Law

Watch | Why is the Supreme Court Not Enforcing Peoples' Rights, Asks Justice Lokur

In an interview to Karan Thapar for The Wire, the former Supreme Court judge answered a range of questions on the apex court's recent methods of functioning.

Complete transcript appended below

In an interview to Karan Thapar for The Wire on the functioning of the Supreme Court during the coronavirus pandemic, Justice Madan B. Lokur said he is “disappointed” by the way the court has responded to the suffering people affected by COVID-19 and the ensuing lockdown, now in its sixth week.

The Supreme Court, he said, is not fulfilling its constitutional functions adequately. “Certainly, it should be more pro-active than it has been,” he added.

Speaking specifically about the three weeks the court took to dispose of a petition on the right to life of migrant workers, only to request the government to “take such steps as it finds fit to help the migrant workers”, Justice Lokur said: “Yes, I think the court let down these migrants. Certainly…. I think the court should have and could have gone much further… Whatever steps you’re taking is good enough is not an answer particularly in a situation like this… A person has a right. If he has that right it has to be enforced. That’s it. You can’t say I hope and trust that somebody will enforce that right on his behalf. The person has a right. Why are you not enforcing it? It (the Supreme Court) is not fulfilling its constitutional functions adequately.”

Finally, when asked if he was disappointed with the Supreme Court, Justice Lokur said: “Yes, I am disappointed. It is disappointing. Certainly.”

The following is a complete transcript of the interview:

Karan Thapar:  Hello, welcome to a special interview for The Wire. Earlier this week the lawyer Prashant Bhushan wrote an article for The Wire which is a critique of the Supreme Court’s functioning during the lockdown. Prashant Bhushan makes three critical points. He claims the Supreme Court is not doing enough to defend the constitutional rights of the Indian people, particularly the poor and vulnerable. Secondly, he questions the prioritization on which the Supreme Court is choosing to hear some cases immediately and to postpone others, perhaps even indefinitely, and thirdly, Prashant Bhushan says that the Supreme Court has surrendered its power of judicial review over government policy and action. With me to discuss the functioning of the court, here is one of the most learned and highly regarded former judges, Justice Madan Lokur.

Justice Lokur, as I said in that introduction, Prashant Bhushan makes three key criticisms of the court, very briefly they are: a claim that the Supreme Court is not defending the constitutional rights of the Indian people, particularly the poor and vulnerable. Secondly, he questions the prioritization on which the court is hearing cases or deferring them, and thirdly, he says that the court has surrendered its power of judicial review over government policy and action. I’ll come to specifics later but broadly speaking, do you agree or do you disagree with Prashant Bhushan’s criticism?

Justice Madan B. Lokur:  Thank you, Karan, for inviting me on your show. It’s a pleasure being here. Well, as far as the critique by Prashant is concerned I have gone through it. Broadly yes, I agree with him but I think he has been a little uncharitable in the sense that when we discuss about judicial review, I’m not sure whether the use of the word surrender would be appropriate. But yes broadly I agree with what he says.

Thapar: Let’s go through the main criticisms one by one and I’ll cover judicial review right at the end. To start with, let’s talk about the way the court has responded to the right to life of migrant workers. These are people who are destitute and starving, they’re desperate. We’ve seen on television how hundreds of thousands, if not millions, tried to walk back to their villages. Now, a petition on their plight was filed in the Supreme Court on the 31st of March. Thereafter, for one reason or another, the government was given additional time and new hearings were scheduled. Finally, three weeks later on the 21st of April, the court disposed of the petition with a pretty anodyne and tepid request to the government, to take such steps as it finds, to fit to resolve the issues raised in the petition. Do you believe this is an acceptable way of responding to the right to life of Indians?

Lokur: I think the concept of Public Interest Litigation in this situation has been completely misunderstood. The purpose of Public Interest Litigation is not adversarial. There is a problem which the public interest petitioner brings to the court, and the government whoever it is, if it’s a state government or if it’s a central government, says that yes perhaps things are not as they should be, they can improve, and we’ll certainly try and help you out and the court works in that direction along with the public interest petitioner and the government and arrives at a solution.

