Legal Matters | Why knee-jerk legislation continues to inflict misery

On June 7, Delhi Chief Minister Arvind Kejriwal dropped a bomb — he proclaimed that the city-state’s hospitals would be accessible only to residents. In typical bureaucratic fashion a list of documents that would constitute proof of bona fide residence was also released. Apart from the moral depravity of preventing hospitals from providing medical assistance to sick persons, the move (thankfully overturned by the Lieutenant Governor on June 8) left residents scurrying for documentation to prove their residence.

What about the many migrants — take for instance, hostel dwellers, or recent entrants — to the city who might not have any of these documents, and would have been completely shut out from access to healthcare, a fundamental right, in the midst of a pandemic?

Ill-thought laws are far more pervasive than we imagine. Recently, the Union government passed an ordinance suspending the initiation of bankruptcy proceedings for a six-month period starting March 25 — a very practical solution. However, it added a proviso which effectively said that no bankruptcy proceedings shall ever be started for defaults that accrued during the period of suspension.

In practice, what does this do? For starts, debtors will be incentivised to default on their debts before the expiry of the period without the dagger of insolvency proceedings hanging over them. With such a huge question mark over recovery, will creditors be willing to advance money? If credit isn’t easily available, what happens to economic recovery? Do remember that the creditors are also possible debtors in other transactions, and defaults could take on a domino effect.

Or take the restriction on movement of non-essential goods during the early weeks of the nation-wide lockdown. As a newspaper’s editorial pointed out, sugar might be an essential commodity, but to manufacture and sell sugar, a mill needs not only cane, but also sulphur, lime and packing material — apparently ‘non-essential’.

So why do politicians and bureaucrats seem to be swearing by what lawyer Srishti Agnihotri calls the ‘five-second rule of COVID responses’?

The answer, while simple, also shines a light on the deeply entrenched deficiencies in the way we draft laws. First, law-making has become a knee-jerk response to an immediate problem. However, it fails to consider the medium to longer-term consequences of these actions. Take the ordinance to suspend labour laws that served to protect workers by Uttar Pradesh and some other states. Do they not realise that the protections for labourers (rarely complied with fully) was not what prevented industries from setting shop in these states, but the harassment by local politicians and inspectors? Do they not see that the scrapping of laws could lead to the perilous descent into bonded labour, especially at a time when there is large scale migration back from urban India?

At other times, our regulations are simply a reflection of bureaucratic tendency to assign blame. When Mumbai arranged for migrants to take Shramik trains, one of the requirements was a fitness certificate from a local doctor. Now, with doctors unable to test for Coronavirus before issuing the certificate, the certificate was probably worth nothing. However, several reports emerged of doctors issuing such certificates for a price — classic rent-seeking that our bureaucracy facilitates without any real benefit to the country or the citizen. However, it lets the government wash its hands off the problem.

You could say the same about the Aarogya Setu app, which clearly isn’t serving any worthwhile purpose in checking the spread of the virus. What the government seems to be driven by is not whether its measures are effective, but by keeping up an appearance of doing all it can.

Then there is the question of consequences. Just take the number of clarifications, explanations and amendments that have had to be issued after several of the government’s big economic moves — Insolvency and Bankruptcy Code, Goods and Services Tax, Demonetisation, as well as the annual budgets. No bureaucrat or politician suffers consequences (electorally or otherwise) of decisions that lead to widespread hardships.

The courts seem reluctant to even question the government for the humanitarian crisis inflicted upon migrants — a crisis that could have been avoided with better planning. The Delhi government had two months to ramp up its hospital capacity. It dithered, and now, while the number of cases swell, the best the government can do is blame its neighbours.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.