Covid-19: Lift The Lockdown, Respect The Right To Livelihood, Says Arvind Datar 
Stores and businesses stand shuttered in the Gautam Buddh Nagar district of Uttar Pradesh. (Photographer: Prashanth Vishwanathan/Bloomberg)

Covid-19: Lift The Lockdown, Respect The Right To Livelihood, Says Arvind Datar 

Prime Minister Narendra Modi put it well on March 24 when announcing a nationwide lockdown on account of the Covid-19 pandemic. “Jaan hain to jahaan hain,” he said, emphasising the state’s responsibility to first protect life. While right to livelihood is no less a fundamental right, it took second place to public health in the face of a highly infectious disease that has now killed 2,69,000 people worldwide.

But after seven weeks of almost no economic activity across the country, the right to livelihood must be reasserted, says noted Supreme Court lawyer Arvind Datar. “Let us not lose sight of the right to livelihood, of industry to carry on business. Because without business, without livelihood, what’s the point?”

The lockdown was necessary Datar acknowledges, but the extensions (two so far) and lack of a definite end date are hurting more Indians than helping, he argues.

We have to seriously consider that Article 21 not only talks of a right to life but also talks a right to livelihood. It’s okay for us, sitting in air-conditioned rooms and fancy halls and offices and so on, to keep talking about the pandemic and the infection. But you’ve seen on TV the horrible state of affairs for poor migrant labourers. Apart from migrant labour, 82 percent of Indians live on daily wages - you have people who are running barbershops, salons, people are doing day to day jobs, home workers and so on. Everybody is out of work and out of money.
Arvind Datar, Senior Counsel, Supreme Court

The government must lay down a clear roadmap for lifting of the lockdown, Datar emphasises. So that businesses, big and small, know when work can start. Right now, there is no clarity on start dates, he points out. “...why can't we have a situation where we take a call that on June 1 or June 10 the lockdown will be lifted 100 percent? Zero lockdown. And then we start working to get ready for that.”

Last week, the centre demarcated districts as red, orange and green depending on the number of Covid-19 patients. Green zones have been permitted to restart most commercial activities, albeit with restrictions. But states have been allowed to impose stricter conditions. Often resulting in conflicting or constantly changing rules that make it difficult for businesses to resume work.

...I’m saying that it requires definite timelines. And once you take a call, then don’t go back and make variations on it. One day you open a liquor shop, next day suddenly you shut it down. This kind of thing will not work at all. Like the IT sector - for example you first said you can work with 30 percent staff, then you said 10 percent, then some states said we won’t allow anybody to work. How does the economy function? The lockdown on courts for example, how many people are in jail? What about their liberty?
Arvind Datar, Senior Counsel, Supreme Court

And, what if there is a rapid increase in cases and deaths once economic activity is allowed to resume in full? “It’s very difficult and very harsh, but for the sake of saving 2,000 deaths are you going to put hundred million people - who don’t have any job, don’t have any work, don’t have any food - out on the limb?”

Watch | The full interview with Arvind Datar

Edited excerpts.

You argue that it's time for the right to livelihood to be reasserted, and for this lockdown to be lifted. Please explain why?

First of all, I must say that I'm not saying throw caution to the wind and just open it overnight. I don't say that at all. But my point is that we are now reaching a tipping point where the lockdown, if it continues, is going to not only not save too many lives but it's going to destroy several lives with sheer poverty and hunger. What the government did in the beginning was absolutely right. As the statistics show as of today, I just checked the data before we started, we have 1,886 people who have died so far in India - if you're going per million basis we are way below the international mark. We have a total of 56,000 virus cases. Now, the economic consequences are so disastrous. You have the huge issue of migrant labourers, of industries impacted.

What is most unsettling is, although there is some relaxation there is no definite roadmap, that by the 17th of May, we’re going to have 50 percent relaxation, or by 1st June it will be full relaxation...

It takes industry at least 10 to 15 days to get into it (ready to restart0. Secondly, the migrant labour has gone back to Bihar, Jharkhand... I don't know how they're going to come back. Are you going to arrange special trains for them to come back?

