Covid-19: The Gujarat HC’s order on regulation of private hospitals in Ahmedabad

Gujarat is among the States that has been most severely affected by Covid-19, and has a mortality rate that is above the national average. The city of Ahmedabad alone accounts for over 70% of the cases in the State, and is the third-most affected city after Mumbai and Delhi. Against this backdrop, the Gujarat HC took suo moto cognizance of the manner in which the State Government has handled the Covid-19 pandemic. It has issued multiple directions and recommendations to the Gujarat Government, through a series of interim orders. The directions and recommendations cover multiple issues, ranging from regulation of private hospitals to improving the functioning of public hospitals.

In its latest order of 22^nd May, the High Court made certain significant observations on the manner in which private hospitals should be regulated during this pandemic. These observations assume significance, as there have been multiple accounts of the manner in which private hospitals have been overcharging patients. This has prompted States such as Maharashtra to take over 80% of the beds in private hospitals, and place a cap on the pricing of these beds. A similar pattern also played out in the city of Ahmedabad, where, as the Gujarat HC noted, private hospitals were attempting to profiteer and take advantage of the pandemic.

Based on these reports, the Gujarat HC had in an earlier interim order (issued on 14^th May) suggested that the Ahmedabad Municipal Corporation (AMC) should take steps to regulate the functioning of private hospitals in Ahmedabad. The AMC accordingly issued an executive order under the Epidemic Diseases Act, 1897 - which laid down a number of regulations that private hospitals had to comply with. The regulations mandated that private hospitals should reserve 50% of their beds for Covid-19 patients, and also prescribed ceiling rates for different medical facilities – above which no private hospital shall be allowed to charge.

Imposing ceiling rates on pricing of the services provided by private hospitals was bound to be contentious – and a few private hospitals refused to comply with the AMC’s regulations. Few hospitals also refused to enter into a mandatory MoU with the AMC, until legal notices were issued to them. Taking note of this, the Gujarat HC directed the State Government to take legal action against those private hospitals which refused to comply with the AMC’s regulations. The Court also provided an important constitutional justification for regulating the activities of private hospitals during the Covid-19 pandemic. After noting that the right to health is a fundamental right under Article 21 of the Constitution, it stated that in times of a pandemic, the State had a duty to ensure smooth and easy access to healthcare for everyone.

The regulations imposed on private hospitals was accordingly held to be a ‘public duty’, and an extension of the State’s public healthcare function. This was because by capping pricing and ensuring availability of beds, the regulations facilitated access to healthcare in private hospitals, and ensured that private hospitals do not profiteer during a pandemic. The regulations were hence in furtherance of the right to health, as they ensured smooth and easy access to healthcare facilities in private hospitals, during this unprecedented situation where government hospitals are overburdened.

The Court also referred to Salmond’s views to state that every right imposes a corresponding duty that the State has to fulfil. It then stated that “The State is obliged to ensure that the Right to Health is respected, protected and fulfilled and is duly provided to all its citizens”. This duty to ‘respect, protect, and fulfill’ is in accordance with Henry Shue’s conception of the correlation between rights and duties. Although the Court does not refer to Henry Shue, its observations are doctrinally in consonance with Henry Shue’s conception. Let us now discuss Henry Shue’s conception of the correlation between rights and duties.

As per Henry Shue, every right imposes three levels of duties on the State – which is the (i) duty to respect; (ii) the duty to protect; and (iii) the duty to fulfill. Let us apply these three levels of duties to the right to health. Under the duty to respect, the State has a negative obligation to ensure that it does not infringe on a person’s right to health in an arbitrary or unreasonable manner. Under the duty to protect, the State has a positive obligation to ensure that private parties do not infringe on a person’s right to health. Finally, under the duty to fulfill, the State has a positive obligation to take steps to secure access to healthcare for one and all.

Capping prices charged by private hospitals is in furtherance of the State’s duty to protect and fulfill, as it ensures that access to private hospitals is available to a wider segment of the population, and is not restricted to the urban elite. In a situation where government hospitals are overburdened, capping prices ensures that more people have the means to avail private healthcare facilities. This is in furtherance of the State’s positive duty of securing access to healthcare facilities during a pandemic. The Court’s reasoning hence also has a strong foundational rights-based justification, and is in sync with the range of duties that the right to health can impose on the State.  

The key takeaway here is that the Court attempts to expand the State’s duty to provide access to healthcare – by also including within its ambit the duty to ensure smooth and easy access to private healthcare facilities. The Court recognizes that during a pandemic, private hospitals cannot be allowed to profiteer, and should assist the State in securing access to healthcare. This constitutional justification has important implications - as other State Governments are also devising similar measures to regulate the functioning of private hospitals.

For instance, the measures undertaken by the AMC resemble the measures adopted by the Maharashtra Government, which has taken over 80% of the beds in private hospitals, and has capped prices. If the actions of the Maharashtra Government are challenged in the Bombay HC, the State can refer to the Gujarat HC’s reasoning to argue that the regulations are in furtherance of the right to health – as they ensure that private hospitals are affordable to a larger segment of the population.

Keeping aside possible legal challenges in different States, the Gujarat HC’s reasoning also has a larger constitutional implication – as it provides a fundamental rights-based justification for regulating private healthcare. As the number of Covid-19 cases are likely to rise and government hospitals continue to be overburdened, imposing a positive duty on the State to ensure easier access to private healthcare is a step in the right direction.

