Introduction
Navigating through this mayhem the three pillars of democracy are acting as shock-absorbents and trying to maintain sense and semblance in society which is highly commendable. Though separation of power and mutual non-interference in each other’s domain is intrinsic to keep the constitution afloat, some progressive criticism on its working during these times is okay. The ongoing situation during pandemic compels us to apply both ‘telescopic’ and ‘microscopic’ view to assess the situation. While former is meant for all the institutions except the government including courts, the latter view is meant in regard to government to take policy decisions so as to improve day to day situations in nowadays context. Significant questions are raised regularly by civil society, representatives as to what is categorised as “matters of grave importance requiring urgent hearing”.
Recently, a public interest litigation was put up for hearing wherein the petitioners claimed a “right to livelihood” for migrant workers. The authors through this column intend to highlight the telescopic and far-sighted role played by Hon’ble Supreme Court of India[i]while passing the order. The Hon’ble Court[ii]while hearing the matter observed that , “wedon’t want to supplant the wisdom of the Government with our wisdom”and hence left it upon the prudence of the government within domain of the State[iii]. Such an observation made by the Hon’ble Court has led to critics accusing them of not protecting the fundamental rights of migrant workers.[iv]Before getting into the merits of the observation placed , some important questions are raised here?
- How insulated should judiciary be from the demands of the people during these unprecedented times?
- What rights of the individuals, which category of individuals etc. must be protected against the claims of the government ?
- How should power be divided among federal and state government?
Post-Independence Era
As the state of Punjab was cut arbitrarily into two lines, rather than a peaceful transition, sectarian violence erupted which saw the bloodiest of atrocities across the two nation. Around tens of million people were displaced as a result of partition and nearly one million died. Refugee camps became part of the landscape of major cities in the northern part of India and the government remained the custodian of policy matters and a watchdog of humanitarian crisis prevalent in the society at that time. The Constituent Assembly was working in tandem with that of government and played a very crucial role in keeping up with times. To deal with such situations, one of the eventuality prescribed in the constitutional text was imposition of National Emergency (Art.352) on the grounds of war or external aggression or a situation of an armed rebellion. The present situation of having a pandemic which has bought the world to a stand-still may not come under the purview of a National Emergency but can be termed as a case of “social emergency”[v]which no civilization has ever encountered in the past. The warriors to deal such a situationwherein‘war like preparedness’ in required comes not from Army personnel or combatants but from the doctors and law enforcement agencies of the government.
The fundamental rights envisaged under Part III of the Constitution are not absolute and unfettered. The scope of rights provided under Article 21 of the Constitution has been expanded to the effect that ‘right to life’ includes a life in a dignified manner yet critics argue that in emergency like situations ,they can be done away with.
Issue of ‘Migrant Workers’ Case
On 1stApril a PIL before the Supreme Court was filed, asking, inter alia, that the State should ensure payment of minimum wages to all ‘migrant workers’ whether employed by establishments, contractors, or self-employed. The argument raised by the Petitioner stated that due to nationwide implementation of lockdown, Article 14 & 21 has been violated of the ‘migrant workers’ hence minimum wages were sought for. The arguments raising violation of Article 14 is based on the premise that migrant workers are not having means to earn their livelihood through facilities like ‘work from home’ hence they are the biggest sufferers. The petitioners’ plea also stated that the State ought to perform its positive obligation by mitigating the disproportionate impact that has been caused by its ‘own decision’ to order an enforced lockdown.
The author of this article respectfully rebuts these contentions on two grounds. Firstly, that the right to livelihood is adversely effected not only for migrant labourers but to other categories including beggars, daily wage earners , disabled, homeless etc. Though it is true that this lockdown has come as a double crisis of health insecurity and economic nightmare for many , at the same time the government is coming forward with various temporary provisions, measures, packages to safeguard interests of people so as to mitigate the impact and magnitude of this crisis for them. Cherry-picking one category while leaving many other groups of affected people would clearly tantamount to violation of Article 14. Though rights are needed to be taken seriously , at the same time it ought to be understood that the situation is unprecedented, unexpected and grossly unforeseen across the nations.
Taking example from Germany, the Basic Law distinguishes between externally and internally induced emergencies. During an external emergency there can be a shift towards the federal government, simplifications in the legislative process and restrictions of fundamental rights. How do these regulations match the current COVID-19 epidemic? What about Fundamental rights? Answers are of course not very simple but this needs to be looked on the basis of prevailing circumstances which are not normal but exceptional . Hence there was a drastic limitation placed upon fundamental rights by the present government .
Though in Indian context we need to have a codification as to what is normal and what is an exceptional circumstance keeping in mind the present scenario, it also needs to be emphasised that extraordinary times require extraordinary measures. Rights based litigation during these times is a part of a larger debate. Even Article 15 of the European Convention on Human Rights explicitly contains regulations for the restriction of fundamental rights in states of emergencies and can serve as an example for law and policy-makers during a dilemma.
Another argument raised by the petitioner was that, Article 21 should include right to livelihood with specific questions on payment of wages. The Hon’ble Chief Justice of India responded to this by asking “why wages are required when meals are being provided by the Government?”. The critics have pointed out that loss of livelihood, economic loss or mental agony caused to migrant workers is a direct result of State action hence the onus to rectify the same falls completely upon the state. That mere subsistence of protection of life by providing meals would not serve the purpose of migrant labourers.
