THE SURGING DANGERS ON CONSTITUTION AND LIBERTIES IN INDIA
This article was written by Prakriti Singh, a student of HNLU.
CHAPTER 1: THE CRISIS IN JAMMU AND KASHMIR.. 4
LEGALITY OF THE ABROGATION.. 4
RESTRICTIONS ON RIGHTS AND LIBERTIES. 5
THE ROLE OF APEX COURT IN THE CRISIS. 7
SECTION 2 AND INDIAN CONSTITUTION.. 11
CHAPTER 3: THE COVID CRISIS. 15
DRACONIAN ATTACKS ON PRIVACY.. 17
INFLICTING ATROCITIES UPON THE MIGRANTS. 19
ROLE OF THE SUPREME COURT IN THE CRISIS. 22
Abstract
In the recent times, a peril grapples the Constitution and the liberties of the citizens on India. This can be contributed to the authoritarian nature of the executive and the lax approach of the judiciary. This paper is an analytical study of these threats. It studies three such cases. The first chapter of this paper makes a study of the abolition of the special status of Jammu and Kashmir. It highlights the legal irregularities in the abolition. It also makes a study of the jeopardizing of the liberties of the people of Jammu and Kashmir. The second part of the paper highlights the contentious provisions of the infamous Citizenship Amendment Act. It also highlights the draconian approach adopted by the authorities in dealing with the protestors. The final chapter makes a study of the crisis amidst the COVID 19. It highlights the dubiousness of various steps adopted by the executive. It also highlights the judicial laxity in the context.
INTRODUCTION
In the recent times, authority and of the India Constitution is being eroded through the means of several dubious legislations. These legislations are being enacted without following the proper mechanisms as laid down under the Indian Constitution. This has resulted in several bleak ramifications.
This erosion of constitutional authority is also being accompanied by the rising abrasion of liberties of the citizens. Several rights and liberties guaranteed to the citizens are being unreasonably restricted by the executive. This can turn India from a democratic to an authoritarian state.
The Indian Judiciary, which is entrusted with the task of acting as the “custodian of the constitution and the liberties”, seems to have taken a back seat. On several instances, the judiciary has adopted a lax approach and failed to safeguard the liberties of the people.
The abrogation of the special status of Jammu and Kashmir is a controversial decision. There are several legal flaws in the decision. Also, the following suppression of rights and liberties in the area raises several questions on the intentions of the executive. The judiciary could not take any effective measures in the situation.
The Citizenship Amendment Act threatens the constitutional doctrines of equality and secularism. It also threatens to create a xenophobic state. The approach adopted in dealing with the protests was an abuse of the liberties of the protestors. Even the judiciary seemed to be nescient to the crisis.
The COVID 19 pandemic was no restricted to the health and economy. It indeed, permeated to the legal section as well. Various health laws were misused in order to contain the spread of the virus. The privacy of the citizens was disregarded. The migrant labourers were ignored by the executive, as well as the judiciary.
CHAPTER 1: THE CRISIS IN JAMMU AND KASHMIR
The Jammu and Kashmir Reorganization Act, 2019[1] countermanded the special status of Jammu and Kashmir and resulted in the bifurcation of Jammu and Kashmir into two union territories. The constitutionality of this abrogation remains under question. The route adopted by the Centre to achieve this is a blot on the doctrine of federalism. This was followed by the imposition of several controversial and unreasonable restrictions on the rights and civil liberties of the citizens. Various political leaders in the Valley were detained under draconian laws. The approach followed by the apex court of the country while dealing with the legal issues did raise several questions and criticisms.
LEGALITY OF THE ABROGATION
Article 370[2] was substantively amended in order to scrap the special status of Jammu and Kashmir.[3] Article 370 was used to amend the Article 367[4], which became the medium of amending Article 370.[5] Article 368[6] of the Indian Constitution lays down the procedure to be followed for constitutional amendments.[7] However, this provision was violated. Article 370(1) (d), which was used for the purpose of diluting the Article itself, was meant to be deployed to apply ‘other provisions of Constitution’ to Jammu and Kashmir, not to modify or repeal Article 370 itself.[8]
The statehood of Jammu and Kashmir was scrapped and it was bifurcated into two union territories- Jammu and Kashmir & Ladakh.[9] Article 3 of the Constitution gives Parliament the power to amend the Constitution by a simple majority to change the boundaries of a state, and to form a new state.[10] This change requires that such a Bill be first referred to the concerned state Assembly by the President for ascertaining its views. Prior to the Reorganization Act of 1956[11], States were given the opportunity to express their views.[12] Andhra Pradesh Assembly too was given this opportunity in 2014 prior to the creation of Telangana.[13] Since the J&K Assembly stood dissolved and there had been no election announced, it was denied its right to express its view.[14] This was a violation of the principle of federalism. Federalism has been held to be a part of the basic structure of the Indian Constitution under the landmark judgments of Keshvananda Bharati v, State of Kerala[15] and S.R. Bommai v. Union of India[16]
Restrictions on rights and liberties
The abrogation of the special status meant that all the laws and acts of India are now also applicable to Jammu and Kashmir. This could have been a medium for empowering the residents. However, instead of rights and liberties, the residents of Jammu and Kashmir received restrictions and censorship. The freedom of speech, the freedom of movement and the right to access internet were restricted in the valley, for a very long span of time. The legality of such measures adopted was challenged in the apex court of the country. The apex court did uphold the rights, but failed to explicitly order the restoration.
Internet shutdown
In the era of artificial intelligence, internet time and again becomes an imperative amenity. Internet is the instrument which lubricates the dissemination of ideas.
