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THIS Article is not about the efficacy of the video conferencing hearings or about how many or often judges should sit for hearings during this lockdown. It is about the unwillingness of the higher Indian judiciary, especially the Supreme Court, in addressing concerns on COVID 19 raised before it and thereby dismissing its own duty to protect the constitution of India. One can extend to the maximum ones benefit of doubt and accept that in the initial week of the lockdown the Supreme Court felt that the Government was doing its best. But for how long could this illusion extend when the extent of the crisis had become clear within 7 days. While some were frivolous or demanded high levels of medical expertise, a number of issues have been raised in the Supreme Court which it could have and should have entertained; but failed to do so.

In a two-part series, this article will address the role of courts in responding to the humanitarian crisis in times of a pandemic. Part I will distinguish the way in which the Supreme Court and High Courts have used their constitutional powers to show deference to the government and prod the government respectively. In like manner during the emergency of 1975-77, some of the High Courts have been much more proactive about peoples rights. Till date, 19 High Courts have adjudicated and passed direction to governments on various issues as a Constitutional Court should do in times of humanitarian crisis.

While the March 24 lockdown may have come as a bolt from the blue for the people but for the Central Government one assumes it was a planned action. On 11 March, WHO had declared COVID19 a pandemic. A Status Report, filed by the government during the COVID19 petition hearings in early April, mentioned that the Central Government had started making all preparations such as hospital preparedness since January 7, 2020. From the first week of March, the Supreme Court had begun to run on a very limited urgent hearing basis. A study by the Centre for the Study of Developing Societies (CSDS) and by Azim Premji University in 2019 estimates that 29% of the population in Indias big cities are daily wage earners. This is the number of people which, logically speaking, would want to move back to their states. Any efficient Government would have anticipated the rush of migrants to home states and planned for it.

In a petition filed by Alakh Alok Srivastava, the Central Government said that nearly 6 lakh migrant workers were placed in government shelters and about 22 lakh persons were provided food. What would happen to crores of other migrants was of course a question that the Supreme Court did not pose. Incredulously, the Solicitor General made a statement that as of 11 a.m. on March 31, not a single migrant was walking ! It further submitted that migrant workers walking is a panic created by fake news. This was an astonishing claim but the Court accepted all these submissions. The court disposed of the entire matter stating that the Central Government should keep doing what it is doing. In the Courts book, the Chapter 1 on the migrant crisis was hereby closed.

It dismissed its suo motu cognisance of MP Mahua Moitra petition on the migrant crisis without giving clear reasons. Thus Chapter 2 was closed. On April 7 in a Petition that sought payment of wages to the migrants, the Chief Justice carelessly remarked if the migrants are being fed why do they need money? and overlooked the other financial requirements and needs of a human being. Further, it orally dismissed the Affidavits filed by the petitioner Harsh Mander without any attempt at examination or verifications of the governments claims. Chapter 3 was hence shut down. On May 4 the Court disposed of the entire Petition regarding allowing migrants to travel back to their parent states by holding that it could not go into the issue of charges for travel. This closed Chapter 4.

On May 16, migrants who were going towards their home state died as a train ran over them. An immediate application was made by Alakh Alok Srivatsava seeking Courts intervention in directing the District Magistrates to ensure that those who are walking are provided with shelter and food. One of the Judges remarked that the submission was based purely on newspaper reports. Further, in a truly sublime observation, another Judge remarked: how can we stop people from walking.? The Solicitor General with his characteristic insensitivity remarked that what can the government do if people are not willing to wait their turn for train travel. These insensitive remarks missed the critical point that people were forced into walking because they were not getting food or water; they were walking because they did not have money to buy train tickets; they were walking because no one was certain as to when their turn will come to travel by train. Unsurprisingly and keeping with its set pattern, this Application was dismissed. Chapter 5 was closed.

In sharp contrast, High Courts have been issuing direction and pulling up governments for inadequacy in their actions. On May 12, the Karnataka High Court in Mohammed Arif Jameel v. Union of India noted that while the State Government is expected to pay for Shramik special trains, in Karnataka the State was collecting train fare from the migrant workers. It called this a violation of the migrant workers constitutional rights and directed the State Government to ensure an efficient time schedule so that the migrants can travel back to their home states. On 12th May the bench reprimanded the government for not placing before it any transparent or rational policy of selecting migrants to board trains.

On May 15, the Andhra Pradesh High Court passed an order directing setting up of tents and outposts for migrants. It included instructions on the provision of doctors, water, food, ORS salts, toilets and sanitary at these tents and outposts. It is further directed for the utilisation of national highway authority buses and police patrol vans to transport migrants to the nearest shelter homes and distribution of pamphlets that provide information about nearest shelter homes.

