“If any event ever shook the collective conscience of the nation, the travails of Migrants labourers did” – Justice Madan B. Lokur ®

After showing an unflinching and unquestionable trust on India’s ‘Executive’ and negating all Public Interest litigations, Supreme Court of India on 26th May 2020 –  took sou motu cognizance of the problems of migrants’ labourers and poor. And On 9th of June Supreme Court issued a directive to Centre and states – on how the migrant workers’ reverse migration should take place within fifteen days. Without any shadow of doubt, migrants’ workers and poor faced the extreme hardships of a nationwide lockdown culminated by Covid 19 Pandemic. Although a welcoming decision, it came quite late and many duly questioned the timing of Supreme Court. But those who have questioned the government and decisions of our apex court (on the migrants issue) was recently regarded as the ‘Prophets of Doom’ by the Solicitor General of India Mr Tushar Mehta. Interestingly, they are the same ‘Prophets’, who fought quite hard since March 24th for the migrants and poor and continued their struggle with all legal options available; when both state and central governments failed.

According to a report published in The New Indian Express (26th May) – in total 750 people, including 198 migrants lost their lives from 25th March to 25th May. Notwithstanding, the welcoming judgement of supreme court, one cannot deny the ‘paradox’ related to the same. Why did it take so long for our Judiciary to intervene? What stopped them to address petitions after petitions and have full faith in the Executive, when people were dying on the streets and was being mowed down by trains? Are not the latest directions by the Supreme Court remains the epitome of legal maxim – ‘Justice delayed is Justice denied’? And the most important question which will hound the apex court for long is – Why did Supreme Court disengaged with realities and law and accepted what it was told – hook, line and sinker by the executive? These questions need some serious reflection.

Any perusal of the majority of recent judgements, made by India’s apex court indicates that – the derision of judiciary is in continuum. Right from the Kashmir issue to ambivalent judgement on Ramjanambhoomi case to the issues of Habeas Corpus to CAA; it seems that apex court is just extending the decisions and beliefs of the ‘executive’. And in addition to all these, the recent series of judgements on migrants or poor have certainly degraded the reputation of our independent judiciary. People were dying on streets and out of hunger, pandemic took a toll on India’s population and as the government steps were not enough – Supreme Court duly became the ‘torch bearer’ of the government policies. Former Justice of Delhi High Court and Law Commissioner A. P Shah in an interview to the media outlet quoted Lord Denning, in order to comprehend the workings of the courts -“The Judge is becoming more executive minded than executive”.[1]

Not only are the issue of migrants and poor is hounding the image of Supreme Court, but also its silences on the ‘witch hunt’ against students, activists and academicians. A Member of Parliament and key minister in present regime openly threatens pubic, creates communal tension and incites violence, but he ends up doing series press conferences on Corona pandemic with the Finance Minister. And the students who talked about Constitution and preservation of ‘idea of India’ face Unlawful Activities (Prevention) Act (UAPA), a draconian law. The detainee also includes a research scholar who is two months of pregnant. The derision of Habeas Corpus too remains a common factor in contemporary India. And on the same, Former Justice Madan B. Lokur opined:

This is the matter of extreme urgency – a person is kept in detention without any trail for months altogether. These Habeas Corpus petitions should be heard, how much time it’s going to take? One hour, two hours? Or may be a day? Why not hear them? [2]

Amidst the severe lockdown – We saw haunting images and realities, people walked with their children for miles without any food, labourers were being crushed by trains, intellectuals and students who remain critical to government’s policies are being jailed under draconian laws, their PILs were getting rejected and mocked, Constitutional rights and remedies were being overlooked; but the constitutional court with more power than any other public institution were in total negation of humanitarian crisis. In fact Supreme Court remains more interested on the personal remarks and criticisms, which it has been facing in a democratic country. Dr Harsh Mander a human rights activist and one of the forefront fighters of migrants rights, along with Anjali Bhardawaj had filed a petition in Supreme Court – asking for minimum wages for poor. The petition was filed on 31st March 2020, but court finally on 21st April ordered that – ‘they believe and have trust on executive and their works’. Apart from their bonhomie with the executive, Supreme Court rather choose to prioritised criticisms made by Mander on the working of Supreme Court and duly criticised him.

