The fundamental right to assemble peacefully without weapons is overriden by the Disaster Management Act and the National Security Act in a period of national emergency such as the coronavirus pandemic.
This is how the Mumbai police will justify their lathi-charge to disperse the alleged migrants who had gathered in thousands to return to their native states where they could work in the fields to fill their empty stomachs.
But the National Security Act is a draconian law where anybody can be jailed without an FIR being lodged. That too, on mere suspicion — without evidence or witnesses. Although they claimed to be migrants, none of those who had assembled had any luggage or even a simple bag with toiletries or a change of clothes, which is very suspicious.
Moreover, some of them had sticks which again leads to the assumption that they were assembled by Narendra Modibaiters who, perhaps, wanted to foment discord during this pandemic. There is no doubt that the right to life guaranteed by Article 21 forms a part of the basic structure of the Constitution. However, this guaranteed right stands circumscribed by overriding laws such as national security.
This is simply because all rights can only be exercised within the gamut of the state. And if security of the state is endangered, this would lead to abrogation of the very laws which guarantee us our fundamental rights. This is why those who assembled in thousands outside Bandra railway station on April 14 violated the law and section 144 of the CrPC which bans the assembly of five or more persons. Hence, the moot question which needs to be asked is whether they were migrants at all.
Or whether they were disgruntled persons organised by vested interests who were out to destabilise the Narendra Modi government in a time of crisis. There is no doubt that at least a segment of those who assembled outside the Bandra railway station on Tuesday were exteremly poor daily wage labourers who should have been covered by the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana scheme (ABPMJAY).
These labourers are eligible for free testing in the private laboratories, but will not know which laboratories to approach and how to go about it. The fact is that some private pathology laboratories still lack a humane touch during this pandemic which has caused the deaths of 350 people within India. Some of these pathology laboratories said they would not be able to test suspected COVID-19 cases free-of-cost as mandated by the Supreme Court with the assurance they would be reimbursed later by the Narendra Modi government.
The fact is these COVID-19 tests cost Rs 4500 per test, which the government hospitals do free-of-cost. But after a hue-and-cry by these private laboratories moaning they would be saddled with insurmountable costs, a division bench of the Supreme Court has modified its earlier order.
A bench of Justice Ashok Bhushan and S Ravindra Bhat modified their earlier order directing the government to consider free testing of suspect COVID-19 patients. This was done after the private laboratories approached the Supreme Court through senior counsel Mukul Rohatgi pleading they would be saddled with insurmountable expenses if they were forced to do free testing for the Covid-19 virus for everybody.
The plea of these private laboratories appears prima facie to be ironical in view of the fact that Mukul Rohatgi is one of the highest paid senior counsels in the Supreme Court, who charges several lakhs of rupees for a single appearance. It is unlikely that he would have appeared free-of-cost for these private laboratories.
Hence, the clarification issued by the twojudge bench of the Supreme Court stating that free testing was only for those who could not afford it, will adversely affect lakhs of middle class citizens who come in the 10 per cent and above tax bracket. The two-judge bench clarified that only those who were covered under the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana scheme (ABPMJAYS) of the Central government and other similar schemes as specified by them would be eligible for such freetesting. Solicitor General Tushar Mehta told the two judges that 107 million families or 500 million citizens would be covered under the ABPMJAYS.
The Supreme Court has directed the Modi government to formulate guidelines specifying who would be eligible for free testing. But that would be imposing an unreasonable burden on the government without any checks and balances in these dire times when the lockdown has affected the national economy and those of individual states.
The profit margins of all pathology laboratories and private hospitals run by charitable trusts such as Jaslok Hospital or the Bombay Hospital in Mumbai city will be adversely affected. Moreover, doctors in private practice will also be affected due to the lockdown. Hence, it would have been more appropriate if the Supreme Court had formulated broad guidelines itself and directed the government to consider fine-tuning these guidelines as per the needs and circumstances of the individual states.
Health care, like law and order, is primarily a state subject so that individual chief ministers will adapt these guidelines to their peculiar needs. So-called intellectuals and critics such as Kiran Mazumdar Shaw may find the apex court's order directing free testing by private laboratories unviable.
But the basic principle in a welfare state is the good of the majority overrides the economic hardships of private laboratories. Although the judges of the Constitutional courts are not technical experts in medicine and pharmacology, they have done their bit to alleviate human suffering during this pandemic.
The orders issued by the Supreme Court are not empty populist measures in the guise of judicial activism. Together with ordering the temporary release of convicts and undertrials who face less than seven years of imprisonment, the apex court has discharged its duty to the nation.
The writer holds a Ph.D in Media Law and is a journalist-cum-lawyer of the Bombay High Court.