A letter to justices of Supreme Court, from senior members of the Bar on the migrant crisis

The government’s statement has been clearly shown to be contrary to the facts. Several reports suggest that more than 90 per cent of migrant workers did not receive government rations in many states and were suffering from dire food shortages.

It is with great anguish and dismay that we write to you as the citizens of India and senior members of the Bar. The Supreme Court (SC) 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 wage. The SC’s constitutional role and duty assume even greater importance in the time of a crisis, such as the present when the entire country and its economy was “locked down” from March 24 by an order of the central government. More than 75 per cent of the Indian workforce earn their livelihoods in the informal or unorganised sector, and for them, a stoppage of economic activity in the Medium, Small and Micro sectors has resulted in an immediate loss of livelihood and the means of sustenance.

The “lockdown” was imposed on March 24 without any consideration being paid to the plight of these poor, especially migrant labour earning their livelihood in the major cities, and for whom social distancing was and is a utopian impossibility. These poor citizens 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 kilometres away, with little children, family members or elderly parents. They were forced to do so as the central government’s lockdown had precluded them from taking trains or buses back to their home towns.

While hearing public interest litigation on the plight of the migrant workers, Alakh Alok Srivastava v. Union of India, the SC considered the Status Report filed by the learned Solicitor General, representing the Union of India, which referred to the government’s circular dated March 29, 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 March 31, “no migrant person was walking on the roads in an attempt to reach his/ her home towns villages”. The SC, 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 lockdown would continue for more than 3 months”. As a consequence of the Court’s failure to intervene, even though the number of COVID cases was only a few hundred at the time, the millions of migrant workers were unable to proceed to their hometowns. This enforced stay in cramped quarters only exposed poor workers to a higher risk of infection. Moreover, the government’s statement has been clearly shown to be contrary to the facts. Several reports suggest that more than 90 per cent of migrant workers did not receive government rations in many states and were suffering from dire food shortages.

The SC’s failure to intervene in March resulted in a massive migration of millions of workers by early May — they were fed up with being virtually incarcerated for the previous six weeks. By this time, the COVID infections in the country had crossed 50,000 and a significant number of migrant workers were also infected. 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, 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 were 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 reach their homes, almost as if this was not one countrty with a common citizenship. The right to life, liberty and freedom of movement of these hapless poor millions was rendered virtually meaningless.

On May 15, a three-judge bench of the SC 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, the said application was dismissed and it was left 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.

Amid the executive-imposed COVID-19 lockdowns, the Court cannot retreat into self-effacing deference, leaving millions of Indian citizens, especially those who are poor and vulnerable, 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.

This 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 believe that the survival of Indian democracy and the rule of law, particularly in the current COVID-19 pandemic, is dependent on the Court actively fulfilling its constitutional obligation.

The migrant workers’ crisis is continuing even today, with millions still stranded on roads, at railway stations and state borders. We urge the Supreme Court to intervene and ensure that adequate transport arrangements, food and shelter are immediately provided 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”.

This article first appeared in the print edition on May 29 under the title “Your Lordships”.

P Chidambaram, Anand Grover, Indira Jaising, Mohan Katarki, Siddarth Luthra, Santosh 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, Sanjay Singhvi. Full version of this article is available at indianexpress.com