Apex Court in Pandemic times

Varanasi Subrahmanyam

The 54-day lockdown has been extended to another 14 days. Will this be last phase of the lock down? No one knows. India competes with Italy's longest lockdown and is in the leagues of harshest lockdowns in the world along with Israel and South Africa. Toby Phillips, head of Research and Policy at Digital Pathways at Oxford University told India Today TV that the Stringent Index measured 100 for India. Despite after a 7-week clampdown, corona infections surpassed China standing at little over 90000 cases, though the covid-19 mortalities are much lesser and standing at 2872, when the latest extension has been announced.

Economic Impact of lockdown
While the impact of the serial lockdowns in arresting virus spread is debatable, its effects on the economy are clear. The writing is on the wall for recession. Out of the 44-crore work force, CMIE says, 3.3 crore jobs are lost who are in their 30s.  The unemployment rate is already near 25% and, as per CMIE, nearly 9.13 crore small traders and labourers have lost employment in April 2020. Income losses, till May 3rd, totalled Rs.10000 cr. GDP in 2020 -21 is estimated to be declining anywhere between 0% to -2%, a revision from pre-Corona estimates of 1.9 % for 2020. The least in the last 29 years. The decelerating story of economy growth has been there for everybody to see. From 6.1% in 2018 to 4.2 % in 2019 and now woeful 0% , at best. GDP figures are on plummeting spree.

By 3rd May, the country's economy suffered a staggering loss worth $ 235 billion due to closures in the lockdown. 84% households saw fall in their incomes, 2/3 of workers losing their employment. 50% of the households reporting paltry money at hand to buy a mere week's ration on May 3rd. The promised cash transfers are far and few. Only 36% vulnerable households reporting at least one cash transfer. The migrant workers could not use the PDS, as their ration cards have their home addresses, and not at the place they came for work. The PM CARES never cared much for the distressed labour. As if the workers are responsible for this economic catastrophe in the pandemic period, the corona capitalists are demanding annulling all pro labour laws, including the law to protect the migrant workers. The three BJP governments immediately obliged. UP brought an ordinance to suspend 34 labour laws till 3 years. Plans are afoot to make 12 hour working hours for the workers.  In the post Corona period, the workers have to work like bonded labour foregoing all the rights they achieved over the decades, if the working class doesn't fight back these anti worker measures. 

The tragic situation of migrant poor
The short notice announcement of lockdown affected all, mostly and severely the poor and marginalised. The 10 crore migrant workers, as per the estimations in the Economic Survey of 2016-17, were hit very harshly. Most of them, 90%, are working as contractual labour, or working on daily wages, or self-employed workers, or casual labour. Suddenly out of work, their immediate employers denying payments, the workers felt bolt from blue. The Stranded Workers Action Network (SWAN) report says that the migrant workers condition has become pathetic day by day. The key findings of the report showed that 89% workers had not been paid wages by their employers during the lockdown, 44% calls were SOS with no money or rations left, 78% workers had less than 300 rupees left, 96% had not received rations from the government, 50% had rations left for less than 1 day, etc. – all pointing to the extremely grim and precarious conditions. This was in mid-April.

Exodus- was it inevitable? Couldn't a Vande Bharat Mission be planned for millions of plebians?
Despite many promises and schemes by the Central government, the reality on the ground was different. Enough is enough, the stranded workers thought. Come what may, the migrant workers decided to leave the places and go home. This is an unprecedented exodus of migrant workers that is seen after partition days. So far 134 died scores injured, hundreds became seriously Ill, in this long march to their homes. In these precarious situations too, people were beaten to death by police. Latest example is from Surat. Satya Swain, 30, went to a police station to register himself to return to Odisha. He lost his life due to merciless beatings by the police. So far the railways ferried 10 lakhs in 1000 Shramik Specials. 10 to 15 lakh already reached by walking, cycling, and hitch kicking. And rest of the workers are walking, cycling, spending days and nights with fire in the belly on footpaths, under flyover or in slum like shelter homes.

In quest of justice for stranded workers
Well intentioned people from different walks of life, knocked the doors of Apex Court in the month of April pleading justice for the migrant workers, poor and marginalised affected by lockdown. 

Mahua Moitra, TMC MP wrote a letter to SC. She requested the Court to issue directions to the government agencies to make arrangements for the distressed workers, and ask the employers to provide due wages, food and shelter to these workers, during this crisis. The SC a took it as a petition. 

