Supreme Court

Waiting for Jabalpur moment

Print edition : June 05, 2020

After the May 8 accident in which a goods train ran over migrant workers sleeping on the tracks in Aurangabad, Maharashtra. Photo: AP

The Supreme Court of India is sensitive to criticism that is abnegating its responsibilities as a protector of the rights of citizens, but its role during the human tragedy that has been unfolding alongside the COVID-19 crisis lends credence to that view. Photo: S. Subramanium

Mangal, a migrant worker, and his child trying to make their way back to Bihar, in Ghaziabad on May 20. Photo: Atul Yadav/PTI

The Supreme Court’s role in ensuring executive accountability during the ongoing lockdown leaves much to be desired. Standing in shining contrast is the record of some High Courts.

DURING a virtual meeting with top law officers on May 10, Union Law Minister Ravi Shankar Prasad emphasised the need to avoid “overzealous public interest litigations” in these “challenging times”. Underlying his statement is the assumption that public interest litigation (PIL) petitions, by their very nature, betray a lack of trust in the government, which is indefensible when it is fighting a pandemic.

While lack of trust in the government may have initially led a petitioner to approach the court seeking effective remedy on behalf of those who cannot approach it for various reasons, in all such cases the government is the respondent. This is a fact that makes it clear that the petitioner trusts the government. Recent PIL cases being heard by the Supreme Court in the wake of the prolonged lockdown underline the non-adversarial nature of the litigants’ prayers. Rather than accepting the responsibility to respond to such prayers, the Centre chose to avoid them. The Supreme Court, in the case of migrants, added insult to injury by interpreting their rights-related grievance as a result of contributory negligence on their part.

In Alakh Alok Srivastava vs Union of India, the petitioner sought the Supreme Court’s directions to district magistrates to immediately identify moving/stranded migrant labourers in their districts, shift them to the nearest shelter homes, provide them with sufficient food, water, medicines and counselling and, upon proper medical examination, ensure their return to their villages with dignity. More important, he drew the court’s attention to the heart-wrenching tragedy at Gadhejalgaon village in Aurangabad district of Maharashtra on May 8 in which at least 16 migrant labourers who were sleeping on railway tracks were killed by a speeding goods train. He wanted the court to ask the Centre why it could not prevent this tragedy despite its previous assurances that it was taking care of migrants.

Referring to the death of eight migrant workers in a road accident in Guna, Madhya Pradesh, on May 14, he said that any delay in preventing migrant workers from continuing their journeys on foot might result in more such tragedies, which are avoidable.

Unmoved by deaths

The Supreme Court bench of Justices L. Nageswara Rao, Sanjay Kishan Kaul and B.R. Gavai, which heard Srivastava, however, was hardly moved. It dismissed the petition on May 15, wondering how the court could stop migrants from walking. “How can anybody stop this when they sleep on railway tracks?” the bench said. The question seemed to suggest that the migrant workers were guilty of contributory negligence by sleeping on the railway tracks, and therefore, the authorities were not responsible for the tragedy.

When Srivastava said he was only seeking implementation of government guidelines, the bench reportedly mocked him saying, “Will you go and implement government directives? We will give you a special pass.” Solicitor General Tushar Mehta, representing the Centre, told the bench that the government was helpless if workers were determined to walk despite its plans to arrange inter-State transport with agreement between the States concerned. Srivastava’s suggestion regarding district magistrates’ role and responsibility was already with the Centre, which had promised the court during a previous hearing that it would examine it and take appropriate action. The court did not ask the Centre to explain whether it considered the proposal feasible, and if so, whether it could fix responsibility for such tragedies. Instead, the bench took umbrage at the petitioner for approaching the court.

When Prashant Bhushan, counsel for one of the PIL petitioners before the court, told another bench that the Supreme Court was disposing of the PIL petitions filed in the wake of COVID-19 spread without verifying the Centre’s claims, the bench had retorted that the court, as an institution, was not a hostage of the government. While the Supreme Court is sensitive to the criticism that it is abnegating its responsibility as a protector and enforcer of rights, especially of the powerless, during the pandemic and the lockdown, its non-intervention in such matters has hardly helped to erase that impression. In Jagdeep S. Chhokar vs Union of India, the petitioner challenged the Centre’s advisory mandating two States to deliberate upon the movement of a migrant worker. He contended that a migrant worker’s ability to return to his/her native place should not be contingent upon a State’s willingness to take him/her back and that it should be the Centre’s obligation to allow for the migrant’s travel. The petitioner also challenged the addition of the word “stranded” to the definition of migrant workers in the Home Ministry’s April 29 order as problematic as it narrowed down the scope of eligibility of those who could avail themselves of the facilities for travelling back home. “This could invariably end up excluding millions who have lost all their income and savings and merely wish to go back to their native villages,” the affidavit said. Many migrant workers who might not be living in shelter homes/relief camps and might be stuck in rented accommodations could be excluded from the Centre’s definition of the word “stranded”, the petitioner told the court.