Covid-19: The Telangana HC’s judgment on testing and treatment by private labs and hospitals

The State of Telangana has among the lowest testing rates for Covid-19 in the country. As of 14^th May, the State had conducted only 22,842 tests, which is significantly lower than other states such as Andhra Pradesh, or even Assam. To put the numbers in perspective, the neighboring State of Andhra Pradesh had, as of 14^th May, conducted 2.1 Lakh tests. As health experts have pointed out, low testing numbers mean that many asymptomatic persons who have Covid-19 may go undetected, and may unknowingly spread the virus to others. In light of these low testing numbers, a recent judgment of the Telangana HC assumes significance.

On 20^th May, in Ganta Jai Kumar v. State of Telangana, the Telangana HC struck down an order issued by the District Medical and Health Officer, Hyderabad which prevented private labs from conducting Covid-19 tests, and private hospitals from treating Covid-19 patients. This order replaced and superseded two earlier orders issued on 21^st March and 11^th April respectively. The 21^st March order stated that both public and private labs and hospitals shall test and treat Covid-19 patients. The 11^th April order directed private hospitals to stop performing other elective procedures and surgeries, so that they could enhance the availability of healthcare facilities for Covid-19 patients.

On the same day, this order was superseded and modified through another order which stated as follows:

“Adverting to the subject cited above, orders issued by this office regarding certain instructions on treating only emergency cases at notified hospitals in Hyderabad District vide reference… cited are hereby cancelled with immediate effect”

This order hence effectively prevented private labs and private hospitals from conducting tests, as well as treating Covid-19 patients. This embargo on allowing private labs to conduct Covid-19 tests can be one of the reasons for Telangana’s low rate of testing. As the Court noted, the Telangana Government had prevented private labs from conducting tests even though the Indian Council for Medical Research (ICMR) had approved 12 private labs in Telangana as eligible for conducting Covid-19 tests. The Court accordingly held that in a situation where the ICMR has deemed 12 private labs to be eligible for testing, there is no legal basis or justification for the Telangana Government to stop them.

Taking this forward, the Court held that the 11^th April order (quoted above) did not contain any reasons as to why the Government suddenly backtracked on its earlier decision, and superseded an order that was issued on the same day. As the order did not contain any reasons, it was held to be violative of the principles of natural justice. While violation of principles of natural justice was in itself sufficient to strike down this order, the Court provided another interesting constitutional perspective to this issue.

After noting that the right to health is a fundamental right under Article 21 of the Constitution, the Court held that preventing private labs and hospitals from testing and treating patients went against an individual’s right to obtain the healthcare facilities of his choice. This implies that the right to health confers a person with the freedom to choose the facility in which she wants to get treated, which includes private facilities. By forcing a person to undergo testing or treatment only in public labs or hospitals, the State was imposing an unreasonable and arbitrary restriction on the freedom to get tested or treated at a facility of one’s choice.

The Court also rejected the Telangana Government’s argument that it was administratively more convenient to restrict testing and treatment to government labs and hospitals, and stated that under the garb of containing the pandemic, unreasonable and arbitrary restrictions cannot be imposed on a person’s freedom to get tested and treated at a facility of her choice. Apart from being arbitrary and unreasonable, it was also noted that the restriction was through an executive order, and was not backed by statutory law – which in itself was sufficient to invalidate it.

In this regard, the Court rejected the Government’s contention that such an order could be issued under Section 2 of the Epidemic Diseases Act, 1897 – which is an omnibus provision that allows the State Government to frame ‘temporary regulations’ for containing the spread of an epidemic disease. The Court held that no specific power was conferred by Section 2 to place an absolute ban on testing and treatment in private facilities. The Court hence adopted an approach similar to the one adopted by the Kerala HC in its salary deferment judgment (which we discussed in an earlier post) – to hold that omnibus provisions such as Section 2 cannot be read in a manner that would allow the Government absolute discretion to bring in any and every executive action within its ambit.

The Court hence provides a new dimension to the right to health, by reading in the freedom to obtain the healthcare facilities of one’s choice – which would include private healthcare facilities. Just like other fundamental rights, this freedom shall not be absolute, and reasonable restrictions can be imposed on a person’s right to obtain the healthcare facilities of his choice. It shall be interesting to see how this freedom to obtain healthcare facilities of one’s choice is interpreted and applied in future decisions.  

Apart from the legal and constitutional reasons that we have discussed, the Court also provided a policy-based angle to this issue. It stated that for those people who may be willing to pay for the cost of testing and treatment in private facilities, there is no rationale for the State to compulsorily direct them to government facilities. It also noted that government facilities may not be in a position to handle the huge surge of cases that we may witness in the coming days, and that private healthcare facilities would reduce this burden.

While the Court makes no explicit reference to Telangana’s abysmal testing rates, it noted that limiting testing centres may increase the spread of Covid-19, as those who have the virus but are asymptomatic shall not be detected, and may spread the disease without knowledge. Permitting private labs to conduct tests may partially improve Telangana’s testing rates, and may, in the coming days, give us a better picture of the Covid-19 situation in the State.  

