The forgotten soldiers - Some reflections on the migrant workers' crisis

This post has been co-authored with Rohit Sharma. Rohit is a graduate student from NUJS Kolkata (Batch of 2020). He is a former Editor of the Journal of Indian Law and Society. During his tenure as an Editor, he also successfully headed the JILS Blog. Over the course of the last two months, Rohit has done commendable work in helping stranded migrant workers in the State of Madhya Pradesh. 

Since the advent of the Covid-19 pandemic, countries have tended to adopt a protectionist approach to minimize the health risk that has ensued. However, as we shall discuss below, this protectionism has led to unintended consequences, and has created multiple new issues in addition to the health crisis. 

One such step of protectionism was taken by the Modi Government, which imposed a nationwide lockdown from 25th March onwards, by giving merely a four-hour notice. While the lockdown was initially envisaged for a three-week duration, it was extended on four occasions and continued  till 8th June, after which a roadmap was laid down for reopening different sectors of the economy. 

This approach of protectionism, which culminated in a nationwide lockdown, created a new kind of unanticipated crisis for the migrant workers in the country. As per the 2011 Census,  there were 453.6 Million Indians who were migrants - out of which around 70%  were female. Now, since the lockdown was imposed with only a four-hour notice, the migrant workers could not return to their hometowns – as transportation services were halted by the Central Government.

As transportation services had been halted completely, they were stranded in the cities without any source of employment and income, and were left estranged from their families. In order to provide them partial relief, the Central Government belatedly planned to provide them Shramik Special trains from the first week of May - through which the migrant workers could travel back to their hometowns. The Central Government in this regard claimed that 85% of the fare for the train service shall be covered by them. But this was later retracted, and the obligation on paying for the train services was transferred to the different State Governments.

The ensuing uncertainty resulted in a situation where migrant workers were asked to pay for their own train tickets. This was a travesty of justice as the migrant workers were left stranded and had no access to income solely due to the imposition of the lockdown, and not for any fault on their part. 

While providing transportation services to migrant workers, the Central Government made the Railways a pawn of harassment, instead of taking an active role in facilitating free train services. Under the transportation scheme, it was stated that trains can be supplied only through a joint request of both the origin state and the destination state, which again created multiple coordination issues between different State Governments.

The migrants were also requested to fill online registration forms to avail transportation facilities. Such a step was oblivious to prevailing ground realities, where most migrants cannot manage to afford a smartphone. This forced many migrant workers to walk back to their hometowns on foot, as they had no other alternative at hand.

As per an estimate, the cost of getting 6.5 crore inter-state migrants back to their hometowns would have been approximately Rs 4,200 crore. This amount could have been financed through the PM Cares Fund itself, which was also not effectively utilized by the Central Government to tackle this humanitarian crisis.

The Union Home Ministry also assured to establish more than 20,000 relief camps for over 660,000 migrants. However, despite numerous such promises by the State and Central Governments, many stranded workers were left without food and shelter, after having lost their primary source of income. Since most of the workers didn’t have access to regular food, government officials claimed that a  One Nation, One Ration Policy was being put in place.

However, most of these workers were unaware about the scheme, and the manner in which food was to be procured under it. Additionally, the Pradhan Mantri Garib Kalyan Ann Yojana - which aims to provide 5kg of rice or wheat per month to a family, also faced problems due to non-accessibility of ration cards and closure of fair price shops. Hence, very few workers availed of these food services, and many were left with no source of food.

This apathy of the Government in being dismissive of the group that forms the backbone of the economy has already made some migrant workers decide that they shall not return to the cities in  future for work, and shall prefer staying back in their villages. The migrants were penalized for no fault of theirs, and the Central Government failed to provide them with any kind of income support for the lockdown period - where most enterprises were forced to shut down. Even the Supreme Court failed to hold the Central Government accountable for this – and merely stated that the workers and the employers may ‘negotiate’ the extent of wages to be paid for the lockdown period.

On 20th June, the Prime Minister launched the  “Garib Kalyan Rojgar Abhiyaan” to create jobs for at least 25,000 migrant workers in 116 districts across States such as Bihar, which saw the return of a large segment of migrants. This program intends to develop rural areas that have been affected by reverse migration. Along with this, the Garib Kalyan Ann Yojana, which aimed to provide free food rations, has been extended till November. 

