(We will keep updating this post as and when new measures are announced/developments take place. This post is in reverse chronology)
In a detailed order issued on 9 June 2020, the Court issued 8 directions to the Governments of the Centre, States and Union Territories:
More detailed coverage here.
In this update, we briefly cover the latest hearings in the suo motu migrant labour case and the PIL calling for pricing regulation of private hospitals offering COVID-19 care.
At the end of last month, a Bench comprising Justices Ashok Bhushan, S.K. Kaul and M.R. Shah took suo motu cognicance of the on-going migrant labour crisis. It observed that due to the COVID-19 lockdown, large numbers of migrant labourers were returning home on foot and cycles. This week, the Bench concluded hearing relevant counsels and listed the matter for orders on 9 June 2020. It said it will likely require the Union and States to transport all migrants within 15 days and develop policies to ensure employment and other reliefs, reports India Today.
On 27 May, the Chief Justice and Justice Aniruddha Bose agreed to hear a PIL seeking price regulation of private hospitals. In particular, the PIL contends that private hospitals ought not make a profit by treating COVID-19 treatments. In the latest hearing on Friday, the Supreme Court asked the Centre whether private hospitals could treat all COVID-19 patients at subsidized Ayushman Bharat rates. The Union submitted that the scheme was intended for the poor and could not be extended to all classes of society, reports The Hindu.
In addition, the Court questioned why private hospitals that have received subsidized public land, have failed to reduce the price of their COVID-19 treatment. As we reported earlier, the Court has a history of upholding price regulation policy for subsidized private hospitals. The Union pushed back, stating that requiring subsidized hospitals to offer free care would leave them financially unviable. With this, Chief Justice Bobde listed the case for final hearing in two weeks.
In a notice issued on Tuesday, 2 June, the Supreme Court announced it was open to allowing counsels and parties-in-person to phsycially appear before judges. Taking note of the requests it had received from 'various quarters', the Court suggested it would be possible to resume physical hearings, as long as all social distancing norms were observed.
However, it stressed that for each hearing, it would require the consent of each advocate and party-in-person, before it could consider having a physical hearing.
Advocates and parties who seek to give their consent to make physical appearances, can e-mail: firstname.lastname@example.org.
The three-judge Bench comprising Justices Ashok Bhushan, Sanjay Kishan Kaul and MR Shah today passed a number of directions to ensure that the stranded migrant workers receive basic amenities. The directions came in the suo motu petition which the Court had initiated on 26 May.
It may be recalled that on the last date of hearing, the Court had directed the State and Union Governments to apprise it of the measures taken to resolve the problems faced by workers due to the lockdown. In response to this, several States and Union Territories filed their responses. The Union filed its preliminary reply.
The Solicitor General (SG), Tushar Mehta took the Court through the various measures the Union and States had taken to ensure that the migrant workers faced no hurdles in relation to food, water, shelter and transport.
Transport: The SG submitted that no migrant worker was being charged for their journey back to their home states. He said that this was true of both rail and bus travel. In case of rail travel, either the origin or destination state was bearing the costs, depending on the arrangement between the states in question. If at all the worker was charged, the costs were being reimbursed, submitted the SG.
Food and water: In case of travel by road, the originating state was providing food and water, submitted the SG. In case of rail travel, railways were providing the meals. Further the destination states were taking steps to drop the workers to their homes.
Moreover, for those who were staying put in different parts of the country, ration was being provided even if they did not have a ration card, noted the SG.
Shelter: Relief camps have been set up to provide food, water and stay for the workers.
Till date, the SG submitted that 50 lakh migrant workers had been transported by train and 41 lakhs by road.
Other than the SG, counsels for the States of Rajasthan, Maharashtra, Madhya Pradesh, Uttar Pradesh and Bihar also made submissions. Counsel for UP, Mr. Narsimha argued that the State had taken several measures to support workers. In particular, he pointed out that the State was giving Rs. 1000 along with a kit containing food and necessary items to all migrant workers when they go home after completion of quarantine.
Submissions of impleaders
Counsels appearing for various parties seeking to implead in the matter also made submissions. Sr.Adv. Kapil Sibal pointed out that minimum standards of relief in line with the Section 12 of National Disaster Management Act, 2005 had not been provided. He also submitted that no national/state plan as envisaged under the Act had been devised.
Sr. Adv Colin Gonsalves pointed out that the registration process for travel was cumbersome and inaccessible to the workers. Sr. Adv. Indira Jaising submitted that there were more than 4 crore migrant workers and more trains had to be arranged to transport them.
In his rejoinder, SG submitted that not all migrant workers were keen on returning home, with some of them willing to work at different places for their livelihood.
