Accountability and abdication of constitutional duties [Part 2]

COVID-19 is primarily a non-political issue, or so one would like to believe. It is important to assess its significant impact on the poor for whom social distancing is a mirage, access to affordable health care is a chimera, and inaccessibility to food and other essentials is magnified by lockdown. Signs of judicial deference to the Executive and Legislature have been there for quite some time. It’s manner of dealing with Habeas Corpus Petitions concerning Kashmir, its willingness to transfer judges who are unpalatable to the Executive, the unbridled arrests under Unlawful Activities Prevention Act (UAPA) and the anti- Citizenship Amendment Act (CAA) agitation highlight its ‘hands-off’ approach.

As argued in Part-I of this series, a number of individuals and organisations have approached the Supreme Court since the lockdown for review and directions of government steps. While some were frivolous or demanded high levels of medical expertise, a number of issues have been raised in the Supreme Court which it could have and should have entertained but failed to do so. As this crisis continues week after week, the refusal of the Supreme Court to intervene is not merely a delayed response to a new situation but a complete abdication of its constitutional responsibility. If suo motu action could be taken for prison congestion much before the lockdown started, surely some action could have been taken on issues of migrant workers.

While the Supreme Court finally woke on May 26 to initiate suo motu action into this pertinent issue, it is important that we examine the ways in which the Supreme Court can fulfil its constitutional obligations through its wide-ranging powers. Firstly, what are the obligations of the State during times of crisis? Secondly, can the Courts go into issues pertaining to policy matters over scientific and medical expertise? Thirdly, what could the court have done – both procedurally and substantively – to ensure welfare of the poor.

Fundamental duties of state in crisis

The Supreme Court itself has broadened the definition of “life” to not just include “mere animal existence” but the right to live with human dignity. It has read into it right to food, shelter, livelihood and adequate health care. Further these rights are explicitly part of directive principles of state policy (hereinafter DPSP)- which though not enforceable by courts of law in the same way as fundamental rights- act as guiding principles for state policies. Providing affordable health care, rations, free travel to migrants and monetary relief to the poor is not an act charity by the Government. It is in fact fulfilment of its constitutional and international obligations to the people. It is the very foundational principle of a welfare state. Thus it is not merely a moral or legal obligation of the State to look after the people but also the right of the people to demand and obtain these very essentials from the State.

In times of emergencies arising from external security threats, the state can curtail fundamental rights and civil liberties to allow it to respond to threats by expanding its powers. Here I would like to examine its applicability to a health safety crisis that too externally threatens lives and hence gives state expansionary powers. Political scientist Giorgio Agamben theorises this ‘state of exception’ during which ‘the government has extended levels of power and authority than in the past’. He notes that during a state of exception, the state is exempt from certain fundamentals. This expansion of power is justified to the people on grounds of its importance for their safety. The current COVID-19 is a threat to the health security of the nation. In Agamben’s ‘state of emergency’ the state suspends certain fundamental rights to ease its ability to tackle security threats. The people in return are bestowed the right to demand safety of their lives from the violent threat in exchange for the curtailment of their rights.

So if my fundamental right/liberty to movement or livelihood is substantially curtailed, as is in the present case, the directive principles- namely right to food, right to shelter, healthcare, etc.- become my fundamental rights. It thereby makes it an obligation of the State to provide me with these essential and fundamental rights, and to approach the High Court or even directly the Supreme Court for enforcement of these rights.

Thus the DPSPs acquire the flavour and substance of fundamental rights through expansion of state power. While it is true that during such states of exception many civil liberties are curtailed, they change from negative rights to positive rights. In ordinary times the Constitution is of course very important; but it is in times of crisis that the Constitution and the mechanisms to enforce it are tested.

Abdication of judicial powers

As stated earlier, the pertinent question here is to examine the range of judicial powers in directing the executive and consequently to understand the possible actions that the judiciary could have taken in these times. In the COVID-19 relief measure petition hearings, the Supreme Court has repeatedly argued that, firstly, it cannot substitute its own wisdom for that of the Executive and, secondly, that it cannot interfere in policy matters as it is not an expert on medical or scientific or economic subjects.

