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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

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