The Supreme Court Is Locked Down and Justice Is in 'Emergency' Care

From the choice of cases it considers urgent to its handling of crucial matters impacting the lives of millions, the apex court is once again inviting comparisons with its conduct in 1975-77.

Even before a national lockdown was declared on March 24, the Supreme Court of India had already announced suspension of its normal working via a circular dated March 13, directing that “the functioning of the court shall be restricted to urgent matters with such number of benches as may be found appropriate” and thereby virtually shut down the courts.

After some days, they allowed hearing of some urgent matters by video conferencing which started on the March 25. However, the process of oral mentioning before any judge/officer who has decision making power for urgent listing of cases was done away with, with the result that even very urgent petitions – such as the one filed by Jagdeep Chhokar on April 17 seeking the return of migrant workers, stranded and helpless in shelter homes or other cities across the country, back to their home towns or villages – was not listed and seems now to be slated April 27, 10 days after filing an application for its urgent listing.  It is pertinent to point out here that the destitution of migrant labour in India – caught off guard due to the unplanned lockdown and pushed to the brink of starvation without work, wages or food – had, by this time, been covered by all major newspapers and portals nationally and internationally.

The apex court’s priorities

Mysterious – and in stark contrast – however was the fate of the petition filed by Republic TV editor Arnab Goswami, seeking protecting from FIRs registered against him in various states following a programme where he had falsely implied minorities were responsible for the lynching of three men (including two sadhus) at Palghar in Maharashtra. His petition was filed after 8 p.m. and listed the very next morning at 10:30 am.

This procedure for hearing of cases through video conferencing, as introduced by the Supreme Court, has gone through various hiccups and even when it has started functioning better, it is not without problems due to inaudibility, lack of connectivity, inability of counsel to complete submissions without interruption, background noises, etc.

In any case, hearing by video conference is not a substitute to a face to face hearing, since there is much cross talk and one cannot often hear what the judges are saying or put one’s point across effectively. Hence, the experience of these video conference hearings has been that these are short, truncated hearings where some cases, even serious and urgent ones, have been just adjourned or dismissed. Added to this is the infrequency of sitting of Supreme Court benches – with the result that on an average, instead of the usual 800+ cases being listed and heard on any miscellaneous day by the Supreme Court, the court is barely hearing 10-15 cases even on the day that it does function.

Also read: Andhra Pradesh: SC Scraps 100% Reservation in Scheduled Areas, Fueling Debate

In a recent laudable representation on open court hearings, the Supreme Court Bar Association has resolved that “even while video conferencing remains in use during the present crisis and lockdown, live streaming of Supreme Court hearings ought to be introduced so that the video-conferenced hearings are conducted as far as possible in the spirit of Mirajkar and Tripathi” (two important judgments of the Supreme Court on open court hearings and live streaming of court proceedings).

The functioning of the Supreme Court in this highly truncated manner has a domino effect on the high courts across the country, some of which have also adopted similar practices. Most lower courts are not functioning at all, with lawyers unable to file even bail applications for people who have been arrested during the COVID-19 crisis.

The lockdown and aftermath

Let us however examine how the Supreme Court reacted to some of these urgent matters during this lockdown. Some of these pertained to petitions filed seeking various reliefs for migrant labour who were bearing the worst brunt of the lockdown. The lockdown left crores of migrant workers stranded without jobs, money or food, particularly in metros across the country. Consequently, most of them wanted to and did attempt to return to their villages. Huge crowds thronged train and bus stations as well as interstate borders. Workers were willing to even walk home, hundreds and thousands of kilometres, in desperation, when they saw that there was no question of motorised transport being allowed.

On the Central governments orders they were stopped at the state borders by the police and mercilessly shoved into various shelter homes where thousands had to live in cramped spaces, making a mockery of social distancing norms. That apart, in these shelter homes, the food provided to them was of very uneven quality with many reporting that they were getting just one meal of uncooked food everyday. The government claimed that they had about 15 lakh migrant workers in shelter homes and they were being provided food (by the government and NGOs). That still left out the vast majority of the migrant labour population, which according to the government census of 2011 was over 4 crore people. The inadequate provision for 15 lakh workers locked up in shelters, would in any case not take care of the food and other requirements of their families back in their villages and home towns, who were dependent on these workers sending home money from their daily wages.

