Judiciary is the third pillar of democracy and its most important function is to protect the rights of citizens and safeguard the constitution. The Supreme Court is the last resort for the Citizens, when their rights are violated. Citizens also approach the Supreme Court when the executive fails to discharge its functions resulting in the denial of their rights. The legal fraternity is aware of the oft quoted saying, “Justice delayed is justice denied”. The failure of the Supreme Court of India to respond proactively to the Public Interest Litigations filed at the beginning of migrant workers crisis has led to a huge humanitarian crisis along with the coronavirus crisis. The events unfolded during the last two months show that an early intervention by the Supreme Court could have averted the migrant labour crisis or reduced its severity.
In the 1980s and 1990s, the Supreme Court of India developed and used the instrument of Public Interest Litigation (PIL) in order to ensure justice, especially to the deprived sections of the society. Under this provision any citizen or organization can file a petition in the High Court or Supreme Court for the protection of public interest. It is the power given to the public through judicial activism. The Supreme Court became activist, intervening in issues that involved public interest. Some of the issues entertained by the SC under PIL have been Bonded labour issue, Child labour, Non-payment of minimum wages to workers and exploitation of casual workers, Atrocities on women , Environmental pollution and disturbance of ecological balance , Food adulteration etc.
In course of time many Indians began to look up to the Supreme Court not only to check state excesses when it violates rights of the citizens but also to direct and order the government to do the right thing when it fails to perform its responsibilities. Environmental protection in India owes a great debt to the jurisprudence of PIL. The SC became so active that sometimes it was criticized transgressing constitutional boundaries and involving itself in policy making. Hence it was quite natural for the activists and lawyers to approach the SC when the migrant labour issue became acute and the government failed to fulfil its constitutional responsibilities.
When nationwide lockdown was imposed by the central government in the last week of March to prevent the spread Covid 19 only with four hours’ notice, neither the Central government nor the State governments thought of millions of migrant workers stranded in different cities of India. India witnessed an unprecedented exodus of migrant workers to their home states and towns. The pathetic condition of lakhs of workers, heart wrenching scenes of women, children and aged people walking hundreds of kms in the scorching sun were highlighted by the media.
According to a report in Patrika newspaper on 28th May, 667 migrant workers died of hunger, exhaustion, accidents etc. while returning to their home towns and villages. A small child’s vain attempt to wake up his dead mother on the railway platform in Muzaffarpur of Bihar on 27th May, presented most touching picture of massive migrant tragedy unfolding in several states of India. The mother died of hunger and thirst after being on a train for four days from Surat in Gujarat.
The apathy of the Central and State governments towards the abject condition of the migrant workers forced activists and socially conscious lawyers to knock at the door of the Supreme Court. Several activists and lawyers had approached the Supreme Court over the last few weeks, urging it to help the migrant workers. They expected the court to take up the issue suo motu in order to protect rights of the workers. But it failed them as well as the workers. The court always accepted the government’s submissions almost mechanically, not doing much to alleviate the sufferings of the workers.
The first Public Interest Litigation (PIL) was filed on March 31. But the SC did not entertain it. It blindly accepted the submission of the Solicitor General, Thushar Mehta, that there were no migrant workers on the roads anymore, as governments had ensured that they were being housed and fed. Thereafter several PILs reached the Supreme Court, but all of them received the same fate. Every time it accepted the submission of the Central government as God’s words. On April 7, responding to another PIL asking the Centre to pay workers their wages, Chief Justice SA Bobde asked the lawyer why the workers need money when they are being fed. The court miserably failed to acknowledge that people need more than just food to survive. The court did not even ask the government to present a status report of the actions taken.
On May 15, the Supreme Court again declined to entertain a plea by lawyer Alakh Alok Srivastava, seeking a direction to the Centre to ask all district magistrates to identify stranded migrant workers and provide shelter and food to them before ensuring their free transportation home in view of the accident at Aurangabad in which 16 workers were mowed down by a goods train. “How can we stop migrants from walking”, the Supreme Court is reported to have asked while hearing the Public Interest Litigation of Alakh Alok Srivastava . When the issue of 16 migrants being run over by a goods train, while they were sleeping on the railway tracks, was brought to the attention of the court, the bench said, “How can anybody stop this when they sleep on railway tracks?”
