Migrant Workers Cases : SC Failed To Rise To The Occasion

It is said that statistics, while sounding impressive, can often belie the reality.

As per the data released by the Supreme Court recently, the Court heard 593 matters via video-conferencing and delivered judgement in 215 of them in a month during the unprecedented nationwide lockdown (as on April 24).

Comparing this data with that of courts in foreign jurisdictions, a press release from the SC stated,

"The Judiciary of the Indian Republic is known and acknowledged as one of the most robust and progressive judicial institutions around the world, supporting and serving a democratic order. The aforesaid data from across various Judiciaries, would indicate that, crippled as they are by the lockdowns and social distancing norms in place to fight the spread of the COVID-19 infection, few have been able to manage what the Supreme Court of India has delivered, despite being in almost similar circumstances though with much less resources".

It is laudable that the Court has quickly adapted to technology to address the grievances of the litigants during the testing times of a pandemic.That is an emphatic assertion of the indispensable function of judiciary, highlighting that administration of justice cannot be suspended even during lockdown.  At the same time, one should not get carried away by these astounding numbers and the tech-savvy ways of the Court to forget to ask a relevant question : has the Court done complete justice to its constitutionally assigned task of holding the executive accountable?

At the time of writing this piece, haunting visuals of the Aurangabad train tragedy killing 16 migrant workers were being shared and discussed in social media. As per reports, they were walking along the rail lines to their native places, and fell asleep on the tracks due to exhaustion. 

Three days before this incident, the Supreme Court had disposed of a PIL seeking directions to permit migrant workers to return to their native places by trains without conditions and charges. The petitioner, Jagdeep Chokkar, stated that even the subsidized train fare was beyond the means of most workers. The petitioner's counsel, Advocate Prashant Bhushan, submitted that the pre-condition to obtain medical fitness certificate for travel was creating practical difficulties(This concern seems to be validated now in view of the Aurangabad tragedy. Following the mishap, the State Government has withdrawn the condition) 

The SC however disposed of the plea without any effective directions, saying :

"As all necessary steps are being taken by the Centre and the States, we do not see any purpose in keeping this writ petition pending".

In fact, this was a habituated response which formed part of a pattern which the Court had been following with respect to several petitions raising issues concerning migrant workers during lockdown; that is, the pattern of disposing of PILs in a routine fashion solely on the basis of unverified claims made by the Executive.

Migrant workers have taken the worst hit due to the lockdown. The abrupt declaration of lockdown with a notice of four hours triggered a massive exodus of migrant workers from cities to their native places. In the absence of regular means of transport, they attempted to traverse hundreds of kilometers by foot.

There are reports of at least 22 migrant workers dying during their walk back home under the scorching sun. The situation was alarming enough to warrant a suo-moto intervention by the Court, especially considering the fact that usual judicial remedies were beyond the access of the hapless victims.

The grave humanitarian crisis in the unfolding demanded a prompt and pro-active response from the Court. However, when a PIL espousing the cause of migrants came before the Court, it exhibited a laid back approach. 

The Court even made a demeaning finding that the massive exodus of migrants was caused by "fake news".

"The migration of large number of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than three months. Such panic driven migration has caused untold suffering to those who believed and acted on such news. In fact, some have lost their lives in the process.", observed the bench in an order passed on March 31.

This conclusive and sweeping finding was solely based on the assertion made by the Centre in its affidavit that fake news was to be blamed for the exodus. It is surprising that the Court did not think it fit to probe if there were other factors - such as unemployment, penury, lack of food and shelter - which drove the migrants to desperation. This finding, made without any evidence and discussion, had two problematic effects :

1. Absolving the executive of its liability by indirectly stating that the migrants brought their own predicament upon themselves  .
2. Trivializing the genuine sufferings of migrants by characterizing them as a response to a so-called fake news.

After expressing concerns about fake news, the Court stressed on "importance of mental health and the need to calm down those who are in a state of panic".  The Court said that trained counselors and community leaders of all faiths should be arranged in all shelter camps and urged the authorities to treat the workers with "kindness". The Court failed to understand that the "anxiety and fear" of the migrants were not just matters of perception which could be cured through counselling and spirituality, but were real sufferings caused by lack of basic human necessities. 

