03, Jun 2020 | Sanchita Kadam
Here we have a look at how the Supreme Court has dealt with crucial issues relating to the fundamental right to life and dignity, to health care and accountability from the government during the Covid 19 pandemic driven lockdown.
In RE: Contagion of Covid 19 Virus in Prisons [SUO MOTU WRIT PETITION (C) NO. 1/2020]
In RE: Contagion of Covid 19 Virus in Prisons [SUO MOTU WRIT PETITION (C) NO. 1/2020; order dated March 23, 2020]
Coram: CJI SA Bobade, Justices L. Nageswara Rao and Surya Kant
In this order, the Supreme Court took suo motu cognisance of the issue of over-crowding in prisons and ordered both the states and UTs to constitute High Powered Committees to determine which category of detainees/prisoners can be released on parole or on interim bail.
In this suo moto petition, the court took the assistance of an amicus curiae, appointed senior advocate Dushyant Dave and gave directions with respect to dealing with COVID19 with regard to prisons and remand homes. The court recognised the steps taken by few states and also directed that the requirement of physical presence of all undertrial prisoners before Courts in ongoing matters, be stopped. It further directed that prison specific readiness and response plans be developed by states and that a state level monitoring team be set up to ensure that these directives be complied with. It is following the directions in this matter that state governments were actually pushed to take steps in this regard.
The SC directed states and UTs to constitute High Powered Committees (HPC) to determine which class of prisoners can be released on parole or an interim bail for a specified time period. It gave the HPC the leeway to determine the category of prisoners who should/could be released, depending upon the nature of offence, the number of years to which he or she has been sentenced etc.
Harsh Mander and anr. Vs. UOI and anr (Writ Petition (Civil) Diary No. 10801/2020)
Harsh Mander and anr. Vs. UOI and anr (Writ Petition (Civil) Diary No. 10801/2020; order dated April 7, 2020 and April 21, 2020)
Coram: CJI Bobde, Justices SK Kaul and Deepak Gupta
In this petition filed by Harsh Mander and Anjali Bhardwaj, the petitioners had prayed for directions from the court, to governments, to ensure payment of wages to migrant workers. In response, during hearings, the CJI had asked, ‘if they are being provided with meals, why do the migrants need money for meals?’
Senior counsel, Prashant Bhushan appearing for the petitioners responded to this question by saying, “They don’t just need food in the shelter homes…. We need to give them money to send to their families back home. They (family members) are not in shelter homes”.
The main argument in the petition was that the liability of payment of wages to workers, especially migrant labour is on the governments at the Centre and states who should be compelled to do so from the state exchequer; the burden or espectation should not be on the private sector in times of the lockdown. When the petitioners brought to the attention of the court that the quality of the food supplied at the shelter homes was not up to the mark, CJI asked the Solicitor General (SC) appearing for Centre to look into it and said, “That is not something the court can monitor. We are not experts. We do not intend to interfere with what the government is doing without knowing what it is all about….We do not plan to supplant the wisdom of the government with our wisdom. We are not experts in health or management. We will ask the government to create a helpline for complaints.”
The Court further asked the petitioners to look at the status report submitted by the government and refused to interfere in policy matters, “How can you say the government is not doing anything when you have not seen the status report of the government?… “We cannot take a better policy decision at this stage. We don’t want to interfere in government decisions for the next 10-15 days”.
The petition was later disposed on April 21, when SG, Tushar Mehta filed a status report and submitted that various measures are in place to address the issues concerning the migrant workers and a helpline has been provided where if any complaint is received, the authorities are “attempting” to address them immediately. Satisfied by this response, the bench directed the Centre to “take such steps as it finds fit to resolve the issues raised in the petition”.
Read order dated April 7.
Read order dated April 21.
Shashank Deo Sudhi vs. UOI and ors (D. No. 10816 of 2020)
Shashank Deo Sudhi vs. UOI and ors (D. No. 10816 of 2020; order dated April 13, 2020)
Coram: Justices Ashok Bhushan and Ravindra Bhat
In this case the petitioner had sought for directions to ensure free testing for COVID19 in public as well as private hospitals. In the previous order, the court had directed the same but in this final order, the court back tracked on its earlier directions and made testing free for persons only eligible under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana.
In this case, two very contrasting orders were passed by the same bench within a span of 5 days. In its April 8 order, the bench agreed with the petitioner’s view and deemed that private Hospitals including Laboratories have an important role to play in containing the scale of pandemic by extending philanthropic services in the hour of national crisis and hence directed Indian Council of Medical Research (ICMR) and Central government to direct approved private labs to conduct testing for free, without any preconditions or caveats.
In its April 13 modified order, after intervention from private laboratories, stated that “the order never intended to make testing free for those who can afford the payment of testing fee fixed by the ICMR for COVID19”. It observed that private labs were already conducting tests for free for people covered under Ayushman Bharat Yojana and then left it up to the government whether any other categories of persons belonging to economically weaker sections of the society can be extended benefit of free testing of 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,” said the bench.
