The heart-wrenching suffering of persons who are walking back from cities to their native villages and home towns shows no signs of abating. Reports of deaths of persons on the road have been streaming in over the past week.
After prolonged delay, the Central and State Governments issued some travel advisories but confusion continues to persist. While the Government’s approach may be seen as merely yet another example of Executive apathy in India, what is perhaps most surprising is the manner in which the Supreme Court has turned a blind eye to the problem.
The Court’s rationalisation that it cannot “supplant the wisdom of the Government” or “cannot monitor who is walking and who is not walking” suggests that the Court is powerless in examining the implications of the Executive decisions.
This approach is inconsistent with the role of the judiciary under the Constitution, and is particularly dismaying in light of judicial precedent, for which the Supreme Court was once described as the “last resort for the oppressed and bewildered”.
The Constituent Assembly’s Vision for the Supreme Court
In December 1946, when Jawaharlal Nehru put forth the Objectives Resolution listing out the defining principles that the Indian Constitution would provide, Dr. Ambedkar could not help but express disappointment. One of his primary objections was that the Resolution, while speaking of rights, was silent on remedies.
“all of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded.”
In 1950, the Indian Constitution became one of the first Constitutions to recognize avenues to enforce fundamental rights as a fundamental right itself. Accordingly, Article 32 of the Constitution provides that “the right to move the Supreme Court by appropriate proceedings for the enforcement of [fundamental] rights…is guaranteed.”
In the Constituent Assembly, Article 32 was referred to as the “soul” and “very heart” of the Constitution” and its “crowning section”. Notably, the provision met with almost no opposition. Instead, members emphasized the importance of the provision, conscious that even after independence fundamental rights had to be guarded from overzealous governments.
M.A. Ayyangar argued that the executive is “apt to abuse its powers” and that The Supreme Court was therefore meant to be the guardian of their rights and privileges, for the majority and the minorities.
Similarly, V.S. Sarwate pointed out legislatures in panic could enact laws that went beyond what was necessary for a situation. Dr. Ambedkar, agreeing in principle, emphasized that Article 32 was meant to provide urgent and immediate relief in respect of executive excesses.
Dr. Ambedkar also assured members that the Article gave the Supreme Court the power not to only issue particular writs, but any kind of “directions or orders or writs,” which would enable the Court to fashion effective remedies according to the circumstances of the case.
India’s lockdown, considered the world’s strictest lockdown in response to the COVID 19 pandemic, is perhaps a perfect example of Executive overreach. While few have questioned the need for a lockdown to contain and prepare for the COVID-19 pandemic, the manner and extent to which India’s lockdown has been implemented has raised several fundamental constitutional questions.
After all, it was the Government’s sudden and exclusive decision to shut down all economic activity and movement that has resulted in the widespread deprivation of the right to life and livelihood of many persons – which made an assessment of the proportionality of the Executive’s decisions a priority for the courts. Or so you would think.
The Supreme Court’s Reaction
In several petitions highlighting the arbitrary manner in which Governments have treated migrants or have altogether ignored their plight, the Supreme Court has refrained from passing any substantive orders and has said that they will not supplant the “wisdom of the Government.”
Close observers of the Judiciary may recognize this as an extension of the Judiciary’s long-standing tradition of restraint, where it refers to the “wisdom of Parliament” as a ground for not evaluating the constitutionality of a law, regardless of whether such wisdom is in fact demonstrated.
In a recent interview, the Chief Justice rationalized this restraint by pointing out that the Executive has the competence to handle the situation, as it controls the 3Ms – money, men and material.
Running against decades of jurisprudence and reams of writing on judicial review, this framing of the constitutional issue suggests that there is a strict binary choice when it comes to exercise of judicial power: either the judiciary washes its hands of an issue or it entirely displaces the decision of the Executive.
It is unfortunate that India’s Apex Court, of all courts, is suggesting these are the only two choices. The framers of the Constitution expressly saw it as a core function of the Judiciary, to review the justifications provided by the Government for their action and an explanation for their inaction on the basis of the strength of reasons and materials provided by the Government. Thus, the name: judicial review.
Moreover, when it comes to deprivation of basic socio-economic rights and social justice, the Supreme Court through its public interest litigation (PIL) movement has expanded the range of remedies available to itself and has directed Governments to explain causes for inaction as well as monitor implementation of Government statutes and schemes through follow up hearings.
