Uncodified personal laws and fundamental rights scrutiny: Revisiting Shayara Bano & Narasu Appa Mali

(In this piece, we will first briefly revisit the Shayara Bano decision. We will then shift focus to a decision which the Bombay High Court gave in 1951, in Narasu Appa Mali’s case. Even though it has been 69 years since this judgment was delivered, it has continued to act as a stumbling block while examining whether uncodified personal laws violate fundamental rights. It is one of those rare High Court judgments on a significant aspect of constitutional law, that has not yet been overruled for seven decades now). 

In Shayara Bano v. Union of India (August, 2017), a Constitution Bench of the Supreme Court invalidated the practice of ‘Triple Talaq’, which allowed a Muslim man to unilaterally divorce his wife by uttering the word ‘Talaq’ thrice. The Court invalidated this practice without settling the contentious question of whether uncodified personal laws fall within the ambit of Article 13 of the Constitution – and whether they can be challenged for violation of fundamental rights. The majority judges refused to re-examine the correctness of the Bombay High Court’s decision in Narasu Appa Mali - which exempted uncodified personal laws from the ambit of Article 13 of the Constitution, and effectively made them immune to judicial review.

The reasoning employed by the Apex Court to invalidate Triple Talaq

The practice of Triple Talaq was invalidated by a slender margin of 3:2. Two separate majority opinions were delivered by Justice Nariman and Justice Joseph. While Justice Nariman and Justice Joseph arrived at the same conclusion, their rationale for invalidating Triple Talaq was significantly different. Justice Nariman held that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 [“the 1937 Act”] provides legal sanction to the practice of Triple Talaq.

As the 1937 Act is a pre-constitutional law, it would fall within the ambit of Article 13(1) of the Constitution, and shall be void to the extent that it contravenes any fundamental right. Hence, according to Nariman J, the practice of Triple Talaq would be subject to scrutiny under Part III of the Constitution. After arriving at this conclusion, Justice Nariman invalidated Triple Talaq because it was manifestly arbitrary, and hence violative of Article 14.

On the other hand, Justice Joseph affirmed the law laid down in the Shamin Ara case (2002). In Shamin Ara, the Supreme Court held that arbitrary and unilateral talaq that was pronounced without reasonable cause and without any attempt at reconciliation between husband and wife was not permitted by the tenets of the Quran, and hence would not have legal sanctity. According to Justice Joseph, as triple talaq could be pronounced solely by the man without any prior attempt of reconciliation, such an arbitrary and unilateral form of talaq went against the basic tenets of the Quran, and could not receive any legal sanctity. As triple talaq went against the tenets of the Quran, Justice Joseph held that it could not be considered as a practice that was essential or integral to Islam.

Disagreeing with Justice Nariman, Justice Joseph held that the 1937 Act could not be tested under Part III, as it was not a legislation “regulating” talaq. He held that the 1937 Act only made the Shariat applicable to all Muslims, and did not in any way “regulate” or codify the practice of talaq. In his dissent, Justice Khehar followed the same line of thought and held that the 1937 Act did not codify triple talaq. Hence, three out of five judges held that the 1937 Act did not give legal sanction to Triple Talaq - and that the practice of Triple Talaq could not be subjected to Part III scrutiny.

Both Justices Nariman and Joseph refused to address the contentious question of whether uncodified personal laws fall within the ambit of Article 13. They refused to re-examine the correctness of the Bombay High Court’s decision in Narasu Appa Mali, which held that uncodified personal laws are exempted from the ambit of Article 13, and hence cannot be challenged for violation of fundamental rights.

Justice Nariman specifically noted that in the instant case, there was no need to re-examine the correctness of Narasu Appa Mali, and that this could be done in an appropriate future case. This was a missed opportunity, as the disagreement amongst the judges over the applicability of the 1937 Act could have been conclusively resolved by determining whether Narasu Appa Mali must be overruled.

Narasu Appa Mali was among the earliest constitutional cases heard by the Bombay High Court post-independence. The judgment was delivered on 24^th July 1951 – by a Division Bench of the High Court, consisting of Justice Chagla and Justice Gajendragadkar. Both the judges gave separate opinions, but arrived at the same final conclusion. As we shall discuss below, the decision in Narasu continues to be a stumbling block in subjecting personal laws to fundamental rights scrutiny, even 69 years after it was delivered. 