A family of a migrant worker sits along a highway as they wait for a bus to return to their village, during a 21-day nationwide lockdown to limit the spreading of coronavirus disease (COVID-19), in Ghaziabad, on the outskirts of New Delhi, India, March 29, 2020. Photo: Reuters/Adnan Abidi

When these petitions were taken up, the government bragged on affidavit of its Rs 1.70 lakh crore financial package that it had announced under the Pradhan Mantri Garib Kalyan Yojana (incidentally 36 hours after the lockdown and hence not mitigating in any way the anxieties of the poor when the lockdown was announced). Besides the fact that many of the schemes announced under this package did not address the needs of migrant workers, this package on analysis by independent economists was found to be promising only about Rs 60,000 crore by way of actual benefits to the poor (the rest being front loading of dues which the poor were entitled to in any case). Even Rs 1.70 lakh crore constituted just 1% of the GDP of India. One of the benefits touted by the government was the 10% increase in the minimum wages each rural family is entitled to under MNREGA. But this in fact was the wage rate increase as a regular adjustment against inflation and in no way an additional resource.

Similarly the announcement that emergency support will be granted through the Building and Other Construction Workers (BOCW) cess fund which has accumulated Rs 52,000 crore is not an additional resource. These funds were specifically earmarked for construction workers and were non-utilised.

Watch | Lockdown: ‘Suffering of Poor Is Constitutional Concern. But Don’t Look to SC for Answers’

Then there was the provision of 5 kgs of food grain and 1 kg of pulses per person to 80 crore beneficiaries for the next three months. Also 20.4 crore women who are account holder under the PM Jan Dhan Yojana, would get an ex-gratia of Rs 500 per month for the next three months. It was then clarified that 1 kg pulses free of cost for the next three months is to be given per ration card and not to each person covered under the Public Distribution System. This means that 23 crore ration card holders will be given one kg pulse each for next three months and not each of the 80 crore persons covered under the PDS.

Real humanitarian crisis

Besides migrant workers are excluded from the PDS as the system is a domicile based entitlement with a requirement of address proof, ration cards, etc. which migrant workers do not have. Various new reports have shown that during the lockdown even those with functional ration cards are not being able to access this, with kilometre long queues outside ration shops and shopkeepers selectively distributing rations. The Jan Dhan beneficiaries will also be only those who have functional accounts, which are a fraction of the 20.4 crore women who are entitled to this. Apart from the tokenism of these schemes for the poor, migrant workers would need their wages to provide for the various needs of their families apart from food such as health care, education, rent and other sustenance needs.

Instead of facilitating the safe return home of the stranded migrant labour, the government on March 29 of issued an order restricting the movement of migrant workers and ordering the employers of the workers to pay their wages and for landlords not to charge rent from workers, during lockdown. However, this order was hardly implemented (other than the ban on movement) and the government did not even bother to study the extent to which it was complied with. In any case, most small employers would not be in a position to pay workers’ salaries since their businesses had to close down and in fact many such employer’s associations have petitioned the Supreme Court challenging the constitutionality of this order. The order also took no account of self employed migrant labourers who worked as rickshaw pullers, street vendors and other petty service providers.

On April 15, a network called the Stranded Workers Action Network (SWAN) published a report, coordinated by activists, researchers and students from various universities, based on interactions with around 10,000 workers whom they interacted with through a helpline. The key findings of the report showed that 89% workers had not been paid wages by their employers during the lockdown, 44% calls were SOS with no money or rations left, 78% workers had less than 300 rupees left, 96% had not received rations from the government, 50% had rations left for less than 1 day, etc. – all pointing to the extremely grim and precarious conditions in which workers were struggling for survival during this lockdown. This is an ongoing initiative and as this goes to press, the team has interacted with more than 15,000 workers and there is no significant change in the reported figures. From this, it is obvious that the government’s order of March 29 had hardly been implemented even 20 days after it had been issued.

