Subhas Chandra Pattanayak
Bellow is the relevant extract of the Order given by the Orissa High Court on 07.05.2020 in the matter of a petition seeking denial of entry to migrant workers, which otherwise may spread COVID-19 in the State of Orissa.
“An extra copy of the writ petition be served on learned Addl. Government Advocate appearing for the State.
“Put this matter on the next sitting of the Bench, on which date necessary interim order shall be passed.
“In the meantime, State Government should ensure that all the migrants who are in queue to come to Odisha should be tested negative of COVID-19 before boarding the conveyance”.
Honorable Justices S.Panda and K.R.Mohapatra were in the Bench.
This Order has pushed about 50 lakhs of Oriyas into critical stage of life and into utter uncertainty, and has seriously affected their inherent fundamental right, not given by the Constitution, but by the Nature. And, this Order is passed without hearing them or the State on their behalf.
From the Order it transpires that the State does not even know of this petition. On the other hand, no hearing date has been fixed to hear the petition even for an “interim order”.
It is shocking that, when lakhs of migrant workmen have already arrived at and in the Orissa border, the Court has wanted them to prove that before boarding their conveyances they were negative COVID-19. As the hearing is stopped sine die and the Court is silent on what shall happen to positive cases, it is certain that indefinite numbers of Oriyas shall be left to die in absence of proper care on the streets being debarred from home quarantine.
Natural Justice denied
Without hearing them or the State on their behalf, it is an order that blatantly violates the inviolable provisions of Natural Justice and sadly, innumerable migrant workers, mostly illiterate, are ignorant of this case, which is set to play havoc on their lives.
If the Order is not quashed judicially, the non-negative workmen shall stay abandoned to perish, as their work-place provinces have not been ordered to keep them under proper medical care till they are found negative.
Their employment obliterated under the pressure of lockdown and their hired residences gone out of their possession, where shall they stay if they are debarred from returning to their home? It means, the positive cases will be left to the elements under the High Court Order!
The issue is national
COVID-19 is not an issue only of Orissa. In the context of its worldwide spread, in India, it is a national issue. There is no national policy on migrant workmen vis-à-vis this virus. The Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979 is absolutely deficient to meet the situation. The Govt. of India should have amended it by way of Ordinance to create residential as well as job stability for the victims during the pandemic period of Corona and the likes.
The Court has not taken this vital aspect into consideration before writing this order, which put to an indefinite date is a definite final order in disguise for indefinite numbers of migrant workmen, who may die in abandoned condition before the next order of the Court.
National Policy
But the problem is not limited to migrant workers only. Non-workers like students,tourists etc were also to be kept in mind. Hence there was a necessity to build up a national policy to tackle the situation.
In such circumstances, the national Governments’s order No.40-3/2020-DM-I (A) Dated 29th April, 2020 is most relevant. It reads:
In continuation of Ministry of Home Affairs’s Orders No.40-3/2020-DM-I(A) dated 15th April, 2020, 16th April, 2020, 19th April 2020, 21st April 2020 and 24th April 2020 and in exercise of the powers, conferred under Section 10(2)(1) of the Disaster Management Act, the undersigned, in his capacity as Chairperson, National Executive Committee, hereby orders to include the following in the consolidated revised guidelines for strict implementation by Ministries /Departments of Government of India, State/Union Territory Governments and State /Union Territory Authorities: Sub-clause (iv) under Clause 17 on Movement of persons:
Due to lockdown, migrant workers, pilgrims, tourists, students and other persons are stranded at different places. They would be allowed to move as under:
a. All States/ UTs should designate nodal authorities and develop standard protocols for receiving and sending such stranded persons. The nodal authorities shall also register the stranded persons within their States/ UTs.
b. In case a group of stranded persons wish to move between one State/ UT and another State/ UT, the sending and receiving States may consult each other and mutually agree to the movement by road.
c. The moving person (s) would be screened and those found asymptomatic would be allowed to proceed.
d. Buses shall be used for transport of groups of persons. The buses will be sanitized and shall follow safe social distancing norms in seating.
e. The States/ UTs falling on the transit route will allow the passage of such persons to the receiving State/ UT.
f. On arrival at their destination, such person(s) would be assessed by the local health authorities, and kept in home quarantine, unless the assessment requires keeping the person(s) in institutional quarantine. They would be kept under watch with periodic health check-ups. For this purpose, such persons may be encouraged to use Aarogya Setu app through which their health status can be monitored and tracked.The guidelines of the Ministry of Health and Family Welfare (MoHFW) on Home Quarantine, dated 11.03.2020 may be referred to in this regard, which are available at
https://www.mohfw.gov.in/pdf/Guidelinesforhomequarantine.pdf.
In absence of specific provisions in the Act of 1979 referred to supra, this is the national policy to be adhered to by all concerned in this pandemic period and no Court should undo it without hearing the Govt. of India. In this case, the Govt. of India has not been heard.
Under condition ‘c’ all the homebound migrant workers were found “asymptomatic” before boarding their conveyances; as otherwise, they would not have been allowed to move. Condition a, b, d and e having been fulfilled, they reached and are expected to reach their home State Orissa. Then the only condition, i.e. condition ‘f ’is to apply. This condition gives them the right to stay in HOME QUARANTINE unless the assessment by local health authorities requires keeping “the person(s) in institutional quarantine”.
Right to stay in home
So, under this national policy, every Oriya migrant worker has the right to stay in his/her home under quarantine unless institutional quarantine is not warranted by the “local health authorities” of Orissa.
It is blatantly beyond comprehension to see the Orissa High Court dismantling this national policy in absence of any challenge to this.
Court didn’t consider
On the other hand, this national policy has given the home quarantine right not only to the migrant workers, but also to the pilgrims, tourists, students and other persons that are stranded at different places due to lockdown. But the High Court has ordered on the migrant workers only, as if all others except them are not supposed to carry the virus! Is it a colorable exercise of judicial power against the migrant workers?
Remedy in the Supreme Court
The only remedy may manifest in the Supreme Court if the challenge to this order of the High Court is seriously pursued.
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