Now in this particular case about the migrants, the stand that was taken was adversarial – there’s nothing wrong, we’re doing everything that’s possible and therefore please don’t interfere. I think that stand probably resulted in what has happened. There was a problem, I think the government should have acknowledged that there was a problem and it should have tried to find out ways and means to remedy that problem with the assistance of the court if it is possible or even otherwise. I think that’s where the mistake was made and yes I think in that sense the court led down these migrants, certainly.

Thapar: When you say the court led down these migrants are you saying the court should’ve put more pressure on the government? Should’ve been more clear cut that the government must act rather than simply saying, I’m quoting the quote – “take such steps as it finds fit to resolve the issue raised in the petition.” 

Lokur: The thing is, these migrants don’t know what are the steps that have been taken. So to say that whatever steps you’re taking or you should take more steps… What are those steps? And if actually, you go through the status reports filed in the Supreme Court, one status report was filed on the 31st of March, another status report was filed on the 7th of April, there is a huge disparity in the figures – the number of camps, the number of NGOs who were helping out, the number of people who were provided shelter, the number of people who were provided food – it was a massive problem. And to say that you should do something about it and take whatever steps you feel are appropriate, that’s it, we don’t want to say anything more. I think the court should have and could have gone much further.

You should look at some of the past Public Interest Litigations, say, bonded labor for example. The court could very well have said in the case of bonded labor – there’s bonded labor, do something about it,  whatever steps you’re taking it’s good enough, and in the case of child labor, whatever steps that you’re taking it’s good enough.

That’s not an answer particularly in a situation like this. 

Thapar: Now let me quote to you what Chief Justice Bobde said to The Hindu on Monday as his explanation for not defending what is essentially a fundamental right. His words were, “This is not a situation where declaration of rights has much gravity or as much importance as in other times.” Do you accept that explanation? That’s his reason for saying – the government, do what you can we’re not going to put any further pressure on you. 

Lokur: Well, I don’t want to get into anything personal with Chief Justice Bobde. It’s a view that he has and it’s a different view that I have, it’s nothing personal at all so I think we should be clear about that. To say that fundamental rights are not so important today because of the prevailing situation is, I think, is a wrong way of looking at it. The very same argument perhaps in slightly different words was put forth in the ADM Jabalpur case during the Emergency. And the view of the Supreme Court at that time was 4:1 – when there is an internal emergency, fundamental rights will take a back seat. Justice HR Khanna said – no they can’t take a backseat, fundamental rights are inherent. So to say that fundamental rights will take a back seat, I’m not sure if it’s the correct way of looking at it.

Thapar: Let’s come, Justice Lokur, to the sense of priority that the Supreme Court has shown in terms of what cases it has decided to hear immediately and which ones it has chosen to defer. Now, cases to do with the right of migrant labor presently stranded in shelter homes, to return to their villages, have been postponed to the 27th of May. Cases to do with NREGA payments to people who I presume are destitute, will only be heard two weeks after the lockdown is over. But when Arnab Goswami petitions the court seeking protection from multiple FIRs, he is heard in exactly 15 hours. Is that an acceptable sense of prioritization or is it a questionable one?

Lokur: Well, Karan, the issue is like this, the Supreme Court issued a circular on the 13th of March, saying that they will take up urgent cases from the 16th of March onwards. Now, what is the category of urgent cases, how do you define urgent cases and who decides whether a case is urgent or not, was not explained. A little later, sometime in April or maybe the 31st of March. I’m not sure about the date, they said not the urgent cases but the extremely urgent cases will be taken on. Given the situation I think nothing was more important than the rights of the migrants, wanting to go back home, their shelter, their food, their wages whether it’s under NREGA or otherwise, this was of crucial importance or of extreme urgency, whatever word you may wish to choose. Against that if you place the case that you’ve mentioned, where an FIR is filed or maybe 10 FIRs are filed against a person. What is the urgency? The police had not even acted upon those FIRs, in a situation like this the possibility of an arrest is almost zero. The police have to first at least prima facie verify whether the allegations made in the FIR are correct or not. And, from what I’ve read and even today there is a write-up on this – the petition was filed after 8:00 pm. So what was the extreme urgency and how do you define extreme urgency? Was there some extreme urgency that this guy is going to be arrested right now? And then you take it up the next day and then you say no coercive action for three weeks and so on… You should compare the plight of the migrants, compare the plight of the poor as against this, then there is just no comparison at all. It is very, very wrong on the part of the Supreme Court to have taken up that case without it falling in the category of extreme urgency. That’s from the facts that are available as of today. 

