Impact of Informed Criticism

The latest Order of the Supreme Court relating to lakhs of migrants virtually walking from nowhere to nowhere on the highways in various parts of the Country without any resources and help from those, who have been in position to help, is a fine example of welcome effect /impact of informed constructive criticism of the superior Courts, particularly the Supreme Court by the noted lawyers, for not paying adequate attention to the misfortune of these people.

Nobody should shed any tears, if ‘well meaning' lament of Solicitor General Tushar Mehta by way of criticism before the Supreme Court of 'Prophets of Doom”, who totally failed to appreciate the superhuman efforts made by the ruling establishment to control the situation caused by COVID-19 in India and throughout the World, is ignored.

In a letter addressed to the 'Dear Judges” of the Supreme Court, 21 noted Senior lawyers told them in no uncertain terms, that the current migrant crisis has been 'symptomatic of how the constitutional promises of equality, life, freedom and dignity have been totally ignored by the government while imposing totally arbitrary executive measures. In this backdrop, Supreme Court's unwillingness to hold the Govt. and to provide required relief to these poor millions, will severely erode its constitutional role and status as the guardian of the fundamental rights of the people.

The 'Supreme Court has”, these lawyers reminded the Judges , ' a glorious tradition of Public Interest Litigation (PIL) that changed the face of Indian Constitutional Jurisprudence forever, ranging from eradication of bonded labour, prison reforms, environmental compliances, and right to food, amongst others. Each of these PILs has resulted in far-reaching legal and policy changes positively affecting the lives of the millions of people.” The Supreme Court's deference to the Government and its unwillingness or expressed helplessness in the face of the pitiable conditions, the migrants find themselves in, casts a long shadow on our country's constitutional structure.

By way of a note of caution, these jurists have stated that in the midst of the executive imposed Covid-19 lockdowns, the Supreme Court cannot retreat into a self-effacing deference, leaving millions of Indian citizens, especially those who are poor, vulnerable and impoverished, to the tender mercy of the executive with 'Diamond bright Diamond hard” hope that something would be done.

These lawyers also pointed out that the rights of citizens, especially the poor, are being violated with impunity by the executive in the name of addressing the pandemic. Millions have been forced to remain cooped up in slums or small tenements for weeks on end without job or means of li8vlihoodand in total denial of their rights to life and liberty. The deference shown by the Supreme Court to the Govt.'s bland assertions and the expressed helplessness of the Supreme Courts 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.

The signatories to this letter include M/s P. Chidambaram, Anand Grover, Indira Jaising, Mohan Katarki, Siddarth Luthra, Santosh Paul, Mahalaxmi Pavani, Kapil Sibal, Chander Uday Singh, Vikas Singh, Prashant Bhushan, Iqbal Chagla, Aspi Chinoy, Mihir Desai, Janak Dwarkadas, Rajani Iyer, Yusuf Muchhala, Rajiv Patil, Navroz Seervai, Gayatri Singh and Sanjay Singhvi.

According to these lawyers, The migrant workers' issues are not a 'policy issue.” These 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 fulfill its obligations under the Constitution.

These lawyers has drawn attention of the Judges to the development of jurisdiction of continuous mandamus by the Supreme Court to monitor executive action to ensure that orders of the Supreme Court are indeed followed. The apparent deference to executive action and the reliance on bald ( and patently incorrect ) statements made on behalf of the executive and the expression of helplessness on the part of the Supreme Court to monitor executive action, severely impairs this Court's constitutional status and duty.

The Supreme Court has the power bestowed by the Constitution of India under Article 142 to undertake any measure to do complete justice. The show of helplessness does no justice to the moto of this Court-' Yato dharmastato Jaya”.

The signatory –lawyers have voiced that they have sent this letter, as they believe that the Supreme Court's failure to protect the rights of hapless millions of migrant workers in March and its failure to scrutinize carefully the executive's action, which resulted in them being compelling to stay in cramped unhygienic accommodation without employment and wages and often without proper food and with a much higher risk of Covid infection that severely and excessively impaired the fundamental rights of the poorest section of our citizens. This situation was compounded by the Supreme Court's failure to intervene in mid-May when millions of migrant workers had commenced travelling homes on foot, or by trucks.

The lawyers have said that they believe that the survival of Indian democracy and the rule of law, particularly in the current COVID-19 pandemic, is dependent on the Supreme Court actively fulfilling its constitutional obligation of being the guarantor of the fundamental rights of citizens against State action.

As signatories believe that the migrant workers' crisis is continuing even now, with millions still stranded on roads, at railway stations and State borders, they have urged the Supreme Court to intervene and ensure that adequate transport arrangements, food and shelter are immediately provided for by the Central and State Governments free of cost. They have ended the letter to the Supreme Court Judges, with the words of Martin Luther King Jr., who said that 'Injustice anywhere is a threat to justice everywhere.'

 

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R.S.Agrawal 
on 03 June 2020
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