After two months of unspeakable misery caused to millions of migrants in the country due to the national lockdown, which led to the loss of hundreds of lives, the Supreme Court took suo moto cognizance of the issue on Tuesday, May 26.
Till then, the SC had been in a state of denial, unquestioningly believing the executive's version that "all is well". The cases brought before it concerning several issues relating to migrant workers, such as payment of wages, food security, shelter homes, transport and access to trains were closed by the court without effective orders (detailed and documented in this article). The passive response of the apex court, and the excessive deference shown by it to the executive even in the middle of an unprecedented humanitarian crisis , had come under widespread criticism from ex-judges, senior advocates, and many members of legal fraternity, including law students. Even the ordinary citizens were anguished at the inaction of the apex court, going by many of the comments expressed in social media.
Former Supreme Court judges, Justices Madan B Lokur and V Gopala Gowda likened the Court's behavior to that of the emergency-era Supreme Court, where it had displayed a shocking lack of concern for the most basic rights of the citizens. Former HC judges, Justices A P Shah and Kailash Gambhir, criticized the Court's abdication of responsibilities. All these jurists were unanimous in their opinion that the Supreme Court let down the migrants amidst a grave constitutional crisis.
Senior Advocate Dushyant Dave, President of the Supreme Court Bar Association, minced no words in expressing disappointment at the Court's failure in holding the executive accountable. "Judges cannot sit in ivory tower and be blindfolded to the miseries of the citizens of India", he said. "This is not an emergency. The fundamental rights are not suspended. Yet, the judiciary has suspended the effective enforcement of fundamental rights", he added.
Expressing anguish at the passive response of the Supreme Court to the issue of migrant workers crisis amid the COVID-19 lockdown, Senior Advocate Jaideep Gupta commented that the top court "could have done a lot". "The migrants walk home is not a casual irresponsible act of a citizen. It's a moment of existential crisis for them. The Supreme Court could have done a lot. Only they could have", he said.
Senior Advocate Sanjay Hegde commented that the Court's inaction amounted to 'social distancing from the powerless'. "Judicial abnegation by the top court is not healthy for an institution trusted as being the protector and enforcer of rights", he said.
Recently, several leading lawyers - P Chidambaram, Anand Grover, Indira Jaising, Mohan Katarki, Siddharth Luthra, Santhosh Paul, Mahalaxmi Pavani, Kapil Sibal, Chander Uday Singh, Vikas Singh, Prashant Bhushan, Iqbal Chagla, Aspi Chinoy, Mihir Desai, Janak Dwarkadas, Rajani Iyer, Yusuf Muchhala, Rajiv Patil, Navroz Seervai, Gayatri Singh and Sanjay Singhvi - wrote to the CJI seeking urgent intervention in the migrants issue.
"This situation was compounded by the Hon'ble Supreme Court's failure to intervene in mid-day when millions of migrant workers had commences travelling home on foot, or by trucks", they said in the letter.
"As a consequence of the Court's failure to intervene, even though the number of Covid cases were then only a few hundred at the time, the millions of migrant workers were unable to proceed to their hometowns and were compelled to remain in small cramped tenements or rooms or on the pavements, without any employment or livelihood, and even a definite source of food. In fact this enforced stay in cramped quarters only exposed such poor worker to a higher risk of Covid infection", they added.
Meanwhile, many High Courts showed the way by staying true to their constitutional role of acting as a check on the executive.
Gujarat HC's Model of Holding the Executive Accountable
The Gujarat High Court took suo moto notice of a host of issues related to the COVID-19 pandemic and the lockdown. What is commendable is that the Gujarat HC was not seeking to substitute its wisdom with that of the executive. Rather, it sought explanation from the government regarding its plan of action to deal with the issues to ascertain if it passed the constitutional muster.
The Court intervened only when it found that the government's responses were grossly unreasonable, or blatantly unsatisfactory. For example, the bench comprising Justices J B Pardiwala and Ilesh J Vora was quick to dismiss the puerile explanation given by the State for not doing enough number of COVID-19 tests. The Government told the bench that more number of tests could lead to 70% of the population testing positive, and that this could lead to "fear psychosis". The Court emphatically said that this cannot be a reason for reducing the number of tests.
Also, the Court did not shy away from highlighting the unsatisfactory conditions in the Ahmedabad Civil Hospital, which was leading to high mortality rate of COVID-19 patients.
Unlike the SC, the High Court did not turn its face away from the plight of migrants, and passed directions to ensure food and shelter to them. As regards their travel, the Court directed the railways to either waive off their one way charges, or the State to bear their fare.
