Case BriefsSupreme Court

Supreme Court: The bench of Justice Hemant Gupta* and AS Bopanna, JJ has held that Kashmiri migrants, who were once Government employees, cannot retain Government accommodation for indefinite period on the ground that “they would return to the Valley when the situation will improve”.

The Court was deciding the case of where some Kashmiri migrants had occupied Government accommodation in Delhi and in National Capital Region on the strength of an order passed by the Delhi High Court in a judgment reported as Union of India v. Vijay Mam, 2012 SCC OnLine Del 3218, pursuant to which a rehabilitation scheme was framed by the Central Government on 28.3.2017 as modified on 19.5.2017.

The Court, however, noticed that since the Office Memorandum issued on 28.3.2017 was in terms of the order of the High Court of Delhi, which has not been approved by the Supreme Court vide order dated 5.8.2021, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down.

It was held that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants did not meet the touchstone of Article 14 of the Constitution of India.

“The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period.”

Noticing that the compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively, bench said that the applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse.

“To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory.”

The Court went on to explain that in Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Hence, it would be reasonable if

  • Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period.
  • If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation.

“Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government  accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country.”

The Court further held that the three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period.

[Omkar Nath Dhar v. Union of India, MISCELLANEOUS APPLICATION NO. 1468 OF 2021, decided on 07.10.2021]

____________________________________________________________________

Counsels:

For applicants: Senior Advocate Bimal Roy Jad

For UOI: Madhavi Divan, Additional Solicitor General


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

COVID 19Hot Off The PressNews

Death of a Migrant worker due to hunger

The National Human Rights Commission, NHRC, India has issued a notice to the Chief Secretary, Government of Uttar Pradesh after taking suo motu cognizance of a media report that 19-year-old migrant worker Vipin Kumar, died in Saharanpur due to hunger after walking six days covering 350 kilometres from Ludhiana. He was headed for his home in Hardoi, Uttar Pradesh.

The report sought from the State Government in four weeks is expected to provide details about the present status of the migrant labourers of Uttar Pradesh stuck in different states, who are willing to come back to their native places in and the steps being taken to ensure their smooth journey back home.

Describing Vipin’s death as a serious issue of human rights violation, the Commission has observed that it is not the first time that it has come across such an incident relating to painful conditions of the migrant labourers, their illness, delivery of babies on roads and their deaths during their journey back home in the wake of Corona lockdown.

It further observed that there are media reports that the Government of Uttar Pradesh has directed to provide shaded shelter, food and drinking water to the migrant labourers at toll plazas on national highways and in the buses they will travel. However, it seems that the announcements made by government agencies are not being implemented on the ground due to which the migrant labourers are still suffering.

According to the media report, Vipin Kumar used to work at a shop in Ludhiana. He had embarked on a long journey to his home in Sursa, Hardoi on foot on 12th May, 2020. But walking continuously for six days without food and covering over 350 kilometres, he fell on the road near Saharanpur. An ambulance spotted him lying on the road and shifted him to a district hospital. But he could not be saved. Doctors said he died of hunger.

Reportedly, the victim, Vipin had informed his family on 12th May, 2020 that he was returning home. His father, as mentioned in the news report, stated that Vipin had no other option but to walk down home as the government transport, for which he was waiting for long, was not practically available for journey.

It is further mentioned in the media report that the family had received a phone call from the hospital from Saharanpur about the ill condition of Vipin and the next day, they received a phone call from the Meerut Hospital that he had died due to hunger. The villagers have reportedly collected the money for the family so that they could bring body of the deceased to his home.


National Human Rights Commission

[Press Release dt. 27-05-2020]

COVID 19Hot Off The PressNews

Indian Railways has been running Shramik special Trains on a daily basis throughout the country to ensure that migrants can travel back to their homes.

It has been observed that some people who are availing this service have pre-existing medical conditions which aggravates the risk they face during the COVID-19 pandemic. A few unfortunate cases of deaths related to pre-existing medical conditions while travelling have happened.

?In order to protect the vulnerable persons from COVID-19, in line with Ministry of Home Affairs, Order No 40-3/2020-DM-I(A) dated 17.05.2020, Ministry of Railways makes an appeal that persons with co-morbidities (for example – hypertension, diabetes, cardio-vascular diseases, cancer, immune deficiency conditions), pregnant women, children below the age of 10 years and persons above 65 years of age may avoid travel by rail, except when it is essential.