After an elaborate discussion, the Court concluded by stating that it would be counterproductive to allow private hospitals to treat Covid-19 patients in an unregulated manner. It held that those hospitals which had received approval from the ICMR, and which would receive approval in future should be permitted to provide treatment. It accordingly directed all private hospitals who wish to provide Covid-19 treatment to apply to the ICMR – to ensure that they adhere to all requisite healthcare standards.

While the Court’s decision to allow treatment by ICMR-approved private hospitals is a step in the right direction for Telangana, it also brings to light a larger issue – which is the need to ensure that there is sufficient regulation and oversight over the functioning of private hospitals during this pandemic. There have been multiple accounts of the manner in which private hospitals in cities such as Mumbai have been overcharging patients. For precisely this reason, the Maharashtra Government issued an executive order to take over 80% of total operational beds in private hospitals, and also placed a cap on treatment costs.

In the coming days, as Covid-19 cases are on the rise, such an approach of ensuring strict regulation of pricing and availability of beds may be the right balance that State Governments would have to strike. However, there may also be a situation where the Maharashtra Government’s executive order is challenged before the Bombay HC. In this scenario, the Bombay HC may be called upon to give its views on the Telangana HC’s exposition of the ‘right to obtain the healthcare facilities of one’s choice’. There is also a possibility of a legal challenge to similar orders that may be issued by other States. Hence, in the near future, Courts may get an opportunity to test the Telangana HC’s exposition, and devise the scope and ambit of reasonable restrictions that can be imposed on access to private healthcare.

Cyclone Amphan - The State's 'minimum core' obligations during a natural disaster

Cyclone Amphan has caused widespread damage in Orissa and West Bengal. The damage has been more severe for those who live in kachha houses, huts, and in slum areas – where there has been a loss of shelter and livelihood. In areas such as the Sunderbans, there has been widespread destruction of livestock and uprooting of trees. The cyclone has hence had a tremendous impact on two basic socio-economic rights, which are shelter and livelihood. Both shelter and livelihood are socio-economic rights that fall within the ambit of Article 21 of the Constitution.

In earlier posts (see here and here), we have discussed the State’s ‘minimum core’ obligation to secure access to socio-economic rights, during situations such as a nationwide lockdown. To recall, this concept of ‘minimum core’, finds mention in General Comment No. 3 of the International Covenant on Economic, Social and Cultural Rights, and states that the minimum essential levels of each right should be immediately realized by the State. Indian Courts have used this ‘minimum core’ doctrine in certain situations, such as while determining the State’s obligation under the right to health, which is part of Article 21.

In Mohd Ahmed v. Union of India, the Delhi High Court held that providing access to life-saving drugs is part of the State’s ‘minimum core’ obligation under the right to health. The Court here emphasized that the ‘minimum core’ should be interpreted in a manner that secures access to the basic essential levels of a socio-economic right, through which deprived sections of society can live with dignity. The key aspect to be noted here is that for obligations that fall under the ‘minimum core’ standard, the State cannot say that it lacks financial resources to fulfill the same. Financial paucity is not a justification for failing to secure access to those elements of a right that fall within the ambit of the ‘minimum core’. This ‘minimum core’ standard may vary based on the prevailing situation and surrounding circumstances.

Now, due to Cyclone Amphan, many residents have been affected by a loss of shelter and livelihood. This natural disaster has hence reduced access to these socio-economic rights, for certain segments of the population. This loss of access can only be compensated for by the State (i.e. the Central Government along with the State Governments of Orissa and West Bengal). Hence, in this situation of a natural disaster, the State should focus on securing the ‘minimum core’ of the right to shelter and livelihood. Applying the test laid down in Mohd Ahmed, the minimum core should be devised in a manner that would ensure that deprived sections of society get access to the basic essential levels of each of these rights, that would enable them to live with dignity.

This would imply that for the right to shelter, the ‘minimum core’ obligation would mandate the State to ensure that those who have lost their homes to the cyclone are provided with alternative accommodation, or with the resources needed to reconstruct the same. With respect to the loss of livelihood (caused due to destruction of livestock, markets, shops etc.) the State can provide income support or other financial resources that would enable affected persons to survive, and live with dignity. This grant of resources that are necessary to live with dignity forms the ‘core’ of the right to shelter and livelihood, in a situation where there has been a natural disaster. Paucity of financial resources cannot be an excuse that the State can make for failing to secure access to the ‘minimum core’ element of each of these rights.

This ‘minimum core’ element only lays down the constitutional benchmark that should be satisfied, and the State can decide the set of relief measures through which the ‘minimum core’ can be enforced. While the State has the flexibility to devise relief measures in a manner that it deems fit, the minimum core doctrine highlights that such relief measures are part of the State’s constitutional obligation under Article 21, and are not acts of charity undertaken through allocation of resources. While Cyclone Amphan was ephemeral, let us hope that the damage it causes is not permanent. This hinges on whether the State can ensure that its relief and assistance measures live up to constitutional obligations.

Examining the State's failure to provide income support during the lockdown

In an earlier post, we had discussed that the State has a constitutional obligation under Article 21 to ensure that workers and laborers get access to basic sustenance income - during a lockdown where they have lost their means of livelihood. No such concrete measures have been undertaken by the Central or State Governments ever since the lockdown began on 25^th March. Even the economic stimulus package announced by Finance Minister Nirmala Sitharaman did not provide for any such basic sustenance income.

