Coronavirus and the Constitution – XXXVII: Dialogic Review and the Supreme Court (2)

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

[Update: On 7th June, the central government announced that starting from the 21st of the month, 75% of the vaccines quota would be centrally procured, that vaccination would be free for over-18s, and that private hospitals would not be permitted to charge more than an administrative fee of Rs. 150. Many of the elements in this new policy come on the back of the Supreme Court’s 31st May order (discussed below) that had, inter alia, returned a prima facie finding that the procurement and pricing policy, as it then stood, was arbitrary and irrational. While it is, of course, an impossible errand to quantify how much of the policy volte face was because of the Supreme Court’s intervention, it is nonetheless fair to say that the Supreme Court’s three orders on 27th April, 30th April, and 31st May have played a significant role, and vindicate the Court’s bounded-dialogic approach towards the exercise of judicial review over the management of the pandemic.]

The 31st May order of the Supreme Court in In Re: Distribution of Essential Supplies and Services During Pandemic is the third substantive order of the Court’s three-judge bench since it took suo motu cognisance of various issues relating to the management of Covid-19. It follows orders on 27th April (that laid out the scope of the Court’s deliberations, discussed here), and 30th April (that laid out a set of directions, recommendations and questions to the government).

The 31st May order limits itself to the issue of vaccinations, in view of the gradual recession of the second wave. In particular, it focuses on the constitutionality of several features of the central government’s Liberalised Vaccination Policy. Recall that according to the Liberalised Vaccination Policy, vaccination manufacturers are required to supply 50% of their doses to the central government, and 50% (with an even split, i.e. 25% each) to state governments and private hospitals (at a pre-declared price). Central government vaccination centres are limited to vaccinating healthcare workers, frontline workers, and people above the age of 45, while individuals between the ages of 18 – 44 must be vaccinated at state government centres, or in private hospitals. Vaccination appointments are to be booked digitally, via the CoWIN app.

In paragraph 19 of the Order, the Court groups its observations under three heads: vaccine distribution between different age-groups, the vaccine procurement process, and the augmentation of vaccine availability. For further ease of analysis, the Court’s observations under each of these heads can be divided into three categories: directions for further information from the central government [“queries”], recommendations [“recommendations”], and findings of prima facie unconstitutionality, requiring a response from the government [“objections”].

With respect to the vaccine distribution between different age-groups, the Order finds that free vaccinations for over-45s and frontline/healthcare workers on the one hand (through the central government channel), and paid vaccinations for the 18-44s on the other (through the state governments/private hospitals channel) is “prima facie arbitrary and irrational” (para 20) [“objection”]. It is important to note that the question here is not whether the government is allowed to charge for vaccinations or not, but discrimination within the existing policy, where one age-group is asked to pay, and another is not.

With respect to the issues around procurement, the Order asks the government for further information. The Liberalised Vaccination Policy allows state governments to bargain with vaccine manufacturers, ostensibly (and as per the central government’s justification) in order to spur “competitive prices and higher quality [of vaccines].” It was pointed out to the Court, however, that vaccine manufacturers were refusing to negotiate with state governments (inter alia for reasons of guaranteed legal immunity, which state governments cannot provide) – as also the fact that the central government, as a monopoly buyer, would have greater bargaining power to drive down prices rather than individual (or even a consortium of) state governments. The Court also notes that, under the Liberalised Vaccination Policy, the basis of pro rata allocation to state governments is both unclear (with respect to the extent of the central government’s intervention) and incomplete (failing to take into account inter-state migration, healthcare infrastructure, demographics etc). It therefore asks the central government to “specify whether it seeks to address these concerns within the vaccination policy such that the State/UT Governments have a realistic assessment of the assistance they can anticipate from the UoI.” (paragraph 22) In a later part of the judgment, the Court goes on to add that the very reason that the central government is able to bargain for lower prices raises the question of why it cannot procure 100% of the vaccine doses; on that basis, the Court asks the government to clarify how the allocated budget of Rs. 35,000 crores for vaccinations “ha[s] been spent so far and why [it] cannot be utilized for vaccinating persons aged 18-44 years.” (paragraphs 3031)

With respect to vaccination availability, in view of the central government’s recent declaration that 100 crore people would be vaccinated by December 2021, the Order asks the government to place on record its detailed roadmap explaining how this will be achieved (paragraph 23) [“query”], including information on the (future) vaccination of children, the status of crematorium workers, mechanisms for redistribution in case of a mismatch between the 50:50 distribution and the actual orders placed by a state government/private hospitals (paragraph 24).