In 2016, the UN declared that it considers the internet to be a human right.[17] An addition was made to article 19 of the Universal Declaration of Human Rights. [18]Section 32 adds “The promotion, protection and enjoyment of human rights on the Internet” and another 15 recommendations that cover the rights of those who work in and rely on internet access.[19]
In Faheema Shirin RK vs. State of Kerala[20], Kerala High Court held that Right to Internet access is a part of Right to education and Right to privacy under Article 21 of the Indian constitution.[21] In PUCL vs. Union of India[22], the apex court held that Right to freedom of speech and expression is a fundamental right under article 19(1) (a)[23] of the constitution.[24] Freedom of speech and expression is the right to express one`s thoughts freely over various mediums, including the internet.[25]
After the abolition of the special status and the bifurcation into union territories, the entire Jammu and Kashmir witnessed an 18 month long internet shutdown.[26] This shutdown was imposed under Section 144 of the Code of Criminal Procedure [27]and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.[28] Section 144 is often criticized for being a relic of the colonial era and unreasonably restricting the rights and liberties of the citizens. This opprobrium does seem valid in the context. The restrictions were nothing less than a nightmare for the people of Jammu and Kashmir. Also, they were replete with opacity on the part of the Centre.
Internet is an indispensable part of a number of professions.[29] Internet is a very crucial part of education and health sectors as well. In the absence of internet, the residents of the valley did suffer economic loss, health related loss and educational loss. Also, as the COVID-19 pandemic struck India, the importance of internet related services did witness an exponential rise. In State of Punjab vs Mohinder Singh Chawla[30], the apex court had held that the right to health is a fundamental right under Article 21 of the Indian Constitution. In Mohini Jain vs State of Karnataka,[31] the apex court had held that right to education does come within the ambit of Article 21[32] of the Indian Constitution. The absence of internet did make the residents backward and deprived of their fundamental rights. The Centre stated security as the primary reason for the shutdown. However, the official orders stating the reasons and grounds of the shutdown could not reach the public domain. A number of petitions were filed in the apex court challenging the grounds of the imposition of the shutdown.
The role of apex court in the crisis
The apex court in Anuradha Bhasin v. Union of India[33]did develop substantial jurisprudence on civil liberties and democratic rights. The right to internet access was given several new dimensions under the judgement. The apex court also enunciated the importance of maintaining transparency.
The court held that the freedom of speech and expression through the medium of internet does come within the ambit of article 19 (1) (a) of the Indian Constitution.[34] Freedom to practice any profession through internet has a constitutional protection under Article 19.[35] The court also reiterated the “principle of proportionality”. Lord Diplock’s aphorism, “you must not use a steam hammer to crack a nut, if a nutcracker would do”, was upheld by the court. The court reiterated the “test of proportionality” established in Modern Dental College v. State of Madhya Pradesh[36] and K.S. Puttaswamy v. Union of India[37]. The court also held that any order restricting the liberties must have valid legal grounds and should be made available in the public domain. The court cited Lord L. Fuller’s famous quip — that “there can be no greater legal monstrosity than a secret statute”.[38] The right to freedom of speech and expression, contained in Article 19(1) (a) of the Constitution, the Court held, implicitly also includes a mandate to a right to information.[39]
However, the judgment could not provide much relief to the people of Jammu and Kashmir. In spite of the directions by the court to file affidavits stating the reasons for taking such drastic measures, no such affidavit was filed. The people did remain in the shutdown, even unaware of the reasons. The judgment did not explicitly order the restoration of internet services in Jammu and Kashmir. Instead, it ordered a weekly review by a committee set up under the Temporary Suspension of Telecom Services Rules, 2017.[40] However, such a review committee will be composed of bureaucrats and no independent members.[41] Further, the findings and recommendations of such committees, as scholar Nakul Nayak has shown, are not legally binding.[42]
The Court did uphold the proportionality principle, but failed to take notice of the fact that Section 144 of Code of Criminal Procedure and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017 are highly restrictive in nature.[43] Section 69 A of the Information Technology Act, 2000 [44]and the Indian Telegraph Act, 1885 [45]which govern laws concerning internet shutdowns, offer some degree of checks and balances.[46] Why the court did not consider the lesser restrictive methods?
The judgment did bring about some rudimentary measures on the part of the government. The prohibitory orders were published, although a perusal of those showed that the reasons remained brief and cryptic (and sometimes contradictory).[47] In time, a few websites, through a process of “whitelisting”, were made available for access.[48]. Eventually, a few months after the verdict, 2G Internet alone was restored. [49]
However the 2G internet services did prove to be inadequate for the people of Jammu and Kashmir. As the pandemic struck India, internet became more crucial. Various petitions were filed in the apex court for the restoration of 4G internet services in the Valley.
A petition was filed by the Foundation for Media Professionals contending that the shutdown, amidst the pandemic has deprived the people on the valley of their right to health, education, profession and the freedom of speech and expression. The restrictions on internet speed have adversely impacted the people in the valley. The petitioners even claimed the restrictions to be unreasonable and disproportionate. The verdict in Foundation for Media Professionals v. Union Territory of Jammu and Kashmir[50], did come as a disappointment for the people of Jammu and Kashmir. The court in this case also, failed to determine the legal validity and legitimacy of the restrictions imposed. It relegated the decision-making to a newly formed committee comprising officials from the executive.[51]While doing so the court did was nescient towards the principle of Nemo Judex in causa sua.
Detention of leaders
Apart from the controversial amendment procedure and the suspension of civil liberties, the detention of several popular and elected leaders of Jammu and Kashmir under draconian laws also became the subject of nationwide opprobrium. The approach of the apex court of the country also portrayed a disregard towards the rights and liberties of the detained leaders.