Now you're looking at a situation where as I said we're reaching a tipping point. We have to seriously consider that Article 21 not only talks of a right to life but also talks of a right to livelihood. It’s okay for us, sitting in air-conditioned rooms and fancy halls and offices and so on, to keep talking about the pandemic and the infection. But you've seen on TV the horrible state of affairs for poor, migrant labourers. Apart from migrant labour, 82 percent of Indians live on daily wages, you have the people who are running barber shops, salons, people doing day to day jobs, home workers and so on. Everybody is out of work and out of money.

My friends in the construction industry tell me that there are serious psychological issues among migrant labourers as they're doing nothing for 42 days. Many times they have been on site but have not been allowed to work. They've been pleading with the government that at least the labourers on site can start working, even that was relaxed only now. And now there is news that trains are being arranged, everybody wants to go back. So I think, we need to have a clear roadmap on lifting the lockdown in a serious way. And, I will mention about the courts later as we go along.

I'm going to do two things. I'm going to frame this conversation in the framework of fundamental rights, both right to life and right to livelihood because otherwise it just becomes a set of opinions on whether the lockdown should be lifted or not.

I'm also going to try and argue points both ways - against and for what you are saying. Against first.

You pointed to the data - that the number of patients, deaths, are all much lower In India than in other countries. But that's also possibly because we've done far less testing than many other countries. We don't really know the full extent of the spread of the virus in India.

Also, today the health ministry said the doubling rate has gone up from 12 to 10. In many states, we're already seeing a resurgence of cases - Delhi, Maharashtra Madhya Pradesh...

Third point, we have just embarked on an exercise to bring home over a million Indians and many states fear that might lead to a second wave of cases.

Given this, how would any government feel confident that it's time to lift this lockdown or put down a road map for the lifting of this lockdown?

Well, first of all I don't agree on this testing issue because there will never be enough testing for 1,300 million people. Even if you're going to test 20 percent of the population you have to test something like 260 million. That's physically not possible given our conditions, given our economic state of affairs. It's just not possible, we don't even have enough PPE kits. We can keep on arguing about the various problems we have. What I keep saying is go by the fatality rate. That's the only definite yardstick we’ve got. That's one figure you can't fudge, one figure you can’t sweep under the carpet. If, for a country of 1.3 billion people you had say 2,000 deaths in the last 45-50 days, suppose you lift the lockdown, suppose there would be 2,000 more deaths.

It’s very difficult and very harsh, but for the sake of saving 2,000 deaths are you going to put hundred million people - who don’t have any job, don’t have any work, don’t have any food - out on the limb?

You and I have no idea what happens to a person who doesn't have daily food and daily water, and mind you we are going to get a scorching summer. The people who are going back to Bihar, Jharkand where the temperatures are plus 40 degrees, how are they going to survive? We all talk, oh there's the doubling rate has changed - 12 to 10 days, but then you have to take a call. Hong Kong is open, Sweden never shut down. Japan is still open with all safety measures. This is inevitable and as Rajiv Bajaj said in an interview 6,00,000 people die in any case every year.

I'm asking the question because every day I see in the media, oh cases have doubled in some part. So there's a complete panic situation, everything is shut down. But where are we going? As it is the economy was in a free-fall before the Covid-19 problems started. Now sector after sector, tech, travel, tourism, airlines (is hurting). Where will it stop? Say for example the marriage industry - everybody's completely out of jobs, the flower decorators, the orchestra, the caterers and so on. Can you imagine the staggering domino effect?

Let's assume they lift the lock down and the death rate doubles, what about the livelihoods of 100 million people. That's my trade off. It's a sad trade off, but you have to do it. That's where the Article 14 and 21 argument comes in. Because you can always have a viewpoint. Even today, some senior director said that we have to have the lockdown on for 15 more days.

Let’s have a definite date. Are you going to lockdown till 1st June? Are you going to lockdown till 30th June? Mind you, you will reach a point where you cannot go back; you will not be able to retrace the steps for three, four or five years.