However, as Manu Sebastian has painstakingly demonstrated here, in almost all of the cases highlighting the plight of migrants across India during the lockdown, the Supreme Court has disposed of petitions without scrutinizing the materials and explanations offered by the Government.
Take for instance, the Court’s order on 31 March where the Court accepted the statement of the Government that there was no migrant on the road as of 11 am that day, and that 21,064 relief camps has been set up, 6,66,291 were housed and 22,88,279 persons were provided food.
Let alone the fact that since and till date, there are harrowing news reports of migrants walking on foot, it is unclear how the Court considered these absolute numbers an adequate response without inquiring whether the Government had information on how many persons were in need of shelter or required food, and whether each State had set up enough relief camps.
In fact, a subsequent report notes that as per the Government’s own statement, 65 percent of the total active shelters of the country were in Kerala.
In another petition focusing on non-payment of minimum wages to labourers, the Petitioners emphasized the gaps between the vague replies offered by the Government in Court, and provided material to demonstrate that the Government had utterly failed to address the adverse impact of the lockdown on the economically weakest sections of society.
Instead of asking the Government to respond to the detailed claims laid before it or even monitoring how the Government sought to address these claims, the Supreme Court disposed of the petition while directing the Government itself to ‘look into’ the material filed by the petitioners.
In another writ petition which sought directions to help migrants get home, the Supreme Court initially called on the Centre to explain the steps it was taking for allowing movement of migrant workers to their hometowns.
However, in the subsequent hearing, despite the petitioners pointing out how the migrants were being forced to pay for their tickets, despite the government’s law officer having no response on who was bearing the travel fate, the court disposed of the Petition on the ground that its jurisdiction was limited under Article 32 and that the main relief sought for had been substantially fulfilled.
And then of course there was the hearing on 15 May, when the judges said they couldn’t do anything about the migrants walking home, when hearing a petition about the deaths of 16 migrants on the railway tracks in Aurangabad.
We are reminded of the words of KM Munshi, a member of the Constituent Assembly, who during his lifetime expressed anguish at the Supreme Court “making serious inroads upon the plenitude of Article 32” and cautioned “if the Fundamental Rights are placed at the mercy of the Parliament, they would cease to be fundamental.”
High Courts Show the Way
By contrast, several High Courts across the country have demonstrated how it is possible for Courts to exercise their writ jurisdiction to safeguard fundamental rights without substituting executive decisions.
The Telangana High Court, for example, chided the State Government for filing a vague report in response to a Petition relating to shelters for persons rendered homeless and directed them to file a comprehensive report.
The Bombay High Court asked the State Government to explain how they would implement the condition of health certificates for travel. In response, the Government, perhaps realizing its unworkability, conceded that it would not insist on them.
The Gujarat High Court has itself taken cognizance of the hardships being faced by migrant labourers in the State as reported in the press, and has directed the Government to place on record concrete plans to take care of the problems being faced. The Court has cautioned that it will not interfere with the day-to-day interventions but would essay a supervisory role.
Most recently, the Karnataka High Court exemplified the kind of approach that the Supreme Court could have taken. Instead of framing the issue as one of micro-management to identify who is walking on the road, the Court examined the gaps in the State’s implementation of its policy decisions that had forced the migrants to continue walking.
These gaps include the non-payment of wages to the migrants, the loss of livelihood resulting from the lockdown, the resultant inability to pay train fares, and the Government’s failure to communicate the policy with respect to operation of special trains.
In light of these short-comings, the Court directed the Government to create awareness about the trains plying, and to provide assurance and a time schedule to the migrants who had registered to travel home.
The Court further directed the State Government to reconsider the issue of payment of train fares and to take an immediate decision on payment keeping in mind that the inability of the migrants to pay for their fairs is a direct result of the Government imposed lockdown.
While these High Court orders are a step in the right direction, the enormity of the migrant crisis requires sustained attention.
Confusion persists in many parts of the country in respect of the special trains running, the train fare to be paid and the pre-conditions for travel. Many persons continue to resort to walking thousands of miles, with no guarantee that they will make it back home.
The Supreme Court, by incorrectly presenting itself as having to choose between complete restraint or taking on the Executive’s role, is falling far short of the expectations that the Constituent Assembly had from it.