Omar Abdullah and Mehbooba Mufti, former CMs of Jammu and Kashmir and several other leaders were detained under the Public Safety Act, 1978[52]. [53]Public Safety Act, 1978 is a preventive detention law, used against those from whom the authorities fear a threat to “the security of the state or the maintenance of the public order”.[54] Those arrested under this law can be held for up to two years, need not be produced before a magistrate within 24 hours, cannot apply for bail in a criminal court, and cannot engage a lawyer to challenge the arrest.[55] The Centre did give the reasons of national security for these detentions. However, reasoned orders properly explaining the threats posed by these leaders towards the national security were not revealed.
“Habeas Corpus” petitions were filed by these leaders in the apex court. A habeas corpus is a petition filed under Article 32 of the Indian Constitution, through which the Supreme Court can order the authorities to produce people before it to verify if they have been detained as per the procedures established by the law.[56] However, the Supreme Court could not give priority to such petitions. Various legal scholars compared the situation to the 1975 Emergency. [57]
The Forum for Human Rights in J&K, an independent body co-chaired by former Supreme Court judge Justice Madan B. Lokur and former Kashmir interlocutor Radha Kumar released a report on the rights situation in the Union Territory and claimed that “most violations continued even after 18 months” of abrogation of the special status.[58] It pointed out that arbitrary detentions continue, public assembly is still prohibited under Section 144 of the Code of Criminal Procedure 1973 (CrPC) and hundreds, including minors and several elected legislators of Jammu and Kashmir, remain under preventive detention.[59]
CHAPTER 2: THE CAA CRISIS
The Citizenship Amendment Act, 2019[60], an amendment to the Citizenship Act, 1955[61], enacted in December 2019 became the centre of nationwide opprobrium. The act is contrary to the principles of secularism and equality. The Act is violative of the fundamental principles of citizenship as laid down by the Indian Constitution. People from different parts of the country expressed their dissent against the CAA. Callous and brutal attempts were made by the authorities to muzzle dissent.
SECTION 2 AND INDIAN CONSTITUTION
The most contentious part of this amendment is the Section 2[62]. According to section 2 of the amended act, “any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of Section 3 of the Passport (Entry into India) Act, 1920 (34 of 1920) or from the application of the provisions of the Foreigners Act, 1946 (31 of 1946) or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”.
The amendment seeks to provide an asylum to the persecuted minorities (on the basis of religion) from the neighboring countries. A perusal of the Article 5 [63]of the Indian Constitution explicitly shows that the Constitution envisages that the citizenship should be governed on the principle of jus soli (citizenship predicated on residence and birth). [64] The CAA portrays a shift from jus soli to jus sanguins (determining citizenship through descent).[65] Also, if the aim is to provide asylum to the persecuted minorities from the neighboring countries, then why is no mention made of Rohingyas from Myanmar, the Uighurs from China, the Tamils from Sri Lanka and the Ahmadiyas from Pakistan? This arbitrary classification on the basis of religion also goes against the principle of secularism enshrined under the Indian Constitution.
The classification on the basis of religion also goes against the principle of equality. According to article 14 [66]of the Indian Constitution, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. In R.K. Garg v. Union of India[67], the apex court held that any enacted statute violative of Article 14 must fulfill the test of reasonability. The CAA has failed to fulfill this test.
DENIGRATION OF DISSENT
The right to dissent is intrinsic to a democracy. This fact is buttressed by the Indian Constitution. The Preamble to the Indian Constitution guarantees liberty of thought, expression, belief, faith and worship. Article 19 [68]of the Indian Constitution does guarantee right to peaceful protest and demonstrations. In Kharak Singh v. State of U.P. [69], Justice Subba Rao held that restrictions cannot be imposed on free speech and dissent on the basis of the “personal sensitiveness”. [70]Justice D.Y. Chandrachud, in his dissenting opinion in Romila Thapar v. Union of India[71],held that “Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”.[72]
POLICE ATROCITIES
The Code of Conduct for the Police in India of 1960 insists that police personnel recognise themselves as members of the public.[73] In Prem Chand v. Union of India[74], the apex court held that the police must conform to article 14, 19 and 21 of the Indian Constitution. In Prakash Singh v. Union of India[75], the apex court reinstated the crucial role occupied by the police in the criminal justice system of India. In para 12 of the judgement, the court held that the police must be committed to the doctrine of rule of law and must have a service oriented approach. It seems that the weak implementation of these guidelines and orders has led to a sinister approach adopted by the police. In 1981, Justice V.R. Krishna Iyer had said, “Who will Police the Police”? The atrocities unleashed upon the protestors by the police seem to have brought this question to the fore. [76]
During a face-off with the CAA-NRC protestors of Jamia, the police unleashed a clampdown at the university and deployed the means of lathi-charge and teargas shells. Hundreds of students were injured. The police and para-military personnel impaired the CCTV camera to tamper the evidence.[77]
The Jawaharlal Nehru University also witnessed an attack and the subsequent abdication by police. On 5 January, 2020, masked men wielding sticks, rods and sledgehammers petrified the university campus. Students and teachers sustained severe injuries and the campus was vandalized.[78] Various sources have identified the attack as an attempt to muzzle the CAA protests by the JNU students. The reaction of Delhi Police remains suspicious. The victims of the violence have inculpated the police of apathy. There is visual evidence manifesting police as mute spectator. There was a mismatch between the press briefing by the police and the FIR.