While we await the outcome of these belated measures, there can be no justification for the Central Government’s failure to anticipate the migrant workers’ crisis, and provide them with immediate food and income support.  The images and videos of migrant workers walking thousands of kilometers to reach their hometowns shall continue to haunt us for the years to come.

While we look to flatten our Covid-19 curve, let us remember that the sufferings of the working class is another curve that should be flattened on priority.

Attacking the dragon where it hurts the most – Framing a human-rights based approach to tackle China

The tragic death of 20 Indian soldiers in the Galwan Valley, during a face-off with China’s People’s Liberation Army (PLA) has rightfully ignited growing discontent against China. In response to the unpardonable death of 20 Indian brave hearts, there have been calls to boycott and ban Chinese products. There have also been calls to end imports from China, and end India’s dependence on Chinese goods - be it electronics, medicinal equipment or raw materials.

What is forgotten here is that exports to India constitute only 3% of China’s total exports. Also, a majority of our imports from China are for intermediate goods, which are used as raw materials, and not for finished goods. Companies prefer importing such intermediate goods from China as they are comparatively cheaper to other markets such as Europe. Hence, a blanket ban on imports from China shall raise the cost of production, and may affect Indian producers more - when compared to the damage done to the Chinese economy.

Another aspect that is ignored here is that for certain categories of products such as smartphones, a significant market share is held by companies and brands that have roots in China. For instance, in the Indian smartphone market, brands which have their roots in China (such as Xiaomi, Vivo, Oppo, Realme, OnePlus etc.) account for around 70% of the market share. In fact, if one were to exclude these brands altogether from the smartphone market, the only prominent brands that shall be left for us as consumers are Samsung and Apple.

Excluding Chinese products may hence reduce consumer choice for multiple products. Such a move will also not have a significant impact on the Chinese economy, as exports to India constitute only a fraction of China’s total exports. The impact shall be felt more by companies that have their roots in China, and by Indian producers and consumers. Calling for a blanket boycott or a ban is hence counterproductive, and shall harm Indian interests more. But, at the same time, exclusion of Chinese investments may be necessary in certain sectors such as Telecom, where there is a possibility of spying and surveillance.

For instance, excluding Chinese telecom giant Huawei from India’s 5G trials may be necessary, as Huawei reportedly has close links with the Chinese establishment and has also been accused of espionage, in countries such as the US. In fact, after the Galwan Valley face-off, the Department of Telecom directed BSNL to avoid using Chinese equipment in upgrading its 4G networks, and directed BSNL to rework its tender accordingly. Telecom is one sector where there is a possibility of spying and surveillance, and policy measures to keep Chinese firms away from this sector is justified.

Indian intelligence agencies have also red-flagged 53 China-based mobile applications, which are said to be extracting data out of India, and compromising privacy and data security. The list includes popular apps such as TikTok and SHAREit. We need to create more awareness of the privacy and data security concerns associated with such apps, and let users take an informed call on whether they wish to continue using them.

Chinese involvement should hence be restricted in areas where there is a possibility of spying or surveillance, which compromises data privacy and security. Such a human-rights centered approach, to safeguard data privacy and security is more beneficial, as it focuses on safeguarding our fundamental rights, and simultaneously sends a strong message across the border. Our human-rights centered approach must also have another important prong. We must use international forums to highlight multiple human rights atrocities that are being committed by China.

The most prominent example of this is China’s inhumane treatment of Uyghur Muslims in Xinjiang province. Uyghurs have been sent to concentration camps and re-education camps, and the Chinese establishment was also illegally harvesting their organs for treating other coronavirus patients. In fact, on 18^th June, Donald Trump signed the Uyghur Human Rights Policy Act, which was passed by the US Congress to impose sanctions on China for its torture of Uyghur Muslims. Human rights is China’s Achilles’ heel, and India must up the ante on such gross human rights abuses committed by the Chinese establishment.

Along with this, India should also try to build global consensus against the new national security law, which China proposes to impose over Hong Kong. The proposed law grants the Chinese establishment greater powers over Hong Kong’s independent legal system, thereby crippling Hong Kong’s autonomy under the ‘one country, two systems’ principle. The law also aims to cripple civil and political freedoms by granting Chinese security organs the power to exercise jurisdiction in Hong Kong, during undefined circumstances that may jeopardize national security. India should aim to be the frontrunner in creating global consensus against this proposed national security law, which aims to suppress dissent in Hong Kong.

