Orissa court order on testing migrants highlights needless judicial intervention in Covid-19 crisis

On Thursday, the Orissa High Court, in a brief but significant order, directed the Odisha state government to ensure that “all the migrants in queue to come to Odisha should be tested negative of Covid-19 before boarding the conveyance.” On Friday, the Supreme Court stayed this order, holding that the High Court did not take into account relevant guidelines notified by the government of India. The high court order raises critical questions on the role of judiciary in fighting the unprecedented crisis.

What the order said

A couple of things to note about the order. The court did not spell out any specific reasons that form the basis of the order. The order did not fix any responsibility on who has to test the migrants. It did not direct the Odisha government to test the migrants once they enter the state. It simply directed the government not to let a person board any conveyance to Odisha unless they have tested negative.

It is obvious that the court could not have imposed an obligation to test on the host states. It is also obvious that it is beyond the direct control of the Odisha government to ensure that all migrants from the state are tested in the host states where they are currently stuck. Thus, the order of the court created a requirement of being tested for the migrants without identifying the authority who would be required to test. Most importantly, the order effectively prevented the migrants from starting their journey home unless they test negative.

Constitutional right of movement

Every citizen of this country has a right to move freely throughout the territory of India and to reside in any part of it. These rights can be reasonably restricted only on two grounds: in the interest of the general public or for the protection of the interests of any Scheduled Tribe. Of all the rights guaranteed by Article 19 of the Constitution, the list of grounds for restrictions are most limited for the rights of movement and residence. For all other rights, the list of grounds for restrictions is more expansive.

These restrictions are supposed to be imposed through a law by the state. The term “law” in this context also includes executive orders. It is for the judiciary to review if the restrictions so imposed are constitutionally permissible. It is not for the judiciary to prescribe the restrictions itself.

Courts being asked to intervene

Across the country, courts have been called upon to adjudicate upon critical aspects of the government’s response to the coronavirus-19 crisis. A petition has been filed in the Karnataka High Court challenging the decision of the state government to cancel all trains meant to facilitate the transport of migrant workers stuck in Karnataka. Delhi High Court is hearing matters regarding inadequate facilities in quarantine centres and for closure of liquor shops. In April, the Supreme Court directed the testing for Covid-19 to be free for everybody and subsequently amended its order to say that it should be free only for the poor.

While courts have an important role to play in ensuring that the rights of citizens are protected, it is essential that they should avoid adjudicating on policy issues. For example, the initial order of the Supreme Court mandating free testing for everybody was an unnecessary intervention in a domain which the judiciary is ill equipped to navigate and there was a fear it would compromise testing capacity in India.

Testing strategy is a matter of policy

Who to test and when to test is a public health issue dependent on testing capacity and the associated health infrastructure. Thus, formulation of policy in this respect is best done by public healthcare experts and by the appropriate government departments. For example, in the initial days of the outbreak, nobody in India could get tested without an international travel history whereas the Indian Council for Medical Research guidelines in April allowed for all cases of Severe Acute Respiratory Illness to be tested. These policies are being formulated and revised in highly dynamic environment which is constantly evolving.

Even within India, the testing strategy varies across states. While Bihar seems to prefer a random sampling of asymptomatic migrant workers, West Bengal is focused on migrant workers returning from high-risk regions like Maharashtra, Gujarat and Delhi. Assam is prioritising testing of migrants coming from red zones. None of these states have prescribed a negative test as a precondition to start their journey home. The strategy seems to be to manage testing and quarantine once the migrants have returned home.

Only healthy migrants are welcome

The order of the Orissa High Court imposed a testing requirement not upon return but as a condition for return. It did not direct the government to test every returning migrant once they reach Odisha, although the propriety of even such an order would also be questionable. It took a step further and allowed only healthy migrants to board conveyance. There are several issues that escaped the court’s notice. Will the host states divert their testing capacity to lakhs of migrant workers? Will be migrants be expected to pool resources to get tested on their own? Will Odisha transfer its testing kits to Surat, Mumbai and Kolkata?

One also needs to wonder about the ones who will test positive. They will be stuck without livelihood in a state which might not want them and prohibited from returning home.

It is interesting to juxtapose the order of the court with the statements made by Subrato Bagchi, the chief spokesperson of the Odisha government’s Covid-19 Taskforce. In a televised interview, he stated that the government is looking at the situation regarding migrant workers as one of “children returning to their motherland”. The order of the court only allowed for the healthy children to board the bus home.

Rangin is a faculty at National Law University Odisha and has recently completed his Fulbright Post-Doctoral Fellowship from Harvard Law School.