In the next section of its order, the Court turns to the specifics of the 25% vaccination disbursal to private hospitals. The ostensible logic of this – as per the central government – is that there exists a certain section of society that is able to pay for vaccinations, which will be diverted towards private hospitals. As the order notes, however, the structure of the vaccination policy is such that this may not actually happen. As the Court notes:

However, the present system of allowing only digital registration and booking of appointment on CoWIN, coupled with the current scarcity of vaccines, will ultimately ensure that initially all vaccines, whether free or paid, are first availed by the economically privileged sections of the society. As such, even those who may have been able to afford a vaccine, may opt for a free vaccine simply because of issues of availability, even if it would entail travelling to far-flung rural areas. Hence, any calculations of the economic ability of a given individual may not directly correspond to the vaccination route (paid/unpaid) they opt for. Consequently, it is plausible that private hospitals may have vaccine doses left over with them because everyone who could afford them has either already bought it or availed of a free vaccine, while those who need it may not have the ability to pay for it. (paragraph 26)

Because of this – coupled with the profit-making character of private hospitals creating the possibility of price-gouging, the order asks the government to provide a set of clarifications about the manner of disbursal of vaccines to private hospitals, regulatory oversight, and means-testing (if any) (paragraph 28).

In the third sub-section, the Court goes on to consider the issue of differential pricing. A part of it has been discussed above; in addition, given the central government’s financial and regulatory contribution to the development of the vaccine, the Order asks for further clarifications regarding the basis of pricing, the central government’s refusal to intervene statutorily, and whether any contracts have been invited for voluntary licensing (paragraph 33). The Order concludes with some further questions on cold storage facilities and the use of the CoWIN app.

There is little doubt that when it comes to judicial scrutiny of the management of the Covid-19 pandemic, the Court must proceed with caution. The purpose of a bounded-deliberative approach – which is how the Court has described its proceedings thus far – is to elicit information from the government – which may otherwise not be available – that forms the basis of policy. While the merits of the policy, of course, are not subject to judicial review, the purpose of dialogic review is to (a) gauge, on the basis of the information provided, whether the policy is sufficiently backed by reason, to pass constitutional scrutiny; (b) whether, in response to judicial nudges, the political executive tweaks or modifies policy in order to make it constitutionally compliant; and (c) if the answer to both (a) and (b) is negative, then – in the last resort – to invalidate those parts of the policy that violate constitutional rights (in this case, the rights to equality and health). The court’s orders so far have fallen within the first phase of dialogic review, and justifiably so (and on some respects, such as hospital admissions, have resulted in policy changes, moving into phase 2). The question now, no doubt, will be whether the central government’s responses – due in two weeks’ time – will see the proceedings move into phases 2 and 3. In this respect, it is important to note an observation made in this order: that, while at the beginning of the pandemic, the political executive is to be provided maximum leeway and “play in the joints”, given the overall uncertainty, as time progresses – and as more information becomes available – the actions of the executive are to be held to stricter account on the touchstone of constitutional rights. As we are now into the second year of the pandemic, and a few months into the second wave, it remains to be seen what form this stricter judicial review will take in future hearings.