The fate of a petition: Delay, then dropped

With this in the backdrop, a petition was filed by social activists Harsh Mander and Anjali Bharadwaj, who had been working tirelessly to feed the stranded workers at various places in Delhi, seeking payment of at least minimum wages to these stranded persons. The petition was filed on March 31. The petition also sought that the government form an expert advisory committee as mandated by the Disaster Management Act to plan properly for all the hardships of workers and others during the lockdown. The first lockdown order from the prime minister had been announced without any advice from any such expert committee. In fact, the first such expert committee for the COVID-19 crisis was appointed by the government just four days before the lockdown announcement and they had not had their first meeting by the time Prime Minister Modi went on national television on March 24.

On the first hearing of the petition on April 3, the court asked the Union of India to respond to the averments made in it. The matter was next listed for April 7. In this hearing, the CJI, who had a copy of the status report filed by the government, realised the petitioners had not been served it so he directed the government to give a copy of the status report to them and listed the matter for April 13.

Also read: SC’s Interim Protection to Arnab Goswami: What It Does and Doesn’t Say

This status report filed by the government essentially relied upon an earlier status report that the government had filed in response to a petition by one Alok Alakh Srivastav. That petition, though ostensibly for providing relief to migrant workers, was turned by the court into essentially a petition of the government, seeking the court’s orders to restrict the media from reporting about the spread of the coronavirus and warning people about spreading misinformation about the COVID-19 crisis.

The order of the Supreme Court in this case stated at the start that “the concern of the petitioners pertains to the welfare of the migrant labourers” and curiously went on in another part of the order to state, “We trust and expect that all concerned vis., State governments, Public authorities and citizens of this country will faithfully comply with the directives, advisories and orders issued by the Union of India in letter and spirit in the interest of public safety. In particular, we expect the Media (print, electronic or social) to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated…we do not intend to interfere with the free discussion about the pandemic, but direct the media to publish the official version about the developments.” An order thus, all-in-one, applauding the government’s efforts at mitigating the pandemic and its adverse effects on the poor and warning the press from reporting an alternative to this narrative.

On April 13, when Mander and Bharadwaj’s case was being argued, it was now the court that said it did not have a copy of the government’s status report (which it had on the previous hearing on April 7 where it had ordered it be served on the petitioner and which in fact was the same status report in the Alok Alakh Srivastav case in which the court had itself passed an order as quoted above) and therefore adjourned the case by a week to April 20, despite repeated requests by the petitioners’ counsel to list it earlier due to the deteriorating conditions of workers across the country.

Migrant workers walk to their native places amid the nationwide lockdown, on NH24 near the Delhi-UP border, March 27, 2020. Photo: PTI/Ravi Choudhary

On April 20, the court curiously did not sit nor assign any reason for not sitting, though the order had directed the case to be listed for that date. (The petitioners had filed three detailed additional affidavits and a rejoinder to the government’s status report pointing out the factual position vis a vis the government’s submissions as well as on the deteriorating condition of migrant workers, unable to access food, brutally beaten by the police and many dying due to starvation or the walk home). The case was listed on April 21  before a totally new bench on which day the court disposed off the petition merely by stating, “[T]aking 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”.

Thus with this “hope and trust” jurisprudence, the court was complacent in placing its entire trust on the government and its policies during the COVID-19 lockdown. The judges orally observed that in the COVID-19 emergency, the court could not substitute its own wisdom over what the government’s policy was at that time. This despite being repeatedly told that the petitioners only sought the enforcement of Article 21 – the right of life (with minimum dignity) – of workers who had been deprived of their wages and livelihood by the ill-thought out lockdown imposed by the government. It was pleaded that the government had recognised the need for these workers to be paid their wages in its March 29 order and that the Delhi government had ordered  payment of an ad hoc amount of 5000 rupees to registered construction workers, autorickshaw drivers and hence, at least that minimum should be paid to all workers, irrespective of whether they were registered or engaged in any other occupation, across the country.

