Introduction
With the COVID-19 crisis tampering with all dimensions of work, the migrant labourers of the country have been further pushed into a helpless situation of destitution. With no jobs and empty pockets, they have been forced to return[1] to their native places and most have made the journey on foot. Such a precarious situation has caught the attention of the Supreme Court, which has taken suo motu cognisance of the issues faced by them. Whilst it can safely be assumed that the court orders will facilitate adequate relief, the major concern revolves around the implementation of the same across the nation. As such, there is an ardent need to augment the use of continuing mandamus, particularly in areas which warrant the protection of rights falling under Article 21 of the constitution.
Evolution of the Writ of Continuing Mandamus
Despite courts’ directives to ensure mandatory compliance with its orders, there have been a plethora of instances where the directives have been flouted. Hence, courts, in order to ensure the fructification of their orders developed the writ of continuing mandamus in cases of public importance and socio-economic justice.[2] Through the writ of continuing mandamus, the court directs the authority to comply with the orders passed by it, to meet the ends of justice. The court does not dispose of the case in finality, and may ask for periodic reports[3] to ensure that justice percolates to the rudimentary level of the problem.
The first glimpse of praxis of this writ was seen in Vineet Narayan v. Union of India.[4] In this case, the court feared that a fair investigation could be obstructed due to the involvement of influential individuals. The court therefore, kept the case open and called for periodic reports of the progress being made in investigation. In Bandhua Mukti Morcha v.Union of India,[5] the court issued directives to release and rehabilitate the affected labourers after it was made aware of the treacherous condition of the bonded labourers in mines. Additionally, the court also constituted a committee to scrutinize the progress and ensure the efficacious implementation of the order. Subsequently, a slew of cases pertaining to environment issues and public interest followed the suit. For instance, in Vellore Citizens’ Welfare Forum v. Union of India,[6] the petitioners complained that tanneries were polluting the ground water by discharging untreated waste. The Supreme Court gave directions to the central government to create a body which would look into this issue. It also directed the Madras High Court to constitute a Green Bench to overlook the functioning of tanneries in the state, thus ensuring continuous monitoring. Similarly, in Indian Council for Enviro-Legal Action v. Union of India,[7] the court issued the writ of continuing mandamus and laid down the respondents’ liability for causing pollution by chemical plants. It directed the High Courts to take the matter forward and was to reconvene in order to ensure compliance with its directions.
Issuance of the continuing mandamus in matters related to COVID-19
The unexampled health emergency, brought about by the spread of the COVID-19 virus, has blown the conch for a multitude of challenges to be faced by the nation and its people. The worst affected are those who are at the forefront of socio-economic vulnerability. In India too, the worst blow was suffered by the migrant labourers, who were left on the streets to fend for themselves in such atrocious times. Most of them survived on meagre food supplies, and even had to sleep on an empty stomach for days together. Without any money, they could not even afford to buy essentials such as medicines. Non-compliance with the Government’s order to waive the rent further aggravated their situation,[8] pushing them deeper into the hole of destitution.
The Supreme Court took suo motu cognizance[9] of the Migrants’ issue, seeking replies from the states and the centre on the said matter. The relief measures granted by the court on this issue is likely to affect the lives of nearly 40 million migrants who have been affected due to the pandemic and subsequent lockdown.[10]
In a written order dated 28th May 2020 the court ordered free transportation, food and water to all the stranded labourers.[11] The court further ordered the Centre and the states to ensure that within 15 days, displaced migrants are sent home, with adequate facilities while traveling.[12] Subsequently, state and central governments started arranging for Shramik trains under the aegis of the Indian Railways for cross border conveyance of the migrants.[13] However, the government still has cloudy figures on the number of migrants who have not yet been covered under this operation. The journeys to their homes may end, but the enforcement of their rights will still have to navigate an arduous path. The lockdown and the subsequent hardships faced by them will have long term effects on their livelihood, thereby requiring a more persistent solution.
The Court, by an order dated 9th June 2020[14] recorded the progress made by states in implementing its previous orders. It further directed the states to formulate and activate schemes for the benefit of the migrants, and also spread awareness about the same. Further, by an order dated 9th July 2020, the court reprimanded the State of Maharashtra for producing unsatisfactory details regarding the status of migrant workers. It reiterated the fact that it was not engaging in adversarial litigation and it was the duty of the State to find out lapses in implementation and to fix the same.[15] This approach, to some extent reveals the court’s use of the writ of continuing mandamus, albeit cautiously, without overstepping its domain. This will go a long way to ensuring that the lives of the migrants are restored to normalcy even after they have been commuted to their native places.
Since this matter is of utmost public importance and is likely to impact the lives of millions, merely giving a directive through declaratory order or issuance of mandamus will not suffice, since it will only be a one-time engagement with no scope for a follow-up on the orders issued by the court. In the past too, there have been instances where the executive has disappointed the justice system by effectuating social justice laws and welfare schemes that were drawn up by the Supreme Court. One such example is the milestone judgment of Olga Tellis v.Bombay Municipal Corporation,[16] in which the court directed the state government to ensure resettlement of the slum dwellers before they were evicted. However, the order remained merely on paper and never saw the light of day. The people were evacuated, without being provided with the promised rehabilitation.[17]
The dictum of the Supreme Court on the Migrants’ issue is likely to touch upon the basic rights falling under Article 21, such as food, shelter, and healthcare.[18] Merely giving a directive in this regard may not, in practicality meet the ends of justice. The court shall learn from the past and issue the writ of continuing mandamus, in order to ensure that even the last person is not precluded from benefiting from the remedies being provided.