Coronavirus and the Constitution – XXXV: Dialogic Judicial Review in the Supreme Court

On the 27th of April, a three-judge bench of the Supreme Court (Justices Chandrachud, Rao, and Bhat) passed a brief order in the suo motu case, In Re: Distribution of Essential Supplies and Services During Pandemic. Recall that the previous set of hearings in the case had led to a degree of confusion over whether the ongoing litigation before various state High Courts was to cease, in view of the fact that the Supreme Court had now taken cognisance of a range of issues connected to the pandemic. In its 27th April order, however, the Court clarified that “the High Courts have a robust understanding of ground realities and are grappling with the practical issues and problems which have arisen in their jurisdictions as a result of the outbreak of the pandemic... hence, there is no reason or justification to interdict the exercise of the jurisdiction of the High Courts.” The Court went on to – correctly – point out that there may nonetheless arise “certain national issues or issues of a systemic nature which have their origin beyond the boundaries of a particular State” – and that it would be with respect to those issues that the Court would assume Article 32 jurisdiction.

A future post will discuss some of the High Court orders during the course of the last two weeks. In this post, let us consider the Supreme Court’s 27th April order. Importantly, in paragraph 6, the Court went on to outline the scope of its enquiry. The Court’s approach, I would suggest, ought to be best understood within the framework of dialogic judicial review, which we have discussed previously on this blog, in relation to a few High Court orders during the first wave of the pandemic. Dialogic review enables us to escape the false binary of the Court “managing the pandemic” on the one hand, and being a “mute spectator” on the other. In essence, under dialogic review, “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.”

From this perspective, the 27th April order addressed four issues: the supply of oxygen, medical infrastructure, supply of medical drugs, and vaccination. The first and the fourth are particularly important for our purposes here. With respect to oxygen, recall that a number of issues arose – and continue to arise – in the High Courts, as medical oxygen is supplied to the states, from a common pool controlled by the centre. the Court required the government, inter alia, to provide information on projected demand, the steps taken to meet that demand, monitoring of supply, and – crucially – the basis of allocation from the central pool to the states, as well as the methodology used for communication of state needs to the centre, to ensure a match between demand and supply.

The Court did something similar with respect to vaccines. It noted that after May 1, everyone above the age of 18 would be eligible to be vaccinated. Consequently, it required the the union government to provide specific information about projected requirement, projected steps taken to meet it, the basis of allocation between states, and – importantly – “the basis and rationale which has been adopted by the Union government in regard to the pricing of vaccines. The government shall explain the rationale for differential pricing in regard to vaccines sourced by the Union government on one hand and the states on the other hand when both sources lead to the distribution of vaccines to citizens.

On the issues of both oxygen availability and vaccines, the Supreme Court’s order is an excellent example of dialogic review in action. Essentially, the Court asked the union government to explain the basis of its actions with respect to allocation of oxygen, and allocation and (differential) pricing of vaccine. This performs two functions: first, that of transparency. It ensures that vital decisions do not remain opaque but, through their airing in Court, are subjected to public dialogue and scrutiny (note that because of the non-functioning of Parliament, there is a heavier-than-normal burden upon the shoulders of the Court to ensure transparency). Secondly, once the bases of the decisions are made available, the Court is in a position to subject them to judicial scrutiny, under established constitutional law standards, while remaining cognisant of the fact that due deference is to be accorded to the executive in managing a public health crisis. For example, even under a public health crisis, the executive cannot act arbitrarily, must have a reasonable basis for its actions, and its actions must still remain proportionate to the scale of the crisis. The Supreme Court’s 27th April order marks an important first step towards starting that process of accountability.

These are, of course, early days. One must also be aware of the limits of judicial action, in terms of impact on the ground, during a crisis. However, with those caveats in mind, the 27th April order has asked all the right questions. It remains to be seen what the answers will be, and where we go from here.

Coronavirus and the Constitution: Round-Up

This post brings together ICLP’s coverage of Covid-19, the Constitution, and the Courts over the past one year.