The Court's lack of sensitivity came on display again on April 7. While hearing a PIL filed by Harsh Mander and Anjali Bharadwaj seeking to direct the Centre to transfer wages to the accounts of migrants in shelter homes, CJI Bobde asked "if they are being provided meals, then why do they need money for meals?(sic)".

The Central Government showed a high degree of hostility to the PILs raising the issues of migrant workers. Though PILs are not supposed to be "adversarial litigations", the hearings were marked with animosity.

It may be noted that in the BALCO Employees case, the SC had observed that "PIL is not meant to be adversial in nature and is to be a cooperative and collaborative effort of the parties and the Court so as to secure justice for the poor and the weaker sections of the community who are not in a position to protect their own interests".

Such judicial pronouncements lost all their meaning with the Centre pursuing an aggressive tactic to bulldoze the petitions through personal attacks.

Solicitor General Tushar Mehta stated that "PIL Shops must close down till the country emerges out of this crisis".

"Preparing PILs without any ground level information or knowledge while sitting in an air-conditioned office was not 'public service'", he added.

He called the petitions "self employment generating petitions"

Things got escalated to the level of an ugly personal spat when the Solicitor General said that "some people's social work was only confined to filing Public Interest Litigations". When Advocate Prashant Bhushan, who was appearing for the activists, submitted that there were studies on record to suggest that more than 11,000 workers had not been paid minimum wages since imposition of the lockdown, the SG retorted.

"Who said that nobody is paid? Can't your organization help the workers in any other way rather than filing PILs?"

On March 31, the SG asserted that no migrant worker was on road, and that all of them were accommodated in shelter homes (a claim which stands exposed by several ground level reports, including the latest incident of Aurangabad tragedy).

All this while, the Court remained passive, treating the status report filed by the Centre as a gospel of truth.

Meanwhile, several media reports started to surface, indicating that Centre's claims were far from the truth. There were reports of migrants left on the streets taking shelter under roadside bridges and struggling to find food. There was a report about hunger-driven migrants scavenging for bananas discarded near a cremation ground in Delhi.

The petitioners cited before the Court a survey report published by 'The Hindu' that 96% migrant workers did not get rations from the government, 90% did not receive wages during lockdown.

But a single line submission by the Solicitor General that the 'reports are not true' was satisfactory for the Court. The Court showed neither the will nor the gumption to question the claims of the Centre.

On April 21,  the SC disposed of the plea filed by Harsh Mander and Anjali Bharadwaj, with a feeble observation that the Union Government was called upon to "look into the" materials placed by the petitioner and take "such steps as it thinks fit to resolve the issue". 

The Court did not find the issue serious enough to pass a positive and concrete direction to ensure immediate, tangible reliefs to the migrants. The Court chose not to engage with the reports produced by the petitioner on migrants not receiving minimum wages contrary to the claims of the Centre. Since the direction is in loose and vague terms, the chances of enforcing effective compliance are also limited.

A plea by activist Swami Agnivesh to ensure food security to destitutes during lockdown was also disposed of the bench on the same day, based on the Solicitor General's statement that the aspects raised in the petition "will be looked into and if found necessary, supplementary directions will also be issued". 

Similar was the response of the Court to another PIL filed by Swami Agnivesh highlighting the difficulties faced by farmers in doing agricultural operations amid lockdown. The bench disposed of the petition merely recording SG Tushar Mehta's statement that there was full monitoring and implementation of the guidelines issued by the Ministry of Agriculture.

Likewise, on a plea for providing Personal Protective Equipments to sanitation workers, an oral submission by the SG that the Centre was following WHO guidelines was sufficient for the Court to the dispose of the matter.

There was a PIL by social activists activists Aruna Roy and Nikhil Dey seeking payment of wages to workers under the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) during the lockdown and issuance of temporary job cards to all migrants who had returned to their villages. On April 8, the court granted a long adjournment of the case based on the claim by Solicitor General that Rs.6,800 crore had been paid on April 5 towards arrears of wages. The case was directed to be listed two weeks after lockdown!

On April 3, the Court took suo moto notice of a letter written by Lok Sabha MP Mahua Moitra regarding the plight of stranded migrant workers. The letter was converted into a writ petition, and a report was sought for from the Central Government. However, on April 13, the Court dismissed the writ petition, through a one line order without stating any reason.