While at first blush this may sound sensible, it is infact a complete abdication of judicial review powers. Let us look at a few instances over the last 40 years of the Supreme Court’s decision-making history. In D.K. Basu case, detailed directions were given to the executive to protect the rights of arrestees and accused in place of the executive’s wisdom. Similarly, in Visakha’s judgment (1997 6 SCC 241) the Supreme Court effectively legislated on matters concerning sexual harassment at the workplace as gender policy expert. In M C Mehta (1999 6 SCC 12), the Court ordered that vehicles over 15 years must be discarded through a completely “scientific” direction on automobile engineering and CNG. In Common Cause (1996 1 SCC 753) it gave guidelines on the method of blood collection and transfusion in the domain of medical science.

Let us not shy away from the fact that whenever the Supreme Court wants to lay down a policy it does so irrespective of judges possessing scientific or economic expertise. A constitutional bench of the Supreme Court itself has ruled that it ordinarily does not interfere with policy decisions unless the policy is irrational or arbitrary or if it violates fundamental rights. In the number of Covid-19 relief petitions filed before it, the courts were not required to play the role of being medical experts over policy makers. They simply required certain actions or inactions to be tested on the touchstone of constitutional principles.

One wonder, was this too much to ask? In a petition on starvation amongst non-ration cardholders, the Court could have very well directed that all poor persons be fed on the ground of violation of Article 21 instead of brushing it off its shoulder as a matter of policy. Similarly, the Court ought to have directed the Railways not to charge any fare from the migrants who were anyway. This is what Constitutional Courts do in times of crisis.

Call for state accountability

On March 30, the Supreme Court readily accepted the Government’s contention that migrants were travelling because of fake news and then again on April 4 the Court accepted the Government’s ostentatious claim that there was not a single migrant. Even if the judges are only watching the Republic TV channel and sourcing their news through twitter, they should still know that there is a huge problem of starvation and migrant workers crisis as a result of being left in the lurch by the Executive. At the very least the Supreme Court can take inspiration from Karnataka High Court which asked the Legal Services Authority at various district levels to file reports after site visits to give itself a reality check that helped in passing some excellent orders.

Firstly, the Court should have appointed Amicus and independent observers/ committees to assist the Court in verifying Government claims. These are approaches that have been adopted by the Constitutional Courts in many cases in the past. Moreover, independent verification of government claims is even more important during the COVID period. We are faced with a situation where the entire country is under lockdown while the Government is making bombastic claims on the devastation reported by the media. It is not easy for citizens to visit places to file reports. They can only receive anecdotal information. This is the ideal situation wherein independent observers should have been appointed by the Court to verify the claims of the Government but it is instead busy giving plaudits to the Government.

Secondly, the other thing which the Supreme Court should have done was to use its power of continuing mandamus to at least make the Government answerable in various cases.  This power is used to push, prod and embarrass the Government to act. The latter is done in a manner where the Court facilitates resolution of issues by keeping the case alive and making the government answerable through various means including asking for repeated status reports, appointing independent commissions to oversee what is happening, asking the Government officers and advocates to sit with the Petitioners lawyers and civil society groups to find a solution, suggest measures which becomes difficult for Government to refuse to accept. This is precisely how some of the High Courts have proceeded in the present crisis and with excellent results as will be pointed out here.

Conclusion

There are many glorious examples from the Supreme Court’s history where it uses its powers for the betterment of people. Unfortunately, the same enthusiasm and concern is missing these days. The Supreme Court has been highly deferential towards whatever the Central Government submits through the Solicitor General. Only when pushed will it at the most request the Central Government to “consider the issue” without prescribing any timeline or guidelines. When no questions are asked and no concerns expressed, the Petition dies a natural death. While the judiciary has its own limitations, this cannot justify its total failure in even listening to the marginalised who are dying of hunger. Rather it reflects a complete surrender to the Executive. It is not merely institutional failure but a personal failure of the judges themselves.

The whole purpose of Constitutional Courts is to oversee the decisions of the Legislature and Executive in what is called judicial review. Migrant workers crisis and widespread starvation are the two most important issues which the Supreme Court should have taken up on a suo motu basis as soon as the crisis began or soon after. There are orders which a sensitive Supreme Court could have easily passed without interfering in policy decisions and without becoming doctors or scientists. Instead they chose to comply and accept whatever the Solicitor General said, even if it was in an affidavit, without raising any questions. In times like these, what is desperately needed is an active Supreme Court. COVID-19 is perhaps the darkest phase in the history of the Supreme Court when it has completely abdicated its responsibility at one go towards hundreds of millions of destitute and marginalised people and this record will take some beating in the decades to come.

First published in The Leaflet.