The constituent assembly wished to place certain essential rights beyond the possibility of attacks that may be brought about by political agendas of the time by placing these under the guardianship of the Supreme Court of India.These rights of an individual were to be protected even against the collective action of people who may not fully appreciate his position, his needs and his claims. By placing these rights directly under its watch, the Indian constitution gave the apex court a power, a status and a dignity which calls from it the highest quality of integrity and moral conscience.However, on May 15, when the Supreme Court refused to entertain a plea requesting urgent direction to all district authorities to ensure that migrant labourers walking to their native places (completely because of the lack of support from the state machinery) reach safely, and in a dignified manner, it failed its duty as a custodian and protector of the fundamental right of life and liberty.Maybe it was this realisation that forced the apex court to later take suo motu cognizance of the problems and miseries of migrant labourers and observe that “adequate transport arrangement, food and shelters are to be immediately provided by the Centre and the state governments free of cost”. The latest order of the Supreme Court has cemented certain key reservations regarding the role of the highest court in the land as the principle protector of the constitution. The three-judge bench, observing that it was not possible for the court to monitor the situation, left it to the state governments to take appropriate actions in this regard.Also read: Journalists, Vultures and a Solicitor GeneralThis order comes at a point in time when we as a country are facing one of the most difficult times in our history. With more than 207,000 confirmed cases and 5,800 reported deaths, the COVID-19 pandemic has hit India badly. Arguably the most affected in these times are the workers and labourers of the country, who owing to lack of employment options in their native place, were working in different cities, barely managing to sustain themselves.As the country-wide lockdown was announced and businesses shut, the poor (mostly daily wage) worker suddenly found himself without money and accordingly, shelter and food. With very limited options of transport being made available, most of these workers, with elderly, women and children, had no other option but to walk (without food and water) for a hundreds of kilometres, transgressing state boundaries and dodging police action in the hope of reaching home.It is surprising that the Supreme Court took so long to see the threat that this scenario posed, and still poses, to the life of these workers and their families. Recently, 16 migrant workers came under a running train when they had dozed off on the railway tracks because of tiredness and hunger near the Maharashtra-Madhya Pradesh border. There have been more such incidents, hundreds have died since the first lockdown began because of accidents, hunger, police brutality and suicides.The prime protector of the fundamental rights of the citizens of India cannot callously shrug off its responsibility in such times, expressing its inability to monitor the situation and leave it to state governments to take ‘appropriate measures’.Solicitor general Tushar Mehta, placing the case of the Central government, had earlier contended that people are not waiting for the government to help them and are impatiently walking to their destination. It is puzzling if the court agreed with the merit of this argument or just never tried to search some in it.Additional solicitor general Tushar Mehta. Credit: Amity UniversityLet’s be clear, migrant workers across India didn’t take these journeys voluntarily. With children and women alongside, they were/are fully aware of the perils that wait for them on the road and it is only because they have no food to eat, no water to drink and no shelter to go that they start walking in the first place.What is also relevant to consider is that the Andhra Pradesh high court, on the same day, issued a set of guidelines to ensure basic amenities to these migrant workers. The AP high court observed that if the court does not react and pass an order at such a stage, “it will fail its role as a protector and alleviator of suffering”.In the same manner, the Madras high court suo motu directed the Central government and the Tamil Nadu government to submit an action taken report on the measures taken to alleviate the plight of the migrant workers. The Madras high court observed that,“It is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accident. One cannot control their tears after seeing the pathetic condition of migrant labourers shown in the media for the last month. It is nothing but a human tragedy.”These orders clearly demonstrate that a lot lies within the competence of the constitutional courts in India, provided they remain driven by the ideals they were supposed to adhere to. Further, until suo motu cognizance was taken by the Supreme Court, various high courts had led the way and passed orders that tried to address the problem of the migrant workers. Against this backdrop, the solicitor general’s accusation that high courts are trying to run a “parallel government” was uncalled for.Credibility under scrutinyIn such times, the approach of the Supreme Court becomes of great relevance.The Supreme Court is ‘supreme’ for a reason. It was conferred the amplest power to issue whatever direction, order, writ that may be appropriate for the protection of fundamental rights. In the landmark judgment of Romesh Thappar vs The State of Madras (1950 SCR 594) the court had held for itself that, “This court is thus constituted as the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protections against infringements of such rights.”Also read: The Supreme Court Is in the Thrall of the GovernmentAs mentioned earlier, it is in taking these factors into account that the role of the Supreme Court becomes very relevant. If we evaluate orders passed over the last few years, there seems a gradual change in the court’s position on questions of fundamental rights. The court, in many cases where violations of fundamental rights were challenged before it, has made wilful exemptions and demonstrated non-indulgence.However, we stand today at a point in our history that it becomes imperative that the actions of the Supreme Court at least demonstrate intent. But in many ways, by demonstrating judicial evasion and not even showing the willingness to look for a solution, the Supreme Court has taken an approach that history will raise questions about.In India, with the change in our polity, the credibility of many institutions is also under scrutiny. With the political and social narrative in the country changing aggressively, it is important that the judiciary follows the essence of the constitution.The recent order passed by the Supreme Court is in line with its duties as the watchful protector. It should have come earlier but is, nevertheless, a welcome change.The author is a practising advocate at the Delhi high court. He can be reached at yashwant.slg@gmail.com