Justice Madan Lokur: Supreme Court Deserves an 'F' Grade For Its Handling of Migrants

After humanitarian law died a million deaths, the Supreme Court finally took suo motu cognizance of the plight of the workers forced to set out for distant rural homes because of the lockdown.

News has come in that on May 26, 2020 the Supreme Court took suo motu cognizance of the problems and miseries of migrant labourers stranded in different parts of the country.

While taking cognizance, reference was made to newspaper and media reports of the

“unfortunate and miserable conditions of migrant labourers walking on-foot and cycles from long distances. They have also been complaining of not being provided food and water by the administration at places where they were stranded or in the way i.e. highways from which they proceeded on-foot, cycles or other modes of transport.”

Will some good come out of this? Better late than never? Is it a face-saving attempt to atone for past follies? Is it an indictment of the state that has dealt (or not dealt) with the tragedy? You be the judge.

The first among many petitions pertaining to the migrants was filed by Alakh Alok Srivastava, a practicing lawyer.  The petition was in public interest and the Supreme Court recorded in its order of March 31, 2020 that it “highlighted the plight of thousands of migrant labourers who, along with their families, were walking hundreds of kilometres from their work-place to their villages/towns.”

By way of an example, the averment in the petition was noted to the effect that thousands of migrant labourers left Delhi to reach their homes in the states of Uttar Pradesh and Bihar, by walking on the highways. The petitioner’s concern pertained to their welfare and a direction was sought to the authorities “to shift the migrant labourers to government shelter homes/accommodations and provide them with basic amenities like food, clean drinking water, medicines, etc.”

On the request of the solicitor general, the court took on record a status report of March 31 and noted that it dealt with steps taken to prevent the spread of coronavirus, measures taken by the Central government in providing basic amenities like food, clean drinking water, medicines etc. to the ‘lower strata’ of society. A reference is also made to a relief package under the Pradhan Mantri Garib Kalyan Yojana and other schemes to ensure that persons in need are taken care of.

The report recorded that the initial reaction of the state governments and Union territories to the thousands of migrant labourers leaving Delhi was to transport them from their borders to their villages. But, on March 29, the Ministry of Home Affairs issued a circular “prohibiting movement as transportation of migrant labourers in overcrowded buses would cause more damage than help to the migrant labourers. The very idea of lock down was to ensure that the virus would not spread. It was felt that transportation of migrant labourers would aggravate the problem of spread of the virus.”

Also Read: Migrant Worker Crisis: The Supreme Court Has Abdicated All Responsibility

The circular worked like a magic wand and abracadabra, the solicitor general stated that as per information received by the control room more than 21,000 relief camps had been set up in which more 6.5 lakh persons (migrant labour) had been provided shelter and more than 22.8 lakh persons had been provided food and other basic amenities like medicines, drinking water, etc. He further stated on instructions that as at 11.00 am “there is no person walking on the roads in an attempt to reach his/her home towns/villages.”

What triggered the migration? According to the status report, panic was caused by fake news that the lockdown would last for more than three months. So, the migrant labourers chose to believe fake news rather than the hon’ble prime minister who had announced, a few days earlier, only a three week lockdown. Fake news had circulated despite an advisory by the Government of India on March 24 to the authorities to effectively deal with rumour mongering. Obviously, the authorities failed in the discharge of their duty. Therefore, the court expected all concerned to “faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety.” As far as the media was concerned, the court expected the print, electronic and social media to “maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated.” Scapegoating had started.

Additionally, the court recorded the statement of the solicitor general that “within 24 hours the Central government will ensure that trained counsellors and/or community group leaders belonging to all faiths will visit the relief camps/shelter homes and deal with any consternation that the migrants might be going through. This shall be done in all the relief camps/shelter homes wherever they are located in the country.”