Upon hearing the counsels, the Court observed that while a number of measures were being taken to help the workers, they were not sufficient. It then directed the Union and State Governments to submit within a week the detailed report of the measures being taken to help the workers. In the interim, it made the following directions:
-“No fare either by train or by bus shall be charged from any migrant workers. The railway fare shall be shared by the States as per their arrangement”
Registration for transport:
-“the State shall simplify and speed up the process of registration of migrant workers and also provide help desk for registration at the places where they are stranded.”
-“The State shall try to endeavour that after registration the workers should be asked to board the train or bus at the earliest and complete information should be publicized to all the concerned regarding mode of transport.”
Food and water:
-“Migrant workers stranded at different places in the country shall be provided food free of cost by the concerned States / Union Territories at different places which shall be publicized and notified to them during the period they are waiting for their turn to board the train or bus.”
-“Initially, the originating State shall provide water and meal and during the journey, the railways shall provide meal and water to the migrant workers and same facilities shall be extended when the migrant workers are transported by bus.
-“those migrant workers who are found walking on the highways or roads shall be immediately taken care by the concerned State / Union Territories and they shall be provided the transport to the destination and all facilities including food and water be provided to those found walking on the road”
-Receiving State after the migrant workers reach his native place, shall provide transport, health screening and other facilities free of cost”
In so far as certain other issues were concerned, such as food and employment upon reaching their home towns, the Court said that it will consider these issues later. The matter has now been listed for 5 June.
Last month, the Supreme Court agreed to hear a PIL by Advocate Sachin Jain, asking for cost regulation of private hospitals. Jain contends that patients should have access to affordable treatment in private hospitals, especially those from poorer backgrounds. He says that public hospitals may not have the capacity alone to deal with an epidemic of this scale. In the last hearing on 30 April, he even submitted that certain private hospitals were seeking to make a profit off of the national COVID-19 crisis. The Court observed that it would have to give hospitals a chance to be heard and issued notice.
In a brief hearing on 27 May, a Bench comprising Chief Justice Bobde, Justice A.S. Bopanna and Justice Hrishikesh Roy directed the Union to make a list of private hospitals that could offer COVID-19 related care at a reduced cost. The Print reports that the Bench went on to rhetorically ask, 'why private [can't] hospitals which had been given land free of cost...treat Covid-19 patients free of cost'? It has given the Union a week to file its reply.
The Supreme Court today took suo motu cognizance of the ‘unfortuanate and miserable conditions of migrant labourers walking on-foot and cycles from long distances’ due to the COVID-19 imposed lockdown. Given the plight of the migrant workers, the Court noted that it calls for ‘succor and help’ from the Government officials. In this regard, it directed the Governments to provide adequate arrangements for transport, food and shelter immediately. All such facilities have to be made available for free.
With these observations, the Court proceded to issue notice to all State Governments and the Union. The Governments were directed to place their responses before the Court at the earliest. Specifically, the Bench, comprising Justices Ashok Bhushan, Sanjay Kishan Kaul and MR Shah, requested the Solicitor General to assist the Court on the next date of hearing and also place before it, the measures taken so far to help the labourers. The matter is listed for 28 May.
Prior to this, the Court had taken suo motu cognizance of five other issues in relation to COVID-19: (a) measures to regulate spread of COVID-19 in prisons, (b) distribution of mid-day meals, (c) extension of limitation, (d) spread of COVID-19 in children protection homes, and (e) guidelines for video conferencing.
It may be also recalled that the Court had, in a PIL in April, taken stock of the measures adopted by the Government to alleviate the plight of the migrant workers.
On 15 May, the Supreme Court registry announced that the summer vacation, originally scheduled from 18 May to 19 June, stands deferred. As per the notifcation, a request to this effect was made by the members of the Bar. A Full Court Reference - the meeting of all sitting judges - too advised in favour of deferring the vacation. Based on these suggestions, the Chief Justice directed that the vacation be adjourned to a later date. The notification though does not mention when the Court will take the vacation.
Although the notification does not explicitly mention it, it is believed that the decision was made to at least partially offset the lag caused by COVID-19 restrictions.
On 27 April, the Court directed the Union to place before it any protocol, which may be in the works, for the movement of stranded migrant workers between states. The Union was given a week’s time to submit its report.
The Order came in a Public Interest Litigation (PIL) filed by Dr. Jagdeep S Chhokar (founder and Trustee, ADR) and Gaurav Jain. In the PIL, the Petitioners have sought a direction to the Union and State Governments to arrange for the travel of migrant workers stranded in various parts of the country to their homes. This, the Petitioners submit, may be done after testing these workers and ensuring that they do not suffer from COVID-19.
