‘We are in this together and we will get through this together’- Antonio Guteress
The outburst of COVID-19 pandemic has brought the socio-economic life to a standstill. It has immensely impacted various sectors, such as aviation, tourism, retail, labour market, capital markets, MSMEs etc. India, like all other countries has also faced a severe crisis. The prime concerns for most of the people have been loss of job, daily ration, absence of a social security net.
While the people all over the country battled with a novel COVID-19 pandemic, the Judiciary, despite functioning at a limited capacity maintained a regular surveillance over the Government authorities trying their best to alleviate the situation. Since the announcement of a countrywide lockdown in March, 2020, a large number of persons and organisations have reached out to the Supreme Court via petitions regarding the impact of Covid-19. Although, the Apex Court has been lauded for taking up matters through the medium of Video Conferencing, it has nonetheless been criticized for failing to take prompt decisions regarding some. One of such issues has been the mass exodus of floating population of migrants on foot.
The following explains the role played by the top court of our nation in combating against COVID-19, as our country attempts to shift back to being normal.
Supreme Court and COVID Related Issues
The migrant crisis
Immediately after the announcement of the lockdown by the Government of our country, the Supreme court came under intense scrutiny when it declined to take cognisance of the predicament of the large number of daily wage workers who set off on foot along with their families to return to their villages and home towns hundred kilometres away from their place of work in the metro cities amidst the lockdown. The Court initially refused to interfere in the migrant issue on several occasions during the hearings of the petitions and was thus subjected to a great criticism for being highly insensitive towards the poor labourers by causing delay in providing reliefs to them.
However, after several letters and scathing articles addressed to the Chief Justice by lawyers, jurists and ex-judges urging the court to take immediate action owing to the labour crisis, the apex Court eventually took up a Suo motu writ petition on the Problems and Miseries of Migrant Labourers and directed the Central and state governments to identify stranded labourers, provide Shramik trains and bus services to send them back to their destinations within 15 days. Further, to make them available free food and water during their travel, hassle free registration procedures and free health check-up on arrival at their destinations and to establish help desks which will help them to avail employment opportunities.
The Provisions for Healthcare workers
The healthcare workers all of the world have been called as ‘Corona warriors’ for helping their country to combat the most disturbing disease. The Supreme Court thus heard various petitions in the beginning of the lockdown regarding the need to provide protection to such medical professionals subjected the attacks while being on their duty. A bench headed by Justice Ashok Bhushan said that such attacks inculcate an idea of fear and insecurity in the mind doctors and other medical staff who are working tirelessly day and night to protect the society from disease of unprecedented COVID-19.
The Supreme Court entertained another bunch of petitions seeking provision for PPE kits for health workers including doctors, nurses, ward boys, medical and para-medical professionals working in non-coronavirus treatment wards, owing to the possibility of contracting the deadly infection from asymptomatic-patients. The Court also noted that the welfare of these warriors was of utmost priority and therefore, in June 2020 also allowed for a separate accommodation for doctors and healthcare workers near hospitals while hearing the case Dr Aarushi Jain vs Union of India terming the needs of the healthcare workers a matter of concern which cannot be left unsatisfied.
Issue of charging excess COVID-19 testing fee
Subsequent to the lockdown, the government passed an order directing free COVID-19 testing by all government and private labs in the country. Despite of this, various petitions were filed in the court contending that the hospitals were charging exorbitant amounts to treat COVID-19 patients. Thus, taking notice of this, the Court asked the Centre the reason why private hospitals couldn’t give free treatment to Covid-19 patients when they had been provied land free of cost to do so. It also ordered the Centre to identify hospitals where the affected patients could be treated at minimal or no costs.
A Bench of Justices Ashok Bhushan and Ravindra S. Bhat modified the earlier order and clarified that only persons belonging to economically weaker sections of society (EWS) and those covered under the Ayushman Bharat scheme could avail free Covid-19 tests from such hospitals. And further, it ordered to put a cap on the fee charged by private laboratories to Rs. 4,500 as fixed by the Indian Council of Medical Research (ICMR) for testing those patients who did not fall under the EWS or Ayushman Bharat categories.
Issues of De-Congestion of Prisons
Taking cognisance of the issue of decongestion in the Indian prisons, the court in March 2020 ordered all states and Union Territories to set up panels to consider the release of convicts on parole who have served a sentence up to seven years to decongest jails in an attempt to contain the upsurge of Covid-19. The bench also suggested Jurisdictional High courts to extend a similar benefit to the undertrials awaiting trial for offences entailing maximum sentence of seven years.
