How Nepal's Supreme Court Upheld Dignity of Migrant Workers Without Diluting COVID Fight

The court's order reflected a novel understanding of equality jurisprudence and the disproportionate impact of the lockdown on migrant labourers.

The Merriam-Webster Collegiate Dictionary defines compassion as “sympathetic consciousness of others’ distress together with a desire to alleviate it”. To borrow a phrase from Justice V.R. Krishna Iyer, which he used in quite a different context, every litigation has a touch of human crisis and is somewhat a legal manifestation of the vicissitudes of life.

With courtrooms echoing with stories of hardship in these times of profound crisis, compassion for the marginalised seems to be a much-needed virtue. That Chief Justice of India S.A. Bobde found the demand for wages by migrant labourers odd when “they’re being provided meals” tells its own sorry story. Especially when seen against the backdrop of the interim order recently passed by the Supreme Court of Nepal on the rights of migrant workers.

Similar to India, heart-wrenching images of migrant workers and their families, including children, walking hundreds of miles from the capital city of Kathmandu to their native places had stoked the ire of people in Nepal. The government declared a lockdown all over the country on March 24, which was initially extended until April 27 and later to May 7.

Despite the continuous lockdown for extended periods in a country where the average annual per capita income is below $1,000, the Nepal government’s silence on the delivery of relief has been conspicuous. The government, led by the Communist Party, has ironically remained apathetic to the plight of migrant labourers.

Prime Minister K.P. Sharma Oli, in a statement delivered around the same time as the Nepal Supreme Court passed its order, had said that the movement of anyone outside Kathmandu should be absolutely restricted. His estrangement from reality was also apparent in his monologue during the meeting with state governments where he promoted washing hands with ‘hot’ water and putting on sunglasses to prevent infection through the eyes.

Also read: The Supreme Court Is Locked Down and Justice Is in ‘Emergency’ Care

His government had failed to fathom that the journey of hundreds of miles on an empty stomach faced by the wrath of irregular rain and heat was not a choice that came naturally but was out of helplessness in an absolutely dire circumstance. In response to the indifference shown by the government, a few lawyers and citizens approached the Supreme Court with a PIL. The interim order passed on April 17 by the bench of Justices Ananda Mohan Bhattarai and Sapana Pradhan Malla reflected a technical and comprehensive yet compassionate account of the rights of the migrant workers.

The court has firstly stated that COVID-19 is a crisis that has affected people across the country. However, the court acknowledges that certain sections of people – migrant labourers, who do not have a place to reside in Kathmandu, the disabled, children, elderly citizens, and women – are more affected than the rest. The conventional equality jurisprudence is highly formalistic and inquires if any group of people has been treated differently from the rest and if there is any basis in the law for doing so. Therefore, the discourse is essentially comparative.

However, the emerging understanding of equality jurisprudence looks at the impact of governmental action on people. At first glance, the lockdown order seems to apply neutrally to all people cutting across societal divisions. However, intuitively, the effect on livelihood and, consequently, the life of certain groups would be higher than the other. This novel understanding of equality jurisprudence is reflected in the court’s order where it emphatically deals with the impact of the lockdown on migrant labourers. The court, therefore, accepts the application pointing out the violation of Article 18 (Right to Equality) under the constitution of Nepal.

The court in its order deals with the right of migrant workers to return to their native place as a question of dignity. The implicit characterisation of migrant workers as a mass of people that are awaiting the mercy of that state to grant them a few packets of biscuits infringes on the core constitutional and innately human value of dignity.

The violation of dignity is also manifest in the arbitrary lathi-charge by the police on any person in violation of the lockdown without even attempting to inquire about the reasons. The recent assault on doctors, sick people, and persons out to get essential supplies sent ripples of horror amongst citizens. Furthermore, these excesses by the police force are being given impetus by the political leadership – deputy prime minister Ishwar Pokharel warned that the state would do whatever it takes to restrict people who are roaming on the street.

Also read: If Courts Only Favour the State, Justice Remains Unserved

Francis Fukuyama, professor of Political Science at Stanford University, points out in his recent book, Identity, that the start of the Arab Spring in December 2010 with the self-immolation of a Tunisian vendor, Muhamad Bouazizi, was essentially concerned with the question of dignity. When the Tunisian state arbitrarily confiscated his means of livelihood and the actors of the state humiliated him, he was stripped of his identity as a human: “a moral agent worthy of a minimum amount of respect”.

In this case, as well, the order of the state to impose a lockdown without any relief for daily wage workers, most of whom were migrant labourers, deals with the question of dignity at its core. Therefore, the court rightly ordered that if there was a way to facilitate the commute of the people so willing to return to their native places, then the state should do everything at its disposal. Implicit in the order is an admonition to the government to not shy away from its responsibilities and respect the constitutional guarantees.

The court, although compassionate and empathetic, does not lose sight of the dangers of its order being counter-productive and defeating the containment efforts led by the government. The court while directing the government to arrange for free travel service has ordered elaborate guidelines to be followed in arranging for travel.

Firstly, the court has directed the state to take all the required health precautions including rapid testing of people willing to commute and ensure their safe travel. In doing so, women, children, senior citizens, physically weak, and disabled have to be given priority for travelling among the rest. If any person(s) tests positive in the rapid testing, the order requires such people to be immediately quarantined and given required medical support.

Secondly, the court also requires the state to observe WHO guidelines on disinfection inside the bus during the travel. Thirdly, even after people reach their native places, the government is required to arrange for a quarantine facility to limit the risk of the spread of the virus. Notably, the court’s concern for human suffering is reflected in the consideration it accords to the less talked about impact on mental health during the crises. The court has directed the government to arrange for counselling sessions for anyone undergoing mental distress.

Also read: As Poor Indians Suffer Amidst Lockdown, Constitutional Morality Leaves the Country

Furthermore, apart from directing the state to engage with provincial and local governments to ensure supply of medical resources and relief, the court’s direction to explore possibilities to engage people who lost their jobs during the current crises and gradually induct them into the rural agro-economy through training and subsidy is noteworthy. Finally, the court notes another significant responsibility of the state: to ensure that returnees are treated in a dignified manner and are reintegrated into society without any discrimination due to suspicion of being a potential carrier of infection.

It may be noted that the court has given broad guidelines duly considering its duty as a defender of rights of citizens under the constitution while leaving the specifics of the fulfilment of the state obligation to the government. Therefore, although elaborate, it can largely fend off criticisms of judicial overreach while exercising its PIL jurisdiction.

The order of the Supreme Court of Nepal stands out for the sheer amount of concern it accords to the dignity and well-being of each individual and treatment of the individuals as ends in themselves. The court has taken human suffering seriously, has humanised the people walking miles to reach their homes, and has, therefore, come up with a compassionate yet emphatic account of human rights.

This is a strong message from the judiciary in Nepal at a time when politicians across South Asia have busied themselves with empty rhetoric and courts everywhere have largely been complicit in the hardship the lockdown has imposed on millions of vulnerable people.

Hardik Subedi is a final year law student at NALSAR University of Law, Hyderabad.