Thapar: Again in the interview that he gave The Hindu on Monday, Chief Justice Bobde defended the prioritization with the following argument – “The courts are doing their best to cope with the situation and in particular they’re selecting and prioritizing matters they must hear.” That suggests that he thinks Arnab Goswami is important, while NREGA payments for the destitutes, or migrant laborers stranded is not an important issue. 

Lokur: I don’t want to get into personalities but I think it’s pretty obvious isn’t it that the plight of the migrants is important and that NREGA is important , bail petitions are important, habeas corpus petitions are important, as against the right of a journalist. Of course, freedom of the press is important, there is no doubt about it. But an FIR which may or may not result in anything at all and there is no possibility of an arrest, I don’t see how that is of extreme urgency as compared to habeas corpus, or bail or migrants or payments under NREGA, the rights of the poor, the underprivileged. Sorry, there’s no comparison.

Thapar: Let me at this point Justice Lokur, briefly sidestep from Prashant’s critique and take up something that’s closely related to what we’re talking about. I’ll come back to Prashant’s critique in a moment’s time. This is not the first time the Supreme Court’s approach appropriate handling of constitutional rights has been questioned or criticized, it’s not the first time the Supreme Court’s prioritization of matters has been criticized. It happened when the whole constitutional structure of Kashmir was changed in August last year, it happened again when the Citizenship Amendment Bill was passed by parliament at the end of last year. Both of those raised fundamental key constitutional issues. In addition, there was also agitation and concern in the country. In both instances the Supreme Court simply kicked the can down the road, and even now, it hasn’t heard of those cases. How do you explain this deliberate reluctance to hear critical cases?

Lokur: Well, it’s difficult to understand. These cases are very important because they have the character of affecting a very large section of the people. Whether you’re talking about article 370, whether you’re talking about the Citizenship Amendment Act, whether you’re talking about migrants – huge sections of society are impacted. And really, these cases should’ve been taken up on a priority. I’m frankly not able to understand why that priority has not been given to these cases. Of course, it is within the court’s discretion to decide what should have priority, whether case A should be heard first or whether case B should be heard first. But there has to be a rational basis for deciding that case A should be heard first and not case B. Unlike – I don’t want to hear it now so we’ll hear it on some other day. That can’t be the answer.

Thapar: Something else that was deeply troubling, was the Supreme Court’s response for a whole spate of habeas corpus petitions. You know better than me that habeas corpus petitions are often considered perhaps the most important petition in front of a court because it concerns the very right to life. Once again the Supreme Court simply kicks them down the road. 

Lokur:  Yes, you’re right, habeas corpus petitions are not cases that are going to go on for two days or three days. They are based on subjective satisfaction of the detaining authorities. So the scope of interference by a court, whether it’s the High Court or the Supreme Court is limited. So it’s not something that’s going to go on for a couple of days. This is a matter of extreme urgency, a person is kept in detention without a trial for months altogether, right, this is a case of extreme urgency. And, these habeas corpus petitions, how many ever there are that are pending, should be heard. How much time is it going to take? One hour, two hours, three hours, maybe one day? Why not hear them?

Thapar:  Let me sum up what people are saying of the court and it’s being said very widely. People say that the Supreme Court is reluctant to take up matters that would embarrass the government, that would prove awkward for the government Therefore to prevent that embarrassment or difficulty for the government, it simply defers the matter. Do you share that impression?

Lokur: I am not too sure, I think the Supreme Court has a duty under the constitution. It is answerable to the constitution of India, it is not answerable to the government. No.

