While the Supreme Court has given tangible relief to this section, as the sentinel of fundamental rights, it needs to establish a strong legal framework to protect them and prevent this from ever happening again.
By G Mohan Gopal
Justice is activated when it is affected by human suffering. Justice unaffected by human suffering is not justice at all, but a mere chimera. The refusal of the Supreme Court to consider the desperate plight of migrant labour had caused despair amongst the people that suffering had ceased to affect justice. The modest but vital interventions of judges of the High Courts of Andhra Pradesh, Gujarat and Madras — that led to the providing of train tickets, tents, supplies and transportation — revived hope that courts are not indifferent to the suffering of the people.
After initially declining to intercede in the migrant labour crisis, the Supreme Court of India has now taken up a suo motu writ petition on the “Problems and Miseries of Migrant Labourers”. Following the lead of the High Courts, as a first step, the Supreme Court issued interim orders on May 28, 2020 focusing on providing redress to migrant labourers in their struggle to return to their native villages. The Court mandated free train and bus travel for the migrants to their destinations, free food and water during the journey, prompt registration procedures and free health screening on arrival at their destinations.
However, the apex court needs to go beyond enabling the flight of migrant labour. It needs to establish a strong framework of human rights and principles that will protect our workers and prevent such a flight of desperation from ever happening again in our country. The Court must boldly live up to its justified billing of being a sentinel of fundamental rights, speaking truth to power (not just to the powerless).
As a constitutionalist court in a democracy, the Court must set structural limits to State power such that the State can do no harm to this most vulnerable, impoverished section. State power must be used only to protect them.
This could be done in the instant case by declaring migrant labour affected by the lockdown as internally displaced persons (IDPs) and extending to them the rights and protections recognised for IDPs in international law.
Do the migrant labourers struggling to return to their native villages in response to the Covid lockdown qualify to be IDPs? We know that these migrant labourers were made jobless and homeless by the sudden lockdown order from the Union government. Prime Minister Narendra Modi said on March 24, 2020 in an address to the nation at 8 pm: “The experience of ….countries in the last two months, and what the experts are also saying is that there is only one way to effectively combat it is social distancing.” (sic, emphasis added). “This decision of a nationwide lockdown that has been taken today has drawn a Lakshman Rekha at your doorsteps.” The lockdown came into effect in less than four hours after he spoke. There had been no prior notice or warning.
This announcement deprived migrant labour of their meagre, subsistence livelihood. All alternative avenues for employment were shut down. Without any income, they were rendered incapable of paying for accommodation in the towns where they worked and fed themselves. Faced with starvation and desperate for survival, they were left with no alternative except to return to their native villages, which were typically hundreds of kilometres away (in some cases, thousands of kilometres). They were unable to use public transport to return as the lockdown had shut down all such means. They were also required to not leave the non-existent doorsteps of their homes. They were left with only two options: flee or perish.
The migrant labourers have clearly been economically displaced by the orders issued by the government in response to the pandemic. They have also been physically displaced from their places of livelihood and habitual residence as a result of the consequences of that order. Economic displacement is now well-established as a mode of displacement in addition to physical displacement. For all these reasons, migrant labourers fall squarely within the legal category of “internally displaced people” (IDPs).
The 1998 United Nations Guiding Principles On Internal Displacement sets out 30 standards on protection of IDPs from forced displacement, protection during displacement and solutions.
These non-binding Guiding Principles provide guidance to “States when faced with the phenomenon of internal displacement”. The Guiding Principles define IDPs as “internally displaced persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border”. Particularly because (although not only because) the government has invoked the Natural Disaster Management Act (NDMA) to apply the lockdown, the Guiding Principles apply to migrant labour affected by the Covid lockdown. In the words of the United Nations, “forced to abandon their homes and livelihoods, internally displaced are often the most forgotten and neglected people in the many forgotten and neglected emergencies around the world”.
* Principle 3 (supplemented by Principle 25) provides that “National authorities have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction.”
*Principle 4 requires that “Certain internally displaced persons, such as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of household, persons with disabilities and elderly persons, shall be entitled to protection and assistance required by their condition and to treatment which takes into account their special needs”.
*Principle 5 establishes the obligation of the government to “prevent and avoid conditions that might lead to displacement of persons”.