As it is they say that 60 percent of restaurants may never open again, I don't know if that's true. And my impression is, once the vaccine is there things may go back to normal - but the cost, what's the human cost?

I am the last one to argue against the economic impact because I report on it every single day.

I'm sorry, it's not just economic impact it's about actual lives, day to day lives of people who are not able to survive, who don't have enough food to eat. How many people are distributing food? How long can this go on? What I'm saying is out of 600 odd districts, why should they be locked all over? Why can't at least 300-400 start working? Why should all the shops be closed I don't understand.

The central government has laid down a zonal plan - red, orange and green districts. Green zones are permitted for opening up of almost all activities, but with certain restrictions. Is that not a sufficient exit from the lockdown? Or would you argue that supply chains are so complex that if many districts are still not fully functioning it would be very difficult.

What I'm saying is ultimately the government knows best. They've got far more data than you and I to take a decision. But, one thing is certain, the lockdown cannot continue indefinitely. The question is are you going to lift a lockdown partially fully, or in a staggered manner. The question is not the lockdown will continue but when the lockdown will be lifted? That I think is the real question.

I think that what my friends tell me in industry. Nobody's giving them clear answers that look, for instance, the auto sector can open in all these states. In entry 8 of the constitution states do public health, it is a state subject. So each state must take its own call and in the large country like India, what is applicable to Jharkhand doesn't apply to Tamil Nadu or to Maharashtra. That's why the disaster management setup is divided into centre, states and districts. So I'm saying that in states where there have been no deaths, there have been very few cases, life should start working as normal.

Are you making the case that decision making should be decentralised? That it shouldn't be the centre deciding whether a lockdown should get lifted or not, they should leave it all the way up to district and local governments to make those decisions? Without which there could be actually no real resumption of economic activity?

I don't say that they should be at the district level. What I'm saying is, you must get the data from districts, and then take a decision at the state level, with overall coordination by the centre. I don't say that just go do what you want. The constitution says public health is a state subject; each state is entitled to take its own call- when it will start the lockdown. At the same time we are all interconnected. People are going to move from one state to the other so no state can act on its own. My only concern is they're placing far too much importance on safety concerns and testing and PPEs and so on, and nobody's really paying attention to the consequences on livelihood. There is no solution in sight at all. That is my worry. See, GST collections have gone down, income tax has gone down.

There is a graded exit from the lock down as drawn up by the centre. Why is that insufficient for you?

As far as a graded exit is concerned, till today I don't know if there's a definite date. For example, I don't know when courts are going to open. For example, shops are open from 10 a.m. to 1 p.m., then they made it 10 a.m. to 5 p.m., but if I go around this city almost more than 80 percent shops are still closed, where is the graded opening?

Again, I'm told by people that there are confusing signals. Some people say you can open. For example, a few weeks ago they told the IT sector it could open with 30 percent staff, but then the state said you can't open, again there is confusion. You show me data which says that these are the categories of industries that can open- for instance, construction can start fully from May 15? Even today I spoke to a senior person and he also doesn't know exactly when it's going to start. He says that he requires 10 days to at least muster the resources. He said he was pleading with the government that at least the workers on site should be allowed to work, with safety measures, and that was not allowed, and now they're getting restless. They're seeing trains being organised, so they all want to go back home. I don't know when they're going to come back. So, all of them are worried.

Maybe there's another way to frame this conversation. You brought up the issue of lack of coordination. The centre says in green zones commercial activity can be restarted, states and local administrations have different interpretations of this or different ways of administering this.

Can I argue that the problem lies more in this arbitrary use of executive power? Whilst the pandemic may justify the sweeping powers that both the centre and states have assumed, these are not being exercised proportionately, they're not being exercised with any balance. And, the conflicting circulars, the large number of circulars is one illustration of how maybe good intention is only leading to confusion.

I don't have individual data about the circulars but I do read in the media there are conflicting circulars. In a sense, it's perhaps inevitable in a large country like India that there could not be a complete coherence of all policies.

I’m making a different point on the issue of Articles 14 and 21. I’m taking on a constitutional claim. I’m saying that the right to livelihood is as important as the right to life.

