The guidelines issued on March 24 on the measures that the Centre and the State/Union Territory governments should take for containment of COVID-19 do not specifically suspend the functioning of judicial services, including courts. The list of exceptions to suspended services too does not include judicial or legal services. Such omission is valid because the executive cannot circumscribe the functioning of the judiciary in deference to the doctrine of separation of powers and the independence of the judiciary.
But that does not mean that the judiciary, on its own, cannot adapt itself to changing times. From March 25, the Supreme Court and the High Courts decided to hear matters involving “extreme urgency” through video-conferencing and e-filing of petitions and affidavits during the nationwide lockdown, which now stands extended till May 3.
But the limited functioning of the courts has hampered their contribution to mitigating the common man’s suffering. The Supreme Court, for instance, is yet to prioritise hearing of pending cases relating to issues such as the repeal of Jammu and Kashmir’s special status under the Constitution, electoral bonds, women’s right to worship at Sabarimala, and the Citizenship Amendment Act. The hearing of such cases would require the court to adopt technology in a big way in order to comply with the physical distancing norms. Currently, there are two virtual courts, each comprising two or three judges, even though the effective strength of the court is 33. But the court’s response to pleas for intervention by or on behalf of those in distress has not been entirely satisfactory.
Migrant labourers’ livelihood
In Harsh Mander vs Union of India, the petitioners Harsh Mander and Anjali Bharadwaj, both social activists, told the Supreme Court that the lockdown caused untold hardship and suffering to migrant workers, who are dependent on daily wages to provide for their families and themselves. It disrupted their daily work and their ability to earn wages. This, the petitioners argued, created panic and resulted in their mass exodus to their villages on foot. Citing news reports, the petition claimed that even those who were in shelter homes were being herded together, which exposed them seriously to the virus.
The lockdown and the subsequent government orders to prevent their reverse migration had subjected migrant workers to unimaginable distress and misery, the petition said. The government has ordered that employers should pay wages to all the labourers employed by them. With employers of migrant labourers not complying with this direction, the state should immediately make direct transfers (in cash, at their doorsteps or through their bank accounts) of at least the minimum wage during the lockdown, the petition said.
On April 7, the bench presided by Chief Justice of India (CJI) S.A. Bobde and comprising Justices Sanjay Kishan Kaul and Deepak Gupta asked the petitioners’ counsel, Prashant Bhushan, why the migrant workers needed money for meals if they were being provided meals at the shelter homes. This apparently insensitive question from the bench made one wonder whether the court, having authored landmark judgments in the past espousing the point that right to life and liberty meant more than mere animal existence and involved right to life with human dignity, suffered from institutional amnesia. When Prashant Bhushan told the bench that they needed not just food but money that could be sent to their families back home, the CJI said the court could not supplant the government’s wisdom on providing succour to lakhs of migrant labourers across the country.
The bench also said that it was not an expert body to deal with the health and management issues of migrant workers and would rather ask the government to set up helplines for the needy. In the past, the court had willingly sought experts’ help in cases where it felt it lacked the expertise to understand and respond to an issue before it.
The petitioners contended that private sector companies might not be able to fulfil the Centre’s directives regarding payment of wages as many of them were on the verge of closure. Therefore, the onus of paying their workers was on the Centre and the State governments, they argued. Their plea, however, met with stiff resistance from the Centre. The Solicitor General, Tushar Mehta, suggested that “PIL [public interest litigation] shops” should close down until the country emerged out of the crisis. The next hearing of the case is scheduled for April 20.
Another petition espousing the migrants’ cause too met with a premature end in the Supreme Court. The bench of Justices L. Nageswara Rao and Deepak Gupta suo motu converted into a PIL a letter to the CJI by Mahua Moitra, Member of Parliament belonging to the Trinamool Congress, highlighting the distress messages sent by migrant labourers in her constituency, Krishnanagar (West Bengal). The bench heard the case, recognising her as a petitioner-in-person. She sought directions to the executive agencies and employers to release wages to stranded workers along with food, ration and shelter during the lockdown period. However, another bench, comprising Chief Justice Bobde and Justices Nageswara Rao and Mohan M. Shantanagoudar, dismissed the petition on April 13 without stating any reason.
In another PIL filed before the Supreme Court, the social activists Aruna Roy and Nikhil Dey sought payment of wages to workers under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) during the lockdown and issuance of temporary job cards to all migrants who had returned to their villages. On April 8, the bench of Justices Ashok Bhushan and Ravinder Bhat took note of the Centre’s submission that Rs.6,800 crore had been paid on April 5 towards arrears of wages and directed the listing of the case two weeks after the lifting of the lockdown.