?Indian Railway parivaar is working 24X7 to ensure that rail services are provided to all the citizens of the country needing to travel. But safety of our passengers is our biggest concern. So, we seek the cooperation of all citizens in this matter. In case of any distress or emergency please do not hesitate to reach out to your railway parivaar and we will help you as always (Helpline number – 139 & 138)


Ministry of Railways 

[Press Release dt. 29-05-2020]

COVID 19Hot Off The PressNewsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission has taken suo motu cognizance media reports that the trains which are ferrying the migrant labourers are not only starting late but are taking many additional days to reach destination.

In one of the reports, it is alleged that many migrant labourers lost life during their journey by train due to longer duration and no arrangements for drinking water and food etc.

Reportedly, 2 persons died in Muzaffarpur and one each in Danapur, Sasaram, Gaya, Begusarai and Jehanabad in Bihar including a 4 year old boy. All of them have reportedly died due to hunger. In another incident, a train reportedly started from Surat district in Gujarat for Siwan in Bihar on 16.05.2020 and reached Bihar on 25.05.2020 i.e. after 9 days.

The Commission has observed that the contents of the media reports, if true, amount to gross violations of human rights. The aggrieved families have suffered irrevocable loss. The state has failed to protect the lives of the poor labourers on board the trains.

Accordingly, it has issued notices to the Chief Secretaries of Gujarat and Bihar, Chairman, Railway Board and Union Home Secretary calling for a detailed report in the matter. The Chief Secretaries of the Government of Gujarat and Bihar are expected to specifically inform as to what steps were taken to ensure basic facilities including medical facilities for the migrant labourers who boarded the trains. The response from all the authorities is expected within 4 weeks, positively.

Issuing the notices, the Commission has observed that the Rail network in India is the largest in the world and well equipped with the modern technology, trained staff and other infrastructure. A train getting late due to bad weather etc. for some hours is always considered beyond control of the authorities but trains getting lost during journey, reaching unexpected destinations and taking more than a week to reach its scheduled station is hard to believe and require a thorough investigation into the matter.

It further observed that the poor labourers, who have already suffered a lot in a distant places and are desperate to reach their homes to meet family members. It is a matter of concern for it as they are being subjected to such a treatment by the Railway authorities, which borders around barbarism. The poor labourers cannot be treated in such an inhuman manner just because they are poor and the government has paid for their tickets. Any shortcoming on the part of the government agencies cannot be covered under excuse of unprecedented situation amid countrywide lockdown.

The Commission noted that a large number of people have fallen prey to Covid-19 virus in India and hundreds have lost life so far. The situation is unprecedented leaving the government agencies, scientists and the public at large totally clueless.

Nevertheless, it noted that the complaints are being received from different parts of the country regarding unnecessary harassment of people by the public authorities. It has emerged from the entire scenario that the people belonging to vulnerable classes have suffered the most. Daily wages workers, small shop owners, rickshaw pullers, cab operators and poor labourers have become the worst victims in the recent days. As the lockdown was announced, it was stated by the central government that wherever a person is staying he/she should stay there only so that the social distancing could be maintained and the spread of the virus could be contained up to maximum.

The Commission observed that it is evident that, due to whatsoever reasons, the migrant labourers started feeling uncomfortable and started protesting to reach their native places. It was mandatory on the part of the host state to take care of them and to provide them basic amenities but the things gradually went out of control and the labourers, in large numbers, started moving on their own by different modes of transport and thousands of them chose to walk on foot. Many labourers lost life during their journey on foot and suffered badly. After reviewing the situation, the central government announced that special trains will start from different parts of the country to take the migrant labourers to their native places.

The trains have started operating and the ticket charges are being borne by the central and the state governments but the sufferings of the poor labourers are not seemingly coming to an end. There have been several media reports stating that in many cases, the labourers are being called to board the train. They are brought to the railway stations in buses without maintaining social distancing. They are put to wait for hours without any arrangements of drinking water, food, shaded shelter and toilets for them. The female labourers, old aged persons, ill persons, small children and specially abled persons are reportedly suffering a lot. Many times the poor labourers have been told to go back as the trains got cancelled.


National Human Rights Commission

[Press Release dt. 28-05-2020]

Case BriefsHigh Courts

Karnataka High Court: The Division Bench of Abhay Sreenivas Oka, CJ, and B.V. Nagrathna, J., took the Government of Karnataka to task for not having a clear stand on the issue of paying the train fares of the migrants who wish return to their State of Origin.   