A. On the Disaster Management Act, Executive Decrees, and Judicial Review

  1. Coronavirus and the Constitution – XVIII: Models of Accountability
  2. Coronavirus and the Constitution – XX: Parliamentary Accountability
  3. Coronavirus and the Constitution – XXVII: On (Permanent) Crisis Governance [Guest Post]
  4. Coronavirus and the Constitution – XXXVIII: One Year On

B. On Civil Rights

  1. Coronavirus and the Constitution – III: The Curfew and the Quarantine
  2. Coronavirus and the Constitution – IV: Privacy in a Public Health Crisis [Guest Post]
  3. Coronavirus and the Constitution – VI: On the Freedom of Movement
  4. Coronavirus and the Constitution – VII: Balancing Privacy and Public Health in Karnataka [Guest Post]
  5. Coronavirus and the Constitution – IX: Three Curious Bail Orders
  6. Coronavirus and the Constitution – XV: The Odisha High Court on the Ban on Vehicles [Guest Post]
  7. Coronavirus and the Constitution – XXI: The Mandatory Imposition of the Aarogya Setu App
  8. Coronavirus and the Constitution – XXIV: Aarogya Setu and the Right to be Forgotten [Guest Post]
  9. Coronavirus and the Constitution – XXVI: Migrant Workers, Freedom of Movement, and Positive Obligations [Guest Post]
  10. Coronavirus and the Constitution – XXX: PM-CARES Fund and the Right to Information Act [Guest Post]

C. On Labour Rights

  1. Coronavirus and the Constitution
  2. Coronavirus and the Constitution – II: Household Staff and Employment Protection: Obligations, not Charity [Guest Post]
  3. Coronavirus and the Constitution – XXXI: The Payment of Wages Order
  4. Coronavirus and the Constitution XXXII: Payment of Wages and Judicial Evasion in a Pandemic
  5. Coronavirus and the Constitution – XXXVII: The Pandemic, Labour Rights, and the Supreme Court’s Judgment in Gujarat Mazdoor Sabha

D. On Fiscal Federalism

  1. Coronavirus and the Constitution – V: Financial Emergencies
  2. Coronavirus and the Constitution – XIX: The State Disaster Risk Management Fund and the Principle of Equal Distribution [Guest Post]
  3. Coronavirus and the Constitution – XXII: The State Disaster Risk Management Fund and the Principle of Equal Distribution – A Response [Guest Post]
  4. Coronavirus and the Constitution – XXIX: Sub-National Debt & Art. 293(4) – Some Constitutional Concerns [Guest Post]
  5. Coronavirus and the Constitution – XXXV: Examining the GST Compensation Crisis [Guest Post]

E. On the Supreme Court

  1. Coronavirus and the Constitution – VIII: A Critique of the Supreme Court’s Migrants Order [Guest Post]
  2. Coronavirus and the Constitution – X: Rights, not Policy
  3. Coronavirus and the Constitution – XI: The Supreme Court’s Free Testing Order
  4. Coronavirus and the Constitution – XII: The Supreme Court’s Free Testing Order – A Response (1) [Guest Post]
  5. Coronavirus and the Constitution – XIII: The Supreme Court’s Free Testing Order – A Response (2) [Guest Post]
  6. Coronavirus and the Constitution – XIV: The Supreme Court’s Free Testing Order – A Rejoinder (1) [Guest Post]
  7. Coronavirus and the Constitution – XVI: The Supreme Court’s Free Testing Order – A Response (3) [Guest Post]
  8. Coronavirus and the Constitution – XVII: The Supreme Court’s Free Testing Order – Some Concluding Remarks
  9. Coronavirus and the Constitution – XXV: Socio-Economic Rights and the Shifting Standards of Review [Guest Post]
  10. Coronavirus and the Constitution: XXXVI – The Supreme Court’s UGC Judgment [Guest Post]

F. On the High Courts

  1. Coronavirus and the Constitution – XXIII: Judicial Approaches Towards the Right to Food
  2. Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review in the Gujarat and Karnataka High Courts
  3. Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic Judicial Review [Guest Post]
  4. Coronavirus and the Constitution – XXXIV: The Bombay High Court [Guest Post]