APATHY OF THE CUSTODIAN
The languor of the judiciary fanned the flames. The response of the apex court to the petitions related to the violence in Jamia was deplorable. The apex court subjected the effectuation of fundamental rights and civil liberties to the termination of violence. The apex court did not vacillate while passing the buck to the high courts.[79] For the Delhi High Court, the enormous violence and vandalism unleashed on the JNU were not sufficient impetus to be gauged as top priority.[80]
SHAHEEN BAGH PROTEST
This was a sit-in peaceful protest in Shaheen Bagh, New Delhi steered by Muslim women against the oppressive and imperious measures of the government. It continued for 101 days until 24 March, 2020, when the Delhi Police evacuated the site as a protective step against COVID-19. [81]The protests received immense media coverage and national succour. They also prompted similar protests in other parts of the country as the qualms against the contentious provisions permeated to the entire country.
The same was lambasted by the ruling government. A special leave petition was filed in the apex court, contending that the protests had caused inconvenience to the public and appealing for the superitendence of the protests.[82]The three judge bench in Amit Sahni vs Commissioner of Police [83]upheld that the Indian Constitution and the right to protest peacefully go in tandem. [84]The court enunciated the words of Pulitizer Prize Winner, Walter Lippmann, “In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable”. The court also reinstated the principle of “reasonable restrictions” upon the right to protest. However, the court authorized the State to decide the modus operandi in such circumstances, instead of depending upon the court. The court gave priority to “maintenance of public order” over the right to dissent. The bench held that the protest has caused public inconvenience. It however, failed to provide a factual basis to such assertion.[85]
CHAPTER 3: THE COVID CRISIS
Albert Camus’s novel The Plague vividly described the gravity of genocide caused by the pandemic. Across the world, a big calamity can have a tendency to make the state stronger and the people weaker. Yale University professor Frank M Snowden demonstrated in his scholarly work Epidemics and Society: From the Black Death to the Present (2019), a pandemic can lead to an illiberal regime and an excessive exercise of power over the citizens. [86]These statements seem to manifest in India.
The COVID 19 pandemic came as a predicament for India. The crisis permeated to the law as well as the civil liberties of the citizens. The government announced complete lockdown, curtailing the freedom of movement and the freedom to carry out the profession of one`s choice. Privacy concerns also loomed. The nescience of the government towards the migrant workers and the apathy of the apex exacerbated the crisis.
LOCKDOWN
The lockdown was earmarked by the government as an effective method of containing the burgeoning number of cases of COVID-19. The very word lockdown insinuates violation of rights and liberties guaranteed by the articles 19 and 21 constitution. The legal legitimacy of the path followed to impose the lockdown is also questionable. The Union Home Ministry ratified the lockdown regulations under National Disaster Management Act, 2005[87]. In accordance, authorities from various states made use of Epidemic Diseases Act, 1897 [88]to impose restrictions. However, NDMA, 2005 deals with the procedure to be followed in case of disaster and ancillary events. [89]Was the government justified in using the same at the time of pandemic to restrict the movement and trade of citizens? Is the use of a 19th century law germane crisis of the 21st century? Even in the 19th century, the act received massive criticism from Bal Gangadhar Tilak for being opaque and heedless.[90]
ATROCITIES BY THE POLICE
Justice H.R. Khanna, in his prominent dissenting judgment, wrote that “[the] greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law.” [91]
The apex court, in I R Coelho (Dead) by L.Rs. vs. State of Tamil Nadu and Ors[92], held that the “balance” between public good and individual liberty “…cannot be overturned by completely overriding individual liberty.” In D.K. Basu v. State of West Bengal[93], the apex court held that custodial torture violates Article 21 of the Indian Constitution and strikes a blow at rule of law. It was held that custodial death is one of the worst crimes in a civilized society. In PUCL v State of Maharashtra[94], the apex court held that deaths in police encounters do bring the credibility of rule of law and criminal justice system into question. The atrocious approach of the police seemed to debunk these guidelines.
Videos of police personnel cruelly thrashing the people violating the restrictions went viral on social media. The vendors violating the lockdown paid heavy prices in the form of vandalism of their shops by the police. The worst ramifications of the belligerent nature of police were suffered by the impecunious. The atrocious police act in lockdown which received probably the most mammoth opprobrium was the vengeful act committed by the Tamil Nadu Police in Sathankulam, Thoothukudi. A father-son duo was arrested for violating the lockdown and subsequently died due to custodial torture. Their medical reports manifested sexual and physical violence by the police. Only after public clamour, a CBI enquiry was ordered. The measures taken against the suspects are mere suspension.
DRACONIAN ATTACKS ON PRIVACY
In K.S. Puttaswamy vs. Union of India[95], the apex court recognized Right to Privacy as a fundamental right under article 21 of the Indian Constitution. The apex court also held that the principles of reasonableness and proportionality need to be followed while imposing any curtailment on the right. Any such restriction must meet fulfill certain requirements. Firstly, it must have a legal sanction. Secondly, it must be in the pursuance of a legitimate aim. Thirdly, the nexus between the object and the restriction must be rational.
As the pandemic struck India and the situation exacerbated, it became a requirement on the part of the government to conduct health surveillance. The state availed the NDMA, 2005 and the Epidemic Diseases Act, 1897. However, these acts do not lay down proper legal mechanisms. [96]Hence, there is a dubiety over the accumulation of data by the government. Another contention was the dissemination of the collected data. These acts do not empower the state to publicize such data.
Another privacy concern amidst the pandemic was the Aarogya Setu app. It is a contact-tracing app launched by the National Informatics Centre under the Ministry of Electronics and Information Technology. The app aids the tracking of infection through the utilization of GPS and Bluetooth. The app also stores the personal information of the users. [97] Whether the app passes the test of proportionality remains debatable.