The only form of income support that the Finance Minister assured was for rural employment undertaken under the MGNREGA scheme. Apart from the failure to provide any income support through the economic stimulus package, there is another issue that merits discussion. This is the failure of the Central Government to enforce its own executive order - which mandated that employers pay full wages to their workers during the lockdown period. We shall, in this post, discuss the Central Government’s failure to give effect to its own order mandating payment of wages.  We shall also discuss alternative measures through which income support could have been secured, in furtherance of the State’s positive obligation under Article 21.

Employers’ obligation to pay wages during the lockdown – The chronology of events

At this juncture, it is pertinent to recall that on 29th March, the Ministry of Home Affairs (‘MHA’) had issued an executive order (‘the 29^th March Order’) under the National Disaster Management Act, 2005 which stated that - all employers in (i) industrial undertakings; (ii) commercial establishments; and (iii) shops shall ensure that wages are paid to their workers without any deduction, for the period during which their enterprises were under closure during the lockdown. Effective implementation of this order would have ensured that daily-wage laborers, migrant workers, and other segments of the workforce had some financial resources to sustain themselves during the first three phases of the lockdown.

The lack of implementation of this order is evident from multiple first-hand accounts given by migrant workers, many of whom were left with no option but to walk back to their native places by foot. One aspect that is common in multiple first-hand accounts of migrant workers is that they were denied wages by their employers, and not provided with any resources for sustenance. Now, under the new guidelines for Lockdown 4.0, which were notified on 17^th May, the 29^th March order of the MHA has been superseded. The implication of this is that employers are now under no legal mandate to pay wages for the months of April (when the lockdown was in full force) and May.

Meanwhile, before the new guidelines were issued, enterprise associations such as the Hand Tools Manufacturers Association and the Indian Jute Mills Association filed petitions in the Supreme Court, contending that the 29^th March Order was in violation of the freedom of trade and business guaranteed by Article 19(1)(g) of the Constitution, and was unreasonable and arbitrary. The Supreme Court issued an interim order in some of these petitions - directing that no coercive action should be taken against the petitioners (the employers) for not paying wages when their enterprise was under closure due to the lockdown.

In light of the new lockdown 4.0 guidelines, and as the 29^th March Order has been superseded, such interim orders have also become redundant, as the employers now do not have any legal mandate to pay wages for the lockdown period. We shall now discuss how this failure to ensure payment of wages and provide income support during the lockdown is in clear derogation of the State’s obligation under Article 21.

Failure to ensure payment of wages – yet another violation of Article 21

As I argued in an earlier post, during a lockdown, the State has a constitutional obligation under Article 21 to ensure that daily-wage laborers, migrant laborers, casual wage earners etc have access to some basic sustenance income. We derive this from the State’s ‘minimum core obligation’ under the right to livelihood and social security, which are facets of Article 21. Under this minimum core obligation, based on the prevailing circumstances, the State must ensure that the basic essential levels of a right are realized, that would enable the poor to live with dignity. In a lockdown, where the workers have lost their means of livelihood, the ‘minimum core’ obligation would mandate the State to ensure access to a basic level of sustenance income for the workers.

Examining different measures through which income support could have been achieved

The ‘minimum core’ obligation under Article 21 is only the constitutional benchmark, and does not mandate the method through which the State should secure this obligation. That is a policy prerogative for the State to frame. Now, in such a situation where workers may lose access to their livelihood and income, the State has multiple policy options which it can examine and implement. The first option is for the State to directly provide the workers with some form of basic income through cash transfers. The other option available is to impose a mandate on the employers to not deduct wages for the period during which their enterprise was under closure – which was attempted through the 29^th March notification.  Fulfilling this mandate may however be difficult for many enterprises especially in the MSME sector, who may be staring at losses.

In this scenario, the State could have fulfilled its constitutional obligation by implementing a wage/income protection scheme, through which the State provides eligible enterprises with the financial resources to pay their workers. This would have enabled the enterprises to keep the workers on their payroll, instead of terminating their employment. For other large-scale industrial undertakings, the Central and the State Governments could have ensured that the 29^th March Order of the MHA is complied with in letter and spirit. This would have to a certain extent ameliorated the plight of migrant laborers and daily-wage earners, who have suffered the most under the lockdown.

Let us at this juncture examine the worker-protection measures adopted in the United Kingdom and in USA, which serve as useful templates for India. In UK, Rishi Sunak (Britain’s Chancellor of the Exchequer) announced policy measures through which the UK Government would cover up to 80% of the wages of workers, which would enable companies to keep them on their payroll. In the USA, the Federal Government is implementing a Paycheck Protection Program for small businesses. Under this program, small businesses can avail of loans that are designed to be a direct incentive for them to keep their employees on their payroll. The loans granted shall be forgiven if the employees are kept on the payroll for eight weeks, and the money generated through the loan is used for wage payments, rent etc.

The Central and State Governments could have collaborated to executed similar income support measures, to ensure that enterprises did not lay-off migrant workers and daily-wage earners. Providing small enterprises with the money to pay their workers would have helped both the employers and the wage-earners, and would have ensured  compliance with the 29^th March notification. Without a doubt, such policy measures involve substantial fiscal resources. But, we must note that fiscal resources are in this scenario expended by the State to fulfill its constitutional obligations under Article 21. Another aspect that we must remember is that during a lockdown, where movement and gatherings are restricted, the workers and the trade unions significantly lose their bargaining power with the employers. This dilution in bargaining power can only be rectified when the State steps in to fulfill its constitutional obligation of providing basic levels of income support.