The bench of Chief Justice S A Bobde and Justice L Nageswara Rao, took up two separate PILs filed by advocates Alok Srivastava and Rashmi Bansal on the issue of migration of labourers. They were seeking government to provide food, shelter to the stranded migrant workers.

Harsh Mander filed a petition seeking directions to the Centre and state government to ensure payments of minimum wages to all migrant workers during lockdown, as already government directed the employers to pay minimum wages. The petitioners argued, since the employers are from small establishments and with lockdown, they would be unable to pay and hence it lay on the government shoulders to provide the minimum wages. 

Swami Agnivesh sought immediate relief to the poor, informal sector workers, slum dwellers and economically weaker sections. The petition was quite a detailed one seeking uninterrupted supply of medicines to HIV patients, dispensing with Aadhar card in providing food and shelter, etc.  Agnivesh stated that they collected a list of around 300 people in Delhi and about 2,500 from other parts of the country, who are daily wagers without ration cards on the verge of starvation. Another plea by activist Swami Agnivesh was to implement that guidelines diligently allowing farming and allied activities. He alleged that they were not being followed by the police authorities.

A petition was filed by human rights activists, Aruna Roy and Nikhil De, seeking payment of wages to registered MNREGA households by the government, in conformity with Ministry of Labour’s direction to chief secretaries of all states of March 20, 2020  directing that during the coronavirus pandemic, all workers be “deemed to be on duty” and be paid “full wages without any deductions”.

In Mahua's petition, the SC said it does not want to meddle at this time when government is fighting the corona virus and there was no reason why it could not believe government measures.

Harsh Mander's petition was rejected similarly.  Court orally observed that it could not supplant its wisdom over what the government policy was at that time. Swamy Agnivesh' petition too was rejected on the same arguement of " hope and trust" jurisprudence, to borrow the phrase used by Prashant Bhushan, who was the counsel in Harsh Mander's petition. Welcoming the rejection of wages, the Financial Express writes: 

The Supreme Court has done well to uphold the principle of separation of powers by declining to direct the government to provide wages to migrant workers whose wage flow has stopped because of the Covid-19 lockdown decision.

The same newspapers went ecstatic when three BJP governments eased labour laws. On 9th May it said: "Ease labour laws now: UP gets it right, but relaxation must become permanent".  Prefectly turning a catastrophe into an opportunity!

Aruna Roy's petition was heard on April 8, 2020. the Supreme Court orally observed that the year 2020 is far from over and that the workers may be able to avail the 100 day entitlement in the subsequent months as the lockdown is lifted and that the government cannot be asked to pay them wages as they are not “employees” but “beneficiaries”. 

Jagdeep Chokkar's petition sought to send the migrant workers to their homes with dignity at free of cost. He brought forward the tragic deaths in Aurangabad where in 16 migrant workers on their way to home were crushed to death under a cargo train. He also stated that even the subsidized train fare was beyond the means of most workers. The petitioner's counsel, Advocate Prashant Bhushan submitted that the pre-condition to obtain medical fitness certificate for travel was creating practical difficulties. After the mishap, the State Government withdrew  thecondition.

Responding to the petition, the bench asked: "How can we stop them from walking? How can anyone stop this when they sleep on railway tracks?"  The top court dismissed the petition saying: As all necessary steps are being taken by the Centre and the States, we do not see any purpose in keeping this writ petition pending".

During the course of arguments in the petitions, the disparaging remarks of the Solicitor General, Tushar Mehta on the petitioners show the government' contempt towards the intentions of these good samaritans in seeking public good. 

"Till the country and the world comes out of this unprecedented tragedy such "professional PIL shops" must be locked down as none of them has any concern about the poor and needy or thousands of patients fighting this deadly disease", said Mehta.

Mehta said in the court: "I have serious reservations for this particular petition. (on Swamy Agnivesh ') These are self-employment generating petitions. The court should not entertain such petitions," 

Responding to a plea by activists Harsh Mander and Anjali Bharadwaj on plight of migrant workers, the Centre asked the court not to encourage "self-serving petitions" filed on the basis of newspaper reports. 

Are PILs should be seen as nuisance to the government in power? How should they be viewed even in emergencies? The SC said this in BALCO employees’ case:

 "PIL is not meant to be adversial in nature and is to be a cooperative and collaborative effort of the parties and the Court so as to secure justice for the poor and the weaker sections of the community who are not in a position to protect their own interests". Are we in different times?