Karnataka HC Nudged Govt into Action
Similar was the response of the Karnataka High Court with respect to the migrants issues. The Court demonstrated that by simply asking the right questions and making the relevant observations, the judiciary can get the government to act. Actual directions may not be always necessary. A bench comprising Chief Justice A S Oka and Justice B V Nagarathna of the HC observed that inability to pay rail fare should not become a ground to deprive migrants of their right to travel to their native places. This, the court explained, was due to the fact that their lack of income is directly linked to the lockdown imposed by the State. So, State has the constitutional obligation to mitigate their sufferings.
This led to the Karnataka Government taking a stand that it will bear the travel cost for Karnataka natives to come back from other states. In response, the Court asked if such a stand would not amount to discrimination against migrants within Karnataka, on the basis of place of origin.
Following the sustained interrogation from the Court, the Karnataka Government diluted its stance by deciding to bear the cost of migrants' travel from Karnataka to their native states.
Court Would Be Failing In Its Role If It Doesn't React: AP HC
The Andhra Pradesh High Court observed that the Court would be failing in its role, if it does not react to the issue of migrants being forced to walk hundreds of kilometers to their native places.
A division bench ofJustice DVSS Somayajulu and Justice Lalitha Kanneganti passed a slew of directions to ensure proper availability of food, toilets and medical help etc. for these migrants. The Court observed that the situation was "alarming" and that "immediate intervention" of the Court was necessary.
Later, another bench headed by Chief Justice J K Maheshwari passed directions for creating temporary sheds for walking migrants, and to ensure their travel by bus/train within 48 hours of registration with the nodal officers.
Pity to See Migrants Walking: Madras HC
The Madras HC suo moto sought an action taken report from the State Government and the Centre on the steps taken for the relief of migrants. The Court posed 12 specific queries to the Central and State Governments such as data on the migrant workers stranded in every state, the assistance being provided to them, the number of migrant workers who died on their way to their home states, the compensation for the families of the deceased migrant workers, and the assistance being provided to those who have returned to their native states, "It is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers", observed the HC bench comprising Justices N Kirubakaran and R Hemalatha.
The High Court of Kerala has been monitoring the steps taken by the Kerala Government to provide food and shelter to guest workers. The Orissa HC and Bombay HC had taken suo moto notice of the issue of migrants, and passed necessary directions. The Bombay HC however deferred the hearing taking note of the pendency of similar issues in SC.
The Telangana High Court made a powerful declaration that medical emergency cannot be an excuse for the government to trample upon the rights under Article 21 of the Constitution. Holding thus, the Court proceeded to quash a Government Order, which prohibited citizens from getting COVID-19 testing done from private laboratories, even if they have the requisite approval. The HC also sought report from the Government on the COVID-19 tests and regarding the measures taken to allay the plight of migrants.
Importance of Public Criticism
Over All, the situation seemed to be a re-dux of emergency era, where the High Courts asserted their independent role to protect the rights of the citizens, despite the SC choosing to bow before the powers usurped by the executive.
In the face of mounting criticism, the SC has now chosen to act by taking suo moto notice of the issue.
This development also underlines the important role of informed,constructive criticism in a democracy. A bunch of vigilant citizens, who constantly demand legitimacy and justifications from centres of power, can prevent the institutions from completely failing in their constitutional duties.
It took a considerable amount of public criticism for the SC to say that there have been "inadequacies and certain lapses" in the measures taken by the governments for migrants welfare, deviating from its earlier "what can we do?" stand.
Let us hope that this course-correction by the apex court, though belated, leads to mitigation of the sufferings of the millions of migrant workers in the country.
Text of the letter Sent by Senior Advocates to CJI
To The Hon’ble the Chief Justice of India and His Companion Judges
Bhagwan Dass Road
It is with great anguish and dismay that we write to you as the citizens of India and senior members of the Bar. The Hon’ble Supreme Court has a pivotal constitutional role in protecting and safeguarding the fundamental rights and freedoms of the citizens of this country, and particularly the vast swathes of our population who eke out a living near or below the poverty line or minimum wages, and are even in normal times barely able to survive with dignity and respect. The Supreme Courts constitutional role and duty assumes even greater importance in the time of a crisis, such as the present when the entire country and its economy was “locked down” from 24th March by an order of the Central Government. More than 75% of the Indian work force earn their livelihoods in the informal or unorganized sector, and for them a stoppage of economic activity in the Medium, Small and Micro sectors has resulted in an immediate loss of employment, livelihood and the means of sustenance.