Before focussing on the migrant’s issues, the Court took notice of the ‘shocking’ response by the State Government in dealing with the issue of marriage in the house of a prominent politician on 17-04-2020. The Bench observed that how the administration went out of their way to ensure that the marriage is organised; and that there is no clarity on whether the Lockdown Guidelines issued by the Central Government in the month of April were followed properly or not. Refusing to waste it’s time on the issue, the Court then sought to address the, issues of migrant workers who are stranded on the streets.  The Court observed that from 17-05-2020, various ‘shramik trains’ have been allowed to transport 70,000 migrants from the State of Karnataka to their home States. It was noted that the Government of Karnataka is bearing the travel expenses of the migrants working in other States who originally belong to the State of Karnataka. However, the stand taken vis-a-vis the migrants in the State who want to go back to their States of origin is that, unless the corresponding States to which the migrants wish to travel, agree to bear the train fare, the migrant will have to pay the train fare. It was argued that Government’s differentiation of migrants on basis of their State of Origin is violative of Articles 14, 15 and 19 (1) (d) of the Constitution. The Additional Advocate General appearing for the State Government submitted that the Supreme Court has already dealt with the issue.   

Upon perusal of the facts and arguments, the Bench observed that the Central Government’s stand on the issue that “in case of migrant workers from other States which have not agreed to pay the train fare of the migrant workers, the State Government will have to pay the fare to the Railways and thereafter, take up the matter with the corresponding States for reimbursement of the amounts”.

Thus the Court directed the State Government to clarify whether it wants to stray from the stand taken by the Centre; or they really want to take a stand along the line that, a migrant worker who has no income and is not in a position to pay Railway fare will not be allowed to travel by special trains to his home State. [ Mohd. Arif Jameel v. Union of India, 2020 SCC OnLine Kar 538 , decided on 18-05-2020]

Cabinet DecisionsCOVID 19Legislation Updates

Union Cabinet has given its ex-post facto approval for allocation of food grains from Central Pool to approximately 8 crore migrants / stranded migrants @ 5 kg per person per month (May and June, 2020) for two months free of cost. 

It would entail an estimated food subsidy of about Rs.2,982.27 crore.  Further the expenditure towards intra-state transportation and handling charges and dealer’s margin / additional dealer margin will account for about 127.25 crore which will borne fully by Central Government.  Accordingly, the total subsidy from the Government of India is estimated at about of Rs 3,109.52 crore.

The allocation will ease the hardships faced by migrant / stranded migrants due to economic disruption caused by COVID-19.


Cabinet

[Press Release dt. 20-05-2020]

[Source: PIB]

Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Siddharth Varma, J., while addressing the present Public Interest Litigation stated that,

“We have no doubts that the State of Uttar Pradesh is leaving no stone unturned in extending medical relief to all.”

It was stated in the application filed by Standing Counsel Gaurav Kumar Gaur that Sri V.K. Singh died owing to the negligence of medical staff he added that no attention was being paid to the complaints of his wife who is also at present being treated along with other family members.

Bench stated that on perusal of the photographs of ward and hospitals where COVID-19 Patients are being treated it is not difficult to conclude that state of affairs is not very good.

Court asked the State to provide information with regard to the following:

  • What is the reason that despite various orders and directions of the State Government to keep the Covid-19 virus hospitals clean and sanitized, they are neither cleaned nor sanitized?
  • Why state of the art medical facilities are not being made available in the T.B. Supru Hospital, the Colvin Hospital and in the 105 other Samudayik Chikitsalayas at Prayagraj.
  • When the State has to, in the present times, cater to all the Non-COVID-19 patients also, as the private hospitals have been virtually non-functional then the State hospitals should have all the other required facilities, namely, the various machines, test facilities and the Doctors. The instructions reveal that apart from S.R.N. Hospital the other hospitals do not have ICCU.

Further the Bench added that to minimize the contagion State is also requested the following suggestions may also be incorporated in the its guidelines:

  • Authorities in the State of Uttar Pradesh may form a composite list of such persons who might be entering in the State of Uttar Pradesh after the lockdown was imposed – be they migrant labourers or anyone.
  • A responsible officer be appointed over every 400 such persons who might have come into the State of Uttar Pradesh after the lockdown was imposed.
  • All such officers shall:

-enquire about their well being

-Officers shall on daily basis enquire about the health of such persons.