When Prashant Bhushan, counsel for the petitioner, told the bench of Justices Ashok Bhushan, Sanjay Kishan Kaul and B.R. Gavai that the migrants had to pay 15 per cent of the ticket price and that it was not possible for them to bear the expenditure at the moment, the bench refused to intervene saying it was for the State concerned and the Railways to take necessary steps under the relevant guidelines. The bench merely recorded its hope that the difficulties of stranded migrant workers would be addressed and taken care of by the State governments and Union Territories concerned. “The substantial relief in the writ petition having been fulfilled we cannot expand the scope of the writ petition to consider other issues sought to be raised by the learned counsel for the petitioners during course of argument,” the bench observed before closing the case.

Jaideep Gupta, senior advocate of the Supreme Court, regretted that decades of development of the Supreme Court’s PIL jurisdiction to rectify problems ranging from bonded labour to Sardarji jokes now stood in danger of being wiped out at the time of this gravest crisis. As he put it succinctly: “The migrants’ walk home is not a casual irresponsible act of a citizen. It is a moment of existential crisis for them.” According to him, the court could have sought a scheme from the government and put its enormous influence to the execution of the same. What was disappointing to many was that the court was not even willing to pay lip service to the welfare of the migrants.

J&K Internet speed

In Foundation for Media Professionals vs Union Territory of Jammu and Kashmir, the bench comprising Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai held on May 11 that a Special Committee headed by the Union Home Secretary should examine the feasibility of allowing faster internet (3G or 4G) connection on a trial basis over certain geographical areas in the Union Territory. In this case, the petitioners were aggrieved that the Jammu and Kashmir government had restricted the mobile internet speed to 2G. They contended that this had greatly limited health personnel’s capacity to control the spread of COVID-19 and also infringed on the citizen’s right to education, health, business, and freedom of speech and expression. The bench did not question the Centre’s claims that the number of terrorism-related incidents and cases of cyber terrorism had gone up since August 5, 2019, when it abolished the special status of Jammu and Kashmir under the Constitution. Instead, the bench accepted the Centre’s submission that the 2G speed limit was useful in restricting the flow of information, thus preventing misuse of data by terrorists and their supporters to disturb the peace and tranquillity of the Union Territory.

It did not occur to the bench that the claim of a spike in terror and cyber crimes since August 5, 2019, and the contention that a 2G speed limit would restrict flow of information and prevent misuse of data by terrorists are mutually contradictory and cannot be true at the same time.

Besides, the bench’s wisdom in trusting the Executive to decide the “feasibility” of increasing the internet speed in the Union Territory—when the same Executive has been arraigned as the respondent who denied the legitimate rights of the people—bewildered observers.

It is, however, heartening that when the apex court failed to live up to the expectations of the common man, some High Courts rose to the occasion and filled the void left by it to ensure that both the Centre and the State governments fulfilled their responsibilities under the Constitution.

Acting on a petition filed by one A.P. Suryaprakasam on behalf of migrant labourers from Tamil Nadu who had been illegally detained at Kupwad in Sangli district of Maharashtra, the Madras High Court on May 15 made the Centre and the Tamil Nadu government respondents. The bench of Justices N. Kirubakaran and R. Hemalatha observed: “One cannot control his/her tears after seeing the pathetic condition of migrant labourers shown in the media for the past one month. It is nothing but a human tragedy…. After waiting for a considerable time, they started migrating to their native States by foot. It is very unfortunate that those persons were neglected by all the authorities…. 16 workers working in a steel factory in Julna, Maharashtra, who were sleeping on rail tracks while returning to Madhya Pradesh were crushed to death near Karmad around 30 km from Aurangabad by a goods train on 08.05.2020. Even after the sorrow and sufferings of the migrant workers were reported in the media, nothing happened for the past one month as there was no coordinated effort between the States…It is very pathetic to note that neither the native States nor the States through which they were walking all along took care of them and failed to provide even the basic amenities such as food and shelter and even if they had been provided, they were negligible.”