Coronavirus and the Constitution – XXXVIII: One Year On

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

Pandemic Management by Decree

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

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

Civil Rights and Proportionality

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

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

Equality and Non-Discrimination

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

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

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

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

The Supreme Court’s Deference

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

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

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

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

The High Courts’ Vigilance

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

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

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

The Conclusion

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

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

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

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

Coronavirus and the Constitution – XXXVII: The Pandemic, Labour Rights, and the Supreme Court’s Judgment in Gujarat Mazdoor Sabha

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

On 17 April 2020, a little under a month after the Covid-induced nation-wide lockdown had been imposed, the government of Gujarat issued a notification under Section 5 of the Factories Act. This notification exempted all the factories in the state of Gujarat from adhering to a set of workers’ rights guaranteed by the statute. Its effect was to increase the upper limit of working hours from nine to twelve per day and forty-eight to seventy-two per week, shorten rest intervals, and halve overtime pay. The Notification was initially intended to run until 19 July, but was later extended to 19 October.

Two trade unions challenged the Notifiction(s) before the Supreme Court. In an important judgment handed down today (Gujarat Mazdoor Sabha v State of Gujarat), a three-judge bench of the Court agreed with their arguments, and struck down the Notifications in their entirety (with a consequential direction to pay back-wages to those workers who had worked overtime on the reduced rates).

Chandrachud J.’s judgment for the Court revolves around two axes, both of which are important from a constitutional perspective. The first is a statutory analysis of whether the pre-conditions under Section 5 were satisfied; and the second is a broader argument about the role of labour laws in a constitutional democracy.

Section 5 of the Factories Act authorises the government to exempt any factory or class of factories from the provisions of the statute, in case of a “public emergency.” The Explanation to Section 5 defines “public emergency” as grave emergency that threatens the security of India (or any part of it) on account of war, external aggression, or internal disturbance. The State argued that the Covid-19 pandemic was “a public emergency”, caused by “internal disturbance”. Relying upon the Sarkaria Commission Report that had cited “epidemics” as examples of internal disturbances, the State therefore claimed that the manner in which Covid-19 had “disturbed the social order of the country” and caused “extreme financial exigencies”, justified the invocation of Section 5.

The Court rejected this argument. It began by noting that in judicial review, the existence of a “public emergency” must be demonstrated as an “objective fact” (paragraph 8). Secondly, the Court held that a reading of the Section 5 made it clear that both expressions – “public emergency” and “internal disturbance” – were to be read conjunctively, and the presence of both had to be satisfied as a pre-condition to invoking the Section. The Court then examined the scope of each of the phrases. Noting the genesis of these terms in colonial-era legislation and Constitutional Emergency provisions, the Court held that the terms would have to be given a narrow meaning. As Chandrachud J. observed:

Section 5 of the Factories Act authorises the government to exempt any factory or class of factories from the provisions of the statute, in case of a “public emergency.” The Explanation to Section 5 defines “public emergency” as grave emergency that threatens the security of India (or any part of it) on account of war, external aggression, or internal disturbance. The State argued that the Covid-19 pandemic was “a public emergency”, caused by “internal disturbance”. Relying upon the Sarkaria Commission Report that had cited “epidemics” as examples of internal disturbances, the State therefore claimed that the manner in which Covid-19 had “disturbed the social order of the country” and caused “extreme financial exigencies”, justified the invocation of Section 5.

On this basis, the Court held that “mere financial exigencies … do not qualify as an internal disturbance.” (para 17) Indeed, given that the phrase “internal disturbance” was used alongside “war” and “external aggression”, the principle of noscitur a sociis required interpreting it in that context, and in situations of similar gravity (para 18).

With respect to the phrase “public emergency”, the Court noted that its constituent phrase – a threat to the “security of India” – had been repeatedly interpreted in narrow terms by the Supreme Court, starting with the hoary old judgment of Romesh Thapar (para 20).

