supreme Court, it is perhaps worth taking a quick step back and returning to some first principles: in particular, to discuss afresh the role of the judiciary in the context of an executive-led response to a public health crisis.

I want to frame this essay around the issue of accountability, and what that means in this concrete context. According to a narrow version of accountability – let us call this “electoral accountability” – legitimacy is conferred upon government through the mechanism of periodic elections. The accountability of the government is tested – and renewed – through the electoral process. It follows from this that in the intervening five-year period, the government is taken to act upon the basis of a continuing mandate, and is not subject to any other form of accountability. If the government makes mistakes – for example, in its handling of the pandemic – it will be punished at the ballot box at the next elections.

This idea of accountability has been articulated, in particular, to criticise some of the Court’s interventions (such as its initial order on free Covid-19 testing, which now, of course, it has walked back on), and to praise its otherwise deferential attitude towards the government during this time (on the issue, for example, of migrant labour). The Court has not been elected to “manage the pandemic”, this argument goes, and it is not “accountable” to the people for the consequences of its decisions (such as free testing). Consequently, it should stay out of the way and let the government do what it is doing.

This articulation of accountability, however, does not correspond with the complexity of a republican democracy, where the Constitution consciously splits power between three branches of State (I ignore for the purposes of this essay the conundrums posed by Fourth Branch institutions such as the CAG, and the press). The government – and by government, I now specifically mean the executive – is accountable to the two other branches when it comes to the question of day-to-day administration. The first is Parliament (or the state legislatures, as the case may be) – the actual representative bodies – that have the power of oversight and scrutiny, and to ensure that the executive is operating in accordance with the lawful power that has been vested in it. The second is the judiciary, which is tasked with ensuring that the government’s actions respect constitutionally guaranteed rights, and are non-arbitrary (in the administrative law sense).

Now the first thing to notice about how the Covid-19 crisis has been handled in India is that the one of these three branches – Parliament – has been entirely bypassed. As I have written in some detail elsewhere, the two laws invoked to deal with the pandemic – the NDMA at the federal level and the EDA at the state level – have wide umbrella clauses that are of the “whatever it takes” variety: they essentially allow the executive to take any steps that it deems necessary in order to contain the “disaster” or the “epidemic”, as the case may be. Consider for a moment just what that means: even an Emergency declaration under the Constitution requires subsequent ratification by the Parliament. If, therefore, the government wanted to formally use the Constitution’s Emergency powers to deal with Covid-19, it would be subjected to a degree of Parliamentary scrutiny that is greater than the scrutiny it is subjected to through invoking the NDMA (that is, none)! Furthermore, ratification is not the only job Parliament plays: although its role in lawmaking has been vastly diminished in recent years, especially with the anti-defection law in place, Parliament remains the forum where the country’s elected lawmakers can debate what the government is doing; Parliamentary Questions are effective ways of extracting information from otherwise recalcitrant government Ministers; and Parliamentary Committees are vital tools of legislative oversight. All of this, it is important to note, has been bypassed through the invocation of the NDMA and EDA, leaving opposition leaders to hold press conferences and – as the Solicitor General would say – “prepare tweets” on the issue as their only ways of getting their points across. In fact, forget Parliamentary accountability – as all the Orders under the NDMA are signed by the Home Secretary, it is unclear the extent to which even the collective responsibility of the Cabinet is at play.

This is important for two reasons. The first is that accountability is a two-way street. The government – at both the federal and the state levels – has insulated itself from legislative accountability, which is an essential feature of the checks and balances envisioned under our democracy. Its case, then, for being given a free hand on the basis of “electoral accountability” is thereby weakened. And the second is that the effective eclipse of Parliament essentially leaves the judiciary as the only formal State organ that is positioned to act as a check on, and review, government action. And it is crucial to note – again – that what we are talking of is not judicial review of legislation (where there is a strong presumption of constitutionality, and a direct link with the issue of representation), but of executive action purportedly under the cover of an enabling legislation (the presumption in favour of which, accordingly,  is diluted).