This failure to ensure income support is one of the reasons as to why migrant laborers have no option but to leave for their native places, as they have been left in the dark by their employers and contractors, and have also not received any assurance from the State. In this entire process, ensuring the dignity of the workers has culminated as the biggest casualty of the lockdown.

The Kerala HC's order on salary deferment - Examining implications for the 'rule of law'

In a significant order delivered on 28^th April, the Kerala High Court had stayed an executive order of the Kerala Government, which partially deferred the salary payment of all government employees who earned more than Rs. 20,000. This was done on the ground that there was no ‘legislative backing’ for such an executive order. Following the Kerala HC’s decision, the Kerala Government promulgated an ordinance to remedy the defect pointed out by the HC. The Kerala HC has also in a subsequent order upheld the validity of the ordinance.

In this post, our focus shall be on the reasoning adopted by the Kerala HC while staying the initial executive order. We shall also discuss its implications for a possible legal challenge to the Aarogya Setu app – which is being implemented by the Central Government on the basis of executive orders - without an anchoring legislation.

The reasoning employed by the Kerala HC

The executive order issued by the Kerala Government was applicable on all government employees who earned a gross salary of more than Rs. 20,000. Under this order, the government employees were subjected to a deferment of a small portion of their salary, for all months from April 2020 to August 2020. The salary that was deferred was equivalent to 6 days worth of salary for each month, from April to August. It is significant to note here that the executive order only deferred the payment of a small portion of the salary, and did not in any way alter or reduce the salary amount that was payable. This measure was a means to reduce expenditure, in light of the fiscal paucity faced by the Kerala Government.

The primary argument of the petitioners was that the executive order violated Article 300A of the Constitution. Under Article 300A – “No person shall be deprived of his property save by the authority of law”. Now, it has been consistently held by the Supreme Court that the term ‘law’ includes only statutory law, and not an independent executive order.  This implies that if an executive order has to be issued, it should derive its authority from an anchoring legislation. The petitioners contended that ‘salary’ fell within the ambit of the term ‘property’ under Article 300A, and that a person can be ‘deprived’ of the same only through a statutory law, and not solely through an executive order.

The Kerala Government on the other hand contended that the power to defer payment of salary can be read into Section 2 of the Epidemic Diseases Act, 1897, along with Section 38 and Section 39 of the Disaster Management Act, 2005. Under Section 2 of the Epidemic Diseases Act, the State Government has the power to frame temporary regulations in a manner that it deems fit, to prevent the spread of an epidemic disease, such as Covid-19.  Section 38 of the Disaster Management Act, 2005 confers the State Governments with the power to undertake a wide array of measures for disaster management. Section 39 on the other hand enlists the responsibilities of different departments of the State Government during a national disaster.

It is pertinent to recall here that the nationwide lockdown has been imposed by the Central Government by invoking the Disaster Management Act. The State Governments have simultaneously invoked the Epidemic Diseases Act to frame regulations for preventing the spread of Covid-19. One similarity between both these legislations is that they confer the Central and the State Governments with a wide array of discretionary powers, during a situation such as the Covid-19 pandemic.

The Court rejected the argument of the government, and accepted, at a prima facie level, the petitioners’ contention that ‘salary’ fell within the ambit of the term ‘property’ under Article 300A. The Court also held that the provisions of the Epidemic Diseases Act and the Disaster Management Act do not confer the Government with the power to defer the salary of government employees during any kind of disaster or emergency situation. Hence, the executive order did not derive its source from any statutory law, which was in violation of Article 300A. The Court accordingly stayed the operation of the executive order.

There are two significant takeaways from the Court’s order. First, it was reiterated that the term ‘law’ under Article 300A refers only to statutory law, and not to a mere executive order. If the State were to defer payment of salaries through an executive order, then such an executive order should derive its authority from a statutory law. Second, the Court held that if the power to defer salaries is not specifically mentioned in the Epidemic Diseases Act or the Disaster Management Act, this power cannot be simply read in through the omnibus provisions present in both these legislations. The key point here is that neither of these legislations confer the Central or the State Governments with unbridled power to undertake any and every measure through executive diktat.

After this order, the Kerala Government promulgated an ordinance that conferred it with the power to defer payment of salary during a public health emergency or a disaster. By invoking the power conferred by the ordinance, the Kerala Government issued executive notifications that achieved the same objective which the earlier executive order sought to achieve – by deferring salary payments of those government employees who had a gross salary exceeding Rs. 20,000.

The Kerala HC subsequently refused to grant any interim stay on the executive notification, and held that it was within the scope of the powers conferred by the newly promulgated ordinance. This way, the Court has further emphasized on the principle that such an executive order should derive its authority from a statutory law, or through an ordinance - which has the same force and effect as a law enacted by the Legislature, under Article 213 of the Constitution.