The bench asked the Centre whether it maintained any data regarding the details of migrant workers working in each State/Union Territory and their nativity. It also sought data regarding the number of migrant workers stranded in each State/Union Territory, assistance provided to them by the respective States and the Centre, the number of migrant workers who died on their way to their native States, relief measures and compensation provided to the families of those deceased, the number of migrant workers who had been transported to their home States through public transport, and whether the Centre had instructed the respective States/Union Territories to provide financial assistance, job opportunities in their native State/Union Territories for the labourers who migrated from other States.

The Karnataka High Court drew attention to the desperate situation in which the migrant workers found themselves under the prolonged lockdown. A bench comprising the Chief Justice Abhay Shreeniwas Oka and Justice B.V. Nagarathna noted that migrant workers would not try to walk back home if the State government concerned had conveyed its assurance to them that it would enable their travel through public transport. The bench made it clear that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his/her own State just because they were not able to pay for transport in a situation where they had lost their livelihoods. The bench held that the State governments should either convene meetings with non-governmental organisations (NGOs) and other trade associations to arrange for the fares of migrant workers who could not pay or pay these fares themselves.

On May 15, a bench of Justices D.V.S.S. Somayajulu and Lalitha Kanneganti of the Andhra Pradesh High Court directed the State government to ensure food, toilets and medical help for migrants.

The bench observed: “This court notices that the labour who have left their ancestral homes and villages and moved to the cities for better livelihood to ensure that all of us live in comfort are on the roads today. They represent the people who are working in hundreds of different trades, callings etc., and all of them together ensure that we lead a happy and comfortable life. If at this stage, this court does not react and pass these orders, this court would be failing in its role as a protector and alleviator of suffering…. They deserve more help particularly when they are trekking back with their heads high instead of living at someone’s mercy.”

The bench issued a slew of directions to the State government to ensure provision of adequate food, drinking water, oral rehydration salts and glucose packets, temporary toilets in a hygienic condition to ensure the privacy of women, and organisation of sanitary pad dispensing machines for walking migrants.

It also directed the government to transport those who were facing difficulty while walking back home to the nearest shelter in the patrol vehicles of the National Highways Authority of India (NHAI) and the Police Department. Efforts should also be made to persuade migrant workers to stop walking and to use public transport, the bench held. On May 11, the Gujarat High Court took suo motu notice of media reports on the migrants’ plight. A bench comprising Justices J.B. Pardiwala and Ilesh J. Vora pointed out that there was no proper coordination among various departments of the State government.

“The State authorities should come forward with some modalities or plans to smoothen and ease the process so that the migrant workers may not have to wait for hours and hours together before they are able to board the trains or bus,” the bench held. It sought to know from the State government how many shelter homes were functional and where.

The bench observed: “The State government should keep in mind that they are at present dealing with the most downtrodden, underprivileged and weaker sections of the society. They are all afraid. They are not afraid of COVID-19, but they are afraid that they would die due to starvation. In such circumstances, it becomes the paramount duty of the State government to assure and repose confidence in the downtrodden class of people that they will be taken care of in the best possible manner.” The bench then directed the State government to revert to it with some concrete plans to take care of the problems faced by the people at large. “We would not like to interfere with the day-to-day functioning of the State government in this regard, but, at the same time, we should ensure that the situation does not go from very bad to worst. In such circumstances, the judiciary will have to intervene,” the bench added.

On May 4, a Delhi High Court bench comprising Justices Hima Kohli and Subramonium Prasad, in Rakesh Malhotra vs Government of National Capital Territory of Delhi and Others, directed the Delhi government to update its website on a regular basis to reflect the number of tests being conducted for COVID-19 in Delhi, mention the number of positive and negative cases, and the number of results that are pending after the tests are conducted. It also directed the Delhi government to ensure that the samples that are furnished to the accredited labs are processed and reports forwarded within a period of 24/48 hours.

During the hearing of a petition filed by the NGO Delhi Rozi Roti Adhikar Abhiyan on May 7, a bench of Justices Siddharth Mridul and Talwant Singh directed the Delhi government to instal complaint boxes at all ration shops in the city to ensure proper distribution of foodgrain during the crisis.

The petition alleged that fair price shops were not operating during working hours and often did not have rations. The bench directed that all helpline numbers should be functional. Emphasising that rations should be provided to all those in need irrespective of whether they had a ration card, the bench asked the Delhi government to simplify the public distribution system through e-coupons.

On May 8, a Delhi High Court bench comprising Justices Siddharth Mridul and Talwant Singh extended the interim bail granted to 2,177 undertrial prisoners (UTPs) for a period of 45 days in view of the continuing COVID-19 pandemic.