The Petitioners argue that the lockdown imposed on account of COVID-19 has imposed an “unreasonable and heavier burden on the migrant workers” as compared to “those who are living with their own families at their own residences” and therefore was violative of their right to equality. Moreover, the Petitioners contend that the right to freedom of movement and the right to reside and settle in any part of India cannot be suspended for an indefinite period, as was being done in the case of migrant workers.
Another PIL which had sought relief for migrant workers – Alakh Alok Srivastava v. Union of India – was disposed of on 27 April. The PIL, as detailed below, had sought basic amenities for migrant labourers stranded across the country. The Court had then issued detailed directions to the Union in this regard on 31 March. When the matter was taken up again on 27 April, the Court observed that the directions passed earlier will be continued to be followed and new suggestions made by the Petitioner should be considered by the Union for appropriate action.
Post the lockdown, the Supreme Court has only been taking up matters of "extreme urgency". In what appears to be a move away from this practice, on 18 April, the Court notified that "short category matters, death penalty matters and matters related to family law" may be listed for hearing through video conferencing mode. Parties to such matters have to intimate their willingness to have their cases taken up through video conferencing. Once that is done, the matters will be listed subject to the availability of the concerned benches and the approval of the Chief Justice.
In another notification on the same day, the Court also announced that it will take up by Curative and Review Petitions ready for hearing by "Circulation in-Chambers". Circulation in-chambers is a process commonly used in the case of review and curative petitions, whereby judges first determine whether there is any merit in hearing the matter in open court.
Last month, on 23 March, the Court directed all States/Union Territories to form High Powered Committees to 'determine which class of prisoners can be released on parole or an interim bail for such period as may bethought appropriate.' The Court has expressed concern that the novel coronavirus may easily spread in overcrowded prisons.
Today, on 13 April, Attorney General K.K. Venugopal submitted that 'prisoners have been released on the recommendation of the High Powered Committees except in the States of Delhi and Goa.' Additionally, the State of Bihar has refused to release any prisoners, saying that its prisons are 'not overcrowded and no prisoner is suffering from coronavirus'. Taking note of this - the State of Bihar's submissions in particular - the Court emphasised that it was not directing States/Union Territories to compulsorily release prisoners.
Attorney General K.K. Venugopal raised concerns over whether releasing and transporting prisoners may itself result in the transmission of the virus. In response, the Court issued certain guidelines regarding their release and transportation:
Foreigners in Detention Centres
The Court also heard an intervention application regarding prisoners who have been declared as foreign under the provisions of the Foreigners Act, 1946. This is of particular relevance to the State of Assam, which published a National Register of Citizens (NRC) and declared roughly 19 lakh residents as illegal foreigners. The current intervention application submits that there are currently 802 foreigners (under the Foreigners Act) in prisons.
The applicants sought for the release of persons who had served long periods of time in detention centres. In particular, it sought for the modification and implementation of the Court's order on 10 May 2019 in Supreme Court Legal Services Committee v. Union of India. In that order, the Court had directed the State of Assam to release detainees who had served a long time in detention centres awaiting deportation. The order outlines certain strict conditions for release, such as having served at least three years, producing a 1 lakh rupee bond and weekly reporting to a selected police station.
The applicants asked the Court to relax some of these conditions in light of the COVID-19 situation. In particular, they requested the Court to allow the release of prisoners who have been in detention for only two years. Further, it requested the Court to reduce the value of the bond from 1 lakh to 5,000 rupees. The bond must have two sureties of the specified sum. The Court agreed to these relaxations.
On 8 April, a Bench comprising Justices Ashok Bhushan and SR Bhat had directed both government and privately owned labs to make COVID-19 tests available free of cost. In a significant reversal, the Bench today modified its order and held that such free testing in private labs need only be made available to those who are eligible under the Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana ('Ayushman Bharat Yojana'). The Ayushman Bharat Yojana is meant to cover economically poor and vulnerable families. As per the Union, approximately 50 crore beneficiaries are covered under the Scheme and all of them can avail the benefit of free of cost testing even in private labs.
The Court's modification to its order came in an application filed by Advocate Pooja Dhar, represented by Senior Advocate Gopal Sankaranarayan. Private laboratories, represented by Sr. Adv Mukul Rohatgi, too sought a change in the Court's 8 April order. They argued that free of cost testing was already being administered to those covered under the Ayushman Bharat Scheme. Any further extension of free testing would be financially impossible, argued the intervenors.