Thapar:  Can I put this to you – Is the supreme court failing to fulfill its duty under the constitution by deferring these constitutional matters, by deferring these habeas corpus petitions.

Lokur:  Again, failing is quite a strong word but yes it should have regard to the constitutional principles and conventions. And certainly it should be far more proactive than it has been. Let me put it that way.

Thapar: Let’s drop the word failing. Would you say it’s not fulfilling its constitutional duty adequately?

Lokur:  Yes. Adequately, yes.

Thapar: Let me then at this point come to the third criticism of Prashant Bhushan. It flows out of all that we’re discussing. He says that the Supreme court has adopted what he calls – “a hope and trust jurisprudence”, placing its entire trust in the government. And therefore he says – “it surrendered its powers of judicial review of government’s policies, directives and action. I know you don’t approve of the word surrender, but would you say that it is not exercising its powers of judicial review and therefore it’s allowing the government to get away on the basis of hope and trust?

Lokur:  Yes you see the hope and trust jurisdiction goes back again to ADM Jabalpur, where one of the learned judges said that he has a diamond-bright and a diamond-hard hope that this will not happen. What happened to that diamond-hard, diamond-bright hope? So now this hope and trust that we are talking about today, or which Prashant seems to have mentioned, is the same in different words such as diamond-hard and diamond-bright. Really, this hope and trust jurisprudence… I dont think it’s correct. A person has a right. If he has a right it has to be enforced, that’s it. You can’t say I hope and trust that somebody will enforce a right on his behalf. This is what justice HR Khanna was talking about. You may hope and trust you may have a diamond-hard diamond-bright faith and whatever, but the person has a right, why are you not enforcing it? You know in that sense it’s adequately not fulfilling its constitutional functions. 

Thapar:  Once again let’s drop that word surrender, the court is not adequately exercising its power of judicial review. And the sad part is, this is when that power of judicial review is perhaps most needed. Not exercising when it’s most needed is very sad and sorry. 

Lokur:  Absolutely, let’s go back to the Emergency. During the Emergency, habeas corpus, arrests without detention… Was it not most required at that point of time ? It obviously was because many of the high courts exercised that power. Can anybody say – well, there is an external emergency, so forget about the right to life? You can’t.

So today there is no internal Emergency or any Emergency of any kind, you can’t say today that let’s forget about the right to life. If you can’t forget the right to life during the Emergency, I don’t see why you can forget it today.

Thapar:  Let’s take a break at this point. Justice Lokur, when I come back I want to ask you one simple question, although I may ask it in many ways – Are you disappointed in the way the supreme court is functioning?

BREAK

Thapar:  Welcome back to a special interview for The Wire, our guest is one of India’s most learned and highly thought of former Supreme Court judges, Justice Madan Lokur.

Justice Lokur, I want to ask you one simple question. In part one we talked about the manner in which the Supreme Court was not living up to its constitutional duties, It was failing to defend even the right to life of migrant citizens. It was actually exercising an almost inexplicable sense of prioritization. This was the time when it needed to exercise its powers of judicial review and it was not doing so. So let me ask you in the light of all of this, are you disappointed with the way the Supreme Court is functioning?

Lokur:  You see, Karan, it’s a package – the Supreme Court has got certain administrative functions and it has got certain judicial functions. I’m not criticising judgements of the Supreme Court, that’s for the academics to decide if the Supreme Court has decided rightly or wrongly. But if you look at the whole package – the administrative functioning and the judicial functioning – yes, I am disappointed. You have things like appointment of judges for example, transfer of judges, listing-prioritising of cases, you know if you look at the whole package, it is certainly disappointing.

Thapar: Can I ask you this specifically about prioritisation of cases – the distinct cases. I take it that this is a responsibility exercised by the Chief Justice as master of the roster. So if an Arnab Goswami petition is heard in 15 hours, but the right to life of migrant labourers is postponed to the 27th of May, this is because that was a decision taken by Chief Justice himself. This is his prioritisation that is resulting in this outcome?

