Lessons from abroad

ON April 17, the High Court of Malawi suspended for seven days, pending judicial review, a 21-day lockdown planned by the government after the measure was challenged in the court (S vs President of Malawi and Others; Ex Parte: Kathumba and Others). On April 24, judge Kenyatta Nyirenda extended the lockdown suspension by another five days. The government had ordered a three-week national lockdown from April 19 to May 9 in response to the COVID-19 pandemic.

One of the applicants before the High Court, the Human Rights Defenders Coalition, noted that it sought the injunction because the government had failed to put in place measures “to cushion the poor during lockdown”.

On April 28, the High Court extended indefinitely the order barring the government from imposing a lockdown. The court decided to refer the case to the constitutional court because the issues raised by the petitioners required the interpretation of the Constitution. Judge Nyirenda ruled that until the constitutional court decided on the matter there should be no lockdown. The court responded to the plea that imposing a lockdown without allowing social security interventions for marginalised groups was not permissible. asymptomatic persons in areas affected by the outbreak. Yet another seeks issue of directions for repatriation of Indian women nurses and doctors, in the final stage of pregnancy, from Saudi Arabia. They had plans of returning to India in March and April but were unable to do so owing to cancellation of flights. A petition filed jointly by the National Alliance of Journalists, the Delhi Union of Journalists and the Brihanmumbai Union of Journalists, has challenged the action of several newspaper establishments that have laid off staff, reduced wages and sent employees on forced indefinite unpaid leave in the wake of the lockdown.

Pravasi Legal Cell, an NGO, has challenged the refusal of the airlines to refund the full amount collected for tickets following the cancellation of flights. Instead of providing full refund, the airlines are providing a credit shell, valid up to one year. This, the NGO contends, is against the norms approved by the Directorate General of Civil Aviation.

The Civil Aviation Requirement of May 2008 sets a limit of 30 working days for airlines to complete the refund process for tickets booked through travel agents and portals, the petition states. Besides, the office memorandum directing the airlines to provide full refund of amount paid to only those who booked tickets during the lockdown leaving out those who booked tickets before it has been challenged as discriminatory.

On March 24, the government of Nepal declared a lockdown, which was initially extended until April 27 and later up to May 7. On April 16, the Supreme Court of Nepal issued an interim order directing the government to take care of the health needs of Nepali migrant workers living abroad and seek the repatriation of vulnerable Nepali workers. A single bench of Justice Sapana Pradhan Malla issued the order in response to a writ petition filed by advocate Som Prasad Luitel and others against the office of the Prime Minister and Council of Ministers and others seeking relief for Nepali workers stranded in foreign countries.

The court asked the government to acquire through the Nepali embassies details of Nepali migrants suffering from COVID-19 in the respective countries and ensure that they got treatment as per World Health Organisation rules without any discrimination. The court ordered the government to bring back vulnerable Nepal migrants while ensuring that the larger population was not at risk of infection following the reckless return of migrants. The Supreme Court pointed out that the government could not ignore the plight of Nepali migrants whose contribution to the nation’s economy was significant.

Critics of the lockdown measures opine that the Malawi and Nepali courts’ orders put the Supreme Court of India to shame.

In Foundation for Media Professionals vs Union of India, the petitioner, a not-for-profit organisation, claimed that the lack of high-speed mobile Internet in Jammu and Kashmir was causing difficulties during the COVID-19 outbreak as patients, doctors and the public in general had no access to latest information, guidelines, advisories and restrictions relating to the pandemic. The Internet speed on mobile phones has been restricted to 2G, the slowest data download speed, in the Union Territory since March 26. Various public health practitioners, medical professionals and doctors have complained about the amount of time lost in downloading latest studies, protocols, manuals and advisories on treatment and management of COVID-19 in view of the 2G connection, the Foundation for Media Professionals told the Supreme Court.

The Jammu and Kashmir administration, however, said right to access the Internet was not a fundamental right and the degree of access for exercising free speech or for carrying on any trade or business could be curtailed. Protection of sovereignty and integrity of India and ensuring security of the country were sound grounds for reducing the Internet speed, the Union Territory’s administration said in an affidavit before the Supreme Court. The increase in Internet speed would lead to swift uploading and posting of provocative videos and other heavy data files, aimed at disturbing the peace in the

region, inciting violence and abetting terror activities, the affidavit added. It claimed that the reaction time of law enforcement agencies to such situations decreased as a result.