Finally, India should also aim to generate consensus on the need for an impartial investigation of the manner in which the novel coronavirus originated in Wuhan. This is in light of multiple reports which show that China suppressed information about the novel coronavirus, and also silenced doctors who highlighted the emergence of a new virus in Wuhan in December 2019.

In the month of May, the World Health Assembly also passed a resolution moved by Australia, which called for a comprehensive investigation of the origins of Covid-19. As India has now assumed leadership of the WHO Executive Board, it is in a position to build global consensus for beginning a fair and impartial investigation – which remains free from Chinese interference.

India hence has significant scope to build global consensus over China’s recent track record of suppressing human rights and fundamental freedoms. Such a human-rights based approach should form an integral part of our efforts to tackle China at the international stage. The presence of democracy and fundamental freedoms is India’s greatest advantage over China, and instead of calling for blanket boycotts, we must leverage this to our benefit.

The Supreme Court’s interim order on payment of wages during the lockdown – A stark ignorance for ground realities

Over the course of the previous two months, we have witnessed devastating instances of migrant workers walking thousands of kilometers to reach their hometowns, after they lost their jobs and were denied wages by their employers. One among the many reasons for the plight of the migrant workers and daily wage earners is the non-implementation of an executive order issued by the Ministry of Home Affairs on 29^th March (‘the 29^th March Order’). The 29^th March Order, issued under the provisions of the Disaster Management Act, 2005, mandated 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. 

This Order had legal force for around 50 days, and was revoked through the guidelines for Lockdown 4.0, which were notified on 17^th May 2020. Meanwhile, the 29^th March Order was also challenged in the Apex Court by multiple private enterprises and enterprise associations. They contended that the Order was in violation of the employer’s right to carry on trade and business under Article 19(1)(g) of the Constitution. They also argued that the Order was arbitrary and unreasonable, as no wages can be paid in a situation of closure, where no work has been undertaken by the employees.

The Apex Court had granted an effective stay on the operation of the 29^th March Order through two interim directions passed on 15^th May and 4^th June - where it held that no coercive action shall be taken against any employer who fails to pay full wages. It is pertinent to note here that even after the Order mandating payment of wages was revoked on 17^th May, the Court has continued hearing the matter. This is because the Court has sought to examine whether the Order was legally valid i.e. whether it can be validly passed by invoking the provisions of the Disaster Management Act, 2005. If the Order is legally valid, an obligation is placed upon the employer to ensure payment of wages for the 50 days for which the Order was in force i.e. from 29^th March to 17^th May.

Keeping this background in mind, let us analyze the latest interim direction that was issued by the Court on 12^th June. In its 12^th June interim order, the Court deferred the adjudication on the legality of the 29^th March order, and stated that those private enterprises who are willing to negotiate with their employees on the extent of wages to be paid for the 50-day period may undertake negotiations and try to reach a settlement. If such a settlement is reached, then that would prevail over the mandate of the March 29^th Order – which had directed full payment of wages without any deduction. The Court adjourned the matter to the last week of July, and stated that its earlier direction on not taking any coercive action against employers for failing to pay wages shall continue to be applicable.

As the Court adjourned the matter and continued the effective stay it placed on the enforcement of the 29^th March Order, there is still no certainty as to whether wages will have to be paid for the 50-day period during which the Order had legal force. While stating that willing enterprises may enter into negotiations with their employees, the Court showed a blatant disregard for ground realities. How is it possible for migrant workers, who may have returned to their hometowns, to ‘negotiate’ with their employers, who are placed in another State? A majority of migrant workers and daily-wage laborers also work in the informal sector, and hence cannot be represented by an employee association or a trade union.

Encouraging a settlement by negotiating the extent of wages to be paid is practical and possible only in a limited capacity in the formal sector. Even in the formal sector, there may be an asymmetry in the bargaining power between the employer and the workers. The employer may take advantage of this asymmetry and state, for instance, that the workers should accept only 50% of their regular wages, or face the risk of termination of their employment. Such a negotiation is unlikely to be on fair terms, and any settlement arrived at may be on terms that are detrimental to the employees and workers. 

The Court here also failed to take into account that most migrant workers and laborers earn their wages on a daily basis. If they do not get their wages for even a single day, they may not be able to afford two square meals. The Court’s repeated deferral in determining whether wages should be paid only exacerbates their plight further. If the migrant workers had received their wages on time, and were not left stranded and penniless by their employers, their condition would have been less miserable than what it turned out to be.