The writ of continuing mandamus as opposed to the writ of mandamus holds certain benefits. It bridges the remedy-enforcement gap,[19] which has been one of the primary reasons for the lapse of justice when it comes to the enforcement of the rights of the masses. It is used as a tool to combat executive inaction and ensuring that justice is carried home not just in essence, but in reality. Presently, any order or guideline issued by the court will have to be implemented across a large canvas, which enhances the risk of executive lapses, making this tool a viable solution to this problem.
Issue of implementation of socio-economic rights and effective solutions
The judicial interpretation of relationship between fundamental rights and directives principles has aided in the recognition of socio-economic rights.[20] However, the courts have viewed all the implied rights such as livelihood, medical facilities etc. through the prism of Article 21.[21] The court has failed to properly define any minimum core of obligations required for enforcement of such rights and has in the ensuing confusion often transgressed into areas traditionally belonging to the legislative and executive.
In a crisis such as this, the court, while delivering a judgement or an order, should adopt the Minimum Core Approach, where the court seeks to define the minimum legal content of each socio-economic right.[22] A major argument against this is that which emanates from a conservative standpoint, based on the doctrine of separation of powers.[23]
The judiciary and executive should work in synergy to give specificity to socio-economic rights by emphasising on prioritisation, accountability and clear standards, to ensure that the minimum core of socio-economic rights are being guaranteed by the State. However, legitimacy and accountability of overt judicial activism raises concerns since it may impede upon the doctrine of separation of powers, which is regarded as one of the cornerstones of our Constitution.[24] Hence, while penning any judgement or order, it is imperative to make sure that the Court does not transgress the domain of the executive.[25] Hence, the court should simply test the results as well as authenticity of the policies framed by the government to the extent of determining compliance with a minimum core, without which a right may be illusory. This form of review is not contrary to the role of courts as envisaged by the doctrine of separation of powers.
The present conditions of the migrants represent a logistic and implementation challenge lurking over India.[26] It is important to take concrete steps right at the initial stage to prevent the worsening of the existing disparities among the classes. Hence, regular reporting requirements, follow-ups, and stock-taking on implementation of policies that guarantee the minimum core of rights, will be key to ensure the protection of the rights of India’s most vulnerable.
The Supreme Court of India has time and again given mandatory orders to the government instead of limiting its powers to declaration of remedies.[27] In the Consumer Education and Research Centre v. Union of India,[28] the court kept an eye on the endeavours achieved by government (such as regulation of factories, health status of workers etc.) while recognising the rights of workers to healthcare. The Supreme Court has realized that while recognizing the socio-economic rights, one time orders are not enough and a constant monitoring is required for the same.[29] Therefore, to ensure the adjudication of socio-economic rights, the writ of continuing mandamus was evolved by the courts, whereby the courts can intervene and monitor the cases[30] to ensure that justice is delivered in its true sense.
Conclusion
The constitutional pillars play a huge role to protect the fundamental rights of the people. The plight of the migrants in the light of the pandemic requires the functioning of the judiciary in synergy with the executive in order to mitigate their atrocities. The writ of continuing mandamus can be seen as a viable tool in providing relief to them. Moreover, the court can absorb the some of the viable short term and long-term measures drafted by the NHRC in assessing whether the executive policies and measures adequately safeguard rights of migrants. Periodic review of the orders passed will ensure that justice percolates to the grassroots, where implementation ought to happen.[31]
This article has been written by Lakshay Garg and Ashika Jain, undergraduate students at Gujrat National Law University.
References
[1] Vikas Pandey, Corona Virus Outbreak: The Indian migrant s dying to get home, BBC News (Delhi) May 20, 2020, available at https://www.bbc.com/news/world-asia-india-52672764(Last visited on July 6, 2020)
[2] Upendra Baxi, The Indian Supreme Court And Politics 373 (1980).
[3] Iain Currie & Johan De Waal, Remedies, The Bill Of Rights Handbook 217-18 (5th ed., 2005)
[4] Vineet Narayan v. Union of India, 1996 SCC (2) 199.
[5] Bandhua Mukti Morcha v. UOI (1997) 10 SCC 549.
[6] Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647.
[7] Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446.