*Principle 6 prohibits arbitrary displacement; requires that “displacement shall last no longer than required by the circumstances” and, in the case of natural disasters, provides that only the safety and health of those affected (in this case, the migrant workers and those mandated to shelter in place) should be a basis for their evacuation. *Principle 7 requires that the government is required to avoid displacement by exploring all other alternatives. Principle 7 also requires that “The authorities undertaking such displacement shall ensure, to the greatest practicable extent, that proper accommodation is provided to the displaced persons, that such displacements are effected in satisfactory conditions of safety, nutrition, health and hygiene, and that members of the same family are not separated.” It further requires that “Adequate measures shall be taken to guarantee to those to be displaced full information on the reasons and procedures for their displacement and, where applicable, on compensation and relocation” and that “the right to an effective remedy, including the review of such decisions by appropriate judicial authorities, shall be respected.” *Principle 8 requires that, “Displacement shall not be carried out in a manner that violates the rights to life, dignity, liberty and security of those affected.”
*Principle 10 provides that “Every human being has the inherent right to life which shall be protected by law. No one shall be arbitrarily deprived of his or her life” and that IDPs shall be protected from crime, violence.
*Principle 11 protects “the right to dignity and physical, mental and moral integrity” of IDPs.
*Principle 12 protects IDPs’ right to liberty and security of person. It also prohibits their being interned in or confined to a camp, as has been done in some states.
*Of special importance in the current context, Principle 14 guarantees to every IDP “the right to liberty of movement and freedom to choose his or her residence” (covering their right to travel to their native villages and their homes).
*Principle 15 secures their “right to seek safety in another part of the country”.
*Principle 18 crucially provides that “All internally displaced persons have the right to an adequate standard of living” including “essential food and potable water; basic shelter and housing; appropriate clothing; and essential medical services and sanitation.”
*Principle 21 protects the property and possessions of IDPs.
* Principle 22 guarantees their “rights to freedom of thought, conscience, religion or belief, opinion and expression” as well as other civil and political rights.
*Principle 28 provides that “Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.”
The Supreme Court has the opportunity to convert these global principles into justiciable national rights by reading these tried and tested global principles on IDPs into the right to life and personal liberty under Article 21 of the Constitution. The Court may then test the actions of the government with respect to migrant labour against these standards and require corrective action where they are not met. This would enable the Court to go well beyond the minimalist approach of being mere enablers of the flight of the workers without addressing their underlying distress. This would set a precedent which can be applicable to labour in similar circumstances in future. This would be a historic contribution by the Supreme Court for the protection of some of the most vulnerable sections of our people.
The Supreme Court should also consider whether in a federal country such as ours, the Union government has the legal power to lockdown the entire country in the manner it has done. No government in the sub-continent has placed every individual there under a form of limited house arrest. In the absence of a public health law that gives the Union necessary power, it acted under the NDMA in declaring the lockdown. It would be a stretch to consider an epidemic a natural disaster, which is defined under the Act as one of several types of discrete events: “catastrophe, mishap, calamity or grave occurrence”. Can NDMA legitimately be invoked in this case to lockdown India? The Supreme Court should also consider whether the scope of the lockdown is impermissibly broad and excessive to the point of being arbitrary and beyond the powers envisaged under NDMA (for example, imposing restrictions on all persons above 65 years of age regardless of risk factors and medical conditions).
Another question to be considered is whether surveillance measures initiated in the name of Covid, including through the Arogya Setu app, are violative of the right to privacy. Government actions that cause economic losses to people (such as shutting down business) or force people to incur additional expenditures (such as expenditures to shelter in a place away from home) amount to “takings” under the law. Does the government have a legal obligation to compensate people affected by such “taking”?
Science is yet to understand the nature and behaviour of the corona virus or to develop methods to neutralise it. Political leaders and bureaucrats should not get ahead of science when they impose draconian measures on the assumption that those measures will effectively combat Covid. In these circumstances, the executive branch should not be permitted to impose draconian burdens on the people not supported and justified by science.
With Indian Covid cases spiking rapidly and India having more cases–per capita and in total number–than China, there is an urgent need for course correction to make our Covid response more effective by aligning it to constitutional rights and values and ensuring that it keeps step with science.
—The writer G Mohan Gopal ,was former Director, National Judicial Academy and former VC, National Law School of India, Bengaluru
Lead Picture: UNI