The authors again express their humble disagreement with such a narrow interpretation that lockdown is the result of State action and this action shall be subject to strict Judicial Review in the times to come wherein the reality is that the government is fighting at all fronts during this situation equivalent to “social emergency”. The panacea and quick-fix in case of infringement of constitutional rights leads to knocking up of doors of Court under Art 32 and Art 226 – the hallmark of the Constitution which needs to be used sparingly and as a measure of last resort. The present PIL challenging the situation of State Action to enforce entire catena of rights interpreted under Article 21 during these extraordinary times is reflective of the misuse of PIL culture[vi]which is acutely deplorable and pitiable to say the least. The ‘right to health’ and ‘right to food’ which are well covered under Article 21 are well enforced by the State but any other infinite expansion of this constitutional text as per convenience of few would lead to a chaos and disaster to many others in the country which cannot be reversed. As of now India can come through Covid-19 crisis, albeit not completely unscathed , but it will require robust leadership & much strong emergency measures which the government is duly taking at its behest.
Revisiting My Lord, Justice H.R. Khanna’s Principles
The petitioners cannot paint the canvas of Articles 14 and 21 of the Constitution for all times and in all situations. Hon’ble Justice H.R. Khannain his famous dissenting opinion has very well laid down the Magna Cartaof implication of State action on fundamental rights of citizens during the times of emergency. The position during “Emergency” was due to State Action but the present time cannot be compared with an emergency situation as the plight of ‘migrant workers’ is not because of state action or inaction but to facilitate their ‘protection of life’ due to an ongoing threat of highly infectious disease multiplying manifold with the speed of infinity taking entire world in its grip.
The Hon’ble Supreme Court has not only raised the morale of the Government in such challenging times but has also aptly applied the principle of ‘separation of powers’ to not encroach upon State’s role to control the spread of disease. It would not be out of context to cite the Judgement[vii]rendered by Division Bench of Hon’ble Punjab and Haryana High Court, headed by Justice Rajiv Sharma, who dismissed the PIL filed against decision taken by Chandigarh Administration to ‘relax the curfew’ in public interest on the ground that scope of judicial interference in a policy matter is very limited and Administration has weighed all pros and cons before taking the decision.
CONCLUSION
A famous German virologist calls Covid-19 a “natural-disaster in slow motion”. It has re-set the clock of entire world and an impending disaster seems to await unless a vaccination is found or a natural immunity is developed. The morale of global society is down and everyone, everywhere across the national boundaries are at first trying to save human civilization in totality. Under such circumstances and as a positive critique of democracy it needs to be remembered that all the pillars should work constructively in tandem, aimed towards betterment of the society as whole.
The famous anecdote of Niels Bohrwas quoted by their Justice D.Y. Chandarchud, lately in an address wherein he highlighted the importance of Constitution. He said that the Constitution works for even those who may not believe in it.[viii]Father of the nation Mahatma Gandhi always emphasized the importance of de-centralised form of governance so at to reach grass-root level and ensure last-mile connectivity. Looking at the present scenario, the novelty of the virus and India’s disaster preparedness response during this pandemic seems to include even the last strings of the chord including government doctors, police officials, divisional commissioners, district collectors, zila parisahds, nagar palikas, safai karamcharis et,cetera. who are working day in and day out to combat this deadly virus and come out bigger and better. The response may not be the best but the least that can be done is by not interfering in the working of the government and by letting them decide upon the public policy matters ensuring dignity of life and the Judiciary to consistently maintain a constructive cross-check.
The cult of ” poor” as proxy for PIL’s needs to stop especially during these unprecedented times. In the present context the, The PIL leviathan should be reined in to its origins, its applicability, why choosing one particular class of individuals and the overall ambition that the PIL needs to attain. It needs to be gauged whether fundamental rights, statutory rights or mere interests are at stake. Interests are loosely referred to as legal rights, blurring what is actually deserving of legal protection during COVID times.
*Ashish Bansal is practicing advocate at the Punjab & Haryana High Court, Chandigarh.
**Pragya Parijat Singh is a practicing advocate at the Supreme Court of India. She is presently pursuing her LL.M from University of Cambridge, UK. The views expressed in this article are entirely personal
[i]Refer to Order dated 07.04.2020 passed in Wit Petition (Civil) Diary No. 10801/2020 available at the website of the Court.
[ii]https://www.barandbench.com/news/litigation/migrant-workers-plight-during-coronavirus-lockdown-will-not-interfere-in-government-decision-for-few-days-cji-sa-bobde
[iii]https://www.tribuneindia.com/news/nation/sc-refuses-to-pass-order-for-payment-of-wages-to-migrant-workers-during-lockdown-66933
[iv]https://indconlawphil.wordpress.com/2020/04/07/coronavirus-and-the-constitution-x-rights-not-policy/
[v]https://timesofindia.indiatimes.com/india/coronavirus-pm-modi-interacts-with-floor-leaders-of-political-parties-says-priority-is-to-save-every-life/articleshow/75046993.cms
[vi]https://www.ndtv.com/india-news/shut-down-public-interest-litigation-shops-centre-to-supreme-court-2205739
[vii]Judgement dated 29.03.2020 passed in CWP-PIL No. 38 of 2020.
[viii]https://timesofindia.indiatimes.com/india/constitution-trusts-the-wisdom-of-people-justice-chandrachud/articleshow/67177250.cms