[8] Tina Edwin, Why Migrant Workers are protesting-No money to buy essentials, limited access to cooked food, The Hindu Business Line, (New Delhi) April 16, 2020, available at https://www.thehindubusinessline.com/news/why-migrant-workers-are-protesting-no-money-to-buy-essentials-limited-access-to-cooked-food/article31352912.ece (Last visited on July 6, 2020)
[9] Supreme Court Takes Note of Migrant Workers’ Problems, Asks Govts to Respond on Steps Taken, The Wire May 26, 2020, available at https://thewire.in/law/supreme-court-migrants-suo-motu-centre (Last visited July 6, 2020)
[10] Geeta Pandey, Corona Virus in India-Desperate Migrant Workers trapped in lockdown, BBC News (Delhi) April 22, 2020, available at https://www.bbc.com/news/world-asia-india-52360757 (Last visited on July 6, 2020)
[11]Krishnadas Rajgopal, Supreme Court orders Centre and States to immediately provide transport, food and shelter free of cost to stranded migrant workers, The Hindu (New Delhi) May 26, 2020, available at https://www.thehindu.com/news/national/supreme-court-takes-suo-motu-cognisance-of-migrant-workers-issue/article31679389.ece(Last visited on June 5, 2020)
[12] Supreme Court wants all migrants moved in 15 days, The tribune (New Delhi) June 5, 2020 available at https://www.tribuneindia.com/news/nation/supreme-court-wants-all-migrants-moved-in-15-days-95207(Last visited on July 5, 2020)
[13] Govt. of India, Ministry of Railways, Press Release ID 1620027 (May 1, 2020) available at https://pib.gov.in/PressReleseDetail.aspx?PRID=1620027. (Last visited on July 6, 2020)
[14] In Re: Problems and Miseries of Migrant Labourers, Interim order Dated June 9, 2020 available at https://main.sci.gov.in/supremecourt/2020/11706/11706_2020_34_1501_22499_Order_09-Jun-2020.pdf (Last visited on June 6, 2020)
[15] In Re: Problems and Miseries of Migrant Labourers, Interim order Dated July 9, 2020 available at https://main.sci.gov.in/supremecourt/2020/11706/11706_2020_35_303_22746_Order_09-Jul-2020.pdf (Last visited on July 9, 2020)
[16] Olga Tellis v.Bombay Municipal Corporation, [1978] 2 S.C.R. 621.
[17] Olga Tellis, Thirty Years after a landmark Supreme Court verdict, slum dwellers rights’ are still ignored, The Scroll December 21, 2015available at https://scroll.in/article/776655/thirty-years-after-a-landmark-supreme-court-verdict-slum-dwellers-rights-are-still-ignored (Last visited on July 6, 2020).
[18] Chameli Singh v. the State of UP, 1995 Supp (6) SCR 827.
[19] Mihika Poddar & Bhavya Nahar, ‘Continuing Mandamus’ – A Judicial Innovation to Bridge the Right Remedy Gap, 10 NUJS L. REV (2017) available at http://nujslawreview.org/wp-content/uploads/2017/08/Continuing-Mandamus-Mihika-Bhavya.pdf (Last visited on July 6, 2020)
[20] Uday Shankar, Divya Tyagi, Socio-economic rights in India- Democracy taking roots, Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, Vol. 42, no. 4, 2009, 527–551, JSTOR,available at https://www.jstor.org/stable/pdf/43239539.pdf?refreqid=excelsior%3A262967bdaa879b9ea7eacf6d725d6e4d (Last visited on July 3, 2020.)
[21] MP Singh, The Statistics and the Dynamics of the Fundamental Rights and the Directive Principles – A Human Rights Perspective, 5 Supreme Court Cases (Journal) 1 (2003) available at http://www.supremecourtcases.com/index2.php?option=com_content&itemid=135&do_pdf=1&id=376 (Last visited on July 6, 2020)
[22] Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 YALE J. INT’L L. 113, 113 (2008), available at https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1920&context=lsfp (Last visited on July 7, 2020)
[23] Ram Jawaya Kapur v.. State of Punjab, AIR 1955 SC 549.
[24] Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, ¶ 17.
[25] Santosh Singh v. Union of India (2016) 8 SCC 253.
[26] Sandeep Dutta, India: Migrant workers’ plight prompts UN call for ‘domestic solidarity’ in coronavirus battle, UN News April 2, 2020 available at https://news.un.org/en/story/2020/04/1060922 (Last viewed on July 6, 2020).
[27] Rohan J Alva, Continuing Mandamus: A Sufficient Protector of Socio-Economic Rights in India 210, 44 Hong Kong L.J. 207, 230 (2014).
[28] Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
[29] D.Y. Chandrachud, Constitutional and Administrative Law in India, 36 International Journal of Legal Information 332, 335, (2008).
[30] Mihika Poddar & Bhavya Nahar, ‘Continuing Mandamus’ – A Judicial Innovation to Bridge the Right Remedy Gap, 10 NUJS L. REV (2017) available at http://nujslawreview.org/wp-content/uploads/2017/08/Continuing-Mandamus-Mihika-Bhavya.pdf (Last visited on July 23, 2020)
[31] SC permits NHRC to intervene, suggest measures to deal with plight of migrant workers, The times of India (New Delhi) June 5, 2020available at https://timesofindia.indiatimes.com/india/sc-permits-nhrc-to-intervene-suggest-measures-to-deal-with-plight-of-migrant-workers/articleshow/76220741.cms (Last viewed on July 7, 2020)
Constitutional Law Society, NUJS 