Besides the PILs filed by the activists and lawyers, retired judges and prominent lawyers criticised the attitude of the Supreme Court. The Supreme Court Bar Association President and senior lawyer, Dushyant Dave, criticized the stand of the SC towards the migrant workers’ issue. “The courts failed to protect the rights of citizens during the crisis and remained silent as citizens suffered”, said Dave on 23rd May in his speech on the topic ‘Role of Judiciary in Pandemic’ organized by the All India Lawyers Union.
Justice A P Shah, former Chief Justice of Delhi High Court was highly critical of the position of the Supreme Court on the issue of the migrant workers. While addressing lawyers across the country on a webinar he said that the Supreme Court did not ask relevant questions on the issue of migrant labourers and that “it skirted the real fundamental rights issue in the case”.
It was reported in the media that a late night letter by 20 renowned lawyers of Delhi and Bombay on 25th May to the Supreme Court, accusing the SC of exhibiting its emergency time mindset, forced the latter to take a U turn. The lawyers through their letter brought to the attention of the SC that the right to life, liberty and freedom of movement of the hapless migrant workers were violated in the circumstances in which they lived due to the nationwide lockdown and the failure of the Central and the State governments to provide them shelter, food and other basic necessities of life.
Under the pressure from the public, lawyers and retired judges of the SC and High Courts, the Supreme Court on 26th May, on its own took note of "problems and miseries" of labourers stranded by the coronavirus lockdown and asked the centre and states to provide transport, shelter and food to them immediately. It issued notice to the Centre, States and Union Territories and asked them to report to it on "steps taken to redeem the miseries" of migrant labourers within 48 hours. On Thursday 28th May the SC told the government not to charge the migrant workers for train or bus travel and ordered the States and the railways to provide them food and water. The court also said that there have been inadequacies and lapses on the part of the Central and State governments.
If the SC had intervened at the beginning of the migrant labour crisis in the last week of March and asked the Centre and State governments to arrange safe transport for the migrant workers who wanted to return to their home states as well as to ensure food, accommodation and medicine for the workers who did not want to return, a behemoth humanitarian tragedy could have been avoided. The continued stay of the workers in their work places without proper food, accommodation and physical distancing enhanced the chances of the workers getting infected with the virus and their return later to their villages increased the chances of spreading the virus to the rural areas.
Ever since the BJP came to power at the Centre the second time with enhanced majority in the Lokh Sabha, the Supreme Court seems to have adopted a delayed approach to certain issues which are fundamental to the rights of the citizens and to the survival of secular democracy. They include three sets of petitions relating to Kashmir filed before the SC and Citizenship Amendment Act (CAA). A quick disposal of the petitions related to CAA by the Supreme Court could have avoided the long drawn protests against CAA in different parts of the country and consequent violence, including Delhi riots. The response of the Supreme Court to a petition moved before it against the communalisation of the coronavirus on television as well as on social media was quite inadequate. Even one observation from the Supreme Court condemning such irrational and unjustified behaviour would have had a sobering effect on media in the country.
In a democracy the citizens have the right to criticize the Judiciary. Advocate Dushyant Dave while addressing the lawyers said, “We lawyers should galvanise the judiciary into action. We have to stir up their conscience. Criticism of the judiciary is not contempt.” Criticism of the Supreme Court by various sections of the Indian citizens, especially by the lawyers and retired judges, in a way forced the SC to change its attitude towards the migrant workers. This has proved that in a democracy citizens are the masters. If the citizens are alert and vigilant, the executive will not be dictatorial and the judiciary will not be pliant to the executive.
(The write can be contacted at: firstname.lastname@example.org)(Published on 1th June 2020, Volume XXXII, Issue 23)