Lokur: I think 27th of May perhaps may be incorrect because 27th of may as it stands today will be during the vacations, so I think it’s probably 27th of April and I know that one of the cases was listed on 27th of April. But you know, the buck has to stop somewhere. Either it stops with the administration part of it which is the Secretary general of the Supreme Court, or it stops with the Chief Justice. Now here, one doesn’t know what is the criteria of an urgent case, or of an extremely urgent case. Who decides?

Now supposing, I don’t know what has happened but take an example because the Supreme Court circular says that there is something called a competent authority – I don’t know what that means but you want a case to be listed you go to a competent authority and the competent authority says I don’t think it’s urgent or I don’t think its extremely urgent. Then, under the SOP (Standard Operating Procedure) which has been framed by the Supreme Court, that advocate can ring up the concerned judge, the presiding judge, and explain to him what is the urgency. So, I would assume that the competent authority is somebody in the registry, it could be the registrar or it could be the secretary general. And then the presiding judge decides whether there is extreme urgency or there is no extreme urgency.

Now in this particular case I don’t know at what level the decision was taken – whether the registrar said yes I think it’s extremely urgent. Or whether the secretary general said it’s extremely urgent or the presiding judge said it’s extremely urgent. One does not know, so it’s really just guesswork. But ultimately, the buck has to stop somewhere and it would be a good idea for the Chief Justice or the secretary general, that somebody conducts an informal enquiry to find out what went wrong? How come this jumped the queue?

Thapar: You are saying something very important, we don’t know who is responsible for these decisions but as you said the buck stops at the Chief Justice because he is the Chief Justice and I think he needs to ask questions as why someone jumped the queue in this way? And if he doesn’t ask these questions then presumably he doesn’t have a problem jumping the queue. The other reason he’s not asking questions because he’s the one who has decided the queue should be jumped. The buck stops with Chief Justice Bobde.

Lokur:  Yes, in a sense, unless he has delegated that power exclusively to the secretary general. In which case, the buck would stop with the secretary general. But then the secretary general would say, ‘I said it’s not extremely urgent, but I was overruled.’ One really doesn’t know what happened, it’s worth finding out.

Thapar: My last question, sir, I want to quote from the recent judgement by the High Court of Malawi. Malawi, as we know, is under a state of emergency, much as India is under the state of emergency although ours is not a formal emergency of the sort that happened in ‘75. Corona virus has changed the nature of judicial functioning both in Malawi and presumably in India. And it’s in that light, in that background that I want to quote what the high court of Malawi said in a recent judgement – “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 emergency 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. A declaration of a state of emergency does not give the state carte blanche to exercise power indiscriminately. The substantive and procedural limitations imposed by the law have to be observed. Would you have liked to have heard those or similar words spoken by the Supreme Court of India?

Lokur:  Yes, I would. I read an article yesterday, apparently in Nepal also there is a problem of migrant labor and the Supreme Court in Nepal has passed some orders. I haven’t seen those orders but they’ve also passed some orders to take care of the plight of migrant labour in Nepal. I’m glad that it’s come out in the papers today. Perhaps the decision was taken yesterday that migrant labour has been allowed to go back to their home. Well, if it would have come earlier it would certainly be better but better late than never I suppose. 

Thapar: But we end with an interesting situation: the Supreme Court of mighty India was not capable of standing up to the rights of its people, of the constitution of this country, in a way the Supreme Court of little Malawi has done so. We in India tend to look down on these countries, considering ourselves superior. But in this instance, the High Court of little Malawi, and I don’t mean to be belittling when I say that,  has perhaps shamed the Supreme Court of mighty India.

Lokur: I’m not sure. If you’re asking me for a comment, the Supreme Court of Malawi has done a good job. I believe the Supreme Court of Nepal has done a good job. The Supreme Court of India is capable of doing a good job. But I think they need to introspect. They need to sit down, brainstorm and figure out how to go ahead and they’re capable of doing it.

Thapar: Justice Lokur, it’s a very interesting choice of words you’ve used – they’re “capable” of doing it, they need to live up to their capacity. That says it all.

Thank you so much for speaking so openly to The Wire. 

(Transcript prepared by Soumya Lamba)