When the Court missed a crucial opportunity to hold the executive to task, it led to unspeakable horrors. A ground-report by The Hindu in the aftermath of Aurangabad tragedy revealed that the workers were not getting wages since the lockdown and were battling hunger; even the MGNERGA scheme was not ensuring job and wages to the workers, the report said. With a sense of shudder, one can recall that the PILs, which were casually dealt with by the Court, sought the exact directions to avert such miseries.

What can the Courts do?

On April 26, CJI SA Bobde told in an interview to The Hindu that 'Executive with its three 'Ms' of money, men and material is better-suited to deal with COVID-19 crisis'.

No one can dispute the proposition that maximum leeway should be given to the executive for decision making in times of crisis.

However, does it mean that the Courts should remain a mute spectator during such situations, mindlessly endorsing all actions of the executive?

The answer would be NO, going by the Court's own precedents. While the Courts are not expected to micro-manage affairs at ground level, it cannot abandon the function of keeping the executive in the check, even during an emergency.

For example, consider how the Supreme Court responded to the crisis created by unprecedented air pollution which engulfed Delhi-NCR during November 2019. The Court made a prompt intervention, taking suo moto cognizance of the issue, and passed strong, effective and enforceable directions to mitigate the pollution. The Court did not stop at just passing directions; it monitored the situation periodically to ensure compliance, and called for regular status reports from officers. The Court took the officers to task, and send a strong message that no breach will be tolerated. Rather than 'deference' to the executive, a visible indignation and frustration at its failures powered the actions of the Court.

In stark contrast, the responses of the SC to the issues of workers and the poor(as documented in the earlier part of this article), were casual and mechanical.  

The Court had in its armoury powerful tools such as the 'continuing mandamus', which could have been used to constantly monitor the follow-up actions of the government. As observed by Justice V R Krishna Iyer in Ratlam Municipality case, such measures will ensure that the executive is "watch-dogged by the court".

The interventions made by some High Courts in this regard are worthy of mention in this backdrop. The High Court of Kerala has been monitoring the steps taken by the Kerala Government to provide food and shelter to guest workers. The High Court of Karnataka passed strong observations to assert the importance of rights of migrants to travel back to their native places, and directed the Government to place on record its clear policy on special trains. The Orissa HC and Bombay HC had taken suo moto notice of the issue of migrants, and passed necessary directions. The Bombay HC however deferred the hearing taking note of the pendency of similar issues in SC.

It is time to introspect whether the invocation of effective methods by the SC could have mitigated the sufferings of the underprivileged during the lockdown. Instead of disposing the PILs at the mere ipse dixit of the Centre, the Court could have retained them on files, for periodic monitoring to ensure that the Executive fulfilled its undertakings.

In this connection, it is pertinent to recall the observations in the Asiad Workers Case(1982) :

"Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredrssed", Justice P N Bhagwati had observed in that judgment.

Of the hundreds of PILs filed in the recent times, the ones filed on the issues of migrant labourers, farmers, sanitation workers and the poor amid the lockdown perfectly fitted the above description. It is unfortunate that they could not elicit any effective reaction from the top court.

This is not to discount some of the positive directions passed by the Court during this phase, such as the suo moto directions for de-congesting prison and children homes, and also the directions pertaining to release from foreigners detention centres. The SC also suo moto extended the limitation period for filing of cases, taking note of the difficulties faced by litigants during lockdown. The order passed to ensure availability of PPEs for health workers and for their protection from obstruction and attack during performance of their duties is also commendable.

Nevertheless, taking an overall look, the interventions from the Supreme Court in matters concerning larger public interest during the lockdown period have been sparse. The Court may have delivered individual justice in specific cases ; but shut its eyes and ears to the cries of justice by the poor and the marginalized, making the following observations made by SC in 1982 in the Asiad Workers Case still relevant, even after 38 years :

"So far the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent. It is only these privileged classes which have been able to approach the courts for protecting their vested interests. It is only the moneyed who have the golden key to unlock the doors of justice".

Justice Deepak Gupta, who retired as SC judge recently, echoed similar views in his farewell speech by saying "Our laws and our legal system are totally geared in favour of rich and the powerful".

The SC has not covered itself in glory with its handling of migrants cases. As the cause of action is a continuing one amidst the unprecedented humanitarian crisis, the migrant workers might be still hoping for some effective actions from the judiciary.