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Indian Judiciary On Trial

Indian Judiciary On Trial

Today the Indian judicial world, particularly the judiciary is on trial. In a democratic country, when the executive and the legislature are in doldrums, the last resort for the common man and woman is the judiciary, because it is intended to be a level playing ground.

But, unfortunately, this level playing ground is made out to be a slippery ground for the country’s migrant workers. They were thrown out on the road by builders and estate agencies, by plantation owners and factory managers, by the business world and the powers that are. Because of corona pandemic, the labourers were not needed as their use value curve had been flattened in the eyes of the law makers, the law keepers, and the capitalist world.

The stranded, voiceless, hungry and homeless workers, made to frog-leap by the merciless police, looked at the Supreme Court of India to open its door of justice, not mercy.  The blood and sweat of the workers had erected opulent homes, shop complexes and skyscraper mansions. Their nimble hands with the spade and the switch button had made the world going round as if in musical chair show. All of us enjoyed the privilege of benefitting from their hard labour. Yes, all of us, the comfortable middle class, the luxuriant upper class, the political representatives of the electorate, the statesmen and women, the judges and the legal luminaries, et al. The migrant labourers belong to the army of drivers, coolies, factory hands, cooks, sweepers, gardeners, plantation workers, rubber tappers, hotel staff, construction workers, scavengers, etc. Without them, the rest of humanity will have groaned and grumbled, hapless and helpless, living a crippled life.

Today, with the excuse of the coronavirus, we have withdrawn into our niche, leaving them in cold comfort. When their frustrated cries had fallen on deaf ears, they turned to the throne of justice asking for a safe passage to their homes, for the release of their held up wages, for fair compensation and for the security of their lives. They were not seeing the men and women judges  as living frames enfolded in flesh and blood. Such frames, enfolded in flesh and blood, will have their tendencies and tantrums, bias and business concerns, human weaknesses and wanton ways. Rather, the migrant labourers were addressing their concerns to the throne of justice to recognise their fundamental right to life (Art.21), which includes right to livelihood and right to security.  

This throne of justice, with its many other concerns, did not think the wail of the labourers a priority matter. Critical observers and sensible citizens of India, including retired judges of the courts, point out that the Apex Court has failed the working class by not considering the plea of the migrants as a priority issue. It is also pointed out that, instead, the Arnab Goswami case, pleading for protection against multiple FIRs and for quashing them was listed in an hour and taken up within 15 hours  as a priority issue.

The men and women to whom the nation under the Constitution has entrusted the honourable and onerous task of dispensing justice should take note that they are there not as agents and acolytes, not as people succumbing to power and pressure. Rather, the nation has expectations of them as men and women of integrity who do not carry into their judicial chamber a briefcase  stuffed with the hand notes or enclosed envelopes delivered by the executive or by the middlemen of persons of ‘importance.’

Mi Lords (sorry for using this archaic term of a begone empire), it is sad to see that your throne of justice is on trial, as it were. Instances pile up. The labour class has lost its confidence in you and your establishment. Your silence, when they were inhumanly treated with chemicals as if they were washroom basins or latrine pans, or beaten or made to frog-leap, spoke volumes. Your prioritising issues of your choice and postponing (marginalizing) the burning issues of workers struggling on the road carrying bags and children suggested that you belong to a different world.

Listen to what your brother judge, retired CJ of Delhi and Madras high Courts, Justice A. P. Shah has to say: ‘I am thoroughly disappointed. The Supreme Court is getting less and less sensitive to the lives and rights of the marginalised. Citizens’ issues are considered under executive perspective. Priorities are misplaced, for example the migrant workers’ matter is not a priority.’ (Karan Thapar Interview with Retd. Justice A. P. Shah)

The PIL placed before the Apex Court contained the following points: That the Lock Down had affected millions of workers. That their right to life and security and job loss under fundamental right have been seriously affected.   That minimum wages be paid during lock down period; harassment on the streets by the public, police and the landlords be stopped; staying away from their families for an indefinite period; staying in ‘unpredictable and arduous conditions’ etc., were serious matters to be considered under Fundamental Rights.  

Justice Shah points out that ‘right to life is not just for animal existence. Not just two meals a day.’ In this case, the perspective of Chief Justice S. A. Bobde with his intervention is disappointing: ‘when workers are getting food, why should they ask wages.’ Shah’s rebuttal is appreciable: ‘workers’ entitlements are more than two meals.’

Today, the courts seem to be having a problem weighing priorities.  Justice Shah points out that, even before Covid pandemic issue, The CAA issue was not considered an urgent priority by the court. Speaking of the response of the Apex Court in the wake of the communalisation of Coronavirus (Tabligi issue), Justice Shan says, ‘the Supreme Court’s response was inadequate.’ He points out other gatherings in the country, even Tirupathy temple keeping open till March 20. The hate campaign and the communalisation of the pandemic by targeting one particular minority community were not condemned by the Supreme Court. ‘As an Indian I should hang my head in shame when I see this type of communalisation of a virus.’

Justice Madan Lokur who retired from the Supreme Court after a six year service, also minces no words. In an interview for The Wire with Karan Thapar, Lokur  is explicit like Shah. ‘Yes, I think the court let down these migrants.’ He expressed his disappointment by the court’s functioning during the recent COVID-19 lockdown crisis. ‘It is not fulfilling its constitutional functions adequately,...The Supreme Court of India is capable of doing a good job but I think they need to introspect, they need to sit down, brainstorm and figure out how to go ahead… Certainly it should be more pro-active than it has been.’

It is not just the migrant workers’ issue. The CAA is there. The Covid issue is there. The communalisation of the pandemic is there. Instead of considering them as serious national issues needing urgent decisions and decisive intervention, the Courts have told them to remain in the waiting room. Arnab Goswami’s prestige issue seemed to be more urgent priority.

In a reported interview with the Hindu on April 27, India’s Chief Justice S.A. Bobde’s statement was disappointing to all human rights advocates:  ‘ This is not a situation where declaration of rights has much priority or as much importance as in other times.’ Commenting on it, Justice Lokur remarked: ‘To say that fundamental rights are not so important today because of the prevailing situation is the wrong way of looking at it.’

(Published on 11th May 2020, Volume XXXII, Issue 20)