It was after 37 days of the lockdown that the Central Government allowed the inter-state movement of migrant workers and other persons who got stranded at different places due to the restrictions imposed in the wake of COVID-19 pandemic.
This permission followed several heart-rending reports of migrant workers, who were left without work in cities, walking over hundreds of kilometers under scorching sun with desperation to reach their native places somehow. As per reports, at least 22 migrant workers have died while attempting the arduous task of walking back home.
After the Ministry of Home Affairs issued order on April 29 to permit movement of stranded persons, special trains were run to transport several migrant workers from states.
However, this relief seemed short lived, as a clarification issued by the Home Secretary three days later virtually took out migrant workers from the ambit of April 29 order.
In what could be the most confusing clarification one would ever come across, the letter issued by Home Secretary to Chief Secretaries of all States/UTs stated that the permission for inter-state movement was meant to facilitate for stranded persons, "who had moved from their native places/workplaces, just before lockdown period, but could not return to their native places/workplaces on account of restrictions placed on movement of persons and vehicles as part of lockdown measures".
"The facilitation envisaged in the aforesaid orders is meant for such distressed persons, but does not extend to those categories of persons, who are otherwise residing normally at places, other than the native places for work etc, and who wish to visit their native places in normal course", the letter of Home Secretary added(emphasis supplied).
Curiously, by the time this letter was issued on May 3, several train services had been run to transport persons, whom one would intuitively classify as migrant workers.
While many were finding it hard to decipher the meaning of this cryptic clarification, a strange thing happened in Karnataka. Three Bihar-bound trains scheduled on May 6 for migrant workers were cancelled, reportedly after builders met B S Yediyurappa, Chief Minister of Karnataka.(Ironically, the special trains were named "Shramik Trains", meaning trains for labourers).
After this move came under severe criticism, Tejasvi Surya, MP from Bangalore South, cited the May 3 clarification as a a post-facto justification for the cancellation of trains.
The migrant workers are not "stranded persons" as per the MHA clarification, it was stated. Referring to MHA clarification, the MP said "Only those persons who the State recognizes as "stranded" will be permitted to leave the State...".
The decision to cancel the trains left many workers in Bengaluru angry, reported 'The Hindu'.
In this backdrop, this article examines the legal character of the 'clarification' and its validity.
Ambiguities abound in clarification
It is pertinent to note that the April 29 order used the term "migrant workers" without any qualification.
"Due to lockdown, migrant workers, pilgrims, tourists, students, and other persons are stranded at different places. They would be allowed to move as under:..", these were the wordings of the order.
Ministry of Home Affairs issues order permitting inter-state movement of migrant workers, students, pilgrims, tourists etc, who are found to be asymptomatic of COVID-19.Guidelines in that regard issued@HMOIndia #Lockdown#COVID19 pic.twitter.com/N1WPSU9oud— Live Law (@LiveLawIndia) April 29, 2020
Ministry of Home Affairs issues order permitting inter-state movement of migrant workers, students, pilgrims, tourists etc, who are found to be asymptomatic of COVID-19.Guidelines in that regard issued@HMOIndia #Lockdown#COVID19 pic.twitter.com/N1WPSU9oud
The only qualification one can deduce from the order is the term "stranded".
Going by the ordinary meaning of "stranded", it could mean "unable to leave somewhere because of a problem such as not having any transport or money".
Therefore, work-less migrant workers forced to remain in their workplaces due to lockdown would be "stranded" in the ordinary sense of the word.
In fact, many states understood (rightly) the order in this sense, and allowed the return of several migrant workers to their native places. The Railways claimed that it ran 115 special trains ferrying over one lakh migrants since May 1.