Conduct of Competitive and Board exams during COVID-19
The education of children, graduates, post graduates has been most affected during the pandemic owing to the closure of schools, colleges, universities. In a petition filed before the Supreme court bench led by Justices AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna gave permission to the CBSE and ICSE to cancel its Board exams for classes X and XII in the wake of alleviating COVID-19 cases across the nation.
However, the Court asked both the educational boards to notify the alternate assessment scheme prepared by them for evaluation of cancelled examinations results, taking into account past exams and internal assessment marks of students. The Court also apprised that optional exams for Class XII may be conducted for the students who were willing to take them, when the situation improves whereas the students who chose to opt out of these exams shall be assessed on the basis of previous exams.
Unlike the decision in the case of ICSE and CBSE boards, a bench led by Justice Arun Mishra dismissed a petition seeking the postponement of the other competitive exams like NEET, CLAT and JEE scheduled to be held amid the COVID-19 pandemic. The court observed that ‘Life cannot be stopped. The students cannot be ready to waste their one whole year and must move ahead with all safeguards’
Issue relating to payment of salaries by private employers to their employees and factory workers during the lockdown
The Supreme Court bench while hearing a bunch of pleas challenging the MHAs notification to pay full salaries to the staff during the lockdown, directed the State governments to facilitate mutual settlement of the matter between employers and employees. However, in case if no settlement is reached, the court said that the employers and employees were free to approach the Labour Commissioner. The bench, while restating its earlier order, said that no harsh action shall be taken against private factory or industry owners unable to pay full wages to workers during the lockdown period.
Issue of COVID-19 posters affixed outside homes
With regards to orders of the Government to put posters of covid-19 outside the homes of the quarantined patients the Supreme Court bench led by Justice Ashok Bhushan clarified that States and UT’s can resort to the above exercise only when any direction is issued by the competent authority under the Disaster Management Act, 2005 and otherwise are not required to paste such posters.
The order came in light of a petition stating “that patients who are already undergoing mental trauma and weakness due to COVID-19 are forced to face stigmatisation by the society due to such posters” thus violating their fundamental right to privacy.
It is only in times of crisis that the Constitution and the mechanisms to enforce it are tested the most. Apart from the above, the supreme court has heard a number of petitions on a variety of issues and has been fairly successful in providing relief to the parties because. However, there have been other bunch of issues which required more intervention but the basic approach of the Supreme Court in such cases has been to say that the Government is doing great work and therefore the matters concerning policy should not be interfered with. One such questionable issue has been of the PM cares Fund.
PM Cares Fund
Soon after the announcement of the lockdown, the government had set up a PM Cares fund. Three issues were raised regarding the same. (1), whether the PM Cares fund should at all have been set up. (2), the transparency and accountability of the fund. (3), whether the Corporate Social Responsibility benefit given to Corporates should be only for the PM fund and not for the CM’s fund. There was also the issue of the need of such fund when there already existed the PM’s national relief fund available for disaster relief which was in excess of 2200 crore. Therefore, how both of these funds are different from each other.
The Supreme Court refused to interfere in the matter stating that these issues should be debated in Parliament and also that no corporation had challenged this. However, in any event the matter was of public interest requiring the attention and interpretation of law and Constitution.
It is the Obligation of the State to serve to the socio-economic needs of its citizens by providing affordable health care, free rations, travel to its people amidst the pandemic and some cash in hands of the poor. By doing so it is not performing acts of charity, but merely complying with its responsibility to the people who have a right to receive this, particularly during such times of health hazards and emergencies.
The essential purpose of Constitutional Courts is to oversee the decisions of the Legislature and Executive by exercising the power of their judicial review and to issue various directions, to take matters on Suo motu basis, direct such orders which a sensitive Supreme Court should easily pass without interfering in policy decisions and without becoming doctors or scientists. While the Court was mostly appreciated for taking initiative in some cases, it was condemned for not taking prompt course of correction in a couple of matters which needs to be soon realised for the greater welfare of the nation.
‘COVID-19 and the Indian Supreme Court’ https://www.bloombergquint.com/coronavirus-outbreak/covid-19-and-the-indian-supreme-court#!/homepage ; accessed on 27th December, 2020; 2:39 pm
‘Role Of Supreme Court In The Era Of COVID-19’ https://www.indialegallive.com/top-news-of-the-day/news/role-of-supreme-court-in-sthe-era-of-covid-19/; accessed on 27th December, 2020; 10:15 pm
‘COVID Coverage: Court’s Functioning’ https://www.scobserver.in/the-desk/covid-coverage-court-s-functioning accessed on 28th December, 2020; 12:25 pm