The structure and guidelines of the app are replete with nebulousness. The data stored by the app can be divulged to the government to conduct the requisite work to contain the spread of the virus. The government has the volition to amend the privacy guidelines of the app without any disclosure. These facts insinuate the misuse of such data. [98]Various technology experts have cited concerns regarding the same. Amidst the pandemic, the threat of injudicious breach of privacy looms.
COVID-19 AND MIGRANTS
RIGHTS OF THE MIGRANTS
The Universal Declaration of Human Rights is considered a milestone in the field of human rights. The UDHR is binding upon India.[99] Article 3 of the UDHR enunciates the right to life, liberty and security of an individual. Article 5 of the UDHR mandates the abolition of brutal treatment of humans.[100] India is a party to the International Covenant on Economic, Social and Cultural Rights. Article 11(1) of the same mandates the member states to ensure an adequate standard of living amongst their citizens.[101]
The preamble of the Indian Constitution mentions the word socialism. According to the preamble, “The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave.” The article 21 of the Indian Constitution grants the right to life and personal liberty. The ambit of this article has been widened in order to emancipate the humans. This right includes right to live with dignity, right to shelter and right to health. Apart from the fundamental rights, the directive principles of state policy also empower the citizens.
According to article 38 of the India Constitution[102], “the state shall strive to promote the welfare of people”. Article 39(a)[103] emphasizes the right to adequate means of livelihood. Article 47 [104]of the constitution ordains the duty of the state to raise the living standards, nutrition levels and to improve public health.
In Maneka Gandhi vs. Union of India[105], the apex court held that article 21 of the Indian Constitution includes the right to personal liberty. Any limits imposed by the state must satisfy the standards of reasonableness under article 14.[106] In Bandhua Mukti Morcha v. Union of India[107], it was held by the apex court that article 21 includes the right to live with human dignity.[108] The state must provide certain minimum requirements to the citizens required in order to live with human dignity. In Chameli Singh vs. State of U.P., [109]the apex court held that the articles 21 and 19(1) (e) of the Indian Constitution include the right to food, water and shelter. [110]The right to shelter is not merely a right to a roof over one’s head. In Vincent Pankikurlangara v. Union of India[111], the apex court held that right to maintenance and improvement of public health falls under article 21 of the Indian constitution.[112]
INFLICTING ATROCITIES UPON THE MIGRANTS
In the words of Mahatma Gandhi, “the true measure of any society can be found in how it treats its most vulnerable sections.”
The historian Frank Snowden in his book, Epidemics and Society: From the Black Death to the Present says that “epidemics are not random events that affect societies capriciously and without warning.” “On the contrary, every society produces its own specific vulnerabilities.”[113]
The most tragic consequences of the pandemic were bore by the migrants living in India. With the announcement of a nationwide lockdown, their lives turned upside down. The government was nescient towards the fact that most of the migrant workers live in their workplaces only. As everything was shut down, they were left to tackle the upcoming quandaries as well as the pandemic. They encountered hunger, vagrancy, police brutality, lack of quality healthcare, vilifications for violating the lockdown and apathy of the executive and judiciary. Thus, along with the pandemic, various other perils ran against them.
According to the 2011 Census, 45.36 crore Indians (37 per cent of the population) are migrants.[114] As per the Economic Survey, 2016-17, migration of labour has witnessed significant increase.[115] The PM of India, while notifying the citizens about the lockdown, failed to address the concerns of this section of the population. There was no mention about any framework to ensure the welfare of the migrants amidst the crisis.
Migrants are the people who move from their native places to some other places. The migrant workers do so in order to avail better income earning opportunities.[116] A significant proportion of the migrant labourers in India are employed in the informal sector. They depend upon daily wages. They live in dormitories in their workplaces.[117] The lockdown affected their income and living standards.
As the lockdown was announced, the migrants only had four hours left. Having no home or source of income, these migrants were left with no other option than to start their journeys to their native places to secure their survival and mental health[118]. With the lockdown, the means of transport were also temporarily suspended. These migrants had to suffer hardships by covering the long distances by their feet. Images of migrants walking kilometers along with their stuff and children manifested the insensitivity of the government towards this section. Why could not the government provide a decent shelter to all of these migrants? Why was not transport arrangements made for them?
Besides the state apathy, these migrants also had to suffer police brutality. A large number of migrants were ruthlessly thrashed by the police officials for violating the lockdown and not following social distancing. Some of the state governments announced measures related to ensuring that quality shelters and decent living standards are available to these migrants by forcing them into shelter homes and government relief camps. However, these accommodations were mere shelter homes and government relief camps. They could not even meet the minimum adequate standards required for living. The migrants were forced to live in congested and filthy places. [119]Social distancing was a sham in such places.
Apart from homelessness and institutional passivity, the ghost of hunger laid hold of these migrants. For many migrants, this pandemic was a smaller peril than hunger and starvation. [120] In the absence of any income, food and nutrition became a luxury for these migrant workers. They were left to survive on their meager resources and savings. They had to depend upon charity. Some measures were implemented to alleviate the concerns of this section. However, they proved to be inefficacious as they underestimated the gravity of the situation.
