The Constitutional Court And The 'Attached Office'

"Professional PIL shops must be locked down till the country comes out of COVID-19 tragedy" – Solicitor General for India.

I will start by confessing that when the Courts decided to shut down in the face of the pandemic, I was nervous. We aren't used to functioning without the general and benign supervision of our Courts.

As the Delhi government announced a lockdown on the evening of March 22nd, it was clear that everybody had forgotten about those who earn from one meal to the next. Thus in the very first hours, several opportunities presented themselves for people to rush to Court to complain about the insufficiency of shelters, or the inadequacy of available food on the street (the migrations hadn't even begun, then).

Since the constitutional courts were less accessible, at least some lawyers who would normally have gone to court, called upon their contacts amongst community volunteers to ask why workers were not utilizing the shelters/food kitchens that had been set up; then relayed feedback from the ground back to their contacts in government, and so it went – back and forth - the Delhi government tweaking its implementation mechanisms every day, and many families still remaining outside the safety net, which was not cast wide enough.

It was trial and error and families remained hungry. And, I reluctantly admitted to myself that the writ court could not have enforced an efficient implementation mechanism either, in a situation where the administration has only just discovered the social and economic realities of a large number of citizens and has no institutional structures to quickly respond. The courts could impose punitive damages for 'forgetting', but that's another matter.

In times of stress, PILs are sometimes framed around questions of immediate relief. Sometimes, they are framed around the larger question of rights, but given the exigencies of situations, (and the heckling from the opposite side), decided as a matter of administration of relief. As we have witnessed in the Kashmir lockdown cases (and the Kashmir Habeas Corpus cases), whenever an act of the state takes on a meaning greater than its immediate import, the writ Court will only be somewhat gentle with its victims, ask the state to ameliorate suffering (in accordance with law), but not do much more.

In any case, PILs on immediate relief, and the decisions that they invite, tend to view the constitutional court as an attached office: that which provides detailed executive directions required for the proper implementation of policies. Actual constitutional questions get clouded in the process.

The state, on the other hand, seems not only to be discouraging PILs in the law courts, but also all attempts at critical engagment outside the courts. The government seems quite content in its handling of all crises, and views all questions and criticism as 'fake news' and bad form. Outside the PIL court, there are no sites left for engagement where the citizen can make demands on the government on equal terms. To protest now is to be subversive, to write against the 'war like' efforts is to be propagandist.

The deceit of the metaphors

Susan Sontag was a philosopher and political activist. She was diagnosed with cancer when she wrote Illness as Metaphor and made a point that may be of relevance here: "The purpose of my book was to calm the imagination, not to incite it. Not to confer meaning [to disease], but to deprive [it] of meaning."

In the book, she strips disease of its military metaphors (of an invasion, of the body being colonized) and argues that "the transformation of war-making into an occasion for mass ideological mobilization has made the notion of war useful as a metaphor for all sorts of ameliorative campaigns whose goals are cast as the defeat of an 'enemy'." The invocation of such metaphors does nothing to capture the actual experience of an illness, or as we have seen in the present case, to avoid making 'collateral damage' of its most vulnerable citizens.

Thus, when the analogy of war has been invoked and when all efforts are expected to be resolute and focused on the primary disaster, it is not easy to challenge the constitutionality of the state's responses to the disaster. It is simpler to ask the constitutional court to direct the state to ameliorate suffering, than to ask why people were put in that vulnerable place at all.

The countrywide lockdown, sealing borders between states and discontinuing all modes of public transport was notified under the National Disaster Management Act, 2005 [NDMA] and under the various state regulations as per the Epidemic Act, 1897. The NDMA defines 'disaster management' as a continuous and integral process of planning, organizing, coordinating and implementing measures for capacity-building towards preparedness to deal with disaster, as also prompt response and mitigation of further risk.

It is important to question the lack of continuous and integral planning especially with regard to building public health infrastructure, or public housing, or any kind of reliable safety net in Court, even in 'times of war'. Although the court does not always show an inclination to hear matters at such times, preferring to adjourn it for calmer occasions. [When the challenge to the word 'socialism' in the Constitution one-day reaches the Court, as it will do, then perhaps questions relating to continuous and integrated preparedness in meeting the disaster of forced migration could be addressed.]

Other questions that cannot wait until the 'war' is over

I believe that these questions are a century old and although they contributed to radical thought within the freedom movement, and also the subsequent unseating of the colonial government, they are as yet constitutionally unresolved.

Amidst the 1896-97 crisis of the bubonic plague , the British colonial administration brought about a hastily drafted Epidemic Act, 1897. Even during the brief debate in the Imperial Legislative Assembly on the Bill, members had pointed out that it was vague and had a propensity for abuse of power.

The law gave extensive powers to the executive to inspect people and residential houses for signs of the plague, in order to prevent the spread of disease. The authorities had the power to order people into quarantine, seal dwelling houses and destroy contaminated goods. Soon enough, instances of disrespectful inspections, forced indignities on people, arbitrary detentions and deaths from starvation accumulated.

Walter Rand was at the time, the plague commissioner of Bombay, almost certainly short-staffed, and under a lot of pressure in the face of an uncooperative population and increasing spread of the disease.

Bal Gangadhar Tilak, political editor and activist, diligently reported the excesses, protested them, and inadvertently also took the issues to court when he was tried for having caused disaffection against the colonial government by writing about its disease control policies. [Damodar Chapekar of Poona had felt so enraged by the indignities heaped upon the women by the authorities acting under the Epidemic Act, that he assasinated Rand in June 1897. The colonial police arrested Tilak for sedition, accusing him of having provoked Chapekar through his writings].

Tilak had been asking the following questions:

1. Is law or executive action that disrupts so significantly and in such systematic ways the lives of such large numbers of people valid? For good measure, he also asked: does a government that repeatedly harms a section of its people, in order to safeguard the interests of another section retain its legitimacy?

2. Even in the time of bubonic plague, can the authorities be allowed to arbitrarily punish and humiliate defaulters?

3. Is it an act of sedition to ask questions even at a time of great public excitement or unrest?

As I write this, I am receiving news of other notifications issued under the Epidemic Act, which reiterate restrictions on movement of persons, and threaten punitive action. Then there are exhortations ordaining community actions at appointed times. The time of the pandemic is also the time of bio politics.

The situation today can be encapsulated in Sontag's formulations and Tilak's questions. I pray that the courts recall Tilak and the freedom movement, and that actions of the government continue to be challenged – and heard - every step of the way in the constitutional courts. 

Author is a Lawyer practicing in Supreme Court of India

Views are personal only.