The Delhi government constituted a high-powered committee following a direction by the Supreme Court to recommend grant of bail to UTPs to decongest prisons in Delhi. The bench accepted the committee’s recommendation and granted bail. On the same day, Justices Vipin Sanghi and Rajnish Bhatnagar, in Karan Seth vs Union of India, issued directions to officials to cater to the needs of underprivileged persons suffering from non-COVID-19 chronic diseases such as cancer and tuberculosis in government hospitals.

On May 9, Justice Rohit B. Deo of the Nagpur bench of the Bombay High Court held that human dignity and rights cannot be sacrificed on the pretext of handling extraordinary situations. The judge directed the police not to resort to extralegal measures or punishments while enforcing the lockdown.

On May 4, Justice B.P. Colabawalla of the Bombay High Court directed the Maharashtra government to file a reply in a public interest litigation filed by a former legislator, Mohan Joshi, seeking distribution among health professionals of sanitisers, face masks and personal protection equipment (PPE) kits seized by the police from black marketeers. Justice Colabawalla asked the State government to create an inventory of such seized products and file an affidavit. The Mumbai Police reportedly seized 25 lakh masks which were being smuggled out of India. The petitioner learnt from State officials that there were no guidelines for the release of such confiscated masks seized by the police.

On an urgent hearing held on May 3, a Sunday, Justice Anil S. Kilor of the Nagpur bench of the Bombay High Court issued notice on a PIL alleging that municipal authorities had randomly picked 1,408 non-risk persons from Nagpur for quarantine in violation of the guidelines issued by the Centre and the Indian Council of Medical Research (ICMR). The petition also raised the concern that the persons so quarantined had been lodged in crowded areas instead of a facility on the outskirts as recommended by the guidelines.

On May 9, Justice Revati Mohite Dere of the Bombay High Court held that quarantine facilities cannot be used by the police to keep away people whom the police consider to be of nuisance value. Quarantine facilities cannot be used as preventive detention or as a punitive measure, the court held. The case arose out of a petition filed for the release of K. Narayanan, president of the Centre of Trade Unions (CITU), Mumbai district committee, who had been placed under quarantine on the instructions of the police for over 14 days, although he had tested negative for COVID-19. The High Court found no plausible reason to justify his quarantine beyond 14 days. The police had registered cases against him under the Indian Penal Code and the Disaster Management Act in relation to his distributing food and other essential supplies among migrant workers.

In Rashtriya Shramik Aghadi vs the State of Maharashtra and Others, Justice Ravindra V. Ghuge of the Aurangabad bench of the Bombay High Court, on May 12, held that the court could not turn a Nelson’s eye to an extraordinary situation on account of the coronavirus pandemic and that the principle of “no-work-no-wages” could not be made applicable now to workers who were unable to work for reasons beyond their control.

On May 16, the bench of Chief Justice Dipankar Datta and Justice A.A. Sayed took note of the concerns of patients suffering from non-COVID-19 diseases and directed the authorities to consider implementing suggestions to address them. One of the suggestions is to start a helpline to assist non-COVID-19 patients with ambulance, mobile medical aid, list of hospitals and clinics providing treatment. Provision of mobile clinics and paramedical services at different locations to help patients who require preliminary check-ups, dialysis, and so on, is another.

During the Internal Emergency declared by the then Prime Minister Indira Gandhi in the mid 1970s, nine High Courts declared that citizens had a right to approach the courts to protect their rights under Article 21.

The Supreme Court set aside these nine judgments and ruled to the contrary through a 4:1 majority judgment in A.D.M. Jabalpur vs Shivkant Shukla; the sole dissent was by the illustrious Justice H.R. Khanna. The majority on that bench uncritically accepted the Centre’s claims. It is not surprising, therefore, that many see a A.D.M. Jabalpur moment in the ongoing crisis facing the Indian judiciary with many High Courts actively intervening in favour of citizens’ rights while the Supreme Court appears inclined to abdicate its responsibility to uphold those rights and to uncritically accept Centre’s claims. In Justice K.S.Puttaswamy (Retd.) vs Union of India, a nine-judge Constitution Bench of the Supreme Court expressly overruled on August 24, 2017, its own judgment in A.D.M.Jabalpur while upholding the right to privacy as a fundamental right. One of the judges on the bench, Justice Kaul, wrote: “I fully agree with the view expressly overruling the A.D.M. Jabalpur case which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection” (paragraph 82).

One wonders whether the ghost of A.D.M. Jabalpur, despite its decent burial in the Puttaswamy case, has returned to haunt the Supreme Court.

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