SUPREME COURT AND COVID-19: A TALE TO REMEMBER FOR AGES

This article has been authored by Akshay Shrivastava, a student of Gujarat National Law University.

Coronavirus or (popularly known as) Covid-19, has made many modifications in the day to day life of people around the world. It has forced people to stay indoors and pay heed to sanitisation and other healthy measures and practices. India, which was earlier boasting about its prompt handling of the pandemic is now ranked second amongst the countries badly hit by a coronavirus. While the incumbent government has made continuous effort to contain and prevent the spread of the virus, there have been many shortcomings in different areas. The Hon'ble Supreme Court has not been proactive from the very beginning and has not issued timely guidelines, directions, and orders concerning the handling of coronavirus. It has adopted the wait and see approach when it comes to giving directions to central and state government for making necessary arrangements for health facilities, food, shelter, transport, etc.

Several petitions were filed during the lockdown, while some were dismissed rightly as they lacked substance and material, many others were not considered properly and requisite actions and orders were not given. Supreme Court is the guardian of our Constitution and is responsible for making the government accountable for their actions. However, it has turned a blind eye to the pain and grief of various sections of the society, most affected by this pandemic and who were not given any kind of redressal by the government, responsible to look after them. This article tries to analyse the efficacy of the Supreme Court in handling various issues brought before it pertaining to coronavirus and its effect on various people especially the migrant workers.

Before talking about the issues mishandled by the Supreme Court, a look at the apt measures and actions taken by the highest authority may be referred to. The very first measure taken by the Supreme Court in furtherance of the social distancing norms was the issuance of guidelines for the working of various courts during the lockdown. On 13th March 2020, Supreme Court issued a notification and restricted the functioning of the court for urgent matters taking into consideration the advisory issued by the Government of India and the safety of all the visitors, lawyers, court staff, litigants, interns, and inter alia media professionals.[i]

However, when the lockdown was imposed, the Hon’ble Chief Justice of India, Justice SA Bobde suo moto issued certain directions and guidelines pertaining to the working of courts and the manner in which hearing would take place during the lockdown period. Open court hearings were postponed till further notice and an app by the name ‘vidyo’ was launched for the purpose of virtual hearing through video-conferencing. This ensured that the doors of justice were always open albeit the doors of the courts were closed. Furthermore, the limitation period was also extended from 15th March 2020 till further notice by the Apex Court, applicable to all courts, tribunals across the country. It further said that,

“It is necessary that courts at all levels respond to the call of social distancing and ensure that court premises do not contribute to the spread of the virus. This is not a matter of discretion but a duty.”

The Apex Court also invoked its power conferred by Article 142 read with Article 141 of the Indian Constitution and extended the limitation period by 15 days from the date of the lifting of lockdown.[ii]

A petition was filed before the Supreme Court seeking directions to be given to private hospitals and government hospitals to not charge a single penny for conducting covid-19 tests from the economically weaker sections of the society. Senior Advocate Mukul Rohatgi submitted before the Court that the labs are conducting free covid-19 tests when it comes to the class of people being covered under the Pradhan Mantri Jan Aarogya Yojana.

The Hon’ble Supreme Court after taking into consideration the financial constraints of the indigents and ordained that in addition to the people being covered under the aforesaid Pradhan Mantri Jan Aarogya Yojana, the government should also consider as to whether any other categories of persons belonging to economically weaker sections of the society can be extended benefit of free testing of COVID-19.[iii]

The abovementioned orders and directions were the exceptions. On other matters, the Apex Court was unsuccessful in fulfilling its duty. Rather than being proactive in urgent matters, the Supreme Court adopted a wait and see attitude. Days and weeks continued to pass and the agony of the workers walking on the roads along with their family members kept on increasing, however, it didn’t come in sight of the Supreme Court and no regard was given to alleviate their suffering.

The Apex Court refused to pass any order in a petition seeking instructions to be given to the Centre for providing ration to those people who do not have a ration card. Pronouncing it to be a policy issue, it said that,

“it is left open to the Government of India and also the concerned States/Union Territories to consider such relief.”[iv]

Justice Ramaswamy once stated that doctrine of separation of power is the basic postulate under the Indian Constitution and thus the legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret the law within the limits set down by the Constitution.[v] Albeit, the Indian Constitution follows the doctrine of separation of powers and restricts interference by one organ in the working of the other, it is not applied in its absolute sense. It cannot use this doctrine as an underpinning for not interfering in several issues and not issuing necessary orders to the government.

While the right to food, shelter, drinking water, health care, etc. have not been given any explicit place in the fundamental rights chapter, they are considered as an indispensable part of Article 21 of the Constitution. Article 21 of the Constitution which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law, has been given a broader interpretation by the Supreme Court. The ambit of Article 21 of the Constitution is extended to not just include ‘mere animal existence’ but also the right to shelter[vi], right to clean and safe drinking water[vii], right to health care[viii], right to food, etc. State by providing these facilities is not doing any favour on the citizens, it is merely fulfilling its legal obligation bestowed upon it by the Constitution. A parallel responsibility is placed upon the Supreme Court to review the working of the Government and to ensure that these rights are not infringed and take necessary actions if required.

A Public Interest Litigation (PIL) was filed by Alakh Alok Shrivastava[ix], seeking redressal of grievances faced by the migrant workers due to lockdown. They prayed before the Hon’ble Supreme Court for directions to be issued to the concerning authorities to shift the migrant labourers to government shelter homes and provide them with basic amenities like food, clean drinking water, medicines, etc.