Implications for the ‘rule of law’ and Aarogya Setu

While staying the executive order, the Kerala HC noted that even in times of an emergency, there can be no deviation from the rule of law. If Article 300A mandated that property cannot be deprived through an executive order that is not backed by a statutory law, then this requirement cannot be dispensed with even in times of a pandemic. Furthermore, as discussed above, the Court noted that the Disaster Management Act and the Epidemic Diseases Act do not confer unbridled powers to undertake any and every action by means of an executive order.

This has significant implications for the legal issues surrounding the Aarogya Setu mobile app. This mobile app is being implemented by the Central Government without any specific anchoring legislation. Furthermore, for devising measures to tackle different aspects of the Covid-19 pandemic, the Central Government has constituted multiple Empowered Groups of Officers, by invoking the powers conferred by Section 10 of the Disaster Management Act. One such group of Officers is the Empowered Group on Technology and Data Management. This Empowered Group, has, through an executive order, notified Aarogya Setu’s Data Access and Knowledge Sharing Protocol. Now, the question that arises here is whether the Aarogya Setu app as a whole, along with its Data Access and Knowledge Sharing Protocol fall within the ambit of the Disaster Management Act.

While examining this issue, it is pertinent to recall that the fundamental rights conferred by Part III of the Indian Constitution are subject to reasonable restrictions enacted through ‘law’. Akin to Article 300A, the term ‘law’ here only refers to statutory law, and does not include an executive order which lacks a statutory basis. The Aarogya Setu app collects a significant amount of personal data, and is undoubtedly an infringement of the right to privacy. As held in the KS Puttuswamy  decision, such an infringement of privacy shall be constitutionally valid only if the proportionality test is satisfied.

The first requirement of the proportionality test is the requirement of legality – under which the measure should be backed by law. The Aarogya Setu app and the Protocol issued can hence be considered valid only if they fall within the ambit of the Disaster Management Act. It is at this juncture that the Kerala HC’s order finds significance, as the Court noted that if the power to undertake a specific measure (such as deferring salary payments) is not specifically mentioned in the Disaster Management Act, the same cannot be simply read into the omnibus provisions of the statute.

Similarly, as the statute does not confer any specific power to collect personal data through a contact tracing app, this power cannot be read into the ambit of the statute. Applying this interpretation, the Aarogya Setu app, along with the notified Protocol, cannot fall within the ambit of the Disaster Management Act, and must be backed by an independent parliamentary law.

This interpretation given by the Kerala HC prevents a rule by executive decree, even in times of an emergency such as the Covid-19 pandemic. It prevents a situation where measures that may infringe on constitutional rights are justified by simply referring to the omnibus provisions of the Disaster Management Act. When the implementation of the Aarogya Setu app is challenged in Court, the bench should adopt an approach similar to the Kerala HC – which ensures that even during a grave emergency, there is rule of law, and not rule by law.

The Supreme Court's order on denial of 4G internet services in J & K - An 'Order' without any decision?

On 11^th May, the Supreme Court delivered its order in the petition filed by the Foundation of Media Professionals – praying for the restoration of 4G internet services in Jammu & Kashmir (‘J & K’). The Court directed the constitution of a three-member Special Committee headed by the Union Home Secretary, to examine the contentions of the petitioners. In two earlier posts (see here and here) we have discussed how denial of 4G internet services hinders access to civil and socio-economic rights for the residents of J & K, along with the arguments made in this regard by the petitioners. In this post, we shall discuss the flaws in the Supreme Court order.

The Supreme Court order and its inherent flaws

Before scrutinizing some of the observations made by the Supreme Court, let us first refer to the operative part of the Supreme Court’s order. After taking note of the petitioner’s submissions on infringement of fundamental rights, and the State’s contentions with respect to safeguarding national security by countering militancy, the Court directed the constitution of a ‘Special Committee’ headed by the Union Home Secretary to examine the Petitioner’s contentions and the alternatives that they had suggested. Along with the Union Home Secretary, the Committee constituted shall also include the Chief Secretary of J & K and the Communications Secretary of the Central Government.

It is significant to note here that the Court did not ‘decide’ the outcome of the matter – and disposed off the petition by stating that the Special Committee that has been constituted will examine the merits of the alternatives proposed by the petitioners, and the contentions that they had made. As the Court did not give any other conclusive finding, all the other observations made in the 19-page order can be considered as obiter dicta. But, before discussing the flaws in the Supreme Court’s order, let us refer to two observations made by the Supreme Court.

In paragraph 17 and 18, the Supreme Court referred to the proportionality test it laid down in the Anuradha Bhasin judgment, and noted that internet speed should be restricted to 2G only in those areas where there is an absolute necessity of imposing such restrictions, with the goal of countering militancy and terrorism. It also noted the petitioner’s argument that at present, the restrictions on internet speed have been imposed in a blanket manner throughout J & K, and are not limited to only those areas which are affected by militancy. In paragraph 19, the Court held that in normal circumstances, the petitioner’s submissions would merit ‘full consideration’. But, according to the Court, the compelling circumstances of cross border terrorism cannot be ignored.

Through these observations, the Court is hinting at achieving a fair balance between fundamental rights and safeguarding national security, which is another legitimate State objective. This, as the Court itself notes, could have been achieved by applying the test of proportionality, and holding that the restrictions on internet speed must be enforced only in those areas that are affected by militancy. The Court could have accordingly asked the Solicitor General to submit a list of areas/districts which were considered to be affected, and could have quashed the internet speed restrictions in other areas such as Jammu.

