Skip to main content

SC's 'belated' order on migrant workers: Whither high ideals of judicial activism, PIL?

By Atul, Sandeep Pandey*
The Covid-19 lockdown in India has witnessed an unfathomable scale of internal migration, displacement, tragedies, and human sufferings not seen since the time of partition 70 years ago. The haphazard manner in which the government implemented the lockdown resulted in absolute chaos when crores were forced by cruel circumstances to go back to their homes using any means and routes they could get hold of.
In the absence of proper transport facilities, many decided to walk hundreds and even thousands of miles in the scorching heat of May. A few hundreds of them perished on the way due to hunger, heat and thirst, and those who could somehow reach their final destinations now face a bleak future.
As if this horrible experience was not enough, many were even slapped with penal provisions for violating the national lockdown, and many others especially the Muslims faced vile Islamophobic abuses. The state seemed to have failed miserably in ensuring the rule of law, equity, and justice.
While the government launched a high flown mission named “Vande Bharat” to bring back rich Indians stranded overseas, it did not show the same enthusiasm in arranging fair means to get home safely the crores of poor labourers stranded on its own highways and big cities. This has exposed the tall claims of “Sabka Sath Sabka Vikas” of the ruling dispensation.
What is more disappointing is that even the Constitutional Courts that have been tasked to nudge the executives with their inherent powers in such emergencies chose to conveniently shirk their Constitutional responsibilities giving lame excuses.
The apex court displayed historic apathy and indifference in the initial days of the lockdown when the people needed it the most. The Court refused to step in despite, the failure of the government to assuage the difficulties faced by people.
In the words of senior advocate Dushyant Dave who is also the President of the Supreme Court (SC) Bar Association, it was presented with an excellent opportunity to win back the trust of people by holding the government accountable, however, it refused. For a considerable time, it declined to entertain petitions highlighting the plight of labourers by holding that it cannot pass orders based on media reports.
When told about the miseries of people walking hundreds of miles under the scorching sun, it said, “How can we stop people from walking” and when reminded about the indigence of the migrant labourers, the Chief Justice remarked, “If they are being provided meals, why do they need money for meals”.
One wonders if this is the same court that had once held that the right to life u/a 21 of the constitution also means a right to health and dignified life. Many legal luminaries and senior advocates lamented the reluctance of the court and lack of Judicial activism that once used to be a hallmark of the Indian judiciary.
In the post-emergency era, it had intervened on various occasions to safeguard public goods and to prevent state excesses. It gave detailed directions in the DK Basu case to safeguard the rights of the accused and detainees. 
Through novel ideas like public interest litigations, it gave voice to the marginalized and the oppressed sections. Despite the allegations of wading into the waters of policymaking, it even framed guidelines to stop sexual harassment at workplaces when the state failed to do so (Vishakha Judgment).
Many have since then looked up to the Supreme Court as an institution of substance and hoped that, if not the state, at least the Supreme Court will come to their rescue. But by recklessly posturing itself to extreme deference to the will of the legislature over the last few years, it has diminished its credibility and perception in the eyes of people. Additionally, it has abdicated its Constitutional responsibility of judicial review.
Supreme Court has diminished its credibility in the eyes of people, abdicating its Constitutional responsibility of judicial review
By refusing to uphold the rights and well-being of the millions of hapless migrant labourers, Supreme Court has turned a blind eye to its own judgments on certain important Constitutional provisions like Articles 19, 21, 32, and the Directive Principle of State Policy.
In the Olga Tellis v BMC, it had given a wide interpretation of the right to life by holding that definition of life under Article 21 of the Constitution is not about “mere animal existence” but it involves a right to live with human dignity including the right to shelter. 
Note, that at that time, there was neither any pandemic not any large scale migration and displacement. Still, the court took cognizance of the violation of these basic human rights of people like the right to dignified life, shelter, and health.
It is unfortunate, that now when we are in the midst of a deadly pandemic, the court, turned a blind eye to the flagrant violations of rights and dignity of a large number of hapless people stranded on deserted highways and left unattended by the state. Due to the massive shutdown resulting from the sudden lockdown declared by the government, many of these people had been left with no work, no residence, and no money.
And now when the court has taken the suo-moto cognizance of the exodus and plight of workers, much damage has already been done. Had the court intervened earlier during those days, so many innocent lives could have been saved and an unfathomable amount of human sufferings could have been avoided. Nonetheless, it’s better late than never.
A few days ago, the apex court opined that people, especially migrant workers should not be prosecuted for trying to reach home amid the national lockdown. It directed the governments to withdraw cases or complaints lodged against migrants under section 51 of the Disaster Management Act 2005 and other offenses for violating the national lockdown.
Obviously, prosecuting and punishing such people who had set out on foot from big cities for their native villages to escape disease, unemployment and starvation during the ongoing pandemic would be cruel and inhuman.
The fact that the court has at least started taking cognizance on these matters, is a big relief and shows that there is still some ray of hope left in the working of our judiciary. Recently, a bench comprising Justices Ashok Bhushan, SK Kaul, and MR Shah, ordered the concerned States to bring the stranded migrant workers home within the next 15 days and to make provisions regarding counseling sessions, skill-mapping for employment, and food and ration for them.
The bench also defended the orders of many of the high courts on such issues. The solicitor general on behalf of the government had criticized the high courts for running a “parallel government” but the apex court held that being Constitutional courts, they were “well within their jurisdiction to take cognizance of violation of fundamental rights of migrant workers”.
Indeed, the Indian Supreme Court has shown considerable reluctance initially in safeguarding the rights and well-being of millions of hapless migrant laborers who were left unattended by the state on the streets and highways.
Despite laying high ideals of judicial activism, public interest litigation, etc. (PIL), in the past it failed to use them properly when people needed them the most during this deadly pandemic. It did not come to the rescue of the poor and marginalized sections of our society in the same vein as many high courts did.
And by doing so, it clearly shirked its Constitutional and moral responsibilities towards people. Not only did it not take any effective suo motto action on the exodus and plight of workers, it even declined to entertain those that were filed by terming them as matters of policy domains and thus showed extreme deference to the will of the legislature.
It was only after much pressure and criticism that it came to the fore recently and issued several orders relating to the welfare of the migrants. But by then, so much damage and human sufferings had already taken place.
---
*Atul is a 4th year LLB student at National Law University, Delhi. Sandeep Pandey, a Magsaysay award winning social activist, is a visiting faculty there for this semester