The omnibus argument by Centre is that the government knows the best and doing the best and the SC must trust the government 's efforts. The SC reposed the trust in the government.  Bobde said in an interview to Hindu on April 26th. "Executive with its three 'Ms' of money, men and material is better-suited to deal with COVID-19 crisis". Paucity of government's resources is not under debate. Poverty of policies are under question. 

Advocate Tushar Mehta informed the court that as of 11 am on Mar. 31, there was no person walking on the roads in an attempt to reach their home town or village. The world knows the truth. SC trusted the government's version. It blinked eyes blissfully.

The court's observations and the decisions came under scanner. The top court observed during the arguments in Alok Srivatsava's petition that the "migration of labourers out of panic and fear is becoming a bigger problem than the coronavirus”. This is to ignore genuine concerns of the migrant labourers.

During the arguments of Harsh Mander's petition CJI Bobde asked why wages should be paid if meals were being provided by the state governments. Does the Court reduce the worker's life to bare animal existence? Asks, Gautam Bhatia, a legal scholar in Oxford. Manu Sebastian, a legal columnist says it is insensitive on the part of SC to reduce human beings to such levels.

Disappointed with these slew of orders, Justice (Retd) Kailash Gambhir, former judge of the Delhi HC, felt that  SC could have been more proactive to protect the migrants.

Many were astonished SC’s non response to the burning issue of the day. Senior Advocate Jaideep Gupta said, in his face book post:

"The decades of development of this jurisdiction (PIL jurisdiction) to rectify everything from bonded labour to sardarji jokes now stands in danger of being wiped out at the time of the gravest crisis of the citizens of this country".

"The migrants walk home is not a casual irresponsible act of a citizen. It's a moment of existential crisis for them. The Supreme Court could have done a lot. Only they could have", 

While the SC completely refused to interfere with the centre's wisdom, the Madras and Amaravati Courts trod a different path. While the SC refused to believe any violation of the inviolable rights of the people under Article 14 and Article 21, (majority of the petitions based on them) these courts, reiterated that constitutional duty cannot be foregone, corona or no corona.

Taking note of the miserable state of migrant labours in the state who have been forced to undertake long journey on foot due to the lockdown, the Andhra Pradesh High Court issued directions to ensure availability of basic amenities to the walking migrants in a petition filed by K Ramakrishna, Secretary, CPI, AP.

The Court observed  on 16th May, 2020
"This Court notices that the labour who have left their ancestral homes and villages and moved to the cities for better livelihood to ensure that all of us live in comfort are on the roads today. They represent the people who are working in hundreds of different trades, callings etc., and all of them together ensure that we lead a happy and comfortable life. If at this stage, this Court does not react and pass these orders, this Court would be falling in its role as a protector and alleviator of suffering. (emphasis added) The ever expanding scope of "life" under Article 21 of the Constitution of India will take into account this situation also. They deserve more help particularly when they are trekking back with their heads high instead of living at someone's mercy".

It is in stark contrast with the SC decisions where in similar ameliarating measures were sought from the government and were refused. The AP Court observed that the situation was "alarming" and that "immediate intervention" of the Court was necessary.

The AP High Court gave elaborate directions to protect the migrants who are passing through the State. 

On 16th May the Madras HC suo moto sought action report from the State Government and the Centre on the steps taken for the relief of migrants.

"It is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers", observed the HC bench.

The Madras High Court directed the Central Government and the Government of Tamil Nadu to submit an action taken report on the measures taken to alleviate the sufferings of migrant workers amid the COVID-19 lockdown situation.

"One cannot control his/her tears after seeing the pathetic condition of migrant labourers shown in the media for the past one month. It is nothing but a human tragedy", the Court observed in the order.

The Court made a special reference to the Aurangabad train tragedy, where 16 migrant workers were crushed to death by a moving goods train during their journey back to native place.

The Court also acknowledged that the Central Government has to come out with relief measures including rental housing facility, free food grains without ration card.

 Impleading the Central Government and the Government of Tamil Nadu, the court sought  a detailed data on the migration workers and asked to file an 'Action Taken Report'. 

Some legal luminaries appealed to SC to revisit their decisions by rising to the occassion? Will it? Or will it godown as " executive judiciary"? We do not know the answer for sure. But the portends are ominous. 

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May 21, 2020