There must be a sense of proportionality, which is a part of the constitution, and any decision must have proportionality. All I'm saying is, like reverse engineering you suddenly had a lockdown and all of us, those who live in the urban areas, we have admirably gotten down to Zoom conferences and video conferencing and I've been doing virtually the same amount of work sitting at home than what I was doing in my chamber. So that's it, we've adjusted. Similarly, why can't we have a situation where we take a call that on June 1 or June 10 the lockdown will be lifted 100 percent? Zero lockdown. And then we start working to get ready for that.

So what I'm saying because we have to get the economic activity going whether you do it partially, whether you do it 50 percent, graded etc. whatever term you want to use. Let us not lose sight of the right to livelihood, of industry to carry on business because without business without livelihood, what's the point? I don't know, we will soon come to the state where we will have far more people dying because of lack of work, under heat waves, than because of the coronavirus - if we don't act very fast. That's the point I'm making.

I get your point. I'm just questioning it from different angles to fully understand how one can compel a government? Again I come back to the point of arbitrary use of executive power.

For instance, had this long lockdown been accompanied by sufficient financial support to those most impacted by it - maybe you would not feel as strongly about it. So could it be that the political decision to prioritise public health and shut down the country for several weeks is probably justified. But the fact that it comes with arbitrariness, conflicting circulars, the trampling of rights for migrant labour, insufficient financial support - all of this puts a question mark on whether that executive decision was truly taken in public interest?

See no matter what decision the government takes one can always find fault with this point, that point, it's not going to help anybody. This migrant labour problem, noone knew this would be the magnitude; we can't just blame the government, how will it be that nobody thought of it. Again, the fact that Covid-19 or no Covid-19 we don't have a safety net - we don't have a safety net for various reasons. We've got our economic difficulties to think of, so we don't have any kind of social security. Suggestions by people saying give Rs 5,000 to each person, give free rice, all that is fine. All that is behind us, now we have not done it. What I'm just saying is look at the next two to four weeks, because the next four weeks are going to be extremely critical, unless we act extremely fast.

Your point is we would not be in this situation if they had given financial help. Where is the money? Then you would say print more notes, give a 10 lakh crore package. So, all those things are okay.

I'm saying a simple thing - lift the lockdown. Say, 50 percent be lifted by May17, 75 percent by May 24 and 100 percent or 90 percent by June 1, except, as you put it, in the critical red zones which will have to continue (with restrictions) for some more time. That will be the way out.

Courts for example. There are 10 times the number of cases in the magistrate’s court, there's no video conferencing there. Hundreds of people are in jail, their bails are not there. Those who have got bail are not able to furnish secured charities. Why can't these courts work for half a day? Why can't they work twice a week? Why just paralyse everything? There’s absolutely no reason why the magistrate courts in Chennai, for example, cannot work on Mondays, Wednesdays and Fridays, or work half a day. At least take bail applications. Or if it's an appeal, a criminal appeal, only the two sides can be there and the judge. No crowd is going to come to the court. Those cases would have been disposed off. The lawyers would have got some money.

There is an exit plan on paper, exactly as you're saying, that green zones should be allowed to function fully, orange should be allowed to function up to X percent. There is an exit plan on paper, except that it's not working to the extent that it should probably because, the argument I was trying to make unsuccessfully with you, this use of executive power has come with zero balance.

I wouldn't say balance. You're trying to place the blame fully on government. I don't agree with that, it’s not correct. I'm only saying that give us definite dates. I must say that I personally think that the media has been overly critical of the government - that's my personal view. I see nothing but gloom and doom on the TV and nobody points out the kind of tremendous task that is at hand, and the kind of work that has already been done - which is quite substantial in my opinion.

What you're now saying is that the government action is arbitrary and there is no clarity. There is not enough clarity, but to say that the actions are arbitrary is something which I don't agree with at all. I don't think that the actions are arbitrary. The only difficulty I found was they could have taken care of the migrant labourers with more kind of food kitchens and so on. But as I said, now the past is behind us. All I'm saying is, I want to know what's going to happen on the 17th, what's going to happen on the 24th. That’s what I’m repeatedly telling you, and that's what I'm saying - that please focus on the right to livelihood, enough of right to life.