By making wage payment a matter of negotiation between the employer and employees, the Court also exempts the Central and the State Government from any responsibility. The Court notes that the lockdown imposed by the Central and State Governments led to a situation where employers could not offer work, and the employees could not take work – for no fault of theirs. But, the Court failed to give effect to this observation. It refused to acknowledge that when the closure has been directly mandated by the State, the State has an obligation to secure the workers’ right to livelihood under Article 21, by providing appropriate means of income support.

The Court also noted that all private enterprises and industries cannot be painted with the same brush. But, it did not take this observation to it’s logical conclusion. While some private establishments may be in a position to pay wages even during a closure, there may be multiple other enterprises, such as those in the MSME sector, which may be on the brink of shutting down their business as a whole. To illustrate, while companies such as Reliance, Maruti Suzuki or Ambuja Cement may still be in a position to pay their workers, a small-scale garment enterprise in the MSME sector may not be in a position to pay wages. Many small-scale enterprises may hence lack the financial resources to comply with the 29^th March order, due to the extent of economic distress caused by the lockdown.

This can be rectified only if the Central and State Governments provide income support directly to the workers, or provide financial assistance to those private establishments who currently lack the financial means to pay their workers. The Court could have asked the Central Government to justify its failure to undertake any of these measures, instead of leaving the issue to be resolved mutually between the employer and the employees. It could have, at the minimum, directed the Central Government to explain as to how it plans to ensure universal implementation of its own order, for the 50-day period from 29^th March to 17th May. Unless the State steps in and provides financial assistance to severely stressed enterprises, the 29^th March Order cannot be universally implemented in letter and spirit.

Meanwhile, the workers and laborers continue to suffer due to a lack of stable income. This collective failure of the Court and the Government to ensure wage support has culminated in a situation where the plight of the workers is a curve that is unlikely to flatten.

The denial of bail to Safoora Zargar – Is our criminal justice system no longer humane?

“The significance and sweep of Art. 21 make the deprivation of liberty a matter of grave concern, and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Art. 19.... Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose, but for the bi-focal interests of justice - to the individual involved and society affected……..Public justice is central to the whole scheme of bail law”.

-         Justice V.R. Krishna Iyer, in Babu Singh v State of UP, AIR 1978 SC 527

On 4^th June, the Patiala House Court refused to grant bail to Safoora Zargar – who is in the 21^st week of her pregnancy. Safoora was booked under the Unlawful Activities (Prevention) Act, 1967 (the UAPA) for allegedly ‘instigating’ the East Delhi riots, which took place in the last week of February. The charge against Safoora was framed for committing the offence mentioned in sub-section (iii) of Section 2(o) of the UAPA, which deals with the commission of an ‘unlawful activity’ that causes or is intended to cause ‘disaffection’ against India. Now, under clause (5) of Section 43D of the UAPA, for offences punishable under Chapter IV and Chapter VI of the statute, bail cannot be granted when the Court is of the view that a prima facie case has been made out by the prosecution.

Chapter IV deals with the commission of a terrorist act, while Chapter VI deals with offences relating to membership of a terrorist organization. The statute forbids the Court from granting bail only when a prima facie case is made out for offences that fall under Chapter IV and Chapter VI. This does not apply for other offences, such as the offence of causing (or attempting to cause) disaffection against India, which Safoora has been accused of. For such other offences, the existing jurisprudence on bail shall be applicable. The bail order fails to note this distinction, and only examines whether there is prima facie merit in the charges made against Safoora.

Existence of a prima facie case against the accused is only one among the many factors that the Court is mandated to take into consideration, while deciding whether bail is to be granted. As the Supreme Court has noted in decisions such as State of Maharashtra v. Sitaram Popat and Prasantha Kumar v. Ashis Chatterjee, there are multiple other factors that the Court has to take into account while considering a bail application. Some of these factors are  – (i) the nature of accusations and the severity of punishment in case of conviction; (ii) reasonable apprehension of tampering of evidence/ influencing of witnesses; (iii) reasonable apprehension of threat to the complainant; and (iv) danger of the accused absconding. The Court failed to consider any of these factors, and only determined whether there is prima facie merit in the charges framed.