The priorities of Supreme Court, in selecting cases, in the times of Pandemic also remain quite critical. As mentioned above, it took nearly twenty days for Harsh Mander’s Petition to finally see the light of some judgement. On contrary a ‘mouth piece’ journalist of present government, against whom Maharashtra police has filed a FIR, for his hate speech and communal agenda – got a hearing from Supreme Court within 15 hours and also an interim relief.

In the era of populism, conservatisms and ultra-nationalism – any criticisms can be easily bowed down by the leaders and its mandarins, for so called national interests. And with the rise of right wings, the same is happening in the entire world right now and India remains no exception. It has all led to the crisis in the independence of Judiciary too. In order to strengthen the arguments, related to the crisis which Indian apex judicial body is facing, truth was revealed by Justice Deepak Gupta. Justice Deepak Gupta became the first judge to retire during pandemic from Supreme Court and got a farewell from his services via video conferencing. In his parting address, he clearly stated how judiciary is ‘differentiating between rich and poor’ and how it was difficult for the poor in the present crisis to be assured that – ‘he/she will get justice’. He further stated that:

You see country has great faith in judiciary. I mean, we say it time and again. But at the same time, we cannot hide our heads like an ostrich and say that – nothing is happening to the judiciary. We must indentify our problems ourselves and deal with them. The integrity of the institution is something which cannot be out at stake under any circumstances. [3]

Retiring judge Deepak Gupta selected his words very wisely. He still hopes that integrity must be saved. But, the words that were spoken by Justice Gupta, in the context of lawyers, were blunter and depicted the harsh reality. On lawyers he spoke:

I see lawyers argue on political and ideological sides and not on law. Argue your clients on law and not on other sides.[4]

Although, Justice Gupta, cannot become the Justice Hans Raj Khanna of the famous ADM Jabalpur case (1976), for whose audacious dissent The New York Times has written – ‘They (Indians) will long cherish the lonely judge’.[5]  But the words of justice Gupta’s parting speech too remain a kind of audacious dissent.

Liberty is not a ‘gift’ of a state to the people.  It is the people enjoying liberty as a citizen of free representative Republic, who have granted power to the ‘Legislative and Executive’. And if the same is threatened, Judiciary has to protect it. Chief Justice of India S.A. Bobde while giving his interview to a leading newspaper presented his view quite differently. And the way he is trusting and having hope from executive remains quite central to his perceptions. He lamented:

This is not a situation where declaration of rights has much priority or as much importance as in other times.[6]

Similarly, as mentioned above, in the petition filed by Dr Mander and Anjali Bhardawaj, Chief Justice Bobde opined that – ‘if the migrant’s workers are being provided meals then, why they need money?’[7] While the executive was unable to execute plans for the poor people in India; the unflinching trust and hope of Supreme Court in the state and executive have made the state ‘a bigger judiciary’ with more prominent judges. Judges, upon whom even Chief Justice of India have an unflinching faith.

History duly provides us lesson and patterns, as to which ought to be followed and ought to be discarded.  Judiciary in its various judgements, refer to its own historical and landmark judgements – either to agree or to disagree. Recent judgements of the Supreme Court and statements made by the Chief Justice of India – often allows jurists and academicians to revisit ADM Jabalpur case of Emergency era; especially the arguments of a dissenting judge Hans Raj Khanna.

During the emergency imposed by Indira Gandhi (June 25, 1975 – March 21, 1977), anyone who was assumed to be a political threat to regime, was taken into custody, without any trial. The people were detained under ‘Preventive Detention Laws under MISA’ (Maintenance of internal Security act). Many people rushed to their respective High Courts and in many instances courts gave judgement in favour of the petitioner. These favourable and wise judgements compelled Indira Gandhi to approach Supreme Court for the same. The cases were compiled into one and are popularly known as: Additional District Magistrate Jabalpur Versus Shivkant Shukla (1976). The Constitutional Bench was headed by Justice A.N. Ray, along with Justices M.H. Beg, Y.V Chandrachud, P.N. Bhagwati and Justice H. R. Khanna. Majority of Judges, except for Justice Khanna, gave decision in favour of government. But, the dissenting judgement of Khanna became the milestone in the history of India’s judiciary. And his courage became a learning ground for many generations. D.Y Chandrachud, one of the current Justices of Supreme Court and also the son Justice Y. V. Chandrachud – while delivering the Right to Privacy Judgement in 2017, not only lauded justice Khanna; but also declared his father’s and majority judgment as a flawed one.