-Make proper arrangement of food, in case the same is not available to them.

  • If by any chance anyone entering though the various Highways on personal vehicles has not been located and his/her name was not in the list and information is provided that such person/ or persons has or have entered in State of U.P. then the name of that person shall also be incorporated in the list of migrants.
  • If any unknown person is seen residing in neighbourhood then the State authorities shall be informed.
  • 15 days of quarantine for migrants.

Court states that whatever work is being done by State of Uttar Pradesh shall be done in a more organised manner.

To check whether a list has been prepared and whether a responsible officer has been made responsible for every four hundred migrants detailed instructions may be produced on the next date.

Matter listed on 18-05-2020. [Inhuman Condition at Quarantine Centres and for Providing Better Treatment to Corona Positive , In Re. v. State of U.P., 2020 SCC OnLine All 590 , decided on 14-05-2020]

COVID 19Legislation UpdatesNotifications

Cabinet secretary and MHA are in constant touch with State Chief Secretaries and DGPs. Video Conferences were held by Cabinet Secretary & Home Secretary yesterday evening and today morning with Chief Secretaries & DGPs.

It was noted that, by and large, there has been effective Implementation of guidelines across all states and UTs. Essential supplies have also been maintained. Situation is being monitored round the clock and necessary measures are being taken as required.

However, there has been movement of migrant workers in some parts of the country. Directions were issued that district and state borders should be effectively sealed. States were directed to ensure there is no movement of people across cities or on highways. Only movement of goods should be allowed. DMs and SPs should be made personally responsible for implementation of these directions which have been issued under the DM Act.

It has been advised that adequate arrangements for food and shelter of poor and needy people including migrant labourers be made at the place of their work. Centre had yesterday issued orders for use of SDRF funds for this purpose. Sufficient funds are available with States in this head.

States have been also told to ensure timely payment of wages to labourers at their place of work during the period of lockdown without any cut. House Rent should not be demanded from the labourers for this period. Action should be taken against those who are asking labourers or students to vacate the premises.

Those who have violated the lockdown and traveled during the period of lockdown will be subject to minimum 14 days of quarantine in government quarantine facilities. Detailed instructions on monitoring of such persons during quarantine have been issued to States.

It was impressed upon all the States that three weeks of strict enforcement is essential to contain spread of corona virus. This is in the interest of everyone.


Ministry of Information and Broadcasting

[Press Release dt. 29-03-2020]

[Source: PIB]

Hot Off The PressNews

United Nations Human Rights Commissioner in a press briefing has put forward its concern stating that the Citizenship (Amendment) Act, 2019 is fundamentally discriminatory in nature.

Following statement was issued:

The amended legislation seeks to expedite citizenship for religious minorities – naming specifically only Hindus, Sikhs, Buddhists, Jains, Parsis and Christians – fleeing persecution in Afghanistan, Bangladesh and Pakistan, who have been resident before 2014. But it does not extend the same protection to Muslims, including minority sects.

The amended law would appear to undermine the commitment to equality before the law enshrined in India’s constitution and India’s obligations under the International Covenant on Civil and Political Rights and the Convention for the Elimination of Racial Discrimination, to which Indian is a State party, which prohibit discrimination based on racial, ethnic or religious grounds.  Although India’s broader naturalization laws remain in place, these amendments will have a discriminatory effect on people’s access to nationality.

All migrants, regardless of their migration status, are entitled to respect, protection and fulfillment of their human rights. Just 12 months ago India endorsed the Global Compact for Safe, Regular and Orderly Migration, which commits States to respond to the needs of migrants in situations of vulnerability, avoiding arbitrary detention and collective expulsions and ensuring that all migration governance measures are human rights-based.

While the goal of protecting persecuted groups is welcome, this should be done through a robust national asylum system that is premised on the principle of equality and non-discrimination, and which applies to all people in need of protection from persecution and other human rights violations, with no distinction as to race, religion, national origin or other prohibited grounds.

We understand the new law will be reviewed by the Supreme Court of India and hope it will consider carefully the compatibility of the law with India’s international human rights obligations. 

In the meantime, we are concerned at reports that two people have died and many including police officers have been injured in the Indian states of Assam and Tripura as people protest against the Act. We call on the authorities to respect the right to peaceful assembly and to abide by international norms and standards on the use of force when responding to protests. All sides should refrain from resorting to violence.


United Nations

[Press Briefing dt. 13-12-2019]