A relief package worth 1.7 trillion rupees was announced by the finance minister. Several economists censured the package for being inadequate and underestimating the scale of the required relief. Some criticized the measures for falling short of the requisite implementation. [121] Another stimulus package worth INR 20 lakh crores was announced by the finance minister. [122] Former RBI governor and IMF Chief Economist Raghuram Rajan called the same as inadequate. The government did provide free food grains and pulses to the vulnerable sections through the relief packages. However, he said that they also need vegetables, cooking oil, money and shelter.[123]
The Ministry of Home Affairs through a notice on 29 April, did allow the movement of migrant workers, subject to lockdown and social distancing protocols.[124] However, this entailed hassle and heavy costs for the migrants. If the government could put in significant efforts for the Indians stranded abroad, why not for the migrants? A large number of migrants lost their live due to hunger. Some died in accidents.
ROLE OF THE SUPREME COURT IN THE CRISIS
The Indian judiciary, especially the apex court, on several instances has acted as the guardian of the rights and liberties of the citizens. However, amidst the pandemic, the crisis and apathy seemed to have a ripple effect on the apex court as well. The apathy of the apex court became the subject of criticism from senior lawyers and retired judges.
Alakh Alok Srivastava, a practicing advocate in the apex court filed instant writ petitions in public interest in the apex court [125]demanding redressal of the grievances of the migrant labourers amidst nationwide lockdown. The petitioner accentuated the deprivation of migrant labourers from the basic amenities such as water, food, healthcare, shelter. The Solicitor General of India, Tushar Mehta, representing the respondents brought to the court’s notice the efficiency of various steps taken by the respondents to address the crisis through reports. [126]The respondents did not vacillate in passing the bucks to fake news as the cause of large scale migration. They even denied the claims of the petitioners. The apex court in it order dated 31.03.2020, expressed satisfaction at the steps taken by the Union of India to combat COVID-19 and proceeded to observe that “the migration of labourers working in the cities was triggered by panic created by fake news that the lockdown would continue for more than 3 months”. [127]
This order did come as a disappointment for the migrant labourers who suffered ramifications of the executive as well as judicial laxity. The apex court, in a denial mode failed to live up to its reputation of the guardian of the citizens’ rights. Clearly, the claims of the court and the respondents were manifested to be false through the visuals and news reports.[128] Justice Gopala Gowda, a former Supreme court judge paralleled the situation to the Emergency, 1975, when the apex court accepted reports in spite of contradicting evidence and praised the government.[129] He remarked that “the COVID-19 pandemic has become the starkest moment of the apex court, surpassing the infamous ADM Jabalpur case”.
The apex court also dismissed several public interest litigations highlighting the atrocities suffered by the migrants and demanding a redressal of the same, often on dubious grounds, such as migrant issue does not come under the purview of judiciary, the government is taking adequate steps to address the issues. It was nescient towards the interventions of the apex court in policy matters such as the Vishaka guidelines.[130] A three judge bench of the apex court took suo motu cognizance of the issue as late as 26th May, disregarding the “Justice delayed is justice denied” doctrine.
CONCLUSION
The judiciary is the custodian of the Constitution. It should take an active stance when it comes to safeguarding the Constitution and the civil liberties. It should continue its legacy as the guardian of the rights and liberties of the citizens. It must play an active role in preserving the authority of the Constitution. The Constitution of India is the product of deliberations and discussions in the Constitution Assembly. Also, the independence of judiciary from any political influence is crucial in a democracy. It must be strived for and preserved.
The executive should follow the proper procedure while formulating any law or statute. A rigorous deliberation and discussion will ensure checks upon the power of the executive. Unbridled authority in the hands of executive can turn democracy into authoritarianism. The judiciary should also ensure that the adequate legal procedure is followed while implementing any law.
[1] The Jammu and Kashmir Reorganization Act, 2019
[2] The Constitution of India, art.370.
[3] “Explained: What’s changed in Jammu and Kashmir?,” The Indian Express, 2019available at: https://indianexpress.com/article/explained/explained-article-370-has-not-been-scrapped-but-kashmirs-special-status-has-gone-5880390/ (last visited March 5, 2021).
[4] The Constitution of India, art.367.
[5] Ibid
[6] The Constitution of India, art.368.
[7] Ibid
[8] Faizan Mustafa, “On dilution, bifurcation and ‘special status’” The Hindu, 30 August 2019, section Lead.
[9] The Jammu And Kashmir Reorganization Act, 2019 (Act 34 Of 2019)
[10] The Constitution of India, art.3
[11] The Reorganization Act of 1956
[12] Supra note 4
[13] Ibid
[14] Ibid
[15] (1973) 4 SCC 225
[16] 1994 AIR 1918
[17] Catherine Howell and Darrell M. West, “The internet as a human right” Brookings, 2016available at: https://www.brookings.edu/blog/techtank/2016/11/07/the-internet-as-a-human-right/ (last visited March 5, 2021).
[18] Ibid
[19] Ibid
[20] AIR 2020 Ker 35
[21] Ibid
[22] (1997) 1 SCC 301
[23] The Constitution of India, art. 19(1)(a)
[24] Ibid
[25] Ibid
[26] “4G internet services to be restored in Jammu and Kashmir after 18 months,” The New Indian Expressavailable at: https://www.newindianexpress.com/nation/2021/feb/05/4g-internet-services-to-be-restored-in-jammu-and-kashmir-after-18-months-2260063.html (last visited March 5, 2021).
[27] The Code of Criminal Procedure, sec. 144
[28] Aayush Rathi and Akriti Bopanna, “Kashmir’s information vacuum” The Hindu, 29 August 2019, section Comment.
[29] Jayna Kothari, “Guarantee Internet rights” The Hindu, 31 December 2019, section Comment.