However, none of these entreaties were of any avail, with the apex court surrendering its power of judicial review of the government’s policies, directives and actions. Virtually the same fate was met by petitions filed by Mahua Moitra and Swami Agnivesh on behalf of migrant workers seeking various other reliefs.

NREGA workers get short shrift too

Another petition was filed by human rights activists, Aruna Roy and Nikhil De, seeking payment of wages to registered MNREGA households by the government, in consonance with Ministry of Labour’s direction to chief secretaries of all states of March 20, 2020  directing that during the coronavirus pandemic, all workers be “deemed to be on duty” and be paid “full wages without any deductions”.

As the lockdown guidelines of March 24, 2020 restricted the personal movement of workers, therefore they could obviously not report for duty thereafter. Under NREGA, each registered household is entitled to at least 100 days of work for at least minimum wages fixed by the government, which is currently around Rs.202. There are about 12 crore registered MNREGA households of which about 1.5 crore were actively working when the lockdown was suddenly promulgated. This petition was heard on April 8, 2020.  Without addressing the issue at hand, the Supreme Court orally observed that the year is far from over and that the workers may be able to avail the 100 day entitlement in the subsequent months as the lockdown is lifted and that the government cannot be asked to pay them wages as they are not “employees” but “beneficiaries”. This despite the fact that on March 27, 2020, the Ministry of Rural Development had directed that the MNREGA work could continue, without applying its mind as to how the workers would actually apply for work/appear for work.

Also read: When Freedom of the Press is Stricken With the Coronavirus

Data shows that while in April, 2019, about 1.6 crore households worked under MGNREGA, in April of 2020 only 8 lakh registered households could avail work/wages – that is 1% of the normal level. Under the MGNREGA Act, households are statutorily entitled to ‘demand’ work at any time (even during a National Calamity) under Sections 3 & 5 read with Schedule II of the Act. It was pointed out to the court that the households have suffered a double blow as on the one hand their crops have been destroyed due to no access to the markets while on the other hand even the work/income under MGNREGA had virtually ceased and therefore there was acute rural distress. However, the court satisfied its conscience and duty by directing that the matter be listed “two weeks after lockdown is over”. An urgent application for directions seeking directions for payment of at least ‘unemployment allowance’ at 1/4th of the wage rate as statutorily mandated under Section 7 of the Act was filed on April 20, 2020 but has not been listed under this virtually opaque listing procedure.

Human rights concerns adrift too

Meanwhile, on the socio-political rights front, Gautam Navlakha and Anand Teltumde, lifelong crusaders for human rights and Dalit rights were accused by the National Investigation Agency of being involved in the so-called Bhima Koregaon conspiracy in which it claims there was a plot to kill the prime minister. Their application for protection from arrest during investigation was rejected by the Supreme Court and they were given three weeks time to surrender. Meanwhile, the coronavirus spread and the national lockdown was announced. They applied to the Supreme Court for being given more time since both were above 60 years and suffering from various ailments which would endanger their health and lives in prison. Despite the fact that the court had earlier passed an order directing various categories of prisoners being released on bail during the COVID crisis, they rejected this petition, giving them just one more week to surrender. They are now in jail.

Activist and scholar Anand Teltumbde arrives to surrender before the National Investigation Agency (NIA) in connection with the Elgar Parishad-Maoist links case, in Mumbai, Tuesday, April 14, 2020. Photo: PTI

During the lockdown, though the police was over-stretched in enforcing the lockdown, the home ministry instructed the Delhi Police to continue arresting people in connection with the communal riots that had rocked Delhi in February just about a month ago. About 53 people were killed and thousands of Muslim homes were burnt and hundreds of Muslim families had to flee their homes in fear. Though the Muslims were the primary victims of the communal violence and it was they who had to flee their homes, the police started arresting a large number of Muslims, especially youth that had been involved in the peaceful protests that had taken place across Delhi around the CAA/NRC. The chairman of the Delhi Minority Commission raised an alarm about this and issued notice to the Delhi Police seeking action over the random arrest of Muslim men in the range of 20-30 years of age who had been picked up by the police, charged with conspiracy.