Two features clearly stand out. First, the Supreme Court accepted what it was told – hook, line and sinker. True, there was nothing on March 31 to doubt the correctness of the statement that no person was walking on the roads at 11.00 am but is the court so naïve as to seriously believe such a statement? Is the court also naïve enough to believe that a circular issued by the Central government could work wonders and ensure that a few lakh persons (not thousands) actually stayed off the roads? If a statutory order issued by the National Disaster Management Authority and the Ministry of Home Affairs acting in exercise of powers conferred by the Disaster Management Act could not ensure the implementation of a complete lockdown, could a mere circular prevent migrants from hitting the road? Really?

Also Read: How Nepal’s Supreme Court Upheld Dignity of Migrant Workers Without Diluting COVID Fight

Subsequent hearings in the case on April 3 and 7 confirm that as on March 31, the Supreme Court did not even bother to question the statement made or hold the Central government to account, despite more than enough evidence available everywhere. Newspaper and media reports were ignored.

Second, did the Central government fulfil its commitment that “trained counsellors” would visit the camps and deal with the “consternation of the migrants”? Even this was not questioned by the court during the hearings on April 3 and 7. This is very important since the court was aware that “panic can severely affect mental health. We are informed that the Union of India is conscious of the importance of mental health and the need to calm down those who are in a state of panic.”

Given the circumstances, was it not the constitutional obligation, not duty, of the Supreme Court – a court for the people of India and not a court of the people of India – to ascertain that a few lakhs (not thousands) of migrants are well taken care of, physically and emotionally? It is not that the court was expected to disbelieve or distrust the establishment represented by no less than the solicitor general, the court was only required to ensure through the principle of continuing mandamus that the solemn assurances given to it are faithfully carried out. Sorry, the court completely failed in this – forgot what public interest litigation is all about. If a grading is to be given, it deserves an F.

True, the events were unprecedented as far as the government is concerned, but the events were also unprecedented as far as the migrants are concerned. Unfortunately, the lack of interest and compassion shown by the court was also unprecedented. Here was an opportunity handed over on a platter to the court to be more proactive and assertive keeping the interest and constitutional rights of the hapless people in mind.

The initial failure of March 31 and in two subsequent hearings was compounded in the final hearing on April 27, when the Court passed a rather tepid order to the effect that the solicitor general had agreed that the interim directions passed on March 31 would be continued [actually no interim directions had been passed] and the suggestions made would be examined and appropriate action taken. On this basis, the petition was disposed of. On that day, humanitarian law died a million deaths.

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Surely, but surely, the court could not have been oblivious to the continuing migration to rural areas during this period in April. If the court was aware of the migrant crisis (as it should and must have been) why did it not act? Did the court feel helpless and if so, why? Leaving the migrants – men, women, children and infants to their uncertain fate was certainly not a policy decision that necessitated a hands-off attitude from the court; and if it was a policy decision, it was a perverse policy decision that should have been set aside in less than a minute.

What could the court have done? Public interest litigation is all about public interest. Well-meaning persons approach the Supreme Court for the enforcement of constitutional and statutory rights of those who have no access to justice. This is precisely what the petitioner (and others) did. The Supreme Court was approached on behalf of migrant labourers on the road for a do-something direction. Sadly, the court let them down, badly. The court could have asked pointed questions to the state. It could have asked if the Central government had a plan of action for the “unforeseen development” (an expression used in the status report); it could have asked for the steps taken and proposed to be taken to mitigate the hardships that the migrants faced; it could have asked if the state governments were geared up for the massive influx of migrants whose presence “would aggravate the problem of spread of the virus.” Issues of socio-economic justice and constitutional rights are vital and raise a whole host of questions, but not one was asked in a public interest litigation, and the issue buried ten fathoms deep. If any event ever shook the collective conscience of the nation, the travails of the migrant labourers did.

A migrant workers’ scarred feet. Photo: Shome Basu

Why do I say that the court could not have been unaware of the migrant labourers issue? A second petition filed by Harsh Mander and Anjali Bhardwaj came up before the Supreme Court on April 3. They had asked for a direction to the Central government and state governments to ensure payment of wages/minimum wages to all migrant workers within a week.  It was contended that despite governmental measures, thousands of labourers still lack access to basic facilities, and that studies conducted by NGOs indicate that there are several areas where the aid is not reaching the migrant workers.