According to Solicitor General, the exodus like situation and panic amongst the migrant workers was caused due to fake and misleading information being circulated by the news and social media regarding the extension of lockdown for 3 months. The Hon’ble Supreme Court opined that it was satisfied with the action of the government and directed the media to circulated and public only official statements concerning future developments.

This order was issued on 31st March 2020, and after this lockdown was increased for few more weeks, another petition was filed by seeking a direction to be given to the Central and State Government to secure payment of minimum wages to the migrant labourers stranded in different states without any source of income, food, shelter, etc. It was contended that regardless of the steps taken by the government, thousands of workers and labourers were still not having the basic amenities, as the benefit has not reached them.[x]

Solicitor General again assured the Hon’ble Supreme Court, that measures have already been taken by the government to redress the plight of the workers. Supreme Court was in consonance with the government's reply and disposed of the petition and left the issue of minimum wages in the hands of the government.

When it comes to the migrant crisis, the Hon’ble Supreme Court considered the submissions made by the incumbent Solicitor General as the gospel truth and did not find it necessary on its part to take any action or give directions to the government to mitigate the plight of migrant workers stranded in all and sundry states without any source of income, food, and shelter.

Later on, the Hon’ble Supreme Court took Cognizance of problems and miseries of migrant labourers who had been stranded in different parts of the country on 26th May 2020.[xi] It took the cognizance of the imperative matter based on various newspaper and media reports, numerous letters and representations made by the different sections of the societies inter alia lawyers, NGOs, former judges, etc. Furthermore, it said that media reports have displayed the misfortunate and pathetic conditions of the workers walking on foot and cycles travelling a long distance. There have been many complaints and grievances regarding the non-arrangement of food and water by the administration at various places in different states.

Taking into consideration the disappointing measures taken by the Central Government and State Governments and various oversights, the Hon’ble Apex Court said that,

“The adequate transport arrangement, food and shelters are immediately to be provided by the Centre and State Governments free of costs.”[xii]

The Cognizance by the Supreme Court of the misery and plight of the hapless workers came at the eleventh hour when they had already been subjected to various hardships caused by the mismanagement of the pandemic by the government. It was quite perspicuous for everyone to know that the biggest impact of the lockdown has been on the poor, migrant labour, children, women, Adivasis, and other marginalized groups. Though, the Supreme Court failed to notice the grief and pain of the indigent, which was being telecasted daily on news channels and newspapers.

Retired Supreme Court Judge MB Lokur wrote for ‘The Wire’ and gave the Supreme Court an “F” grade for its mishandling of the migrant crisis. The relevant excerpt of the article is produced as under:

“Images that have haunted us for two months and the horrific struggles of millions will remain etched in our psyche and many will long remember that when it came to the crunch, the Supreme Court did not see those images or read those stories. Over the past few months, constitutional rights and remedies were overlooked and socio-economic justice, a cornerstone in the preamble of our constitution, was disregarded.”[xiii]

The Hon’ble Supreme Court has a responsibility towards the people of India to safeguard their rights and to make the Government accountable for its action and to give requisite directions when required. The reluctance of the Supreme Court to even supervise or monitor several issues shows its lackadaisical approach towards the hardship faced by the migrant workers. It evaded its responsibility of keeping a check on the working of the government and didn’t consider it necessary to direct the authorities to submit substantive reports, providing the details of the measures and steps taken by them. Leonardo da Vinci once said, one who does not stop evil, commands it to be done. The Supreme Court was receptive to the illusion created by the government regarding the migrant crisis and become a party in the mishandling of the interests of the downtrodden by not taking any measure to provide relief to the poor migrant workers walking a hundred miles barefooted towards their home.

To conclude, it can be said that the Supreme Court relinquished its duty towards millions of underprivileged and marginalized people by taking the passenger seat and by being heedless to their pain and grief. The stance of the Supreme Court on the Covid-19 crisis has made people doubtful of its working and it will take tremendous effort on the part of the Guardian of Our Constitution to re-establish their faith in the judicial process.

[i]Supreme Court of India, https://main.sci.gov.in/pdf/Notification/13032020_120544.pdf (last visited Sept. 29, 2020). [ii]IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION, 2020 SCC OnLine SC 343. [iii]Shashank Deo Sudhi v. Union of India, 2020 SCC OnLine SC 361, order dated 13.04.2020. [iv]Aayom Welfare Society v. Union of India, 2020 SCC OnLine SC 428 , decided on 30.04.2020. [v]Kartar Singh v. State of Punjab, 1994 SCC (3) 569. [vi]Olga Tellis v. B.M.C., 1985 3 SCC 545. [vii]A.P. Pollution Control Board, 2001 2 SCC 62. [viii]Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426. [ix]Alakh Alok Srivastava v. Union of India, 2020 SCC OnLine SC 345, order dated 31.03.2020. [x]Harsh Mander v. Union of India, 2020 SCC OnLine SC 376, order dated 21.04.2020. [xi]In re: Problems and Miseries of Migrant Labourers. SUO MOTU WRIT PETITION (CIVIL) No(s). 6/2020, order dated 26.05.2020. [xii]Ibid. [xiii]The Wire, https://thewire.in/law/after-humanitarian-law-died-a-million-deaths-the-supreme-court-has-finally-stirred-itself (last visited Sept. 30, 2020).