After noting the submissions of the intervenors, the Court made it clear that its earlier order was meant to only cover the economically vulnerable sections of the population, who cannot afford paid testing. In light of this, the Court clarified that free testing may only be extended to those who fall under the cover of Ayushman Bharat Yojana and any other economically weaker sections of the society which the Government may notify.
The Court also exhorted the Government to identify any other weaker categories of the society, who may similarly require free testing from private labs. Workers belonging to low income and informal sectors and beneficiaries of the Direct Benefit Transfer Schemes were cited by the Court as examples of classes which the Government may consider for such free testing.
The question of who will compensate the private labs was left open by the Court in its previous order. In its modified order, the Court left it to the Ministry of Health and Family Welfare to issue appropriate guidelines in this regard.
Finally, the Court also directed the Government to ensure wide publicity to its directions as well as to the eligibility guidelines under the Ayushman Bharat Yojana.
A Dvision Bench comprising Justices Ashok Bhushan and S Ravindra Bhat directed the Union to ensure that diagnosis tests for COVID-19 are free. Significantly, the direction applies to both approved Government and privately owned labs.
The order came in a public interest petition, which highlighted that many people are unable to afford the price of Rs.4500 fixed by the Indian Council of Medical Research for the screening and confirmation test of COVID-19. Acknowledging the difficulty pointed out by the petitioner, the Court noted that the tests were already free in the Government labs. As for the private labs, it ordered the Government to pass appropriate directions to them in this regard to make the tests available for free.
As to the compensation for private labs for conducting such tests for free, the Bench observed that "The question as to whether the private Laboratories carrying free of cost COVID-19 tests are entitled for any reimbursement of expenses incurred shall be considered later on." Additionally, the Bench also directed that the tests be carried out only in labs approved by the National Accreditation Board for Testing and Calibration Laboratories (NABL) or any other agencies approved by ICMR or WHO.
Two PILs seeking basic amenities for migrant workers stranded in various parts of the country due to the lock down were taken up by a Bench consisting of the Chief Justice and Justice L Nageswara Rao on 30 March. Upon hearing the petitioners, the Court directed the Union to inform it of the steps adopted to take care of these stranded workers. One of the petitions - Alakh Alok Srivastava v. Union of India - seeks the following relief from the Court: "direct the local administration/ police authorities across India to immediately identify such moving/ stranded migrant workers and to immediately shift them to the nearest government shelter homes/ accommodations with proper food, water, medicines and under medical supervision, in a dignififed manner, till the present Coronavirus Lockdown continues."
The Union was then directed to file its report by 31 March.
On 31 March, the Union filed a status report, apprising the Court of the various measures it had taken to help the stranded migrant labourers. Some of the important steps adopted by the Union, as per the Report, include:
Upon satisfying itself of the steps taken by the Union, the Court passed a few directions. In particular, it noted that 'migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months'. In light of this, the Bench directed the Government of India to release a daily bulletin through all media avenues, including social media, to clear people's doubts. The Bench also suggested that all media outlets carry the official version of COVID-19 related developments.
The Bench also directed the Union to deploy trained counsellors and/or community group leaders in the shelter camps where the migrant labourers are put up. The matter was then directed to be listed on 7 April.
On 23 March, the Court issued a new circular, further reducing its functioning. In effect Benches will only be constituted to hear matters of "extreme urgency". Here's a breakdown of the key take-aways:
In its third major judicial intervention, the Court held that the time period for filing of cases before all courts/tribunals shall stand extended. Typically, if an individual/entity has a grievance/cause over which he wants to approach a court/tribunal for relief, the same is to be done within a prescribed time frame. Such time frame is referred to as the period of ‘limitation’. With this order of the Court, the clock on such time period has been paused with effect from 15 March, till such time the Court passes a further direction.
It may be recalled that the Court had, on 16 March, expressed its apprehension over what may happen if COVID-19 were to affect the already overcrowded prisons and remand homes. In this regard, it had directed the relevant State Government and prison authorities to file a report with details of measures taken to contain a potential outbreak.
On 23 March, the Cour took stock of the reports filed and issued certain additional directions. It noted that State Governments had already taken substantive measures. Such measures include creation of isolation wards, quarantine of new prisoners including prisoners of foreign nationality for a specific period, preliminary examination of prisoners for COVID-19, ensuring availability of medical assistance, scanning of staff and other service providers at entry points, sanitisation and cleanliness exercise of prison campus and wards, supply of masks, barring or limiting of personal visits to prisoners, suspension of cultural and other group activities, awareness and training with regard to stoppage of transmission of COVID-19 and court hearings through video conferencing, among others.
