News & Events
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1.Relief and recompense: On ex Gratia for the pandemic-hit
The judiciary did well to assert the rights of pandemic-hit workers and families
It is a matter of relief and satisfaction that the Supreme Court has prodded the Union government to perform its statutory duty of fixing a compensation for the families of those who lost their kin to the COVID-19 pandemic. The order comes close on the heels of a slew of directions on registering the country’s vast unorganised workforce and its army of inter-State labourers on a national database and ensuring that none of them went hungry. On the issue of making an ex gratia payment to those affected by the pandemic, a notified disaster under the Disaster Management Act, the Centre initially took the untenable stand that it lacked the financial resources to compensate for every COVID-19 death. However, it later admitted that it was not the adequacy of resources that made it avoid any compensation, but rather its decision to prioritise expenditure in response to the pandemic. It is indeed true that unlike more frequent disasters such as cyclones, earthquakes and floods, a pandemic that has hit every country is not a one-time calamity, but an ongoing and prolonged phenomenon. However, the Court has rightly found that this was not reason enough for the Government to evade its duty to include ex gratia assistance on account of loss of life in its guidelines for “minimum standards of relief” to those hit by the disaster. The Court correctly did not fix a compensation amount for each death, leaving it to a policy decision by the National Disaster Management Authority and the Centre.
In an earlier order, the Court dealt with the need for comprehensive registration of all inter-State and unorganised workers in the country. It is unfortunate that it needed a pandemic, and the resulting humanitarian, social and economic crisis for millions of workers, to give an impetus to the process. The Supreme Court, while disposing of suo motu proceedings on the miseries of migrant labourers, has now fixed a deadline of December 31 this year for all States and Union Territories to complete the process. The Centre has been given a deadline of July 31 to make available a portal for its National Database for Unorganised Workers (NDUW) project so that it may be used for registering unorganised workers across the country. However, the Union government, which was directed to make such a common module available to the States as far back as in August 2018, claimed the work on developing the portal was affected due to the fallout of the pandemic. The Court has pulled up the Union Labour Ministry for its “apathy and lackadaisical attitude” and directed that the process of registration should begin by July 31. The verdicts open up the possibility that the inter-State and unorganised workers will at last be able to reap the benefits of welfare laws enacted for them. These interventions signify the rejuvenation and assertion of a court seen as somewhat reticent until recently.
2.Our vote, our laws: When articulating “rule of law”, we must recognise it is often dented by arbitrary, unjust state actions
Chief Justice of India NV Ramana has warned that the right to change governments through elections “by itself, need not be a guarantee against tyranny”. He underscored that recognising citizens as the ultimate sovereign and qualifying as a “properly functioning democracy” necessitated public discourse that is “both reasoned and reasonable”. To elections and public discourse, he tagged “criticisms and voicing of protests” too as integral to the democratic process. Executive and legislature too must “assume responsibilities of upholding constitutional values and ensuring justice in the first place” so that judiciary can act as an important check later.
Nothing controversial or unexceptionable here. Post-electoral exercises of political power by elected governments have been a mixed bag, not just in India, but democracies everywhere. A government’s exercise and interpretation of its popular mandate can foment opposition. And there’s no set template for systemic responses in India. From ramming its intent past dissenters, or entering into a vigorous discourse through parliamentary debate and direct political messaging, to facing scrutiny from courts, democracy and its countervailing checks and balances operate through many modes.
Laws like sedition, a remnant of British Raj’s “rule by law” mentality, enjoying currency in national and state capitals buttress CJI Ramana’s warning about tyranny. The 1973 Kesavananda Bharati judgment enunciating the basic structure doctrine to prevent wayward constitutional amendments had recognised the danger of an elected government turning rogue. The Emergency two years later vindicated SC. The antidote is for both elected and unelected bodies – all the hallowed democratic institutions with constitutional sanctity – to recognise their limits and act energetically and creatively within the due process and procedure.
This would demand governments enact laws that uphold equality and aren’t arbitrary; all sides allow legislatures to function without disruption or short shrift to procedures; judiciary refraining from policymaking; and independent public platforms like media, academic spaces, and NGOs having freedom to question the state. A counterculture of admiration for populists who betray impatience for democratic niceties and bend chaotic collective will is an ongoing challenge. But appeal of the “rule of law” hasn’t dimmed one bit. That’s why dissenting J&K residents approached SC over arbitrary internet shutdowns and harried Bengal BJP took Mamata govt to court for alleged post-election excesses. Let no one stop judiciary from enjoying complete freedom to check governmental power, as CJI Ramana wanted.