[30] (1997) 2 SCC 83
[31] (1992) 2 SCC 666
[32] The Constitution of India, art. 21
[33] (2020) 3 SCC 637
[34] Ibid
[35]Ibid
[36] (2016) 7 SCC 353
[37] (2019) 1 SCC 1
[38] Suhrith Parthasarathy, “A net verdict that falls short of expectations” The Hindu, 20 January 2020, section Lead.
[39] Ibid
[40] Suhrith Parthasarathy and Gautam Bhatia, “Are people in J&K citizens or subjects?” The Hindu, 23 July 2020, section Comment.
[41] Apar Gupta, “Favouring public order over justice” The Hindu, 13 January 2020, section Comment.
[42] Ibid
[43] “J&K Internet Shutdown Based on ‘Dubious’ Legal Framework: Report,” The Wireavailable at: https://thewire.in/government/jammu-and-kashmir-internet-shutdown-jkccs (last visited March 5, 2021).
[44] The Information Technology Act, 2000, s.69A
[45] The Indian Telegraph Act, 1885
[46] Ibid
[47] Supra note 32
[48] Ibid
[49] Ibid
[50] (2020) 5 SCC 746
[51] Suhrith Parthasarthy, “A violation of right found, but no remedy given” The Hindu, 22 May 2020, section Lead.
[52] Public Safety Act, 1978
[53] “No normalcy,” The Indian Express, 2020available at: https://indianexpress.com/article/opinion/editorials/no-normalcy-jammu-and-kashmir-public-safety-act-omar-abdullah-mehbooba-mufti-6256637/ (last visited March 5, 2021).
[54] Ibid
[55] Ibid
[56] Sruthisagar Yamunan, “Analysis: Supreme Court orders in Kashmir petitions undermine the spirit of habeas corpus” Scroll.inavailable at: https://scroll.in/article/935432/analysis-supreme-court-orders-in-kashmir-petitions-undermine-the-spirit-of-habeas-corpus (last visited March 5, 2021).
[57] Madan B. Lokur, “Violating human rights in the Valley” The Hindu, 5 August 2020, section Comment.
[58] Ibid
[59] Ibid
[60] Citizenship Amendment Act, 2019
[61] Citizenship Act, 1955
[62] Supra note 60, sec.2
[63] Constitution of India, art. 5
[64] “Why the CAA Violates the Constitution,” The India Forum, 2020available at: https://www.theindiaforum.in/article/why-caa-violates-constitution (last visited March 5, 2021).
[65] “CITIZENSHIP AMENDMENT BILL 2019: FROM JUS SOLI TO JUS SANGUINIS,” RGNUL Student Research Review (RSRR), 2019available at: http://rsrr.in/2019/01/17/citizenship-amendment-bill-2019-from-jus-soli-to-jus-sanguinis/ (last visited March 5, 2021).
[66] Constitution of India, art. 14
[67] (1981) 4 SCC 675
[68] Constitution of India, art. 19
[69] 1963 AIR 1295
[70] Krishnadas Rajagopal, “Supreme Court judgments recognise dissent as a ‘symbol of a vibrant democracy’” The Hindu (New Delhi, 30 December 2019), section National.
[71] (2018) 10 SCC 753
[72] Ibid
[73] Krishnadas Rajagopal, “Who will police the police? Supreme Court asked 38 years ago” The Hindu (New Delhi, 1 January 2020), section National.
[74] 1981 AIR 613
[75] (200) 8 SCC 1
[76] Ibid.
[77] Sidharth Ravi, “Anti-Citizenship Act protests: violence hits Delhi, over 50 injured” The Hindu (New Delhi, 15 December 2019), section National.
[78] “JNU violence: Masked men run riot inside campus for 3 hours, 26 injured,” The Indian Express, 2020available at: https://indianexpress.com/article/india/jawaharlal-nehru-university-jnu-delhi-violence-abvp-jnusu-6201447/ (last visited March 5, 2021).
[79] “Supreme Court Refuses to Intervene on Jamia Violence, Asks Petitioners to Go to HC,” The Wireavailable at: https://thewire.in/rights/supreme-court-refuses-to-intervene-on-jamia-violence-asks-petitioners-to-go-to-hc (last visited March 5, 2021).
[80] PTI, “Delhi court refuses to hear JNU violence case, says only urgent matters will be heard” ThePrint, 2020available at: https://theprint.in/judiciary/delhi-court-refuses-to-hear-jnu-violence-case-says-only-urgent-matters-will-be-heard/425686/ (last visited March 5, 2021).
[81] ‘Shaheen Bagh Protests’, , Wikipedia (2020) <https://en.wikipedia.org/w/index.php?title=Shaheen_Bagh_Protests&oldid=997202692> accessed 15 January 2021.
[82] “Plea in Supreme Court over traffic blockade in Delhi’s Shaheen Bagh,” Hindustan Times, 2020available at: https://www.hindustantimes.com/cities/plea-in-sc-over-traffic-blockade-in-delhi-s-shaheen-bagh/story-t4y0HTc0LVdfT9rdcqWxBJ.html (last visited March 5, 2021).
[83] (2020) 10 SCC 439
[84] “Supreme Court Observer -,”available at: https://www.scobserver.in/the-desk/court-lays-down-restrictions-on-the-right-to-protest (last visited March 5, 2021).
[85] “Supreme Court’s Shaheen Bagh Judgment Will Lead to Fresh Curbs on Right of Peaceful Protest,” The Wireavailable at: https://thewire.in/law/supreme-court-shaheen-bagh-judgment-fresh-cubs-right-of-peaceful-protest (last visited March 5, 2021).
[86] “Freedom in the time of COVID-19,” The New Indian Expressavailable at: https://www.newindianexpress.com/opinions/2020/apr/08/freedom-in-the-time-of-covid-19-2127186.html (last visited March 5, 2021).