After noting the measures already taken, the Court went on to issue certain additional directions. Some of the important directions include:
In order to address the issue of over-crowding, the Court directed the setting up of a High Powered Committee. Such committee shall consist of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation they are known, and (ii) Director General of Prison(s). This committee will have the discretion to decide which class of prisoners can be released on parole or an interim bail for a period of time it finds appropriate.
Although the class of prisoners who may be released was left to the Committee's discretion, it gave certain broad guidelines which shall be taken into account while taking such a decision. For instance, the nature of offence, the number of years to which he or she has been sentenced, the severity of the offence with which he/she is charged with and is facing trial may be taken into account. Furthermore, the Undertrial Committee set up by the Court in In re Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700 shall meet every week and take appropriate decision on the question of interim bail and parole, in consultation with the High Powered Committee.
States which have not yet filed their reports have been directed to file them within three weeks, when the matter is expected to be heard again.
On 22 March, the Court decided to reduce its functioning even further. On the same day, the Court also instituted a bench to hear urgent matters. These decisions come amid the deployment of more stringent measures by the executive to tackle COVID-19.
Two important notifications were issued by the Court on 22 March, Sunday. The first one was issued with a view to further reduce the number of benches hearing cases. Thus, on 23 March, only two benches will take up matters. The first one, presided over by the Chief Justice and Justices L Nageswara Rao and Surya Kant, will hear eight cases starting from 11 am. Once this bench finishes hearing, another bench comprising the Chief Justice and Justice DY Chandrachud will assemble and hear two more matters. This bench though will not hear the lawyers in person. Instead, the lawyers will make their submissions through the video conferencing facility arranged within the Court premises.
Following the decision to cut down on the number of benches, the benches comprising Justices Arun Mishra, Deepak Gupta and MR Shah, as well as the one consisting of Justices SK Kaul, KM Joseph and Sanjiv Khanna will no longer hear cases, as they were originally expected to.
As per the second notification, starting 25 March, a two-judge bench will be available to hear extremely urgent matters. Whether or not a matter is urgent enough to be heard by this Bench will be decided by the Presiding Judge of the Bench. The Presiding Judge will make this decision based on a written submission by the lawyers who wish to have their matters heard. In their submission, lawyers will have to justify the urgency.
On 18 March, Court decided to take judicial note of another impending Corona related crisis. It noted that since most schools and Anganwadis were being shut, children and lactating mothers may be deprived of nutritional food. Under the Mid-Day Meal Scheme, school students and lactating mothers are eligible for nutritional food through these institutions.
Court expressed its concern that inability to access mid-day meals may lead to malnourishment among those who are dependent on it, especially lactating and nursing mothers in rural and tribal areas. Given this, it directed all States to come up with a uniform policy to ensure that mid-day meals are continued.
The matter is now listed for 27 March for the reply of State Governments.
Outside of the administrative measures, the Court also took suo motu judicial cognizance of the threat posed by the epidemic in prisons in India. In its 16 March Order, the Court acknowledged that ‘social-distancing’ – a critical measure in the fight against spread of the disease– was difficult to enforce in the overcrowded Indian prisons.
In light of this, the Court directed that any prisoner diagnosed with COVID-19 virus should be immediately quarantined and subjected to medical treatment. The Court also expressed its appreciation for the measures taken by the Kerala Prisons Department as well as the authorities of Tihar jail for already initiating measures like testing new inmates and isolating them for a few days before they join the rest of the prison population.
The Court has directed the concerned authorities of all states to submit in writing the measures taken to prevent the possible spread of the disease among prisoners/juveniles. The matter is now expected to come up on 23 March.
Soon thereafter, on 14 March, the Assistant Registrar came up with a slew of measures meant to limit crowding of the Court. For instance, lawyers and litigants can request the registry to not list their matters till such time the pandemic related restrictions are eased.
Another measure which is being mulled by the Court is to encourage electronic filing of documents and also participate in proceedings via videoconferencing. Nevertheless, no official notification has been issued in this regard till date.
Other measures put in place include the closing down of the cafeterias, suspension of guided tours, sanitization of common areas etc.
On Friday, 13 March, the Secretary General of the Supreme Court notified that the Court will function at a reduced capacity from 16 March. This was in view of the advisory issued by the Government of India and the World Health Organization against mass public gatherings to avoid the spread of Novel Coronavirus (COVID-19) pandemic.
A two-level pruning of the Court proceedings was put in place through this notification. One, the Court is now only taking up ‘urgent matters’. Second, entry to the court room is restricted to a select group of people. Thus, only those lawyers who are ‘acting’ in the matter – arguing or making oral submissions or assisting such counsels - along with one litigant are being allowed inside.
Image: "Influenza virus" by Sanofi Pasteur is licensed under Creative Commons (CC BY-NC-ND)