3.Of deaths and data: Ex gratia payment for Covid victims need accurate records. That’s the difficulty
India’s official data shows that the Covid-19 death toll is almost 4 lakh. In terms of human suffering there is nothing in living memory to match the outbreak of Covid-19. In this backdrop, a two judge bench of the Supreme Court on Wednesday issued a set of directives on two PILs which sought ex gratia payment for people who succumbed to Covid-19. Cutting through the thicket of legal arguments, the verdict boiled down to a couple of important points. GoI’s containment measures are based on the Disaster Management Act. The question of ex gratia payment therefore depends on its interpretation.
The apex court observed that jurisprudence provides limited scope of judicial review in economic policy decisions. That is the domain of the legislature and the executive. However, if a statutory authority fails to measure up, a legal writ can be issued. So, the directives are clear about two aspects. The law mandates an ex gratia payment but the amount is left to the discretion of GoI. The challenging part will come in actualising this directive. As the SC’s judgment details, the crux is in the death certificate which identifies the cause. This is a grey area.
The verdict calls for a process simplification and a broader definition of Covid deaths. However, it hinges on the victim having been tested for Covid. India’s virulent second wave overwhelmed the healthcare infrastructure. Anecdotal evidence and extensive media reporting showed that Covid protocols in cremations and burials far exceeded the official death count. Ironically, it’s the families of the most economically vulnerable people who may lack requisite paperwork. The case of the Bhopal gas leak victims shows that compensation can be a Kafkaesque experience. India’s last mile delivery has improved manifold in the wake of DBT. But the key to making ex gratia payments is in accurately identifying Covid deaths. Good intentions can have unintended consequences.
4. In defence of freedom
CJI Ramana spoke about an expansive notion of democracy that went beyond elections. By highlighting the centrality of everyday political discourse, both “reasoned and reasonable”, criticisms, and protests, to the democratic process, he sent out a message to those (spanning across the political divide) who have often sought to trample dissent or frowned upon public opposition to policies.
At a time when there have been questions about both the quality of Indian democracy, particularly its record on civil liberties, as well as the independence of the Indian judiciary, a sacrosanct pillar of the Constitution, Chief Justice of India (CJI), NV Ramana delivered the PR Desai Memorial Lecture on Wednesday. In his speech, the CJI issued a reminder about the meaning of democracy, elaborated on the principles of rule of law, and underlined the need for the judiciary to remain independent of all external pressures. His interventions, each of which go to the heart of contemporary political debates, are welcome.
CJI Ramana spoke about an expansive notion of democracy that went beyond elections. By highlighting the centrality of everyday political discourse, both “reasoned and reasonable”, criticisms, and protests, to the democratic process, he sent out a message to those (spanning across the political divide) who have often sought to trample dissent or frowned upon public opposition to policies. This is especially important since the political executive has shown a tendency to impose excessive control on independent institutions and civil society.
The CJI also spoke of how the judiciary’s role included ensuring that laws are in conformity with the Constitution and keeping a check on “governmental power and action”. And for this, it was crucial that the judiciary remained independent of any control, “directly or indirectly”, by the legislature and the executive, or the rule of law would become “illusory”. At a time when there have been controversies around courts, either because judicial decisions have been aligned with executive preferences or because honourable judges haven’t shown due restraint in taking up post-retirement positions, this is an important reminder of the value of institutional duties and checks and balances. The Supreme Court can walk the talk by promptly taking up pending cases, including the ones on electoral bonds, constitutionality of decisions such as the effective abrogation of Article 370, the division of Jammu and Kashmir, and the Citizenship (Amendment) Act, and offering its views on the perceived use of anti-terror laws to crack down on free speech. And finally, CJI Ramana, while emphasising that judges shouldn’t live in ivory towers, pointed to the role of social media platforms in seeking to influence judicial outcomes and their failure to distinguish between right and wrong, real and fake, good and bad. This, too, is important, for the law, and only the law, must be the guiding factor in all judicial decisions.