Having traced the genesis and meaning of both terms, the Court then applied them to the case at hand:

Even if we were to accept the Respondent’s argument at its highest, that the pandemic has resulted in an internal disturbance, we find that the economic slowdown created by the COVID-19 pandemic does not qualify as an internal disturbance threatening the security of the state. The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005.12 However, it has not affected the security of India, or of a part of its territory in a manner that disturbs the peace and integrity of the country. The economic hardships caused by COVID–19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law. (para 28)

This is an important paragraph. As noted on this blog before, terms such as “public emergency”, “security of the State”, and “internal disturbance” are broad in their ambit; if they are to act as any kind of check upon unbridled executive power, it requires the judiciary to give them concrete content, and then – given their extraordinary nature – to insist upon strict compliance with the legal threshold before the government can invoke emergency-style powers. This is what the Court did: instead of letting the nature of the Covid-19 pandemic expand to fill the content of these clauses, it first accorded these clauses an autonomous – and narrow – interpretation, and upon finding that the pandemic did not fall within that interpretation, struck down the offending State action. This is a refreshing change from the otherwise deferential attitude shown by the Court at the first recitation of “public emergency” and “national security”, including in many cases concerning State action during the pandemic.

The Court also went on, however, to put its argument on a firmer – constitutional – footing. It located the Factories Act – and its guarantee of workers’ rights – in a long history of labour struggles (para 29), and grounded it within legislative recognition of the “inequality of bargaining power between workers and their employers” (para 30). Drawing upon the Directive Principles as interpretive guides, the Court noted that working hour guarantees and overtime payment had a constitutional foundation, as they came within the ambit of Articles 21 (right to life) and 23 (right against forced labour). Any restriction of those rights, therefore, would have to abide by the principle of proportionality. In the instant case, the Court found that the principle of proportionality had been violated:

The impugned notifications do not serve any purpose, apart from reducing the overhead costs of all factories in the State, without regard to the nature of their manufactured products. It would be fathomable, and within the realm of reasonable possibility during a pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would be exempted by way of Section 65(2), while justly compensating the workers for supplying their valuable labour in a time of urgent need. However, a blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalize on the pandemic to force an already worn-down class of society, into the chains of servitude. (para 36)

In other words, therefore, using the Directive Principles and the concept of a welfare-oriented democracy as an interpretive base, the Court (a) located the rights at issue within Articles 21 and 23, and (b) found that State action violating them failed to meet the test of proportionality.


The judgment of the Supreme Court is important in two respects. First, it is an important pushback against the trend where the State’s invocation of “public emergency” and “national security” has marked both the beginning and the end of the argument in court. In Gujarat Mazdoor Sabha, the Court shows that simply by performing the normal judicial function – of interpreting phrases in accordance with their accepted meaning, and by measuring State action against that meaning – the government’s justifications will often fail on their own terms. More broadly, the Court’s insistence that the invocation of such clauses is for exceptional situations – and must therefore be adhered to strictly – is both welcome and important. This must be seen in the context of two competing judicial philosophies. The first philosophy holds that “public emergency” and “national security” constitute a kind of constitutional blackhole: their very invocation by the State requires the Court to virtually abandon its basic function of judicial review. The second philosophy holds that, as a matter of fact, it is precisely because of the sweeping powers afforded to the State in such circumstances, judicial review must be heightened, so that basic rights do not become (in the the words of the judgment) “paper tigers.” In recent times, we have seen far too much of the first philosophy, and far too little of the second – something that the Court corrects in this case.

Secondly, the Court does not limit its arguments to the statutory framework. By using the Directive Principles as interpretive guides, it grounds core labour rights within Articles 21 and 23 of the Constitution, and subjects limitations to the doctrine of proportionality. This is equally important, because – as we have seen just recently – existing labour laws themselves have been replaced by new Labour Codes, which take a far more restrictive approach towards labour rights. The Court’s reminder that these rights are, ultimately, located in the Constitution, is therefore crucial as, in the coming days, questions will be raised about both the constitutionality – and the interpretation – of the new labour codes.

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”.


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.


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.


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)


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.