In RE: Contagion of Covid 19 Virus in Prisons [SUO MOTU WRIT PETITION (C) NO. 1/2020]
In RE: Contagion of Covid 19 Virus in Prisons [SUO MOTU WRIT PETITION (C) NO. 1/2020; order dated April 13, 2020]
Coram: CJI SA Bobade, Justices L. Nageswara Rao and Mohan M. Shantanagoudar
In this order, the court has dealt with multiple petitions related to COVID19 and prisons and in one such application, it passed an order that declared foreigners in Assam’s detention centres may be released if they have completed 2 years in detention on furnishing a bond of Rs. 5,000.
An intervention application was filed in this suo moto petition seeking release of those 802 “declared foreigners” in the six detention centres of Assam, who have completed more than a year in detention. The basis for the intervewas laid upon the Supreme Cou the SC dated May 10, 2019 in Supreme Court Legal Services Committee v. Union of India & Others (Writ Petition (Civil) No.1045 of 2018) whereby the court had directed that detenues who have completed more than three years may be released, subject to certain conditions which included execution of bond with two sureties of Rs.1 lakh each of Indian citizens; provision of verifiable address; keeping record of biometric and reporting of the released detenue at a police station, once a week.
The court directed that in the wake of the pandemic, detenues who have been under detention for two years shall be entitled to be released on the same terms and conditions as those laid down in the May 2019 order except that instead of surety of Rs. 1 lakh, bond of Rs. 5,000 be paid. This has made the release of over three dozen detainees possible.
Manohar Lal Sharma vs. Narender Damodardas Modi and ors. (Writ Petition (Criminal) Diary No. 10896/2020)
Manohar Lal Sharma vs. Narender Damodardash Modi and ors. (Writ Petition (Criminal) Diary No. 10896/2020; order dated April 13, 2020)
Coram: CJI SA Bobde, Justices L. Nageswara Rao and Mohan M Shatanagoudar
The petition challenged PM cares fund for not having been created following constitutional procedures dealing with Consolidated and Contingency Fund of India. The contention was that the power to form a contingency fund lies with the Parliament. The petition was summarily dismissed as being misconceived
The petition challenged the manner in which Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM- CARES) Fund was created and contended that under Articles 266 and 267 of the Constitution, a contingency fund can only be created by the Parliament. The bench summarily dismissed the petition as being misconceived. An article in The Wire opined that “the petitioner jumped the gun in seeking a declaration of unconstitutionality, without first demonstrating that the fund was not ‘private’, and was therefore bound by constitutional rigour.”
Alakh Alok Srivastava vs. UOI (Writ Petition (Civil) No. 468/2020)
Alakh Alok Srivastava vs. UOI (Writ Petition (Civil) No. 468/2020; order dated March 31, 2020 and April 27, 2020)
Coram: CJI SA Bobade and Justice L Nageswara Rao
The petition sought directions to shift the migrants, walking hundreds of kilometres on foot, to government shelters and for directions that the government provide them with basic amenities. The Court, relying solely on a status report of the government, that stated that all migrants are being provided for, disposed of the petition.
The Court accepted the submissions made by the Central government whereby it was claimed that exodus of migrant labourers was triggered due to panic created by some fake/misleading news that lockdown would last for 3 months.
The SG, Tushar Mehta, submitted information received from control room that 21,064 relief camps have been set up by various State Governments/Union Territories where the migrant labourers have been shifted and they are being provided with basic amenities like food, medicines, drinking water, etc. According to the Status Report, 6,66,291 persons have been provided shelters and 22,88,279 persons have been provided food.
The Bench thus said, “we are satisfied with the steps taken by the Union of India for preventing the spread of Corona Virus [COVID 19] at this stage.” It also accepted the submission that there is no person walking on the roads in an attempt to reach his/her home towns/villages. The court held, “The mass migration has stopped according to Union of India. All the migrant labourers who were on the road have been shifted to relief camps/shelter homes which are set up at various points in each State/Union Territory. The directions issued by the Union of India and the State Governments/Union Territories to provide all basic amenities like food, drinking water, medicines, etc. to the migrants are being complied with by the concerned District Collectors/Magistrates.”
The writ petition was eventually disposed of on April 27, whereby SG Tushar Mehta agreed that suggestions made in the Interlocutory Application will be examined and appropriate action will be taken on such suggestions.
Read order dated March 31.
Read order dated April 27
Aayom Welfare Society & anr vs. UOI and ors (Writ Petition (Civil) Diary No. 11031/2020)
Aayom Welfare Society & anr vs. UOI and ors (Writ Petition (Civil) Diary No. 11031/2020; order dated April 30, 2020)
Coram: Justices NV Ramana, SK Kaul and BR Gavai
While the prayer was to provide ration to all non-ration card holders, the court declined to go into the prayers in the petition, deemed it to be a policy issue and left the matter to the discretion of the central and concerned state governments
The petitioner insistently sought directions on the prayer for providing ration to those people who do not have any ration card and also for universalisation of the Public Distribution System. The bench however declined a hearing, saying that it is policy issue, best left to the decisions of the central and concerned state governments. The court asked the petitioner to serve a copy of the petition to the Solicitor General appearing for the Centre for their consideration and disposed of the petition.