The court had held in January that access to information and the freedom of trade and commerce via the Internet were fundamental rights. It, therefore, directed the Centre and the Jammu and Kashmir administration to periodically review the orders restricting Internet services. It, however, kept open the question whether access to Internet itself was a fundamental right. It appears that the Centre is now using this grey area to deny the rights to the people, even if the result is weakening the country’s fight against the pandemic. It is not clear whether the court will settle this issue in favour of declaring access to Internet a fundamental right in order to defeat the government’s ruse to pit national security against health concerns.

FIRS AGAINST ARNAB GOSWAMI

On April 24, the bench of Justices D.Y. Chandrachud and M.R. Shah granted interim protection from arrest for three weeks to Republic Television editor-in-chief, Arnab Goswami. In multiple FIRS filed across several States, Youth Congress activists have accused Arnab Goswami of defaming, in the course of a debate on television, Congress president Sonia Gandhi by alleging that she maintained “deliberate silence” on the Palghar incident (Maharashtra) in which two Hindu monks were allegedly lynched. The bench stayed all FIRS except the one filed in Nagpur, and transferred it to Mumbai, as the cause of action in all the FIRS was the same. The FIRS invoked several provisions in the IPC against Goswami for offences such as criminal defamation and causing communal disharmony. Goswami, on the other hand, relied on his fundamental right as a journalist to use his freedom of expression to ask critical questions and sought the quashing of FIRS on this ground.

The bench perhaps did the right thing by protecting Goswami from any coercive steps following the FIRS filed against him so that he could seek legal remedies such as anticipatory bail. However, the question was whether it would have heard any other person in a similar situation in the midst of a pandemic, considering it as urgent. According to reports, Goswami’s petition was filed after 8 p.m. on April 23 and within an hour, the court’s website was updated with information that it would be heard at 10.30 a.m. the following day.

Supreme Court advocate Reepak Kansal, in a letter to the Chief Justice of India, accused the court registry of picking and choosing cases filed by a few influential law firms and lawyers for early listing. He questioned the registry’s decision to list Goswami’s petition on April 24, without disclosing the reasons for its early listing and expeditious hearing. Justice Madan B. Lokur, former judge of the Supreme Court, , in his interview to The Wire, questioned the early listing of Goswami’s petition when there was no likelihood of his immediate arrest.

PRASHANT BHUSHAN’S TWEETS

In Prashant Bhushan vs Jaydev Rajnikant Joshi, the Supreme Court intervened on May 1 to protect Prashant Bhushan from coercive action by the Gujarat Police in the FIR filed against him for his tweets on March 28. The bench of Justices Ashok Bhushan and Sanjiv Khanna issued notices to the complainant and the State government on Prashant Bhushan’s writ petition challenging the FIR filed against him at the police station at Bhaktinagar, Rajkot.

In his tweet, Prashant Bhushan had made critical comments about Union Minister Prakash Javadekar for posting a picture of himself watching the television serial “Ramayan” during the national lockdown saying: “As crores starve and walk hundreds of miles home due to the lockdown, our heartless Ministers celebrate consuming and feeding the opium of Ramayana and Mahabharata to the people!”.

Joshi complained that the tweet hurt his religious sentiments and sought action against Prashant Bhushan under Section 295A of the IPC (deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs). The FIR against Prashant Bhushan also invoked Section 505 (1)(b) of the IPC (intent to cause fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the state or public tranquillity).

The FIR alleged that Prashant Bhushan retweeted two tweets that were critical of the Centre’s decision to declare sports stadiums as jails for the purpose of housing migrant workers, and deduct one day’s salary of the doctors/staff of the All India Institute of Medical Sciences as a contribution to the Prime Minister’s fund. In his petition, Prashant Bhushan denied that his tweets/retweets hurt religious sentiments or could cause public mischief.

When the bench asked what was wrong if someone watched a TV programme, Prashant Bhushan’s counsel Dushyant Dave responded that the petition was not against the Minister watching “Ramayan”, but against the twist given to Prashant Bhushan’s tweets in the FIR, filed nearly a fortnight after the tweets were posted and circulated in social media. The belated filing of the FIR was nothing but an attempt to curb criticism of government policies/actions and was mala fide, vexatious, frivolous and an abuse of the process of law, Prashant Bhushan stated in his petition.

The prioritising of Goswami’s petition and the Gujarat government’s FIR against Prashant Bhushan for his tweets have raised genuine concerns. That the government and the court did not consider pandemic-related petitions filed on behalf of marginalised people as meriting urgent hearing and continuous monitoring was a matter of concern. How could the Centre and the apex court ignore the non-adversarial nature of PILS that could have provided an opportunity to nudge the executive to render justice to the voiceless. m