Nearly two months after the first PIL being filed, the Supreme Court found itself being embroiled in a hailstorm of criticism by its erudite former members, human rights activists & concerned citizenry, the Supreme Court finally woke up on 28th May 2020 by taking Suo motu cognizance to deal with the untold sufferings and miseries of the thousands of migrant workers who had started their journey on foot to their homes in villages thousands of miles away from the urban metropolitans where they earned their bread.
The Court had on March 31st when it was seized of the matter in all fairness not wanting to interfere in the policy decisions taken by the Government since this was the first time a human crisis of a novel pandemic was being handled by the government called upon the Government to ascertain some primary facts as to what was the situation on ground across different states, gave ample opportunities to the government to satisfy the Court that the situation of transporting migrants was being effectively handled. Unfortunately the governments at the Centre and the State failed the migrants and were playing the blaming game.
The Court chose not to turn a blind eye decided to rein in the administration seeing their incompetent and callous manner of handling a gigantic crisis issued directions amongst which the most prominent were- to not charge any money from migrant workers for their journey by either railways or buses, drove home the fact that it was the responsibility of the railways to provide for food and water to the migrant travellers and that the receiving state shall make necessary arrangements for providing transportation facilities to take the migrants from the railway station back to their homes and providing for quarantine shelters for those who exhibited symptoms of Covid-19, the Court was also vigilant about the inept registration procedure of the railways to procure tickets and that a large number of commissioned Shramik trains had been cancelled. The Court should be lauded for their intervention in averting a massive humanitarian crisis where people would have succumbed to hunger and exertion than the coronavirus.
Having said that, let us examine the issue which has been the basis of the conflict. The Nationwide lockdown was brought in force to control and contain the spreading of Covid-19, the lockdown meant shutdown of all economic activity with people being urged to contain themselves within the four walls of their homes. The Prime Minister announced that everybody should stay at home with their families. Did he really mean that? The lockdown to those employed in small and informal industries surviving on daily earnings meant, no payment of wages which further meant that they couldn't afford to pay for their lodging and had to scramble for their next meal from their meagre savings. To my mind what the migrant workers did was completely justified as they were only acting on the advice of the PM- to stay home with their families, so they marched on for miles undeterred by the might of the voyage or the heat or the crippling hunger of their children. Although it is my belief that this crisis could have been handled better by announcing a lockdown a week in advance and making requisite arrangements for the repatriation of those daily wagers who would have been rendered jobless in urban areas and weren't financially able to face the lockdown. However, delving into the whatabouteries would open an undesirable Pandora's box.
Coming back to the Supreme Court tackling this sensitive crisis and the criticism surrounding it for initially adopting a conservative approach in relying on the government machinery lead to unnecessary acrimony. What was remiss amidst all this was the deliberate need to enforce the fundamental rights of the footsoldier and for the government to press into action the directive principles of state policy. While eminent persons belonging to the Institution as much as people from all walks of life have expressed their displeasure vocally and not in very complimentary terms for not acting 'promptly', it is their prerogative to do so in as much as the 'diatribe' of critics doesn't impute any motive to the Justices individually. It appears to me that there a growing intolerance for expressing any individual opinions whatsoever about the way Courts chooses to deal with the cases before it. This hovering apprehension in my mind morphed itself into an unseemly reality when during the last hearing, where the Court took suo motu cognizance of the dehumanizing conditions the migrants were faced with, the Solicitor General, unfortunately made very rabid and rueful remarks against those who criticized the edifice of justice by resorting to grade the institution. The office of the Solicitor General though not a constitutional creation nevertheless is an office of repute and eminence, and is at equivalence with the office of a Supreme Court Judge. The onerous duties as second Chief law officer of the country binds the occupant of the office to make arguments dispassionately with certain restraint in a manner that the office is used to bridge the gap between the Executive and Judiciary, it does not bind on the Solicitor General to be a mere mouth-piece of the Government but to be more neutral and display behavior more becoming of a senior member and responsible officer of the Court. I have a deep sense of regret in the way the SG invoked the 'vulture' analogy, comparing public spirited citizens and journalists to vultures only because they telecasted visuals of the heightened levels of anguish of those who had to brave the heat while trudging back to their homes or for calling his own fellow advocates 'prophets of doom' & 'armchair intellectuals' and calling upon the opposite counsel to prove his contribution towards alleviating the migrant crisis. It baffles me to understand that why could not the second senior most law officer of the country be uninfluenced by the constructive criticism of those who questioned the actions or inaction of the government. The Government faltered and failed it's migrant citizens at every step resulting in questioning the actions? In the pursuit of being an outstanding lawyer for one's client, it was forgotten that a duty was owed to the Court in being fair and respecting?