Exclusion of uncodified personal laws from Article 13: The need to conclusively overrule Narasu Appa Mali

Personal laws govern an individual’s rights and privileges with respect to marriage, divorce, succession and other family relations. Personal laws may exist in either codified or uncodified forms. Codified versions of personal law include legislations such as the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. These legislations provide a statutory basis for Hindu personal law, which had largely existed in an uncodified form during the British Raj.

Also, various codified personal laws such as the Indian Succession Act, 1925 and the Indian Christian Marriage Act, 1872 are pre-constitutional in nature, and continue to operate by virtue of Article 13(1) and Article 372(1) of the Constitution. Provisions of such pre-constitutional personal laws have also been successfully challenged in Court. For instance, in John Vallamattom, the Apex Court struck down Section 118 of the Indian Succession Act, on grounds of violation of Article 14.

Uncodified personal laws such as the Shariat are a set of traditional laws that derive their legitimacy from the scriptures, tenets and the customs of a particular religion. An individual is bound to follow such uncodified personal laws by virtue of his association to a particular religion.Although they are not enacted by the State - even uncodified personal laws receive legal recognition, as they are enforced by Indian Courts for matters governing family relations such as marriage and divorce. For instance, the set of rules prescribed in the Shariat (Muslim personal law) are enforced by Indian Courts – to resolve disputes relating to marriage, divorce, succession etc.

Under Article 13(3)(a) of the Constitution, the definition of ‘law’ includes any ordinance, order, bye-law, rule, regulation, notification, and any ‘custom or usage’ that has the force of law within the territory of India. While a ‘custom or usage’ that has the force of law falls within the ambit of Article 13(3)(a), personal laws have not been specifically included.

In Narasu Appa Mali, the Bombay High Court had to determine the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. One of the arguments made here by the petitioner was that the Act was discriminatory, as it penalized polygamy only among Hindus, and did not outlaw polygamy amongst Muslims, which was authorized under Muslim personal law.

While addressing this contention, Justice Chagla stated that uncodified personal laws have been specifically excluded from the purview of Article 13, and hence cannot be challenged for violation of fundamental rights. Although this is only a decision of the Bombay High Court, it has dominated judicial discourse on whether personal laws can be challenged for violation of fundamental rights.

In his judgment, Justice Chagla held that ‘personal laws’ are distinct from ‘customs and usages’ that have the force of law, and are not ‘laws in force’ within the meaning of Article 13(3)(b). He stated that it was the specific intention of the Constituent Assembly to exclude personal laws from judicial scrutiny, so that they may be reformed at an appropriate time by the Legislature. This, according to him, was corroborated by the presence of constitutional provisions such as Article 17 (abolition of untouchability), Article 25(2)(b) (Hindu social reform legislations) and Article 44 (uniform civil code). In effect, the Bench held that only a ‘custom or usage’ that does not form part of a personal law falls within the ambit of Article 13.

While the principles of Narasu Appa Mali has been affirmed by the Supreme Court on certain occasions, there have also been decisions where the Apex Court has taken a different view. For instance, in Sant Ram v. Labh Singh, Justice Gajendragadkar took a different view, even  though he did not make any reference to his earlier decision in Narasu. This decision was delivered in 1964, after Justice Gajendragadkar had been elevated to the Supreme Court.

Speaking on behalf of a Constitution Bench, he held that the definition of the word ‘law’ as mentioned in Article 13(3)(a) can be read into the term ‘laws in force’ mentioned in Article 13(3)(b). Accordingly, the term ‘laws in force’ in Article 13(3)(b) must include all those categories of ‘law’ mentioned in Article 13(3)(a). This was based on the premise that the terms ‘law’ and ‘laws in force’ are inclusive in nature, and cannot be interpreted in a restrictive manner.

After arriving at this conclusion, he held that a ‘custom or usage’ that existed prior to the commencement of the Constitution shall fall within the definition of ‘laws in force’ under Article 13(3)(b), and shall be void to the extent that it contravenes any fundamental right. While Justice Gajendragadkar did not refer to the view he took in Narasu, he nevertheless adopted an interpretation that overruled one of the premises on which the Narasu decision was founded on.