Comments

TRENDING

Top upper caste judges 'biased' towards Dalit colleagues: US Bar Association report

By Rajiv Shah  A high profile report prepared by the influential  American Bar Association (ABA) Center for Human Rights , taking note of the fact that “in the 70-year history of the Indian Republic, only six Dalit judges have been appointed to the Supreme Court”, has taken strong exception to what it calls “lack of representation of Dalits” in the legal profession and the judiciary.

Savarkar 'criminally betrayed' Netaji and his INA by siding with the British rulers

By Shamsul Islam* RSS-BJP rulers of India have been trying to show off as great fans of Netaji. But Indians must know what role ideological parents of today's RSS/BJP played against Netaji and Indian National Army (INA). The Hindu Mahasabha and RSS which always had prominent lawyers on their rolls made no attempt to defend the INA accused at Red Fort trials.

Billion vaccine doses? Devil is in details: 70% haven't got 2nd jab; numbers jacked up

By Prof Ujjwal K Chowdhury*  India has reached the one billion Covid-19 vaccinations milestone. It is indeed a great news and a big salute to the less paid ordinary health-workers in interiors of India for this feat. The government wants all of India's 944 million adults to get vaccinated this year. Around three-quarters of adults in the country of 1.3 billion people have had one shot and around 30 percent are fully vaccinated, the government says.

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Failure of 'trickle down theory' behind India's poor Global Hunger Index rating

By Dr Gian Singh*  On October 14, 2021, two organisations, Concern Worldwide (An Irish aid agency) and WeltHungerHilfe (a German organization that researches the problem of global hunger), jointly published the Global Hunger Index (GHI) for 2021. These organizations have included 116 countries in the world hunger rankings.

Global Hunger Index: Govt of India response pathetic, 'lacks' scientific empirical evidence

By Fr Cedric Prakash SJ* Come 16 October – and the world once again focused on the most basic need for a person’s survival: food! The first World Food Day was observed in 1994, to mark the launch of the Food and Agriculture Organization (FAO) of the United Nations. Ever since, the day is marked to highlight the need and importance of food security across the world. The significance is accentuated especially in these difficult times like the C-19 povidandemic. The theme for 2021 is ‘Safe Food Now for a Healthier Tomorrow’, emphasising on the various immediate and long-term benefits of consuming safe and healthy food.

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

Fresh efforts to subsume Buddhism within Hindu fold 'undermining' Ambedkar

By Aviral Anand*  From Yeola in 1935, when Dr Ambedkar announced that he would not die a Hindu, to Nagpur in 1956 when he converted to Buddhism, is a considerable distance in time. But, there was in him a need to make a public announcement in 1935 about moving away from Hinduism. 

March opposes Sabarmati Ashram renovation: 'Mahatmaji had kept open for access to all'

Counterview Desk A Sevagram to Sabarmati march, which began on October 17 from Wardha (Maharashtra) and will end on October 24 in Ahmedabad (Gujarat), has demanded that the Sabarmati Ashram, the government should not impose "the fashion and glitz of a shallow modernity" at the cost of Rs 1,200 crore, in the name of renovating the Ashram founded by Gandhiji.

Nehru legacy? GDP-centric growth has had 'no positive impact' on people's livelihood

By Dr Kamal Nayan Kabra*  Experience has shown that many counties adopt measures to go in for the growth of their GDP, basically in the existing framework, though also going in for, at the same time, new products and technologies and similar other changes. It is believed that by means of this process enough new job opportunities would emerge to meet the economy’s needs both in terms of numbers as also in terms of the requisite remuneration (wages) as also the supplies of the goods and services to maintain the economy on an even keel.