The current phase of the lockdown is slated to end on May 3. But we do not know if there will be more lockdowns in future. (Express photo: Prashant Nadkar)
Written by A K Patnaik and Abhinash Borah
Global experience shows that the restrictions imposed on people in the light of the COVID-19 outbreak has not had the same effect on all. There is overwhelming evidence from all parts of India that the lockdown has caused economic and physical distress to migrant labourers, daily wage workers and farmers. The current phase of the lockdown is slated to end on May 3. But we do not know if there will be more lockdowns in future.
A restrictive action, taken in national interest, often ends up hurting those sections of society who, in any case, struggle for basic resources for survival. Can any section of the society be made to bear an unequal and unbearable burden of what maybe considered as necessary state action?
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The Preamble of the Constitution makes “Economic Justice” one of the founding goals of our polity. Article 21 recognises that every person has a Fundamental Right to Life. The Supreme Court has reiterated several times that this right includes the “Right to livelihood” — to earn the basic necessities of life. Article 19 (1) (g) guarantees to every citizen the fundamental freedom to carry on any profession, occupation, trade or business, subject to reasonable restrictions. Article 14, which guarantees the Fundamental Right to Equality, not only protects every person against arbitrary action of the State, it also permits the State to treat weaker sections of the society as a separate class and address their concerns directly to ensure economic justice.
Article 38 — in Part IV on Directive Principles of State Policy “which contain the principles fundamental in the governance of the country” (Article 37) — states that “the State shall strive to promote welfare of the people by securing effectively, as it may, a social order in which economic justice shall inform all institutions of the national life”. Most importantly, Article 39 states that “the State shall, in particular, direct its policy towards securing that the citizens have the right to an adequate means of livelihood”. Over several decades now, the Supreme Court has repeatedly held that Directive Principles of State Policy give meaning and substance to the Fundamental Rights. The reasonableness of the restrictions imposed by the State on the freedoms under Article 19 (2) to Article 19 (6) of the Constitution will also have to be judged while keeping the Directive Principles of State Policy in mind.
Restrictions that are being imposed by the State, even if they are presumed to be necessary in the present circumstances, have deprived the right of people to their livelihoods, and therefore their Right to Life. Such restrictions would become unreasonable, arbitrary and unconscionable, if immediate steps are not taken to compensate the people worst affected by these restrictions so as to enable them to afford the basic necessities of life. Whenever it appears that Fundamental Rights are in danger of being infringed, the constitutional courts have the duty to act firmly under Articles 32 and 226 of the Constitution.
A report prepared by a group of economists at the Ashoka University in the Ideas for Idea (I4I) forum has tried to assess the adverse impact of the lockdown restrictions on the vulnerable sections and have come up with several policy suggestions to ameliorate their suffering by making in-kind and cash transfers. As far as in-kind transfers are concerned, the existing Public Distribution System (PDS) and the chain of fair price shops in the country need to be leveraged to provide food grains and other necessities in as universal a manner as possible. The PDS has to work with the vision of providing comprehensive nutrition to the population by providing pulses, millets and oils — not rice and wheat alone. Boosting the population’s nutritional levels and immunity is, after all, critical in the long-drawn fight against COVID-19.
As regards the need for cash in hand, it is instructive to look at the data for the two fortnights from February 29 to March 27 released by the Reserve Bank of India on the currency held by the public. In the days leading up to the lockdown (including the first four days of it), the public withdrew a whopping Rs 84,460 crores in cash. This amount is about the double of what is typically withdrawn — sometimes, in fact, they withdraw much less— for any two consecutive fortnights in the recent past. When faced with overbearing economic uncertainty, those of us who have the wherewithal seek security in the liquidity and flexibility that cash provides. This behaviour of the well-off should reveal to policymakers the nature of human needs and insecurities that need to be addressed by a comprehensive relief package for the vulnerable groups. Hence, a relief package needs to encompass both in-kind and cash transfers, working as complements.
However, it is vital that the cash transfer is reasonable and not merely a token one. While different computations can be made, the Ashoka report, based on lost earning calculations, recommends for a household of four a monthly transfer of an amount of Rs 5,400 in urban India and Rs. 4,200 in rural India. Not only should we leverage the infrastructure of the existing programmes for such cash transfers — PDS, MNREGA, Jan Dhan, PM Kisan, etc — we must also innovatively reach out to large group of migrant workers who may not be covered under these programmes. Some academics have pointed out about the success of Odisha in using a cash-in-hand model for disbursing pension payments. This can also serve as a model. In Odisha, these transfers are directly made in cash through the gram panchayat in a public setting to check any possible corruption.
In the current situation, it is our constitutional duty to ensure that we create a safety net for the economically weaker sections of the society. It is not open anymore to the State to object on the ground that it does not have adequate resources to perform its constitutional obligations. The State has to prioritise the expenditure of its resources in such a manner so as to first meet its basic constitutional obligations. While the executive is best positioned to formulate and execute appropriate policy solution in this regard, the constitutional courts in the country will have to goad and guide the executive to direct its resources towards its constitutional object of ensuring economic justice.
(Patnaik is a former judge of the Supreme Court and Borah is faculty in the Department of Economics, Ashoka University)