Let us apply some of the factors mentioned above to Safoora’s case. The charge framed against Safoora under the UAPA is for causing disaffection against India, which is a charge framed by the prosecution in most instances where there are fervent protests against the establishment. As per the bail order, the overt act through which ‘disaffection against India’ is caused is the attempt to block a road. Now, this is an overbroad interpretation of the ambit of the term ‘disaffection’, especially in a scenario where there is no concrete material to support the claim that Safoora incited violence. In any event, Safoora is not accused of a heinous crime such as murder, or attempt to commit murder. 

As the police already claims to have documentary evidence (such as Whatsapp chats) and video footage of the alleged actions of Safoora, there is no possibility of any large-scale destruction of evidence or influencing of witnesses. There also exists no reasonable apprehension of Safoora absconding. Even without considering the aspect of pregnancy, there were other grounds on which the Court could have granted bail. The Court does not even refer to these grounds which it ought to have considered under well-established bail jurisprudence. Granting of bail in any case would not have affected the veracity's of the charges framed by the prosecution, which shall be determined only at the trial stage. 

Let us now come to the Court’s approach to the defence counsel’s claim that bail should be granted on humanitarian grounds, as Safoora was in the 21^st week of her pregnancy. Safoora was also reported to be suffering from poly cystic ovarian disorder, and had a reported history of urinary tract infection. The defence counsel also highlighted that all the three jails in Delhi have reported positive cases of Covid-19, and her situation becomes all the more vulnerable in this pandemic. The Court fails to even address these contentions in its order, and attempts to salvage the situation by ‘requesting’ the jail superintendent to provide medical aid and assistance to Safoora. However, even if medical aid were to be provided from time to time – that is not in any way a justification for denying bail to a pregnant woman.

This is because pregnancy is a process that is physically and psychologically draining, where access to a clean, hygienic and conducive environment is crucial. A jail cell obviously cannot provide a conducive environment. This, along with the lack of hygiene, may increase the chances of catching Covid-19, as well as other infections - which may lead to complications in the pregnancy. The inability to ensure effective social distancing in jails only exacerbates the problem – and increases the risk of contracting the coronavirus. The Court failed to take note of these health risks which a pregnant woman may have to face in jail. 

This failure to secure Safoora’s personal liberty and right to health under Article 21 is nothing short of callous and inhumane.  As Justice Krishna Iyer held in Babu Singh’s case, public justice is central to the whole scheme of bail law, as depriving bail may amount to an unreasonable deprivation of ‘life and personal liberty’ under Article 21. One does not need to be a lawyer or a law student to figure that keeping a pregnant woman in jail poses a risk to her life and her health. If a pregnant woman who is subjected to vague charges of ‘blocking a road’ cannot be granted bail, then we must ask ourselves the question – Is our criminal justice system no longer humane? Let us all be the judge.

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Update: On 24th June, Safoora Zargar was finally granted bail by the Delhi HC. Solicitor General Tushar Metha, who was representing the Delhi Police before the HC, stated that he shall not be opposing the bail plea on humanitarian grounds. 

As we debate larger questions surrounding the UAPA, Safoora Zargar's case serves as an epitome of the manner in which this law denigrates civil liberties, and suppresses all forms of dissent against the State. 

The Gujarat HC's Covid-19 order - Certain troubling observations from a constitutional Court

The Gujarat HC has been proactively examining the State’s handling of the Covid-19 pandemic. The Court took suo moto cognizance of the manner in which the pandemic has been handled in Gujarat, and has issued multiple directions to the State Government. As we discussed in the previous post, the Court had also made a recommendation to regulate private hospitals in the city of Ahmedabad, which accounts for more than half the cases in the State. Once the Ahmedabad Municipal Corporation (AMC) enacted regulations and capped the fees that could be charged by private hospitals, the Court had provided a sound constitutional justification for the same.

To recall, the Court stated that imposing regulations and capping the fees charged by private hospitals was in furtherance of the fundamental right to health under Article 21, as it ensured that a wider section of society could access private hospitals for Covid-19 treatment. The Court had also directed the State Government to take punitive action against those private hospitals that were refusing to comply with the AMC’s regulations. The Court has continued hearing the manner and has issued two more orders on 25^th May and 29^th May respectively.