Such balancing of fundamental rights with other legitimate state objectives such as national security is part of the Supreme Court’s function of judicial review under Article 32 of the Constitution. This function of judicial review was abdicated by the Court, as it disposed off the petition by merely asking a Special Committee headed by the Home Secretary to examine the alternatives suggested by the petitioners. Examining alternative measures in accordance with the proportionality test is the Supreme Court’s function, and cannot be delegated back to the Executive, which had imposed the restrictions in the first place.

It is also pertinent to note here that the Court has not directed the Special Committee to report back to it after examining the feasibility of the petitioner’s contentions, and has merely directed it to ‘advise’ the J & K Administration on this issue. This is a redundant exercise for one simple reason. After imposing President’s Rule in J & K, it is the Union Home Ministry which is administering J & K, along with the Lieutenant Governor, who heads the Union Territory Administration and reports to the Home Ministry itself. In this situation, discussion on policy matters such as restricting internet speed may in any case happen on a routine basis between the Home Secretary and the officers of the J & K Administration.

Hence, if the Court wanted further deliberation on this issue, it could have directed the Home Secretary and the Jammu & Kashmir Chief Secretary to report back with their findings, and with a list of districts where there may be an absolute necessity to restrict the internet speed to 2G. Despite the inherent flaws that we have discussed above, there is one significant question that should pique our interest – which is the reason for the deferential approach that Courts tend to show when questions of national security are involved. 

One reason for this may be the fear factor that plays in the mind of the judge – regarding the possibility of having to take the blame of diluting national security interests, if an attack happens after a relaxation of restrictions is ordered. This may force a judge to play safe - and defer to the Executive’s claims of safeguarding national security. Cases which have significant national security implications hence pose difficult questions for a judge to answer.

However, this does not serve as a justification for not reviewing the actions of the Executive in accordance with Article 32, and examining whether there are alternative measures through which infringement of fundamental rights and national security interests can be balanced. While the Court here noted the existence of one such alternative measure - which is to restrict internet speed only in specific affected areas, it refused to give any conclusive decision on enforcing the same. For precisely this reason, this ‘order’ stems from no conclusive finding, and can be considered as an abdication of the Court’s primary function of judicial review.

The State's apathy towards migrant workers - a flagrant violation of Article 21

During the course of the week, we have seen multiple controversial decisions being taken with respect to stranded migrant workers, who have faced severe difficulties during the course of the lockdown. In this post, we shall draw a common thread between these decisions, and establish that they violate the migrant workers’ rights of autonomy, choice and dignity, which are integral facets of the ‘right to life and personal liberty’ conferred by Article 21.

Let us start by enlisting the decisions that have been taken by the government, as well as the Courts:

[I]. The Karnataka government cancelled the special trains that were being arranged to ferry migrant workers back to their native states. This was after a meeting with the real estate builders lobby, with the Chief Minister of the State himself stating that as there was a need to revive the economy – ‘unnecessary travel’ of migrants need not be resorted to. After severe criticism, this decision has been reversed.

[II]. As we discussed in our earlier post, many states charged migrants for their train travel back home. This was because of the prevailing confusion after the Ministry of Railways decided that it would cover only 85% of the cost of the train, and the rest would be borne by the State Governments. Over the course of the previous two days, the problem has been rectified to a certain extent, as certain State Governments such as Delhi have agreed to cover the cost.  

[III]. Before casting all the blame on the state, it is pertinent to note that even the Courts have pronounced verdicts that have been detrimental to the rights of migrant workers. Yesterday, the Orissa HC ordered that only those migrant workers who have tested negative for Covid-19 would be allowed to enter the State from outside. Such a decision only erodes the dignity of the migrants further, as there is no clarity on which State Government had the obligation to conduct these tests, and how such large-scale testing can be arranged at one go. Although this decision has been stayed by the Supreme Court, it aptly reflects the apathy shown by the Government and the Courts.

Although the three decisions referred to above have been partially or wholly reversed, it is important to keep note of the common thread between them, as similar decisions may be taken in the near future. This common link is the apathy that the State has shown (along with Courts such as the Orissa HC) towards the plight of the migrant workers - where its decisions have only exacerbated the sufferings of the migrants.

This also reflects that on many occasions, the sufferings of the poor are directly perpetrated by state action, and that such suffering is not always linked to the state’s failure to act. An analogy can be made here with the slum demolition programs that we have witnessed over the years in cities such as Mumbai and Delhi, where under the garb of ‘beautifying’ the city, the State has evicted slum dwellers on the ground that they are illegal encroachers on public land. This forceful eviction only increases their plight, when they lose their source of shelter and are not rehabilitated by the State. Akin to slum dwellers, the State has treated migrant workers as a burden, and a ‘hurdle’ towards managing the Covid-19 pandemic. 

It is pertinent to recall here that the migrant workers were left stranded because the Central Government announced a nationwide lockdown without giving the migrants any window to travel back to their home states. While the migrants were left stranded due to the Central Government’s lack of foresight, their suffering has continued as the State has failed to provide them with universal access to food and basic sustenance income during the lockdown period - where they have lost their means of livelihood.