Now, once again – and to get a very obvious bad faith objection out of the way – this is not to say that the judiciary should take over management of the pandemic. Nobody is saying that, and nobody has said that. What it does mean, however, is that the judiciary bears a heavy constitutional responsibility in ensuring that there continues to exist a forum where the government is called to account for its actions, and is required to justify them – under existing legal standards (what, on this blog, we have referred to as the “culture of justification”). To understand what this means, let us take, for instance, the now-farcical performance of the bench of Bhushan and Bhat JJ in the case involving free Covid-19 testing. On this blog, there had been an extensive debate around the bench’s first order mandating free Covid-19 testing (under ICMR Guidelines). There had been a general agreement that the Order lacked clarity on the question of reimbursement, and that private labs could not be expected to carry out testing without clarity on that point. Within a few days, the same bench performed a complete – and unreasoned – U-turn, and passed an even vaguer Order – at the behest of the Solicitor-General – allowing private labs to charge from those who have the means of paying (this effectively means that everyone whom the government formally exempts from paying will have to pay). Now, in the Court, it was argued that the cap-price of Rs. 4,500 per test had been arrived at after consultation with a task-force of experts; however, as journalistic reports showed, there had been no such consultation – and indeed, the price cap of Rs. 4,500 had been fixed in consultation with a set of individuals that indicated a conflict of interest.

Now, leaving aside the issue of free testing for a moment – as we have discussed this extensively on the blog – is the Supreme Court expected to get into the nitty-gritties of price fixation? Certainly not. However, is the fact that the government has – allegedly – not consulted its own committee of experts in fixing the price a relevant fact? Yes – and this is not even a constitutional issue, it is an administrative law issue – it shows non-application of mind and arbitrariness. Is the fact that the individuals who were consulted about the price allegedly had a conflict of interest in the issue, a relevant fact? Yes – and once again, this is in the domain of administrative law and arbitrary State action. Moving into the domain of constitutional law, if the government was of the view that free testing (even under strict ICMR Guidelines) would hamper its availability to conduct enough tests because of budgetary concerns, surely that opinion was founded upon some economic basis? While the Court would not “substitute” its economic wisdom for that of the government, given that constitutional rights are involved, surely the government could be asked simply to account for this claim drawing a causal link between free testing and a drop in its ability to conduct tests? None of this is asking for anything that is beyond the government’s ability or will to provide – it is, very simply – basic public accountability, in a public forum.

However, as we have seen, the Bench did none of that. What it did do was pass two extremely cryptic orders – one of which made testing free (without any details), and the second of which walked back on that and effectively granted a carte blanche to both private labs and the government (barring one category of individuals already covered by government insurance). This, unfortunately, has nothing to do with appropriate judicial deference to elected bodies on the questions of policy; it has everything to do with the Court abandoning its role as the only remaining formal forum where the government can be called to account for its actions – even on the most basic standard of administrative rationality.

Similar abdication has been seen across the board in the weeks of the lockdown: as everyone knows by now, when the migrants’ issue first came up before the Supreme Court, the Court simply accepted the Solicitor-General’s statement that all migrants were – by that time – in quarantine or in shelters, and appropriately looked after. Multiple reports after that have demonstrated that that simply wasn’t true. What we have, therefore, is not so much the Court refraining from interfering with policy, but the Court failing to ask questions of the government about whether it is adhering to its own legal standards in implementing its policies. For example, detailed reports, choc full of facts and figures, show that state governments already have with them many thousand crores of rupees in the form of worker welfare cess that is not being used to alleviate the distress of of migrant workers; in other words, far from there not being money, there is money that has been collected specifically for purposes like this, which is not being used; surely it is the obligation of the Court to ask the State about this, especially if its primary justification is a lack of money?

Rather, what we have seen is repeated statements from judges praising the government(s) for their efforts, expressing “satisfaction”, and insisting on how good a job is being done. Now, that may be appropriate for a country where the judiciary is expected to act as a subordinate wing of government, but it is decidedly not appropriate for a country where the judiciary is one of the three “checks and balances” in the scheme of the separation of powers. Because you’re not “checking” or “balancing” anything if every statement made by the government is taken at face value, when even some basic questioning would reveal (as in the free testing case) internal inconsistencies.

To sum up: accountability under a republican democracy, committed to a system of checks and balances, is distributed accountability. Unlike a form of Caesarism, where accountability is limited to a form of periodic acclamation, republican democracy views accountability to be a continuing concept; in particular, the government is accountable to both Parliament and to an independent judiciary, under established legal standards. The handling of the Covid-19 crisis has taken Parliament out of the equation altogether, leaving only two bodies: the government and the judiciary. In such a situation, one would expect an independent judiciary to play its role of holding the government to account: in particular, not to take over administration or make policy choices (such as, for example, deciding upon a lockdown, or the length of it), but to ensure that (a) rights are respected, and (b) far-reaching actions are backed up by at least some legitimate form of reasoning (in its administrative law sense). The Supreme Court’s actions on both points so far, however, have been disappointing.

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).