The Supreme Court has infact been kind to the Solicitor General when he said that the High Courts are running parallel governments. He completely lost track of the duties of the High Court where it has been recognized in State of Maharashtra V. Prabhu1 wherein their Lordships held:
"It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good."
The Supreme Court even in the face of stinging criticism, which I still believe is in the nature of fair comment unless where the comment crossed all limits of decency and attributed personal motive to the judgment, did only uphold the long line of judicial dicta that it over time propounded. A few instances where the Court was enjoined upon its constitutional obligation to preserve and persevere the cause of justice for those who couldn't afford it are listed below.
The Court in Dalmia Cement (Bharat) Ltd. V. UOI2 while upholding the validity of a held that :
"Social justice, therefore, forms the basis or progressive stability in the society and human progress. Economic justice means abolishing such economic conditions which remove the inequality of economic value between man and man, concentration of wealth and means of production in the hands of a few and are detrimental to the vast. Law, therefore, must seek to serve as flexible instrument of socio-economic adjustment to bring about peaceful socio-economic revolution under rule of law. The Constitution, the fundamental supreme lex distributes the sovereign power between the Executive, the Legislature and the Judiciary. The three instrumentalities, within their play endeavour to elongate the constitutional basic structure built in the Preamble, Fundamental Rights and Directives, namely, establishment of an egalitarian social order in which every citizen receives equality of opportunity and of status, social and economic justice. The court, therefore, must strive to give harmonious interpretation to propel forward march and progress towards establishing an egalitarian social order."
The Supreme Court, over a decade ago, while expounding on the PIL Jurisdiction3 said that it invoked such review jurisdiction to preserve rights of the downtrodden, Justice Dalveer Bhandari speaking for the Court held –
"According to our opinion, the public interest litigation is an extremely important jurisdiction exercised by the Supreme Court and the High Courts. The Courts in a number of cases have given important directions and passed orders which have brought positive changes in the country. The Courts' directions have immensely benefited marginalized sections of the society in a number of cases. It has also helped in protection and preservation of ecology, environment, forests, marine life, wildlife etc. etc. The court's directions to some extent have helped in maintaining probity and transparency in the public life.
This court while exercising its jurisdiction of judicial review realized that a very large section of the society because of extreme poverty, ignorance, discrimination and illiteracy had been denied justice for time immemorial and in fact they have no access to justice. Pre-dominantly, to provide access to justice to the poor, deprived, vulnerable, discriminated and marginalized sections of the society, this court has initiated, encouraged and propelled the public interest litigation. The litigation is upshot and product of this court's deep and intense urge to fulfill its bounded duty and constitutional obligation."
The Court again in G. Sundarrajan V. UOI4 dealt with the crucial question of a nuclear policy impacting the right of life of the inhabitants in the peripheral limits of the nuclear plant, it pithily summarized its anxiety by remarking- "We have already indicated that these issues are to be addressed to policy makers, not to courts because the destiny of a nation is shaped by the people's representatives and not by a handful of judges, unless there is an attempt to tamper with the fundamental Constitutional principles or basic structure of the Constitution. We are however deeply concerned with the safety and security of the people of this country, its environment, its flora and fauna, its marine life, ecology, bio-diversity and so on which the policy makers cannot be on the guise of national policy, mutilate or rob of, in such an event the courts can unveil the mask and find out the truth for the safety, security and welfare of the people and the mother earth."
Justice Krishna Iyer in his iconic verve dealing with a case involving provision of maintenance under the CrPC5 made an observation which remains germane in essence, he said that " We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil the brooding presence of constitutional empathy for the weaker sections like women and children must inform interpretation if it is to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which would advance the cause- the cause of the derelicts."
Unelected People may not know to run the country but they definitely have the right to highlight the shortcomings of the Government in its administration and every concerned citizen should stand up or dare to hold a mirror to the authorities and show them what is going astray and to remedy the wrong. The Supreme Court may have chosen to not interfere in the policy decision of the State but it can crack the whip and give a rap on the knuckles of the Executive when it has lost its way. The Supreme Court was only fair to have extended a long rope to the executive to establish its control over the crisis but when the executive continuously did not meet the expectations of the migrants, the Court was left with no choice but to interfere. Better late than Never!
Views are personal only
(THE AUTHOR ACKNOWLEDGES THE RESEARCH OF ADVOCATE NEELESHWAR PAVANI)