In Swami Agnivesh vs Union of India , the petitioner was aggrieved that during the lockdown the police authorities were not fully implementing the guidelines issued by the Department of Agriculture, Cooperation and Farmers Welfare on March 28. By merely recording Tushar Mehta’s statement that there was full monitoring and implementation of the guidelines and that it would be ensured that the police authorities concerned would follow them, the bench disposed of the petition. Mehta also reportedly told the bench that “this was a self-employment generating petition, and that the court should not entertain such petitions”. The bench took note of the fact that on March 28, the government had granted relaxation in the lockdown for activities relating to agriculture and farming.
Child care institutions
In contrast to what was witnessed in the migrant labourers’ wages case, the Supreme Court bench comprising Justices L. Nageswara Rao and Deepak Gupta took suo motu initiative to issue directions to ensure care and attention of children in conflict with law and those kept in juvenile homes. “As the pandemic COVID-19 is intensifying in India, it is important that urgent measures need to be taken on priority to prevent the spread of the virus to child care institutions (CCIs),” the bench said. The bench directed Child Welfare Committees run by State governments to consider proactively steps to set up special online sittings or video sessions, initiate preventive measures, counsel families, monitor children sent back to their families, and set up online help desks and support systems at the State level for children and staff in CCIs.
The bench directed Juvenile Justice Boards (JJB) and children’s courts to consider whether a child should be kept in a CCI considering the best interest, health and safety concerns. The bench advised JJBs to monitor the situation in Observation Homes on a regular basis for sexual violence, which might be exacerbated in contexts of anxiety and stress produced by lockdown and fear of disease. The bench supplemented these directions with guidelines to support the psychological and emotional well-being of children.
In Shashank Deo Sudhi vs Union of India , the bench of Justices Ashok Bhushan and S. Ravindra Bhat initially found prima facie substance in the petitioner’s submission that the fee of Rs.4,500 fixed by the Indian Council of Medical Research (ICMR) for carrying out screening and confirmation tests for COVID-19 might not be within the means of a large section of the population. The test is free in government laboratories. The bench, therefore, directed the Centre on April 8 to get private laboratories to conduct the test free of cost and decided to consider the question of their reimbursement later. Tests must be carried out in laboratories certified by the NABL (National Accreditation Board for Testing and Calibration Laboratories) or agencies approved by the World Health Organisation (WHO) or the ICMR, the bench said.
On April 13, however, the bench modified its own order in the light of concerns expressed by various stakeholders that the April 8 order was unimplementable. The Centre submitted that around 50 crore beneficiaries covered under the Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana were eligible to avail themselves of testing even in private laboratories. As on date, there are 157 government and 67 private laboratories conducting COVID-19 tests.
The bench clarified that the April 8 order was intended to make testing for COVID-19 in private laboratories free for economically weaker sections of society. “We further clarify that the order never intended to make testing free for those who can afford the payment of testing fee fixed by the ICMR for COVID-19,” the bench added.
The bench also made it clear that a person can avail himself of the benefit of free testing in a private laboratory only when that person is covered under a scheme like the Ayushman Bharat Yojana. It advised the government to consider whether any other category of persons belonging to economically weaker sections could be given the benefit of free testing for COVID-19. “We are conscious that framing of the scheme and its implementation are in the government domain, who are the best experts in such matters,” the bench held.
The order thus deprives the benefit of free testing to persons or families who cannot afford to pay the testing fee and those not covered under any Centrally-approved scheme. The order effectively renders such persons with the option of not testing, and this could be detrimental to the efforts to contain the pandemic.
Medical professionals’ safety
On April 8, the Bhushan-Bhat bench, in Jerryl Banait vs Union of India , directed the Union Ministry of Health and Family Welfare to ensure availability of appropriate personal protective equipment (PPE), including sterile medical/nitrile gloves, starch apparels, medical masks, goggles, face shield, respirators (N-95 respirator mask or triple layer medical mask or equivalent), shoe covers, head covers and coveralls/gowns, to all doctors, nurses, ward boys and other medical and paramedical professionals actively attending to patients suffering from COVID-19 in metro cities, and tier 2 and tier 3 cities.
Taking note of the reported violence against doctors in Indore (Madhya Pradesh) and Ghaziabad (Uttar Pradesh), the bench directed that necessary police security be provided to doctors and medical staff in hospitals and places where patients diagnosed with COVID-19 or those suspected of COVID-19 or those quarantined are housed. The court also said necessary security should be given to doctors and other medical staff who visit places for screening of people. It also sought action against those who obstructed medical personnel and committed any offence in respect to the performance of their duties.
