American moral and political philosopher wrote in his magnum opus – ‘A Theory of Justice’: “Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all. Social and economic inequalities are to be arranged so that they are both to the greatest benefit of the least advantaged, consistent with the just savings principle, and attached to offices and positions open to all under conditions of fair equality of opportunity.” Applying this criterion to the situation of migrant workers in India that was precipitated by the sudden lockdown and an almost total abdication by the state towards their plight reveals a complete travesty of justice and the collapse of basic human rights in a country that prides itself to be deeply religious and spiritual.
Former Chief Justice of India, P.N. Bhagwati, spoke on ‘The Role of the Judiciary in a Democratic Society: Balancing Activism and Judicial Restraint’ at a high-level judicial colloquium in Balliol College, Oxford in 1992. He said, “I have always been a protagonist of judicial activism and in this paper, I propose to demonstrate that in a democratic society which has a Constitution with a Bill of Rights or which has subscribed to regional or international instruments on human rights and which is seeking to build a fair and just society, judicial activism on part of the judiciary is an imperative, both for strengthening participatory democracy and for the realisation of basic human rights by large numbers of people in the country.” Looking at the timeline of the changing response by our judiciary to the migrant workers’ crisis will give you an idea about its present state and the reasons for being at the receiving end of all-round criticism.
A TIMELINE THAT WILL HAUNT US FOR A LONG TIME
24 March – All India lockdown 1.0 is announced by the Prime Minister of India. People have effectively four-hour notice to make preparations. Millions of families, students and migrant workers are trapped with no means to reach their native places and unite with their kith and kin. With dwindling rations at home, unpaid salaries and no clarity about the future, millions of our fellow citizens are forced to undergo some of the most harrowing times of their lives.
28 March – A PTI report says, “1,800 people stranded in Uttarakhand to return to Gujarat in 28 buses.” They were from different districts of Gujarat and were stranded in Haridwar in Uttarakhand due to the lockdown. Another report says – “UP govt arranges 1,000 buses to ferry stranded migrant workers home amid lockdown.” Prominent news dailies and websites report that thousands of migrant workers have flocked Anand Vihar and Kausambi hoping to board these buses to their homes in Uttar Pradesh.
29 March – The MHA issues new guidelines in a circular saying – “Movement of a large number of migrants has taken place in some parts of the country to reach their homes. This is a violation of the lockdown measures on maintaining social distance.” The circular effectively blocks the movement of migrant workers and directs the state government to ensure its implementation.
Last week of March, entire April and May: Undaunted by the cruel clampdown on transport facilities by the state, thousands of migrant workers start walking with their families to their villages. For some, the distance exceeds 1000 kilometres. Many prominent media personalities and outlets start documenting their plight. Distressing scenes of workers trekking thousands of kilometres without adequate food and water become the defining image of our country amidst the corona crisis.
3 April – A petition filed by civil society challenging the inhumane treatment of stranded workers comes up before the apex court. The Supreme Court (SC) directs the Solicitor General (SG) to respond by April 7.
7 April – The SC directs the SG to provide the “Status Report” to the petitioners too.
13 April – The matter came up before the SC. This time the petitioners had their copy but not the SC and so the matter was adjourned to April 20.
15 April – A survey conducted by the ‘Stranded Workers Action Network’ (SWAN) says nearly 96% of a sample of lockdown-hit migrant workers did not receive any dry rations while 70% lacked knowledge of or access to the cooked meals distributed by local authorities. 89% of contractual workers said they had not received any salary during the lockdown with their business owners switching off their mobile phones. This report received wide publicity.
21 April – SC disposes off the petition regarding the inhumane treatment of stranded workers, calling the government to look into the materials placed on record by the petitioners and take appropriate action.
5 May – The apex court dismisses a PIL filed by civil society to direct the government to offer free travel to migrant workers stranded all across the country. A PTI report says: “Supreme Court refuses to hear plea seeking relief, free travel for migrant workers; says govts taking appropriate steps”. One notable observation highlighted by legal experts during this entire episode was the uncommon practice deployed by the apex court to rely on the verbal assurances of the SG and not calling upon the government to answer the petitions on affidavit.
15 May – The SC again refuses to entertain a plea by a lawyer seeking all DMs to identify stranded migrant labourers, provide free food and shelter and ensuring their free transportation until their homes.
25 May – A group of senior advocates write to the Chief Justice of the Supreme Court of India and companion judges urging them to intervene in this migrant workers crisis. The letter says: “As a consequence of the Court’s failure to intervene, even though the number of COVID cases were then only a few hundred at the time, the millions of migrant workers were unable to proceed to their hometowns and were compelled to remain in small cramped tenements or rooms or on the pavements, without any employment or livelihood, and even a definite source of food. In fact, this enforced stay in cramped quarters only exposed such poor workers to a higher risk of COVID infection. The deference shown by the Hon’ble Supreme Court to the Government’s bland assertions and the expressed helplessness of the Hon’ble Supreme Court on the grounds of “issue being policy decision” or “inability to monitor” in the face of an unfolding human disaster, where millions of migrant workers are on the road, walking thousands of kilometers to reach their homes, is a matter of involving the violation of fundamental rights of millions of our poor citizens on account of executive action, that needs urgent attention by the Hon’ble Supreme Court on its judicial side. The migrant workers’ issues are not a “policy issue”. They raise constitutional issues requiring a strict scrutiny of the executive action, which has resulted in this situation. The core issues are of protection of the fundamental rights of these millions of poor migrant workers to life and liberty and their right to move freely throughout India and to return home, with safety and dignity guaranteed under Articles 14, 19(1) and 21 of the Constitution. If the Court is to fulfill its sacred constitutional role and duty, it must necessarily hold the executive accountable and require it to take steps to fulfil its obligations under the Constitution.”
26 May – The apex court finally takes suo motu cognizance of “problems and miseries of migrant labourers who have been stranded in different parts of the country”. The SC further stated: “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. In the present situation of lockdown in the entire country, this section of the society needs succour and help by the concerned governments, especially steps need to be taken by the government of India, state governments/Union Territories in this difficult situation to extend a helping hand to these migrant labourers. We thus issue notice to the Union of India and all states / UTs to submit their responses looking into the urgency of the matter”.
TIMELY JUSTICE
Warren Burger, the 15th Chief Justice of the United States, said: “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people” and among the things that “could destroy that confidence and do incalculable damage to society” was “that people come to believe that inefficiency and delay will drain even a just judgment of its value.” Let us hope that our Supreme Court restores that sense of confidence and once again becomes the most powerful court in the world and core strength of Indian public life. For that, it will have to adhere to the legal maxim – “justice delayed is justice denied.”