By Jacob Peenikaparambil

Indore, May 27, 2020: The members of legal fraternity, especially of the judiciary, ought to know the implications of the dictum, “Justice delayed is justice denied” better than the ordinary citizens. Unfortunately, in the case of India, the Supreme Court seems to have forgotten this dictum. The media and the enlightened citizens of India had to prevail upon the Supreme Court to change its attitude to the migrant laborers.

It was reported in the media that a late night letter on May 25 by 20 renowned lawyers of Delhi and Bombay to the Supreme Court, accusing the apex court of exhibiting its emergency time mindset, forced the latter to change its previous stand.

The lawyers through their letter brought to the attention of the SC that the right to life, liberty and freedom of movement of the hapless migrant workers were violated in the circumstances in which they lived due to the nationwide lockdown and the failure of the Central and the State governments to provide them shelter, food and other basic necessities of life.

Under the pressure from the public, lawyers and retired judges of the SC and High Courts, the Supreme Court on May 26, on its own took note of “problems and miseries” of laborers stranded by the coronavirus lockdown and asked the centre and states to provide transport, shelter and food to them immediately. It issued notice to the Centre, States and Union Territories and asked them to report to it on “steps taken to redeem the miseries” of migrant laborers within 48 hours.

The present stand of the SC appears to be totally different from the one that it took eleven days ago. On May 15, the Supreme Court had declined to entertain a plea by lawyer Alakh Alok Srivastava, seeking a direction to the Centre to ask all district magistrates to identify stranded migrant workers and provide shelter and food to them before ensuring their free transportation home in view of the accident at Aurangabad in which 16 workers were mowed down by a goods train.

“How can we stop migrants from walking,” the Supreme Court is reported to have asked while hearing a petition under Public Interest Litigation. When the issue of 16 migrants being run over by a goods train, while they were sleeping on the railway tracks, was brought to the attention of the court, the bench said, “How can anybody stop this when they sleep on railway tracks?”

Several activists and lawyers had approached the Supreme Court over the last few weeks, urging it to help the migrant workers. They expected the court to take up the issue suo motu in order to protect rights of the workers. But it has failed them as well as the workers. The court always accepted the government’s submissions almost mechanically, not doing much to alleviate the sufferings of the workers.

The first Public Interest Litigation (PIL) was filed on March 31. But the SC did not entertain it. It blindly accepted the submission of the Solicitor General, Thushar Mehta, that there were no migrant workers on the roads anymore, as governments had ensured that they were being housed and fed.

Thereafter several PILs reached the Supreme Court, but all of them received the same fate. Every time it accepted the submission of the Central government. It did not even ask the government to present a status report of the actions taken.

Besides the PILs filed by the activists and lawyers, retired judges and prominent lawyers criticised the attitude of the Supreme Court. The Supreme Court Bar Association president and senior lawyer, Dushyant Dave, had criticized the stand of the SC towards the migrant workers’ issue. “The courts failed to protect the rights of citizens during the crisis and remained silent as citizens suffered,” said Dave on May 23 in his speech on the topic ‘Role of Judiciary in Pandemic’ organized by the All India Lawyers Union.

“(Covid-19) pandemic really gave the judiciary a chance to win over the hearts of the people by taking proactive steps in the time of crisis and earn back the respect it once commanded….The judiciary intervenes through public interest litigation in all kinds of matters but when it came to the crunch, it failed,” Dave said.

Justice A P Shah, former Chief Justice of Delhi High Court, was highly critical of the position of the Supreme Court on the issue of the migrant workers. While addressing lawyers across the country on a webinar he said that the Supreme Court did not ask relevant questions on the issue of migrant laborers and that “it skirted the real fundamental rights issue in the case.”

Ever since the BJP came to power at the Centre the second time with enhanced majority in the Lokh Sabha, the Supreme Court seems to have adopted a delayed approach to certain issues which are fundamental to the rights of the citizens and to the survival of secular democracy. They include three sets of petitions relating to Kashmir filed before the SC.

The first related to the communication shutdown and Section 144 orders (prohibiting public gatherings) that were imposed on August 5, 2019. The second set related to the habeas corpus petitions filed against the illegal arrests and detentions of individuals under the draconian Public Safety Act. The third set relates to the constitutional challenge to the government’s decision to amend Article 370 of the Constitution and break up the state of Jammu and Kashmir into two Union Territories. In all three cases, the court failed to give a satisfactory resolution.

A quick disposal of the petitions related to Citizenship Amendment Act (CAA) by the Supreme Court could have avoided the long drawn protests against CAA in different parts of the country and consequent violence, including Delhi riots. The response of the Supreme Court to a petition moved before it against the communalization of the coronavirus on television as well as on social media was quite inadequate. Even one observation from the Supreme Court condemning such irrational and unjustified behavior would have had a sobering effect on media in the country.

Judiciary is the third pillar of democracy and its most important function is to protect the rights of citizens and safeguard the constitution. The Supreme Court is the last resort for the citizens, when their rights are violated. If the SC delays its response, the citizens can lose their faith in the judiciary.

In a democracy the citizens have the right to criticize the Judiciary. Advocate Dushyant Dave while addressing the lawyers said, “We lawyers should galvanize the judiciary into action. We have to stir up their conscience. Criticism of the judiciary is not contempt.” Criticism of the Supreme Court by various sections of the Indian citizens, especially by the lawyers and retired judges, in a way forced the SC to change its attitude towards the migrant workers.

This has proved that in a democracy citizens are the masters. If the citizens are alert and vigilant, the executive will not be dictatorial and the judiciary will not pliant to the executive.

(The writer could be contacted at jacobpt48@gmail.com)