[87] National Disaster Management Act, 2005
[88] Epidemic Diseases Act, 1897
[89] Manuraj Shunmugasundaram, “India needs to enact a COVID-19 law” The Hindu, 8 May 2020, section Lead.
[90] Neera Chandhoke, “Democracy should not permit a trade-off” The Hindu, 7 April 2020, section Lead.
[91] Suhrith Parthasarathy, Gautam Bhatia and Apar Gupta, “Privacy concerns during a pandemic” The Hindu, 29 April 2020, section Comment.
[92] (2007) 2 SCC 1
[93] (1997) 1 SCC 416
[94] (2014) 10 SCC 635
[95] (2017) 10 SCC 1
[96] “1.3 Billion People. One Virus. How Much Privacy?,” The Wireavailable at: https://thewire.in/government/covid-19-pandemic-privacy-india (last visited March 5, 2021).
[97] P. j George, “Coronavirus | What are the concerns around the Aarogya Setu app?” The Hindu, 26 April 2020, section Technology.
[98] Kashish Aneja and Nikhil Pratap, “Implement Aarogya Setu, but only through law” The Hindu, 21 April 2020, section Comment.
[99] “Remembering India’s Contributions to the Universal Declaration of Human Rights,” UN India, 2018available at: https://in.one.un.org/remembering-indias-contributions-to-the-universal-declaration-of-human-rights/ (last visited March 5, 2021).
[100] “Universal Declaration of Human Rights,” 2015available at: https://www.un.org/en/universal-declaration-human-rights/ (last visited March 5, 2021).
[101] ‘OHCHR | International Covenant on Economic, Social and Cultural Rights’ <https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx> accessed 16 January 2021.
[102] Supra note 2, art.38
[103] Id, art. 39(a)
[104] Id, art 47
[105] (1978) 1 SCC 248
[106] Ibid
[107] 1984 AIR 802
[108] Ibid
[109] (1996) 2 SCC 549
[110] Ibid
[111] 1987 AIR 990
[112] Ibid
[113] “Society needs to regain moral compass,” The Indian Express, 2020available at: https://indianexpress.com/article/opinion/columns/india-coronavirus-lockdown-migrants-jobless-covid-19-pandemic-sanjib-baruah-6430302/ (last visited March 5, 2021).
[114] Samarth Bansal, “45.36 crore Indians are internal migrants” The Hindu (New Delhi, 2 December 2016), section Data.
[115] “Economic Survey 2017: Significant uptick in migration of labour,”available at: https://www.businesstoday.in/union-budget-2017-18/news/economic-survey-2017-significant-uptick-in-migration-of-labour/story/245274.html (last visited March 5, 2021).
[116] “We need to provide undivided attention to the working conditions of migrants,” The Indian Express, 2020available at: https://indianexpress.com/article/opinion/columns/migrant-workers-india-lockdown-up-bihar-6467104/ (last visited March 5, 2021).
[117] Ibid
[118] “State’s measures to fight coronavirus are stripping the poor of dignity and hope,” The Indian Express, 2020available at: https://indianexpress.com/article/opinion/columns/coronavirus-covid-19-lockdown-poor-6333452/ (last visited March 5, 2021).
[119] Anhad Imaan, “India’s migrant crisis pointed to another problem – its lack of shelter homes” Scroll.inavailable at: https://scroll.in/article/968374/indias-migrant-crisis-pointed-to-another-problem-its-lack-of-shelter-homes (last visited March 5, 2021).
[120] Krithika Srinivasan, “Lockdown protects the well-off, but what about those who face hunger, homelessness or poor health?” The Hindu, 18 April 2020, section Society.
[121] Remya Nair, “Why Rs 1.7-lakh crore relief package may not mean an equivalent fiscal hit in 2020-21” ThePrint, 2020available at: https://theprint.in/economy/why-rs-1-7-lakh-crore-relief-package-may-not-mean-an-equivalent-fiscal-hit-in-2020-21/389420/ (last visited March 5, 2021).
[122] “Economic stimulus package | Details of ₹20-lakh-crore package announced by Union Finance Minister Nirmala Sitharaman in five tranches,” The Hindu, 17 May 2020, section Resources.
[123] “Rajan says migrant workers need money for vegetables, cooking oil, shelter,” mint, 2020available at: https://www.livemint.com/companies/people/raghuram-rajan-says-migrant-workers-need-money-for-vegetables-cooking-oil-shelter-foodgrains-not-enough-11590068976619.html (last visited March 5, 2021).
[124] “MHA allows movement of migrants, tourists, students stranded at various places,” mint, 2020available at: https://www.livemint.com/news/india/mha-allows-movement-of-migrants-tourists-students-stranded-at-various-places-11588164377351.html (last visited March 5, 2021).
[125] Writ Petition(s) (Civil) No(s). 468/2020
[126] 2020 SCC OnLine SC 345
[127] “A letter to justices of Supreme Court, from senior members of the Bar on the migrant crisis,” The Indian Express, 2020available at: https://indianexpress.com/article/opinion/columns/india-lockdown-coronavirus-covid-19-migrant-labourers-crisis-supreme-court-6432059/ (last visited March 5, 2021).
[128] “A supreme failure,” Deccan Herald, 2020available at: https://www.deccanherald.com/opinion/main-article/a-supreme-failure-841803.html (last visited March 5, 2021).
[129] Ibid
[130] Ajit Prakash Shah, “Failing to perform as a constitutional court” The Hindu, 25 May 2020, section Comment.
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