Similarly, the Gujarat High Court on May 11 took Suo Motu Notice of the plight of migrants from an article published in Indian Express. Stop migrant workers walking home, take them to shelters: DGP. It sought answers on how many shelter homes were functional, with provision of food and water. It noted that It sympathetically observed the widespread fear of starvation and asked the state government to take steps to repose faith and confidence. It is hightime for the State Government to deal with this delicate situation very carefully and instill confidence in the minds of the people at large that they will be taken care of.

On May 15, the Madras High Court in AP Suryaprakasam v. Superintendent of Police passed an order that narrated the distress of migrants. It says 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 heart breaking stories are reported in the print as well as visual media that millions of workers were compelled to start walking to their native States with their little children .., as no steps were taken by the Governments to help those migrant workers. The court held both the native and migrated state of the worker accountable for the safety and well-being of the workers and asked all state authorities to extend humanitarian services to the workers.

Patna High Court took suo motu cognisance of the death of Arbeena, a migrant worker who had arrived on a Shramik Train from Gujarat, from acute dehydration and starvation at Muzaffarpur Railway Station. The state counsel shockingly alleged that she was mentally unstable and died a natural death; a claim that the deceaseds father refuted. The court-appointed Adv Ashish Giri as Amicus, and has sought a reply from state counsel on all facts and information on issues that overlap with the central government.

With the lockdown, it was clear that millions of people, not just migrants, who were below the poverty line would need food and drinking water. A large number of workers became jobless overnight and many were not even paid their previous wages. The absence of any direction or assurance regarding the food supply in the P.Ms lockdown speech on March 23 at 8 p.m, caused widespread panic buying and hoarding.

While the free ration was announced it was available only if you first buy paid ration. A large number of people in India do not have ration cards all or their ration cards are in their villages and they are in the cities or they have the ration card but it is from a different state. These two factors led to their inability to buy rations and resulted in the denial of free rations. Notably, there was and is enough buffer stock lying in the FCI godowns to feed the entire population many times over. The Government should have released the stock and given totally free rations to people not just during lockdown but also for months after that. This was the only way of ensuring the enforcement of the right to food as a fundamental right.

A petition was filed by Aayom Welfare Trust urging the Government to give rations to those who do not have ration cards and universalise access to the public distribution system. This Petition was disposed of as a policy matter and requested the government may consider taking the matter up. The High Courts, on the other hand, have pushed governments to take steps to provide food. Karnataka High Court cited Supreme Courts judgment in Swaraj Abhiyan case that during times of drought any identity proof is sufficient to claim ration and applied the same logic to the COVID-19 crisis with respect to ration cards. Further, it asked the State as to how (and not whether) it will provide children food from the Anganwadi and mid-day meal due to which the government had no option but to come up with a plan.

The court observed that many persons belonging to marginalised communities such as beggars, transgenders and sex workers may not have ration cards. It pushed the state government to provide it with a comprehensive policy on food. The Court came down heavily on the government for not giving free gas cylinders. The Court observed that homeless people may not have access to newspapers so such advertisements of government relief measures there were meaningless. All of this prompted the state to come up with food policy and take steps to make public announcements of its relief measures.

It is obvious that testing for COVID is extremely crucial for detection and treatment. While there are a few government laboratories where the test is available for free, there are a large number of private laboratories where the test has to be paid for. Payment is capped at Rs. 4,500/- per test. One has to be tested twice. So if one is in a family of four the minimum test charges would be Rs. 36,000/-. It was impossible for the poor to bear this. A Petition was filed in the Supreme Court.

On April 8, the Court passed an order stating that whether COVID-19 test should be free in government and private hospitals. Private hospitals immediately intervened seeking that only poor persons covered by Ayushman Bharat scheme can avail free testing. At least more than 50 million poor persons in India are not covered by this scheme. There is no reason why private laboratories which earn millions should not be asked to do some charitable work. At the minimum, the Court should have asked the private hospitals to do these tests free and directed the Government to pay for these tests.

When Courts see their roles as assisting the Executive, when they choose to disbelieve the lived reality of people, when they fail to exercise their constitutional duties; one wonders what the Courts are meant for? Of course one would have to say that by and large High Courts have also followed the Supreme Court in deferring to the Executive but one still finds important exceptions. The High Courts have been prodding, pushing, embarrassing and asking probing questions as is the duty of a Constitutional Court.

In Part-II of this series, I shall examine the steps and powers the courts can take in such a crisis to direct the government and thereby fulfil their constitutional mandate. I shall also stress upon the heightened urgency by which DPSPs transform into fundamental rights as fundamental state obligations that the courts must enforce.

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A proding judiciary in times of emergencies [Part 1] - The Leaflet