On April 7, a status report was presented to the court on behalf of the state. Annexure B to this report gave some startling figures. The status report of March 31 stated that there were 21,604 relief camps and 6,66,291 persons had been provided shelter while 22,88,279 persons had been provided food. As per the report of April 7, the number of relief camps and shelters (including those of NGOs) had gone up to 26,476; shelter had been provided to 10,37,027 persons and food provided to 84,26,509. In addition, 15,05,107 workers were said to have been given shelter and food by employers/industry where they were working. Given this massive increase in numbers within a week, how could the court be unaware of the problem facing the country and how could the court not do anything about it? It seems to me that after the migrant workers, empathy and compassion were the next casualties.

The status report goes on to debunk newspaper reports by stating: “The petition as well as further Affidavit filed is bereft of any facts and is based on some newspaper reports.” The newspaper reports that the Supreme Court has now referred to are also not worthy of credence? The status report trashes the studies relied on by the petitioners by not even bothering to refer to them. Unfortunately, nor does the Supreme Court.

And then what happened? The petition filed by these two social activists was adjourned to April 21, and the following order passed: “Taking into consideration the material placed before us, we call upon the respondent – Union of India – to look into such material and take such steps as it finds fit to resolve the issues raised in the petition.” Excuse me? What about payment of wages? Executivization of constitutional justice?

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The status report points out, interestingly, that “when the country is facing such unprecedented crisis, filing of such petitions and attempting to sit in appeal over all actions taken by the respective governments by few individual needs to be discouraged as it diverts energy and attention of the statutory functionaries which ought to have been utilised to its optimum in discharging their duties on ground.” The Supreme Court can very well be similarly told at the next hearing in the suo motu proceedings – don’t interfere since you are diverting our energy and attention and effectively preventing us from utilising them from discharging our duties on the ground.

A third opportunity came the way of the Supreme Court when Jagdeep Chhokar filed a petition for a direction to the Government of India to allow migrant workers across the country to return to their hometowns and villages after conducting necessary testing for COVID-19 and to arrange for their safe travel by providing necessary transportation to this effect.

It was noted by the court on May 5 that an order of the government issued on April 29 allowed movement of migrant workers, pilgrims, tourists and students stranded at different places. All state and Union territory governments were required to designate nodal authorities and develop standard protocols for receiving and sending such stranded persons. “The main relief which was sought in the writ petition, thus, stood substantially satisfied by the aforesaid order.” QED. Shouldn’t questions of this nature have been asked on March 31? Any follow-up steps?

The court also noted that on May 1, an order was issued by the Ministry of Railways to run “Shramik Special” trains to move migrant workers, tourists, students and other persons stranded at different places due to lock down. A grievance was made by Prashant Bhushan appearing for the petitioner that the migrants were required to pay 15% of the fare, which they could not afford. Remember, the court had earlier declined to pass any order for payment of wages to the migrant labour. What was the answer now? “Insofar as charging of 15% of Railway tickets’ amount from workers, it is not for this court to issue any order under Article 32 regarding the same, it is the concerned State/Railways to take necessary steps under the relevant guidelines.” The petition stands disposed of.

One thing is clear – the migrant workers, women (some of them pregnant), children and infants will remember these dark days till the very end. Images that have haunted us for two months and the horrific struggles of millions will remain etched in our psyche and many will long remember that when it came to the crunch, the Supreme Court did not see those images or read those stories. Over the past few months, constitutional rights and remedies were overlooked and socio-economic justice, a cornerstone in the preamble of our constitution, was disregarded. Some eminent members of the legal fraternity have already expressed dissatisfaction with the present-day functioning of the Supreme Court. Isn’t that tragic or is it farcical?

The facts speak for themselves. Can the court redeem itself and reimage its brand as a court for the people of India and not of the people of India? By addressing the plight of the migrant workers suo motu, as the court has now done, will the situation on the ground change? Will the Supreme Court change? You be the judge.

Madan B. Lokur is a former judge of the Supreme Court of India