Juli Jha
Maharashtra National Law University, Mumbai
Post the lockdown, a large number of migrant labourers have been traveling hundreds of kilometers to reach their hometowns and while traveling, many died in unfortunate accidents. The reason behind this scenario is the massive loss of work, divested livelihoods and homelessness amongst the working class. Since March 2020 several petitions were filed which highlighted the plight of the workers, the Supreme Court had consistently refused to initiate cases involving migrant workers and even stated that it’s not their duty to adjudicate on the matter and left the responsibility with the state governments. The Supreme Court has the belief that the executive has to manage this extraordinary crisis—the same being a matter of policy—therefore, the court was not willing to interfere and also neglected its core duty that is the protection of fundamental rights.[i]
Government v. Court: The Inadequacies in Policies & Legislations
Although the Center set up a huge ‘Vande Bharat Mission’ to bring back stranded Indians from the rest of the world, it was not equally eager to get the working poor home. Rather, the Center blamed the States for the turmoil.[ii] It was not surprising therefore that several lawyers addressed the Supreme Court and urged it to support the migrant workers. The court was hoped to act as the guardian of workers’ rights. However, the Supreme Court repeatedly refused to hear cases involving migrant workers.[iii]The Court’s unwillingness to interfere may have been founded on the presumption that the executive could manage the implications of a global crisis that is unimaginable but the court has compromised its primary duty to protect basic rights, especially when it is most needed.[iv] The steps adopted by the governments have been carried out by the various authorities on the national, state, and local level but these steps were insufficient and not able to tackle the situation in a wholesome manner.
In India, there are no existing laws that clearly outline emergencies regarding public health; also, the government cannot declare a state of emergency because a health crisis is not a reason under the Indian Constitution to declare an emergency. In India, some provisions of Disaster Management Act 2005 provide rules regarding administrative outlook in response to the disaster and provides guidelines on exercise of power by the central government. Another act is the Epidemic Diseases Act 1897 which grants considerable power to the executive to take steps for stopping the spread of infectious diseases and also authorize state governments to deal with the pandemic like situations with the help of temporary regulations.
However, both the legislations exhibit certain amount of inadequacies that can be suffocating in terms of the practical plan of action emerging from the legal provisions:
- Both actshave not set out any rules or law relating to the power of administrative officers who ultimately implement these provisions
- The acts do not provide any law for the protection of rights of the affected persons
- The provisions of these acts do not state anything about the establishment of experts committees that can give appropriate guidelines and also provide scientifically rational measures
- Effective intervention mechanisms such as diagnosis, vaccine, and insurance are not taken into account.
Therefore, these acts are not adequate for the purpose, and as we can see they failed to deal with such kind of crises.[v]
Court: Guardian of Rights
If we see the provision regarding the protection of fundamental rights that is given as part of the writ jurisdiction of the Supreme Court we shall notice that it is a prerogative—not mandatory—yet, it is equally important to bear in mind that article 32 of the Indian Constitution is in itself a fundamental right meaning thereby that approaching the Apex Court is itself a fundamental right therefore if someone’s fundamental rights get violated the under article 32 the Supreme Court is duty-bound to give relief. But, during this situation, the Supreme Court failed to fulfil this duty and hold the executive accountable for the acts which were though taken as a measure to stop the spreading of COVID-19 failed to take into consideration the fundamental rights of people i.e the right to food, shelter and livelihood which are preserved under article 21. As we know there is no existing law which deals with this kind of pandemic specifically, therefore, the Supreme Court must take cognizance to check administrative actions so that it works without violating fundaments rights as well as the fabric of Rule of Law, and also lay down guidelines for preparation, collaboration and developing a framework for resolving such kind of crisis that is deeply affecting the county’s economy and humanitarian laws.
Criticism and the Consequent Measures Mandated:
After receiving a colossal wave of criticism the Apex Court took cognizance of the problems of the migrant workers who had been struggling in miserable conditions for months. Accordingly, the Court issued notices to the government and issued an order demanding the release of the official narrative of the print, electronic and social media reports on pandemic developments.[vi] The Court ordered preparation of a list of migrant workers who have officially reached their desirable destination as well as directed the government to release the list of welfare schemes including employment opportunities that will be available to such migrant workers post the lockdown. The Court also ordered that all criminal complaints against the migrant victims which were filed for violation of lockdown norms be withdrawn.[vii]
Recently to check the gloomy condition of hospitals, took suo-moto cognizance and issued two orders in June that stated: ensuring the right to health is the duty of the state, court directed state governments to increase testing and also install CCTV cameras in hospitals as well so as to inspect the condition of hospitals and constitute an appropriate committee. But these orders are not enough, as its high time for the judiciary to develop effective healthcare jurisprudence.[viii]
REFERENCES:
[i]Mihir Desai ‘Covid 19 and the Indian Supreme Court’ 28 March,2020 avilable at: https://www.bloombergquint.com/coronavirus-outbreak/covid-19-and-the-indian-supreme-court
[ii]SrishtiKhandelwal ‘As SC fails to protect migrant workers’ rights, High Court show the way’ 19 May 2020, available at: https://www.legalsarcasm.com/news-blogs/as-sc-fails-to-protect-migrant-workers-rights-high-courts-show-the-way/
[iii] Times of India repot, ‘Judiciary failed to protect citizens’ rights amid covid-19 pandemic: Dushyant Dave, 23 May,2020, availablehttps://www.hindustantimes.com/india-news/judiciary-failed-to-protect-citizens-rights-amid-covid-19-pandemic-dushyant-dave/story-GXUEmIQQaamHZGEcLcTYgJ.html
[iv] The Hindu Report, ‘Belated, but welcome: On Supreme Court move on migrant workers, 30 May 2020, avilable at: https://www.thehindu.com/opinion/editorial/the-hindu-editorial-on-the-supreme-courts-belated-but-welcome-move-on-migrant-workers/article31705341.ece
[v]DevanshKaushik, ‘ The Indian Administrative Response to covid-19’, available at: https://adminlawblog.org/2020/05/05/devansh-kaushik-the-indian-administrative-response-to-covid-19/
[vi] Report of the wire staff, ‘Supreme Court takes note on migrant workers’ problems, asks government to respond on steps taken’ 26 May 2020, available at: https://thewire.in/law/supreme-court-migrants-suo-motu-centre
[vii] Supreme Court order on migrant workers: Key points, Jun 9 2020, available at: http://timesofindia.indiatimes.com/articleshow/76276596.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[viii]Sivakrit Rai, ‘Analyzing Supreme Court’s attempt to safeguartd right to health’, 3 july 2020 avilable at:https://theleaflet.in/analyzing-supreme-courts-attempt-to-safeguard-right-to-health/
