A supreme failure

The ghost of ADM Jabalpur lingers on

It is said that history repeats itself. In 1976, at the peak of Emergency excesses in India, the High Courts stepped up to protect the precious rights of those detained under the Maintenance of Internal Security Act (MISA) and other preventive detention laws. The Supreme Court accepted the submissions of the Indira Gandhi government despite overwhelming evidence to the contrary and opined that the government was providing motherly care to the détenues. ADM Jabalpur may stand overruled on paper, but in practice, it still appears to be the guiding light for the Supreme Court. Nothing else explains the bizarre orders and observations currently being reported from the Supreme Court.

The country-wide lockdown necessitated by the COVID-19 pandemic was announced with less than four hours’ notice to the nation. This has resulted in an unprecedented humanitarian crisis in the country. Sheer helplessness has gripped the most vulnerable members of our society. Suddenly deprived of a livelihood and left with no alternative, lakhs of migrant workers have been forced to start a long march back home, often being forced to walk for hundreds of kilometers, with little children and their belongings in tow. To add salt to the wound, the brutal actions of police and other government officials in banning interstate travel of such helpless people has resulted in a crisis of the scale nearly parallel to the one seen in the aftermath of Partition in 1947.

The visuals and news reports are there for the entire nation to see. This is most unfortunate in a country that prides itself on being a vibrant democracy, governed by the rule of law and an independent judiciary that is meant to act as a counter-majoritarian institution. In fact, it would not be an exaggeration to say that it appears that these poor migrant workers have become invisible in plain sight and not even a word has been spoken regarding their plight by the top functionaries of the government.

The Supreme Court has so far refused to intervene in the matter or even pose pertinent questions to the executive and hold it accountable for its policies (or lack thereof) to abate the crisis. Even as the government is making patently false statements in court, including the statement by the Solicitor General recorded in the order dated March 31, passed in Alakh Alok Srivastava vs Union of India that as of 11 am that day, no person was walking on the roads to reach their home/village. Not only has the court abdicated its judicial responsibility, it has also demonstrated an unprecedented apathy and heartlessness to the plight of the most vulnerable citizens of the country.

It was the Supreme Court which interpreted the fundamental right to life enshrined in Article 21 of the Constitution to mean the right to live with dignity and not mere animal-like existence. The nation expects its rights jurisprudence to advance with each successive generation of its Justices. It is, however, extremely distressing to see statements from the Chief Justice, according to whom as long as migrant workers are being provided food, they do not need to be paid wages, or the absolutely callous manner in which the Court stated that “it cannot monitor the activities of those walking on the road.”

Just as it happened during the Emergency, instead of the Supreme Court setting the example for the High Courts to follow, the High Courts have risen to the occasion even in the absence of any leadership from the Supreme Court. The High Courts of Odisha, Karnataka, Gujarat, Andhra Pradesh and Madras have shown the way ahead and refused to take the submissions advanced by their respective state governments at face value or as gospel truths.

In an extraordinary order, the High Court of Madras reminded us why the judiciary is the protector of the fundamental rights of the people as it asked the state government to respond to some extremely pertinent questions, such as on the measures taken for the welfare of the migrant workers, and to furnish data on the plight of the migrant workers. What is impressive about the order is that it is not dismissive of the reports of the mass exodus of the migrant workers and their plight as ‘isolated incidents’ or ‘fake news’. The foundation of the order is that the government had failed in providing even the most basic care to the workers, who have been deprived of their livelihood due to the lockdown and are unable to sustain themselves and their families in the city.

Constitutional obligations, precedents laid by the rich public interest litigation (PIL) jurisprudence and, indeed, even basic empathy seem to have inexplicably deserted the Supreme Court at this crucial moment in India’s history. It is not without reason that the Supreme Court of India is often called the “most powerful court in the world.” It can hold the executive accountable, entertain letters as petitions or indeed take suo motu cognisance of an issue it thinks requires intervention.

On the day he disposed of the petition seeking relief for migrant workers, the Chief Justice of India stated in an interview to a media outlet that “undoubtedly, the executive can't allow the lives of citizens to be endangered. When that happens, surely the court jurisdiction will intervene.” We do not know when or if that day will come. Till then, the migrants continue their walk.

ADM Jabalpur will no longer be remembered as the darkest moment of the Supreme Court. That infamy now belongs to the Court’s response to the preventable migrant crisis during the COVID-19 pandemic.

(The writer is a former Supreme Court judge)