Communalism and the court

In some cases, FIRs have been registered against students like the former JNU student leader Umar Khalid who in his speeches during the CAA protests had in fact urged peace when he said, “We won’t respond to violence with violence. We won’t respond to hate with hate. We will respond with love. If they thrash us with lathis, we keep holding the tricolour.” This being the nature of his speech, he has been booked for inciting violence in an FIR under the draconian UAPA. Despite apparently more than a thousand arrests, primarily of Muslims who were the victims of the violence and the warning of the Delhi Minorities Commission, the Supreme Court did not deem fit to take suo moto cognisance of this huge and malafide targeting of Muslims in the Capital itself. Most of the arrests have been made in total disregard of Criminal Procedure Code provisions that require the police to disclose the names of those who have been arrested. During the lockdown, it is near impossible for anyone to access information on those who have been arrested.

A large section of the mainstream media that had been fuelling Islamophobia in the country for months, did not even spare the COVID-19 crisis in continuing to fuel hatred against Muslims, by airing concocted stories and highly prejudicial broadcasts and hashtags such as “CORONA JEHAD” on social media. The court which had used the migrant workers petition to send the government’s warning to the media about fake news and rumours being actionable under the Disaster Management Act, did not even bother to say or do anything about this large scale Islamophobia fuelled by the mainstream media that has become a curse to the secular fabric of our country.

Also read: The Supreme Court Has Become an Unlikely Detractor of the Free Press

Notably, one useful order issued by the court in a suo moto proceeding during this lockdown, directed the setting up of a High Powered Committee in states which will  determine the category of prisoners who should be released, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the committee may consider appropriate during the COVID crisis. But though that direction largely remains unenforced, the court has not bothered to monitor its compliance by states. Another useful order the court had passed just prior to the lockdown was about midday meals being provided to children during the COVID crisis. However again, the court has not bothered to monitor the implementation of that order and the case has not been listed thereafter even though the order remains largely unimplemented.

A lesson from Malawi

During the emergency of 1975-77, when an estimated 100,000 people were arrested under the preventive detention law, as many as 10 high courts held that even during an emergency when fundamental rights had been suspended, habeas corpus petitions filed before the courts would still have to be heard and they quashed several orders of preventive detention. Unfortunately, a constitution bench of the Supreme Court then reversed those judgments and held that during an emergency even Habeas Corpus petitions were not maintainable. Justice Khanna gave his famous dissent in that judgment, which,  though it led to his supersession as Chief Justice, ensured a permanent place for him in judicial history. He reminded the court of the famous defence of Lord Atkins on a similar issue that arose in England during World War II, in Liversidge v Anderson that, “admist the clash of arms the laws are not silent” and that executive action would, even during an emergency, be tested on the anvil of constitutional and legal rights of the people.

In a recent judgment, the High Court of Malawi held amidst the COVID-19 crisis that

“The judiciary is enjoined by … the Constitution to ensure that the rule of law is upheld at all times, be it before, during or after the state of emergence (or a state of disaster) has been declared. The court is perfectly entitled to enquire into the legality of measures taken by the state in response to a state of emergency (or a state of disaster).

“A declaration of a state of emergency (or a state of disaster) does not give the state carte blanche to exercise power indiscriminately. The substantive and procedural limitations imposed by the law have to be observed.”

The emergency has been widely regarded to be the low water mark of the Supreme Court when it buckled under the fear of the executive. The kind of surrender of the Supreme  Court to the government that we are seeing today admist the COVID-19 crisis (even without a declaration of emergency under the constitution) is perhaps even more serious when the court is not prepared to question virtually anything that the government has done or not done despite the serious violation of fundamental rights that has ensued.

The Indian Supreme Court retrieved its reputation after the emergency, largely due to its innovative judgments expanding the meaning and content of Article 21 rights and several fine judgments on the right to free speech, privacy, etc. However today, it is unfortunate that the high court of a small country like Malawi is putting our Supreme Court to shame.

Prashant Bhushan is an advocate practising in the Supreme Court.