Based on our discussion above, let us analyze how the State has breached its negative as well as positive obligations under Article 21, while dealing with migrant workers. As the Supreme Court has held in decisions such as Francis Coralie Mullin, the term ‘life’ under Article 21 does not imply a mere animal existence, and includes a right to live with dignity. Furthermore, as held in subsequent decisions such as Puttuswamy I - choice, autonomy and human dignity are integral facets of the right to life and personal liberty under Article 21.

Decisions such as cancelling trains for migrant workers, and making them pay for their train tickets in a situation where they have been separated from their families and have lost their source of income violates their right to live with dignity. Furthermore, throwing hurdles towards the return of these migrant workers to their native state also goes against their personal choice and autonomy to decide whether they want to stay back and work in a State, or go back home. When the State does not provide transport facilities, the migrants are forced to walk thousands of kilometres on foot to reach their native states, which is another impingement of their right to live with dignity. 

Although the Karnataka Government reversed it's decision regarding cancellation of trains, it is pertinent to note that such incidents may be repeated in the near future. For instance, it has been reported that multiple Chief Ministers have told the Uttar Pradesh Chief Minister that they would prefer if the migrants from UP do not return back home. This is because migrant workers are a cheap source of labour for States that are looking to reopen their economies in the Green and Orange Zones.

But, not giving migrant workers a meaningful choice between going back home and staying back to work offends their personal autonomy and human dignity under Article 21, in a situation where they have been estranged from their families under the lockdown. Instead of the State making this choice on behalf of the migrant workers, it is the migrant workers who should be given the autonomy to make this choice. While we have discussed how state action has violated the migrant workers’ rights under Article 21, let us recall that the state’s failure to act and provide income support and nutrition to the migrant workers also goes against Article 21 – by depriving them of their right to food and social security.

The State’s handling of stranded migrant workers has hence been in flagrant violation of multiple facets of Article 21. While economic recovery and fiscal prudence are legitimate state objectives, such objectives cannot be achieved by infringing civil rights, and by violating the dignity and autonomy of the migrant workers, who have suffered the most under the lockdown. 

Denial of 4G internet services in J &K - The hindrance towards effective participation in national affairs

On 4^th May, the Supreme Court continued to hear arguments in the petition filed by the Foundation of Media Professionals – for restoring access to 4G internet services in Jammu & Kashmir (‘J & K’). After hearing arguments from the petitioner as well as the State, the Court reserved its order.

During the hearing that took place yesterday, the counsel for the petitioners contended that in light of the Covid-19 pandemic, a suspension of internet services violates the right to access healthcare services and the right to education under Article 21. It was argued that during this pandemic, a lack of 4G internet services prevents doctors from accessing and implementing latest information and research on Covid-19 treatment. Along with this, it also makes telemedicine impossible to execute for both patients and doctors.

With respect to the violation of the right to education, it was argued that a lack of 4G services prevents students from availing the facility of online classes, which is being implemented in the rest of India. The State on the other hand contended that a restriction on 4G internet services was necessary for safeguarding national security, in light of a rise in militancy in the Kashmir valley, during the last few months.

As we await the judgment, let us consider another important civil rights-based argument in favor of restoring 4G services. This relates to how lack of 4G internet services prevents the residents of J & K from effectively participating in national affairs. As we discussed in an earlier post, a lack of 4G services hinders the residents of J & K from accessing information through the internet. Let us now refer to two instances where lack of access to information through the internet may prevent the J & K residents from effectively participating and contributing to national affairs.

(i)             Lack of internet access hinders doctors and researchers of J & K from contributing to Covid-19 related research and development, as 2G speed is not sufficient for uploading information, as well as downloading existing information that is in the public domain. Unlike doctors from the rest of India, doctors and researchers in J & K shall be hindered from uploading, sharing and disseminating the knowledge that they may have imbibed while treating Covid-19 patients. They are also hindered from sharing and disseminating the research that they may have undertaken, regarding different aspects of Covid-19. 2G internet speed acts as a roadblock for such sharing of knowledge and research, which is being undertaken in all other parts of India. Such participation and contribution to national affairs by sharing and disseminating knowledge is an integral facet of Article 19(1)(a), which clearly stands violated.

(ii)         The deficient speeds of the 2G network hinders the preparation efforts of those who wish to give competitive examinations such as CLAT and UPSC. Deficient internet leads to a situation where unlike aspirants from the rest of India, they cannot access multiple preparation resources that are solely available online. Denial of online sources leads to a situation where they do not have equal opportunities and avenues for preparation, when compared to students from the rest of India. Such denial of equal opportunity by suspending internet services goes against the cardinal tenet of Article 14 of the Constitution, which is that ‘equals should be treated equally’. The denial of equal opportunity to participate in national affairs such as competitive examinations is one discriminatory consequence of this internet suspension.

The two instances referred above highlight how the denial of 4G internet services has a domino effect – where the lack of access to information on the internet hinders J & K residents from having equal opportunity and avenues to contribute to national affairs. Along with denial of access to socio-economic rights such as healthcare and education, this is another civil rights issue which forms the crux of this internet suspension.

This hindrance towards contributing to national affairs may also lead to further isolation and mistrust between the residents of J & K and the rest of India. While we await the decision of the Supreme Court, let us remember that this internet suspension has only created more walls between J & K and the rest of India, at a time when we should be building bridges.