Justice Khanna, the courageous dissenter talked about life, rights and liberties of a person in the times of emergency. He stood with the law and his duty. He dissented that – executive cannot curtail life and liberty even during the course of state emergency. He is still relevant today, because the current judgements and statements by the judiciary have thrown every rights of a citizen at the mercy of the state. In short, Supreme Court has surrendered to the biggest judge known as the ‘executive’. Let’s revisit the part of Justice Khanna’s courageous dissent, where he went ahead and wrote:

Even in the absence of Article 21 in the constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. This is the essential postulate and basic assumption of rule of law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between lawless society and one governed by laws would cease to have anything.[8]

The current humanitarian crisis will be converted into a mere data for future references. But the paradoxes and derision of Supreme Court will be duly noted in history. Liberty and right to life is not just merely about animal existence. It is more than that. But the whole discourse of both executive and judiciary seems to have reduced it to a mere animal existence. It took more than two months amidst tragedies, deaths and humanitarian crisis for Supreme Court to pass a humane judgement. The judgment of 9th June remains out of context, when most people have already returned to their homes – with their respective baggage of life long trauma.

Reflecting back and ascertaining wisdom, from the comments made by a retiring judge Deepak Gupta and connecting to George Orwell, one can say – ‘All animals are equal, but, some are more equal’. Justice Gupta compared Supreme Court and its judges to an ‘Ostrich’, who cannot hide their heads. But its better we should compare to a ‘cat’, which is drinking milk by closing its eyes, assuming that no one is watching.  On contrary, everyone (specially Prophets of Doom) is duly watching and noting as to – how cat has been drinking milk for a while. The best example such analogy is the Rajya Sabha nomination and selection of former Chief Justice of India Ranjan Gogoi to the same. He did give some of the crucial judgements, which was needed by a populist government for long run.

To conclude, the ‘statue of women’ of Justice found in our courtrooms is a representation of Greek goddesses of divine justice – ‘Themis’. She is blind folded with a ‘Black Ribbon’, which indicates that – courts guided only by evidence and laws, and is not influenced by political, social and economic factors. As India grapples with a second biggest humanitarian crisis after partition, the derision Indian judiciary is real and the goddess is not blind folded anymore!!!!!!

Dr Biplove Kumar, Assistant Professor, School of Law (SOL), Narsee Monjee Institute of Management Studies (NMIMS) Indore

[1] Thapar, Karan. “Supreme Court Has Let Down Migrant Workers, Vulnerable,’ Says Justice A.P. Shah”. The Wire, 05/05/2020. Retrieved From: https://thewire.in/law/watch-karan-thapar-interview-justice-ap-shah  

[2] Thapar, Karan. “Why is the Supreme Court Not Enforcing Peoples’ Rights, Asks Justice Lokur”. The Wire, 30/04/2020. Retrieved From: https://thewire.in/law/watch-justice-madan-lokur-karan-thapar

[3] Express News Service. “Laws, legal system totally geared in favour of rich and powerful: Justice Deepak Gupta”. The Indian Express, 7/05/2020. Retrieved From: https://indianexpress.com/article/india/supreme-court-justice-deepak-gupta-virtual-farewell-6397441/

[4] Ibid.

[5] Archives, News Agency. “Fading Hope in India”. The New York Times, 30/04/1976. Retrieved From: https://www.nytimes.com/1976/04/30/archives/fading-hope-in-india.html

[6] Rajagopal, Krishnadas. “Executive with its three ‘Ms’ of money, men and material is better suited to deal with COVID -19 Crisis –CJI”. The Hindu, 26/04/2020.

Retrieved From: https://www.thehindu.com/news/national/executive-with-its-three-ms-of-money-men-and-material-is-better-suited-to-deal-with-covid-19-crisis-cji/article31436791.ece

[7] Legal Correspondent. “If meals are given…: Supreme Court’s query”. The Telegraph, 08/04/2020, New Delhi. Retrieved From : https://www.telegraphindia.com/india/if-meals-are-given-why-do-they-require-wages-supreme-courts-query-during-coronavirus-lockdown/cid/1762977

[8] Virk, Aviral. “42 Years On, Son Overrules His Father’s Supreme Court Ruling”. The Quint, 25/08/2017. Retrieved From: https://www.thequint.com/news/india/privacy-supreme-court-overruled-adm-jabalpur


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