The bench directed the Centre to explore all alternatives, including the option of enabling and augmenting domestic production of protective clothing and gear and restricting their export. Interestingly, the bench has kept this case pending, rather than dispose it of on the basis of the government’s assurances as it did in similar cases. The court’s role in ensuring the government’s accountability may offer lessons for its intervention in such cases.
During the lockdown, the court was flooded with PILs espousing the rights of sections of society suffering from its impact in different ways. Stating that sanitation workers handling household waste without any protective gear were vulnerable, especially in COVID-19 hotspots, a petition filed by the social activist Harnam Singh sought the court’s directions to ensure that municipal boards, panchayats, cantonment boards and railway authorities equip them with “long sleeved gowns, boots, masks, goggles and face shield”, as recommended by the WHO. The petitioner also sought directions to test these workers and their family members for COVID-19 within 48 hours of the order being passed. On April 15, the Supreme Court disposed of the petition on the Solicitor General’s submission that WHO guidelines were binding on the Government of India and were meticulously followed.
Sanitation and health care workers
On April 15, the Supreme Court bench comprising Justices N.V. Ramana, Sanjay Kishan Kaul and B.R. Gavai disposed of the petitions filed by the United Nurses Association and the Indian Nurses Professional Association seeking directions to the government to formulate a comprehensive policy framework with regard to protecting and safeguarding health care workers. The bench was satisfied that the Centre had set up helpline numbers and control rooms to act on their grievances.
On the right to life and personal liberty, the Supreme Court and the High Courts failed to adopt a consistent approach with regard to grant of bail and release of undertrials. The Supreme Court, in contrast to its own stand on such issues in the past, asked the social activists Gautam Navlakha and Anand Teltumbde to surrender to the National Investigation Agency despite the lockdown and face arrest and incarceration for an indefinite period pending trial, notwithstanding the threat of spread of COVID-19 among prisoners.
It was only on March 23 that the Supreme Court bench of Chief Justice of India S.A. Bobde and Justices Nageswara Rao and Surya Kant had directed all States and Union Territories to set up high-level panels to consider release on parole of all convicts who had been jailed for up to seven years so as to decongest jails. The bench also recommended extension of similar relief to undertrials awaiting trial for offences entailing maximum sentence of seven years.
On April 13, however, the bench of Chief Justice of India S.A. Bobde and Justices Nageswara Rao and Shantanagoudar accepted the Centre’s contention that any prisoner suffering from COVID should be subjected to tests and not be released. But if a prisoner who had been released was found to be infected, he or she should be quarantined, it added.
The Centre submitted that except in Bihar, Goa and Delhi some prisoners had been released following the March 23 order. The Attorney General, K.K. Venugopal, submitted that the release and transportation of prisoners would itself result in transmission of coronavirus from prisons or detention centres to locations they were headed to.
The bench observed on April 13:
“We make it clear that we have not directed the States/Union Territories to compulsorily release the prisoners from their respective prisons. The purpose of our aforesaid order (passed on March 23) was to ensure that the States/Union Territories assess the situation in their prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released.”
The bench directed transportation of released prisoners to their destination with due compliance to physical distancing norms. Clearly, while the Centre is reluctant to release prisoners on the grounds that an infected prisoner who is released may spread it to others, the court’s concern is that the continued detention of such prisoners in overpopulated prisons could be detrimental to containment efforts. The bench made it applicable to detention centres and correctional and protection homes as well.
On April 9, a division bench of the Delhi High Court comprising Justices Rajiv Sahai Endlaw and Manoj Kumar Ohri directed the release of undertrial prisoners without their having to furnish a surety bond. They could be released on furnishing a personal bond to the satisfaction of the Superintendent of Jail. The High Court passed the order in order to decongest Delhi jails, as a large number of undertrial prisoners languished in them for want of sureties despite having been granted bail.
Both the Bombay High Court and the Rajasthan High Court refused to consider bail applications as “urgent judicial matter”. Such orders hugely disappointed those concerned with using the epidemic as an excuse to curtail precious liberties. Fortunately, the Supreme Court stayed the order of the Rajasthan High Court’s Jaipur Bench directing the registry not to list bail pleas and sentence suspension of prisoners as “extreme urgent matters”. Insofar as the Bombay High Court order relies on the Jaipur Bench’s order, the Supreme Court’s stay should apply to it too.