Now, let us see the May 3 clarification :
MHA clarifies that the order permitting inter state movement not meant for persons who are otherwise residing normally at places other than native places for work and who wish to visit native places in normal course. #LOCKDOWN2020 @hmo pic.twitter.com/h3zA6mo63c— Live Law (@LiveLawIndia) May 3, 2020
MHA clarifies that the order permitting inter state movement not meant for persons who are otherwise residing normally at places other than native places for work and who wish to visit native places in normal course. #LOCKDOWN2020 @hmo pic.twitter.com/h3zA6mo63c
It is not clear if the first limb of the second paragraph in the letter is referring to those migrant workers who got stranded in a place while being in transit to their native place/workplace? If that was the case, the letter could have simply and directly stated that.
And, what is "just before lockdown"? Is it any couple of hours or days?
As regards the second limb, the key words are "otherwise normally residing at places" and "normal course".
Being forced to remain in a place without work and money because of lack of transport options - would this count as "otherwise normally residing"?.
The desperation to reach one's own home under such trying circumstances created by a pandemic - would this be "wish to visit native places in normal course"?
Thus, this so-called 'clarification' is creating confusions with its loose, ambiguous drafting. More dangerously, it is giving a lot of room for subjective abuse by authorities (recall the statement that State will decide who is 'stranded').
'Clarification' or 'Amendment'?
Before discussing the source of power of the Home Secretary, it is important to note the legal character of the 'clarification'.
As per principles of statutory interpretation, a legislative amendment will not be regarded as 'clarificatory' if its effect is to take away the vested rights of persons.(See Commissioner of Income Tax vs Vatika Ownership Pvt Ltd, (2015) 1 SCC 1).
Since the April 29 order is a statutory order under the Disaster Management Act 2005, the rules of statutory interpretation can be imported here.
It does not require much thinking to see that the effect of May 3 order is to exclude a major class of migrant workers from the benefit of April 29 order, as shown by the Karnataka example.
Therefore, it is impossible to characterize the May 3 letter as "clarificatory". A clarification is issued for removal of doubts.There were no doubts with respect to the April 29 order, as evidenced by its smooth execution by various states for three days. In fact, it is is this 'clarification' which is adding doubts to the April 29 order.
Hence, the May 3 letter of the Home Secretary is not a mere 'clarification' but a 'colourable amendment' to the April 29 order.
Source of power
Now coming to the most important question regarding the source of power of the Home Secretary to issue the so-called 'clarification'.
The April 29 order is issued by the Home Secretary in the capacity as Chairperson of National Executive Committee under the Disaster Management Act. The order is issued invoking the powers under Section 10(2)(l) of the Act.
On the other hand, the May 3 clarification is a mere letter issued by the Home Secretary, in his capacity as Home Secretary, to Chief Secretaries of States/UTs.
Can a statutory order be subjected to a 'colourable amendment' through a clarificatory letter? The answer is NO.
Before one brushes off this as a hyper-technical argument, the following aspects may be noted.
When the Home Secretary issues an order in the capacity as the Chairperson of National Executive Committee under the Disaster Management Act, it is presumed that a meeting of all members of the National Executive has taken place in accordance with the Act and the Rules. So, the Home Secretary is not voicing his personal view through the order, but the collective wisdom of the National Executive.
The May 3 letter does not seem to be preceded by any such meeting of the National Executive. The Home Secretary cannot substitute the collective wisdom of the National Executive with his personal opinion.
The clarification has been issued obfuscating substantive questions such as : Who decided on the clarification? Did any authorities seek such a clarification? What was the need for such a clarification when the original order was being smoothly implemented at ground level without issues?
This episode also shows that procedural compliance is not a matter of technicality; because failure to follow prescribed procedure while exercising statutory powers can translate into infringement of fundamental rights of citizens.
People taking to the roads outside Bengaluru to walk back to UP! That's what they have been reduced to. Video shot by @krishnabgowda . Horrific. pic.twitter.com/Dt2ybS3rUK— Nistula Hebbar (@nistula) May 6, 2020
People taking to the roads outside Bengaluru to walk back to UP! That's what they have been reduced to. Video shot by @krishnabgowda . Horrific. pic.twitter.com/Dt2ybS3rUK