The “lock down” was imposed on 24th March without any consideration being paid to the plight of these poor, especially migrant labour [who number in the crores] earning their livelihood in the major cities, and for whom social distancing was and is a utopian impossibility. These poor citizens who were faced with the prospect of being cooped up in small cramped tenements/rooms or on the pavements, without any employment or livelihood or even a definite source of food and were thus compelled to start walking back to their home States, often thousands of kilometers away, with little children, family members or elderly parents. They were forced to do so as the Central Governments lock down had precluded them from taking trains or buses back to their home towns. The movement even at that juncture involved lakhs of poor, hungry and scared migrant labour. The Government, initially, sought to prevent such migrants from leaving and returning home.
While hearing a public interest litigation on the plight of the migrant workers, Alakh Alok Srivastava v. Union of India [Writ Petition (Civil) No. 468 of 2020], the Hon’ble Supreme Court considered the Status Report filed by the Learned Solicitor General, representing the Union of India, which referred to the Government’s circular dated 29th March 2020 prohibiting movement and transportation of migrant labourers and a direction to shift them to relief shelter homes and relief camps instead and the Solicitor General’s statement before this Court that as of 31st March, 2020, “no migrant person was walking on the roads in an attempt to reach his/ her home towns villages.” The Hon’ble Supreme Court, vide order dated 31.03.2020, expressed satisfaction at the steps taken by the Union of India to combat Covid-19 and proceeded to observe that “the migration of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than 3 months.” As a consequence of the Court’s failure to intervene, even though the number of Covid cases were then only a few hundred at the time, the millions of migrant workers were unable to proceed to their hometowns and were compelled to remain in small cramped tenements or rooms or on the pavements, without any employment or livelihood, and even a definite source of food. In fact this enforced stay in cramped quarters only exposed such poor worker to a higher risk of Covid infection
Moreover, the Government’s statement has been clearly shown to be contrary to the facts. Several reports suggest that more than 90% of migrant workers did not receive Government rations in many States and were suffering from dire food shortage.
This failure to intervene in March, subsequently resulted in a massive migration of millions of workers by early May, when migrant labourers who were fed up with being virtually incarcerated for the previous 6 weeks, without employment or wages decided that they would be better off trying to go back to their homes. Significantly by this time the Covid infections in the country had crossed 50,000 and a significant number of these migrant workers were also infected with Covid. Even at this stage, the Government initially sought to obstruct their travel/movement on foot or by trucks. Subsequently the Government agreed to their movement by bus and trains [shramik specials]. However, even when the arrangements were made by the States to transport the migrant workers who wish to return home after having been cooped up for over 30-40 days, onerous conditions were sought to be imposed on them, such as obtaining a medical certificate after getting themselves tested at great cost to themselves. When arrangements are made to transport them by road, they were often left at the borders of the receiving states, which at times were unwilling to make any further arrangements for them to let them enter or reach their homes, or provide transport, almost as if this was not one country with a common citizenship. The right to life, liberty and freedom of movement of these hapless poor millions was rendered virtually meaningless in such circumstances.
Civil society had risen to the occasion and attempted to provide succour, food and shelter for these poor migrants. However, having regard to the millions involved and the distances to their hometowns civil society cannot, in real measure provide an adequate measure of succour or redress. As this situation had been brought about by the executive orders of the Central Government imposing a lock down, prohibiting public transport and interstate travel, it was necessarily the duty and constitutional obligation of the Government of India [with the State Governments] to ensure that these millions were expeditiously enabled during lockdown1 itself to travel home safely. However, both in during lockdown 1 and in lockdown 2 no steps were taken to redress the horrendous plight of these poor millions.
On 15th May 2020, a three-judge bench of the Hon’ble Supreme Court dismissed an application seeking immediate directions to all the District Magistrates to identify the migrant workers who are walking on roads, provide them with appropriate food and shelter facility and facilitate their travel back to their home states free of cost. Without going into the merits of the said application was dismissed and left it for the State Governments to sort this out. We respectfully submit that this institutional deference to statements made on behalf of the Government and the Court’s apparent indifference to this enormous humanitarian crisis, would if not rectified immediately, amount to the Court having abdicated its constitutional role and duty to these teeming millions of poor, hungry migrants.