We are going to lose a certain number of people. It has to be done. Like I told you earlier, Delhi's highly polluted but I go and practice every week. It is a call I take because I need it for my survival. So you take the call, you decide what needs to be done. I'm asking you a question - all these construction labourers were on site, how many people died of Covid-19, how many people died? Nothing, and 1,886 deaths for a country of 1.3 billion.

May I argue that you choose to go work in Delhi, that's an individual choice and any harm that befalls, befalls on you. This is a contagious and highly infectious disease. So let me put it to you this way - if the government were to put down definite timelines for opening up and if there were to be a resurgence of cases, would not people (who may not agree with you) call the government responsible for public health?

You have to try it out there is no other option. Now, for example I don't say that you open all the hotels and open all the bars and restaurants all overnight. I don't say that at all. You may have restrictions.

All I'm trying to tell you is that we are taking the yardstick of Belgium and Italy and U.K. and then making a panic situation in India and shutting down everything for a long time. That is my only point, see our own reality. On all construction sites labourers were staying together; they were staying on site. What are the fatality rates?

We have to make a model for our own self. In Germany, Japan, there are huge social nets, they have other backups, we don’t have that. The person who doesn’t work on the construction site for seven days is going to starve. That’s it.

All the pharmacies have been open right? The pharmacies have been open right through. Is there any increase in the fatality rate among people working in pharmacies? The answer is no. All of us know that you should allow say weddings where 5,000 people get together, the big fat Indian weddings as they call them. Maybe that may be postponed. But at least let industry start working, let construction start working. Why can't the auto sector, why can't the IT sector open? It's very difficult to say work with 10 percent staff and 30 percent staff. Open it and they will take their own precautions. I'm sorry, I feel very strongly about it.

I can see that you feel very strongly about it and I'm sure there are many people who would agree with you and as many who disagree with you on the public health argument. Let me close this conversation with one last question.

If I were a small business owner, whose business now stands in peril because of a six week shutdown. My life is invested in this business, and I desperately need to start, but I'm not on any of the lists which permit me to start my business. I say hey I'm going to start my business because my life, my employees’ lives, their livelihoods, all of it depends on me restarting the business. Even if the government circulars don't allow me to, I'm going to do so. What if I come to you and ask you to represent me in case I get into trouble with the government - would you do so? Would you argue that my right to livelihood at a time like this allows me to violate the larger public health directive?

Not at all. No lawyer will support that. Whatever it is, suppose tomorrow the government says that I'm going to extend lockdown till July 1, as citizens we have to obey it. That's the rule of law. As a democracy we can voice our protest and we can give an opposite point of view. But to answer your question, I would not tell a client that look just because it is your right to livelihood (you can start your business). For example, travel and tourism, suppose the bus operator says I don't care I’m going to run my bus- that is not permissible. I don't say that at all. I would not support that at all. I'm not saying that, no. But I'm saying that if an industry compromises of 100 components, 75-80 should start working, only 10 or 20 have to be cautious. But we are locking down all 100. That is the problem.

Again I ask, you don't have confidence in the exit plan that currently exists because there is a red, orange and green zone plan.

No, I'm saying definitely an exit plan is good, it is alright. But I'm saying that it requires definite timelines. And once you take a call, then don't go back and make variations on it. One day you open a liquor shop, next day suddenly you shut it down. This kind of thing will not work at all. Like the IT sector - for example you first said you can work with 30 percent staff, then you said 10 percent, then some states said we won't allow anybody to work. How does the economy function?

The lockdown on courts for example, how many people are in jail? What about their liberty? So many practical issues, so we have to have something coming very soon and very quickly.

I want to make one last comment, people who are making comments on your side, have a safe, secure job and aren’t entrepreneurs and are not working on daily wages. I speak to some and then I understand they are the ones who are really waiting to start work again. As long as you have a comfortable job and are getting 100 percent or at least 80 percent of your salary, it is okay to say let’s continue for some more time and talk about safety and so on and so forth.

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