Since the higher Judiciary especially the Supreme Court is seen as the protector and enforcer of rights but off late the Supreme court has created an impression that it has failed to protect the rights of the migrant workers during the pandemic lockdown. Over the last few weeks, a number of Public Interest Litigations (PIL) were filed in the supreme court, which were asking to issue directions to the government in order to act in time and protect the rights of migrant workers. But in most of the cases, the Supreme court even refused to hear the petitioners entirely and it said that the current migrant crisis can not be prevented and there is nothing much that the court and the government can do to prevent workers from walking back to their native places. So, in most of these cases, the Supreme court ruled in favour of government and it created an impression that the Supreme court is not really concerned about the rights and well being of the migrant workers, and this has dented the image of the institution as the protector and enforcer of rights.

Experts are of the opinion that there are two reasons why this impression is being created: one, the Supreme court has genuinely failed to act in time and it has failed to uphold and protect the rights of migrant workers; and two, the Supreme court has been mislead to pass inaccurate judgments due to miscommunication in virtual courts. In a regular physical court, there is an opportunity for Judges to interact directly with the lawyers and hence there is very minimum scope for miscommunication and misunderstanding. But now, the hearings are being held virtually in virtual courts, the scope for miscommunication and misunderstanding has increased and upon this, the failure of the supreme court to provide adequate opportunities to the petitioners has resulted in these judgments where it appears that the Supreme court has failed the migrant workers and it has failed to protect their rights.

Public Interest Litigations or PILs have emerged as a very important judicial and legal tool and they have been often referred to as ‘social action litigation’. The emergence of PILs help the citizens and the activists to hold the government accountable by using the higher Judiciary to protect and enforce their rights by issuing appropriate directions to the government. Over the years, the pro activists in the Supreme court in championing PILs has led to the emergence of both judicial activism and judicial overreach. In a number of cases, the Supreme court has played it’s role as the protector and enforcer of rights through judicial activism wherein the Supreme court has curbed the powers of the executive i,e. the government; and it has issued specific directions to the government in order to uphold the rights of the citizens. For instance, if we look at Vishaka Case, it led to the Vishaka Judgment through which supreme court laid down the guidelines for prevention of sexual harassment at work place. In such cases, the Supreme court was clearly stepping into the domain of executive and the judiciary was seen to be playing the role of an activist in order to protect and enforce rights in the larger interest of the public and the society.
But in a number of cases, there has been judicial overreach as well, where the Supreme court has over stepped it’s mandate and enter the domain of the executive. For instance, in the 2G case, the Supreme court had issued guidelines as to how the auction of telecom spectrum has to be conducted by the government. A similar overreach of Judiciary was seen in Adhaar case as well. In such cases, legal experts and constitutional experts have pointed out that this amounts the Judicial overreach where the judiciary has over stepped it’s mandate and entered into the domain of the executive. But either ways, PILs have emerged as an important tool through which citizens and activists could hold government accountable because of their faith in Judiciary of being the protector and enforcer of rights. But with regard to the migrant crises, that has been caused by the lockdown, it appears that the Supreme court has completely given up its role as the protector and enforcer of rights and by failing to act on these PILs, it has given rise to an impression that it has failed in its constitutional duty.

Unlike the Supreme court, the work of the High courts is being appreciated for fulfilling their duty as the protector and enforcer of rights in cases related to the pandemic and migrant crisis. For instance, of we look at the High Court of Madras and the High court of Andhra Pradesh, they passed Important judgments based on PILs in order to uphold the rights of labourers and migrant workers. This is in complete contrast to what Supreme court has done.
This also helps us understand that in our constitutional scheme of things the High courts are treated on par with the supreme court as far as the enforcement of fundamental rights are concerned. Because according to the Indian constitution, both the Supreme court and the High courts enjoy original jurisdiction as far as protection of fundamental rights are concerned. That means a citizen can directly approach either the High court or the supreme court if his or her fundamental rights has been violated by the state.

But legal and constitutional experts are concerned with the appellate jurisdiction of the Supreme court as far as the enforcement of fundamental rights are concerned. The Supreme court enjoys appellate jurisdiction over original jurisdiction of the High courts as far as the enforcement of fundamental rights are concerned. So, with regard to the judgments passed by the High courts, the Supreme court enjoys appellate jurisdiction and it has the authority to over rule them. So, the experts hoped that the rightful decisions taken by the High courts of Madras and Andhra Pradesh should not be over ruled by the supreme court by using its appellate jurisdiction. The legal experts stresses upon the point that it is not healthy for an institution such as the Supreme court to give up it’s responsibility during this time of pandemic crises despite being the protector and enforcer of rights.

Shabir Ahmad is a Freelance Writer from Raiyar Doodhpathri and writes regularly on current affairs. He can be reached at sahilshabir@rocketmail.com.


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One Comment

  1. Decline of Judicial supremacy in India.