Indeed, the current migrant crisis is symptomatic of how the constitutional promises of equality, life, freedom and dignity have been totally ignored by the Government while imposing arbitrary executive measures. The Hon’ble Supreme Court’s unwillingness to hold the Government to account and to provide succour to these poor millions, will severely erode its constitutional role and status as the guardian of the fundamental rights of the people. The Hon’ble Supreme Court has a glorious tradition of Public Interest Litigation (PIL) that changed the face of Indian constitutional jurisprudence forever, ranging from eradication of bonded labour, prison reforms, environmental compliances, and right to food, amongst others. Each of these PILs has resulted in far-reaching legal and policy changes positively affecting the lives of the millions of people. The Hon’ble Supreme Court’s deference to the Government and it’s unwillingness or expressed helplessness in the face of the above situation, casts a long shadow on our Country’s constitutional structure.
In the midst of the executive imposed Covid-19 lockdowns, the Hon’ble Supreme Court cannot retreat into a self-effacing deference, leaving millions of Indian citizens, especially those who are poor, vulnerable and impoverished, to the mercy of the executive, reminding us of ADM Jabalpur when detenues were left to the tender mercy of the executive with “Diamond bright Diamond hard” hope that something would be done.
The rights of citizens, especially the poor, are being violated with impunity by the executive in the name of addressing the pandemic. Millions have been forced to remain cooped up in slums or small tenements for weeks on end without employment or livelihood and in total denial of their rights to life and liberty.
The deference shown by the Hon’ble Supreme Court to the Government’s bland assertions and the expressed helplessness of the Hon’ble Supreme Court on the grounds of “issue being policy decision” or “inability to monitor” in the face of an unfolding human disaster, where millions of migrant workers are on the road, walking thousands of kilometers to reach their homes, is a matter of involving the violation of fundamental rights of millions of our poor citizens on account of executive action, that needs urgent attention by the Hon’ble Supreme Court on its judicial side.
The migrant workers’ issues are not a “policy issue.” They raise constitutional issues requiring a strict scrutiny of the executive action which has resulted in this situation. The core issues are of protection of the fundamental rights of these millions of poor migrant workers to life and liberty and their right to move freely throughout India and to return home, with safety and dignity guaranteed under Articles 14, 19(1) and 21 of the Constitution. If the Court is to fulfil its sacred constitutional role and duty, it must necessarily hold the executive accountable and require it to take steps to fulfil its obligations under the Constitution.
The Hon’ble Supreme Court has developed the jurisdiction of continuous mandamus to monitor executive action to ensure that orders of this Hon’ble Court are indeed followed. The apparent deference to executive action and the reliance on bald [and patently incorrect] statements made on behalf of the executive and the expression of helplessness on this part of the Hon’ble Supreme Court to monitor executive action, severely impairs this Courts constitutional status and duty.
This Hon’ble Court has the power bestowed by the Constitution of India under Article 142 to undertake any measure to do complete justice. The show of helplessness does no justice to the motto of this court “Yato dharmastato Jaya”
We address this letter because we believe that the Hon’ble Supreme Court’s failure to protect the rights of the hapless millions of migrant workers in March and its failure to scrutinize carefully the executives actions, which resulted in them being compelling to stay in cramped unhygienic accommodation without employment and wages and often without proper food and with a much higher risk of Covid infection that severely and excessively impaired the fundamental rights of the poorest sections of our citizens. This situation was compounded by the Hon’ble Supreme Court’s Courts failure to intervene in mid-May when millions of migrant workers had commenced travelling home on foot, or by trucks.
We believe that the survival of Indian democracy and the rule of law, particularly in the current Covid-19 pandemic, is dependent on the Hon’ble Supreme Court actively fulfilling its constitutional obligation of being the guarantor of the fundamental rights of citizens against State action.
The migrant workers crisis is continuing even today, with millions still stranded on roads at railway stations and state borders. We urge the Hon’ble Supreme Court to intervene and ensure that adequate transport arrangements, food and shelter are immediately provided for by the Central and State governments free of cost. At this time, we recall the words of Martin Luther King Jr. who said “injustice anywhere is a threat to justice everywhere”.
Signed : Chidambaram, Prashant Bhushan, Iqbal Chagla, Aspi Chinoy, Mihir Desai, Janak Dwarkadas, Rajani Iyer, Yusuf Muchhala, Rajiv Patil, Navroz Seervai, Gayatri Singh, Anand Grover, Indira Jaising, Mohan Katarki, Sidharth Luthra, Santosh Paul, Mahalaxmi Pavani, Kapil Sibal, Chander Uday Singh, Vikas Singh, Sanjay Singhvi