Mahua Moitra vs. UOI (Writ Petition (Civil) Diary No. 11007/2020)
Mahua Moitra vs. UOI (Writ Petition (Civil) Diary No. 11007/2020; order dated May 5, 2020)
Coram: Justices Ashok Bhushan, SK Kaul and BR Gavai
Member of Parliament (MP) from the Trinamool Congress (TMC), Mahua Moitra had filed a plea challenging the validity of the Ministry of Corporate Affairs’ circular, which excluded Chief Minister relief funds from receiving contributions under Corporate Social Responsibility (CSR). The plea was deemed to be devoid of any merit and was allowed to be withdrawn.
The Bench noted that the aggrieved party was not before the court and that the petitioner had not challenged the Act in the petition. The bench had observed that unless covered under schedule VII of the Companies Act of 2013, the state government cannot claim such funds and further said, “Whether state should get the benefit out of it or not the petitioner can debate it in the parliament.”
The petition had claimed that the MCA circular was ultra vires the provisions of the Companies Act, 2013 as also impinged upon Article14 of the Indian Constitution. But the bench stated that the petition lacked merit.
- Alakh Alok Srivastava vs. UOI (Misc. A. Diary No(s). 11214/2020 in W.P.(C) No. 468/2020)
Alakh Alok Srivastava vs. UOI (Misc. A. Diary No(s). 11214/2020 in W.P.(C) No.
468/2020; order dated May 15, 2020)
Coram: Justices L. Nageswara Rao, SK Kaul, BR Gavai
This was an application arising out of the April 27 judgment of the SC dismissing the Srivastava’s petition which was for taking the hundreds of thousands walking migrant labour to shelters and also providing them with basic amenities. This application was seeking urgent directions to all District Magistrates to identify these walking labourers and to ensure that they reach their homes, free of cost and in a dignified manner.
The courtroom exchange in this case is probably the most widely reported. The final order and judgement contains just one line, “The miscellaneous application stands dismissed.” Some very disturbing statements reported from theSupreme Court Bench hearing this matter, drew widespread criticism from jurists and the legal fraternity at large. “There are people who are walking and not stopping. How can we stop it?”, said Justice L. Nageswara Rao who was heading the three judge bench.
The bench also said, “Every advocate reads something suddenly and then you want us to decide issued under Article 32 of the Constitution of India based on your knowledge of newspapers? Will you go and implement government directives? We will give you a special pass and you go and check.” This has been viewed as an appalling outburst coming from the top court in times of crisis, especially while dealing with a petition with completely valid and plausible prayers. It is the job of the lawyer to put the issue before the court and not to implement government’s policies. The Solicitor General, Tushar Mehta said that the migrants need to “have patience… and wait for their turn” and the court dismissed the application.
IN RE: Problems And Miseries Of Migrant Labourers (SUO MOTU WRIT PETITION (CIVIL) No. 6/2020)
IN RE: Problems And Miseries Of Migrant Labourers (SUO MOTU WRIT PETITION (CIVIL) No. 6/2020; interim order dated May 28)
Coram: Justices Ashok Bhushan, SK Kaul and MR Shah
After being widely criticised for turning a blind eye to the migrant issues by refusing to pass any orders in Alakh Alok Srivastava vs. UOI (Misc. A. Diary No(s). 11214/2020 in W.P.(C) No. 468/2020), the SC took suo moto cognizance of the many media reports showing unfortunate and miserable conditions of the migrant labourers walking on foot and bicycles covering long distances and issued a slew of directions in the interim. The case will now be heard on June 5.
While taking cognizance of the issue, the Court had said, “Although the Government of India and the State Governments have taken measures, yet there have been inadequacies and certain lapses,” and stressed on the importance of “effective concentrated efforts” in order to redeem the situation. It asked the Centre and all states governments as well as Union Territories to bring in the notice of the Court all measures and steps taken by the Government of India and to be taken in this regard on the next date, fixed at May 28.
On May 28, the Court issued a slew of directions:
- No fare either by train or by bus shall be charged from any migrant workers and instead the same to be borne by states
- Stranded migrants be provided food free of cost by the host state
- At the beginning of the journey, originating states will provide meal and water and during the journey, Railways will provide the same. Food and water should be provided in buses as well, by the originating state.
- Simplify and speed up registration process for migrants and provide help desks where migrants are stranded and ensure they are provided transportation at the earliest.
- Migrants found walking shall be provided with transportation and meals and water by concerned state
- The receiving state shall provide transport, health screening and other facilities free of cost.
The case will be heard on June 5, when Centre and states will file their affidavit in reply.