Taking this inclusive interpretation forward, it can be argued that uncodified personal laws must also fall within the definition of ‘law’ and ‘laws in force’. Such a conclusion can be further buttressed by referring to the views of Seervai, who pointed out that personal law and ‘customs and usages’ are inextricably mixed up, and it becomes extremely difficult to make a clear distinction between the two. Such a distinction is in any case only fictional in nature, as uncodified personal laws derive their authority solely from the customs and tenets of the religion itself.

Also, the mere presence of constitutional provisions such as Article 17, Article 25(2)(b) and Article 44 does not justify making uncodified personal laws immune from judicial scrutiny. Prior to any kind of reform, personal laws such as the Shariat continue to have binding force, and have always been applied by Indian Courts in disputes relating to family relations such as marriage and divorce. Provisions that permit future reform of personal laws cannot be used to interpret personal laws in a way that would make them immune to judicial review, in their present form.

Such an interpretation also leads to an anomaly where uncodified personal laws shall be immune from judicial review, but as soon as they are codified through a statute, the statute shall then be subject to the provisions of Part III. For instance, according to this interpretation, uncodified Hindu personal law shall be exempt from Article 13. But, as soon as Hindu personal law is codified through statutes such as the HMA, the statute shall fall within the ambit of Part III.

Such a distinction is fictional, as both uncodified Hindu personal law and statutes such as the HMA are applied and enforced by Indian Courts for matters governing family relations. For these reasons, uncodified personal laws and codified personal laws should be placed at the same pedestal, and must be subject to similar standards of judicial review under Part III. This can be achieved by conclusively overruling Narasu Appa Mali. The Bench in Shayara Bano missed an opportunity to do precisely this.

While it is now 69 years since Narasu continues to hold fort, it has far outlived its expiry date.

Note: In the Sabarimala judgment, Justice Chandrachud had also discussed the need to overrule Narasu. He stopped short of overruling it as the case was not directly relevant to the issues argued before the Bench in Sabarimala.

Implications of subjecting uncodified personal laws to judicial review

Once practices associated with personal laws and customs are subjected to judicial review, they can be invalidated or read down for violation of any of the fundamental rights conferred by Part III of the Constitution. Legal commentators have expressed apprehensions that subjecting personal laws to judicial review may lead to social reform through the judiciary – which does not have the expertise to determine complex questions associated with religion.

It has also been argued that matters associated with personal law should not be scrutinized by Courts – and that personal law reform should be left solely to the Legislature, and to the leaders of the religious community. However, such a view is incorrect, as leaders of religious communities have always been inimical towards reforming personal law, and making it more gender neutral. Also, due to political considerations, even the Legislatures have been inimical towards reform, and have tended to cater to the wishes of religious leaders.  

The most significant example of this is the reaction that followed the Shah Bano verdict, where the Supreme Court had enhanced the quantum of maintenance that could be availed by divorced Muslim women. Under pressure from the Muslim clergy and Muslim conservatives, the Rajiv Gandhi Government enacted legislation to overturn the Supreme Court verdict. Invoking the power of judicial review to invalidate or read down aspects of personal law that violate the mandate of gender equality and dignity is hence necessary, and the buck cannot simply be passed to the Legislature.

Also, progressive interventions into uncodified personal law have been successfully made in the past. For instance, in Vishwa Lochan Madan, the Apex Court held that fatwas and other decisions of Sharia Courts have no legally binding force even on the parties that approach these forums – and that such fatwas cannot be used to perpetrate gender inequality. This approach needs to be taken forward – and aspects of personal law that violate fundamental rights must either be invalidated or read down.

[Postscript: Before I let you go, here is a small snippet on Justice M.C Chagla. Justice Chagla was the first Indian Chief Justice of the Bombay High Court, and was formerly a junior in the chambers of Muhammad Ali Jinnah. When he was Chief Justice of the Bombay High Court, he had declined an offer to be elevated to the Supreme Court. This was because in those days, being Chief Justice of the Bombay High Court was considered more prestigious than serving in the Supreme Court! How much have the tables turned.]

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.

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.