Millions of migrant workers in India are walking miles under the searing sun to reach their home during the lockdown. This is certainly one of the most lamentable humanitarian crises the modern world has witnessed. The failure of the Supreme Court of India (SC) to step in and secure for its citizens their basic human rights is traumatic not only for the migrant workers but also for the rich history of following the path of constitutionalism by the Judicial System of India, writes Soham Banerjee.

The Supreme Court of India is considered to be the guardian of the Constitution of India. The Constitution makes government authorities “to act in aid of the Supreme Court”, which ensures that society functions under the rule of law. The Constitution also enables the Supreme Court of India to supervise the executive actions and inactions. Article 32 makes the Supreme Court the saviour of the people whose fundamental rights are being violated. It is considered a duty of the Supreme Court of India to uphold the values of the Constitution. 

The intervention of the Supreme Court was sought through Public Interest Litigations (PIL) bought before it concerning several issues relating to migrant workers. Justice Bhagwati has described the goal of PIL in India as endeavouring to counter “state repression, governmental lawlessness, administrative deviance, and exploitation of disadvantaged groups and denial to them of their rights and entitlements.”

Public Interest Litigations can be filed before the Supreme Court under Article 32, only if a question concerning the enforcement of a fundamental right is involved. The SC has entertained a number of petitions under Article 32, which complained infraction of fundamental rights of weak or oppressed groups who are unable themselves to take the initiative to vindicate their own rights. The SC is also empowered to take cognizance of a matter and proceed suo motu under Article 32. Justice Bhagwati recognized Public Interest Litigation as a strategic arm of a legal aid movement, “which is intended to bring justice within the reach of poor masses who constitute the low visibility area of humanity…” An extensive purpose of ventilation of the grievances of the society is served by the Public Interest Litigation. In 1988 while explaining the nature of Public Interest Litigation, in Sheela Barse v. Union of India, the Supreme Court observed, “The technique of public interest litigation serves to provide an effective remedy to enforce group rights and interests.” Hence, the Public Interest Litigation, as an instrument of the law, serves to counter governmental neglect.

However, the response of the Supreme Court of India was very passive and insensitive in case of the Public Interest Litigations which were filed regarding the migrant workers’ crisis. The Supreme Court casually dismissed most of those matters without any effective orders, in most cases, unquestioningly believing the version of the executive. This indicates a clear approach from the Supreme Court that the government is doing what is needed, in other words, ‘trust your government.’ This approach flows against the very idea of constitutionalism. 

Constitutionalism is the antithesis of arbitrary rule. It is the legal limitation of a government. Eminent jurist Michel Rosenfeld pointed out that modern constitutionalism requires “imposing limits on the powers of government, adherence to the rule of law, and the protection of fundamental rights.” It is only because of the concept of constitutionalism learnt and practiced by the Judicial System of India, that the Constitution of India has been working reasonably well since 1950. The dedication of the Supreme Court of India to the idea of constitutionalism has been holding the government accountable for its actions and inactions towards the citizens, while securing their fundamental rights. In Government of NCT Delhi v. Union of India, Justice Dipak Mishra observed, “The constitutional functionaries owe a greater degree of responsibility towards this eloquent instrument for it is from this document that they derive their power and authority and, as a natural corollary, they must ensure that they cultivate and develop a spirit of constitutionalism where every action taken by them is governed by and is in strict conformity with the basic tenets of the Constitution.” From the Maneka Gandhi (1978) case to the Navtej Singh Johar (2018) case, there has been a luminous presence of constitutionalism in the role played by the Supreme Court of India. Against that background the laid-back approach of the Supreme Court of India in the migrant workers crisis seems quite absurd.       

The obliviousness of the Supreme Court of India became obvious when the it took suo moto cognizance of the migrant workers crisis and passed a direction saying that no train or bus fare shall be charged for migrant workers, after disposing of a PIL filed by Jagdeep Chokker, solely on the basis of the version of the executive that all necessary steps are being taken by the Centre and the States. During the hearing of another PIL, being WP(C) No. 468/2020, seeking the Supreme Court’s indulgence towards the plight of migrant workers, the Solicitor General of India, on instruction, had made a statement on 31.03.2020 that there is no person walking on the roads in an attempt to reach his/her home towns/villages. A bench comprising Chief Justice of India S A Bobde and Justice L Nageswara Rao, by an order dated 31.03.2020, observed, “The migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months. Such panic driven migration has caused untold suffering to those who believed and acted on such news. In fact, some have lost their lives in the process.” It is disappointing that the SC was not even bothered enough to consider other socio-economic factors of a mass exodus of the workers. Later on 08.05.2020, when some migrant workers were killed by a train while walking towards their home following the rail line, an application for urgent interim directions was filed by the petitioner Alakh Alok Srivastava, praying for a direction upon the District Magistrate to immediately identify moving and stranded migrant workers and to provide them shelter, food, water and medicines. While dismissing the application, Justice L Nageswara Rao, while leading the bench comprising Justice S K Kaul and B R Gavai with him, observed, “How can we stop them from walking?”, without properly indulging into the process of finding out the reason for them walking. 

In 1983, the Supreme Court itself, in Bandhua Mukti Morcha vs. Union of India, said that, “When the poor come before the Court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material  before the court  for  the purpose  of securing enforcement of their fundamental rights. If the adversarial procedure is truly followed in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the Constitution.” It was further pointed out that Public Interest Litigation is not in the nature of adversary litigation but is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure the social and economic justice which is the basic motive of the Constitution. Hence, the Court, in case of Public Interest Litigations, should compel the Government to make basic human rights meaningful and supervise the same. The Supreme Court has failed miserably in this aspect. 

However, the Supreme Court took suo moto cognizance of the migrant workers situation on 26.05.2020 i.e. after two long months, and that too only after strong criticisms by the members of legal fraternity as well as common netizens. During that period we have witnessed a child, too exhausted to walk, being dragged by his mother as he sleeps on a suitcase; we have witnessed migrant workers getting killed by train; we have seen the heart wrenching video of a toddler trying to wake his dead mother up in a railway station. In my opinion, for these two months hardships of the migrant workers were neglected, deaths of the migrant workers were trivialized by the Supreme Court of India. Migrant workers form the largest part of India’s vast unorganized work sector. They already face the exploitative labour arrangements that force them to work in low-end, low-value, hazardous work. Now the lack of legal protection accentuates their misery. The judiciary should have intervened in the early days of lockdown as the Supreme Court has the power to scrutinise the executive actions and inactions towards the people. 

The Supreme Court of India has a history of being the most active court when it comes to the matter of protection of Human Rights. The Indian Judiciary has, through judicial activism, devised new remedies for the purpose of vindicating human rights. This heritage must be put forward in the present situation, by the present judges. It must be remembered that the Supreme Court of India, in P.N. Duda vs V. P. Shiv Shankar & Others, observed, “Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office that is to defend and uphold the Constitution and the laws without fear and favour.” Let us hope that the belated attempt of the Supreme Court to get back on the right track by taking suo moto cognizance of the migrant worker situation leads to a fruitful solution. The poor people of India still have faith in the Judicial System; the Supreme Court of India must be independent and strong enough to ensure that it stays the same.

The author is an advocate at Calcutta High Court.

(The views and opinions expressed in the article are author’s own.)