2020 Summer Session Review: COVID Term 1

The COVID-19 pandemic has deeply impacted how society and institutions function. The Court too had to respond to the challenges posed by the pandemic and determine the best course of action. Naturally, the Court suspended normal functioning and worked at reduced capacity on both administrative and judicial sides. In this two-part term review, we look back at two aspects: cases that were heard and the court’s reliance on technology to continue its operations.

                                                                             Original Image Credits: Subhashish Panigrahi, Wikipedia Commons

SC responds to COVID crisis

The last term was dominated by cases concerning the pandemic and its impact on several communities. In March and April, after the nationwide lockdown was announced, several petitioners approached the Court to intervene on migrant issues, protections for frontline workers and subsidized healthcare. It both intervened of its own motion and heard pleas by public interest litigants.

The Court took varied approaches in its interventions. On the one hand, in the migrant labourers case, it initially deferred to the executive and refrained from intervening, citing policy concerns. It took the opposite approach with the subsidized healthcare case: the Court’s initial orders to monitor and order welfare measures were soon overturned, citing practical and policy concerns.

Moreover, the Court itself initiated suo motu proceedings on the prevention of the spread of COVID-19 in prisons and the treatment of patients in hospitals.

Migrant labourers

In the last term, the Court was confronted by the migrant labourers’ crisis. The nationwide lockdown in March triggered thousands of migrant labourers to walk back to their homes, resulting in hundreds of death due to starvation and road accidents.

This issue first came up before the Court in March when advocate Alakh Alok Srivastava urged the Court to intervene. The petition was eventually dismissed. Dr Jagdeep S Chhokar and Gaurav Jain brought this issue before the Court again in April – nothing came of this and the petitioners chose to approach the High Courts instead. Early May saw Srivastava go the Supreme Court again; this time he pointed the Court to the train accident in Aurangabad that led to the death of around 16 migrant labourers. The Court refused to intervene, citing policy reasons.

Around 20 senior advocates then wrote a letter to the Court on 25th May urging immediate intervention – they characterized the Court’s hands-off approach as one which exacerbated the violation of fundamental rights of the migrant labourers. On the next day, the Court initiated suo motu proceedings to monitor the migrant labourers’ issue. Over the past month, the Court has issued two substantive orders requiring the State to ensure free travel, food and medical care for these labourers, among other welfare benefits. The Court is set to hear this again on 8th July.

Frontline workers

Several petitions were brought before the Court seeking protections for frontline workers battling the pandemic. Two petitions from healthcare workers saw substantive engagement from the Court. In April, Dr. Jerryl Banait moved the Court seeking protective equipment for health workers, increased screening and regulation of price for screening. The Court passed a set of interim orders that directed the state to ensure protective equipment to healthcare workers, provide police protection to them and take action against people who assaulted/disturbed them during their work. Additionally, the Court mandated the state to explore alternative or domestic production of the protective gear.

Last month, Dr. Arushi Jain filed a petition before the Court requesting adequate quarantine facilities for healthcare workers. In another tagged case, the petitioners sought the Court’s intervention to ensure timely payment of salaries for healthcare workers. In the latest hearing of this case on June 17th , the Central Government undertook to issue orders to the States and Union Territories for timely payment of salaries for healthcare workers, and to provide quarantine facilities for workers in direct contact with COVID patients. The Court is slated to hear these matters in the first week of July.

Subsidized COVID Healthcare

During this term, the Court repeatedly tackled the question of whether citizens should be entitled to free COVID-19 related healthcare services. The issue came to the forefront in the petition pertaining to free COVID-19 testing, filed by lawyer Shashank Deo Sudhi. Initially, on 8th April, Justices Ashok Bhushan and S.R. Bhat directed all government and private labs to offer free coronavirus tests.

However, after various individuals and private labs intervened citing financial concerns, the Bench modified its original order. In its modified order on April 13th, it clarified that only the poor – specifically, beneficiaries of the Ayushman Bharat Yojana scheme – could avail of free testing. It added that the Government could consider identifying other disadvantaged sections of persons which could benefit from free testing.

Later in the term, on May 27th, the Court agreed to hear a PIL, seeking price regulation of private hospitals. Advocate Sachin Jain contended that private hospitals should not be making a profit off of the pandemic. He prayed for the Court to regulate the cost of COVID-19 related care being offered by charitable private hospitals and those which had received subsidized State land.

In the latest hearing on June 5th, the Union emphasised that requiring private hospitals to offer free care would leave them financially unviable. When asked whether they could instead offer COVID care at Ayushman Bharat Yojana rates, the Union stressed that the scheme was only intended for economically weaker sections of society. With this, Chief Justice Bobde’s Bench listed the hearing for the end of June.

Prisons

In its first suo motu petition related to COVID-19, the Court took note that overcrowded prisons were likely to become COVID-19 hotspots. On March 23rd , it directed all States and 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 be thought appropriate.’

By April 13th, all States/UTs had complied and released prisoners, with the exceptions of Goa and Delhi. Additionally, the State of Bihar submitted it would not release any prisoners, contending that its prisons were not overcrowded.

The Court also addressed the issue of overcrowded foreigners’ detention centres in Assam. The State of Assam uses these detention centres to detain persons who are awaiting deportation, after having been declared foreign under the Foreigners Act, 1946. Just last year, Assam declared over 19 lakh residents as illegal foreigners by excluding them from its National Register of Citizens (NRC). Cognisant of this, the Court directed Assam to release detainees who had been in detention for over two years.

Treatment of Patients in Hospitals

In its latest suo motu petition, the Supreme Court began to monitor the treatment of COVID-19 patients in government hospitals, including the dignified treatment of dead bodies. It expressed concern over reports that hospitals were not adhering to proper healthcare guidelines. Further, it noted that hospitals are not giving ‘due care or concern to dead bodies’.

Responding to the Court’s observations, the Union submitted an affidavit which set out guidelines for proper patient care, including details on how to handle dead bodies. The Court was generally satisfied with the affidavit, although it issued supplementary directions:

1. It directed the Ministry of Health and Family Welfare to constitute an expert committee of doctors, which will monitor all hospitals giving COVID-19 care in the NCT of Delhi on a weekly basis. Further, it directed all States to constitute similar committees for the supervision of COVID-19 care.
2. It approved of the installation of CCTV cameras in hospitals and directed that the footage be made available to appropriate supervising authorities, in order to ensure proper patient care.
3. It directed all hospitals to comply with the patient discharge policy defined by the Union on May 8th 2020.