The order issued on 25^th May concerned the functioning of the Ahmedabad Civil Hospital, which is a government hospital that is at the forefront of the State’s fight against Covid-19. Subsequent to this order, there was a sudden change in the composition of the bench, where the Chief Justice of the Gujarat HC replaced one of the judges who had issued the earlier two orders. The order issued on 29^th May by the new Bench was to follow up on the earlier orders issued by the Court, after examining the compliance reports filed by the State Government. In this post, I aim to highlight certain concerns with the most recent order of the Court, which was issued on 29^th May.

In its 29^th May order, the Court first took note of the status report filed by the State Government. The status report mentioned that the private hospitals which were refusing to comply with the AMC’s regulations were now in the process of complying with the same, after the Court directed the State Government to take punitive action against the defaulting hospitals. This is one positive result of the Court’s exercise of writ jurisdiction, which has brought about accountability in the functioning of private hospitals. The Court also gave an important direction with respect to Covid-19 testing.

It held that for those category of patients who are eligible to get tested under the ICMR Guidelines, the test can be performed by a qualified physician at a public/private hospital, and there would be no need to take additional permission from the District Health Officers. This was to prevent delay in conducting a Covid-19 test in certain urgent situations, such as when an emergency surgery is to be conducted. For other categories of patients who are not covered by the ICMR guidelines, the Court held that the District Medical Officers should grant the necessary permissions within 24 hours – to avoid unwanted delay. Apart from these positive directions, the Court also made certain stray observations which should invite our concern.

Before concluding its order, the Court stated that – “Before we close this order, we would like to express our anguish over the unnecessary debates and comments that are going on as on date on the social media and other platforms. We have gathered an impression that our orders passed time to time in the larger interest of the public are being misused for some oblique motive”. Without elaborating on this aspect of Court orders being ‘misused’, the Court went on to state that – “In these extraordinary circumstances, the role of the opposition is equally important. There is no denying that the role of the opposition is to hold the government to account, but in times like this a helping hand would be more beneficial than a critical tongue”. (emphasis supplied)

Now, these are troubling and disturbing observations from a constitutional Court. The freedom of speech and expression conferred by Article 19(1)(a) envisages a marketplace of different ideas and opinions. This becomes even more important in the emergency situation we are facing today, where criticism and constructive questioning is an important tool to secure accountability of the Government. The Court also goes on to say that “Simply highlighting the flaws and gaps in the State’s handling of the situation only creates fear in the minds of people”.

If this was indeed the case, then the Court should have also completely refrained from discussing the deficiencies in government hospitals such as the Ahmedabad Civil Hospital, or highlighting the State Government’s delay in giving approval for Covid-19 testing! If the Court has the jurisdiction to highlight the flaws and gaps in the State’s policy, then the same naturally extends to civil society, the media and to medical professionals, who can demand accountability by pointing out the flaws in the manner in which Covid-19 has been handled.

Perhaps the most troubling observation has been reserved for the end, as the Court then goes on to state that – 

“All those who cannot extend their helping hand in this difficult times and do anything good for the people at large have no right to criticize the functioning of the State Government. If the State Government would not have been doing anything, as alleged, then probably, by now, we all would have been dead. All that we are doing in this litigation is to keep the State Government conscious and active by reminding its constitutional and statutory obligations”. (emphasis supplied)

The natural implication here is that if you cannot meaningfully assist the State Government, you would have to parrot its voice. It can be nobody’s case that the common man or the poor migrant worker has no right to raise his voice during this crisis. While all of these observations are mere obiter dicta and have no legal force, it is indeed troubling to see a constitutional Court speak in this tone. The Court’s reason for taking suo moto cognizance here was for ensuring that the State Government is held accountable for its actions. But, it is incorrect for the Court to assume that it is the only institution which can ensure accountability.

Accountability can also be secured through constructive ground-reporting by the Media (as journalists such as Barkha Dutt have done), or through the flaws and gaps that medical professionals and civil society organizations may highlight. The Court’s problematic observations also undermine the positive changes that its intervention brought about - where the government was put under pressure to improve the conditions at the Ahmedabad Civil Hospital, and private hospitals were prevented from profiteering. If the Court were to now insist that everybody should speak in one voice, that would only add to the existing issues in Gujarat, and shall solve none.

Before concluding, it is pertinent to refer to the words of the late Dr. Li Wenliang, who was one of the whistleblower doctors who was detained by the Wuhan Police after he warned his colleagues that a novel coronavirus may be emerging. Before his untimely death due to Covid-19, Li had stated – “in a healthy society, there should be more than one voice”. Their Lordships in the Gujarat HC would do well to take note.

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.