On May 28, during the Supreme Court’s hearing of the suo motu case on migrants, Solicitor-General Tushar Mehta drew the court’s attention to the Pulitzer Prize-winning photograph shot by the South African photojournalist Kevin Carter in southern Sudan in 1993. The iconic photograph showed an emaciated boy who had collapsed on his way to a feeding centre while a vulture waited behind him, as if for his death. Tushar Mehta then referred to an apocryphal conversation between Carter and a reporter, who asked him how many vultures were at the scene. When Carter replied one, the reporter retorted: “There were two, one with a camera.” Tushar Mehta said Carter subsequently committed suicide, as if to suggest that it was a result of the feeling of guilt he suffered after the shooting of the photograph.
A report in a national English daily on May 30 said Carter went to Sudan to photograph the civil war and famine which “he felt the world was overlooking”. As to why he did not help the child, the story suggested, citing a report in Time magazine, that he was advised not to touch famine victims because of the fear of infection. Contrary to what Tushar Mehta assumed and wanted the court also to similarly infer, Carter did chase away the vulture after taking the picture. The child recovered and resumed his trek and lived for 14 more years before dying of malaria.
The newspaper report further reveals that after Carter’s picture was published in The New York Times, humanitarian organisations working in Sudan started receiving a lot of funds. Carter had claimed that after taking the picture, he sat under a tree, lit a cigarette, talked to God and cried. He felt depressed and wanted to hug his daughter. Carter initially believed the child he saw hunched to be a girl. More important, Carter’s suicide in 1994 was not related to the “guilt”. According to the news story, he faced a drug problem, failed relationships and money issues, and had been witness to more violence than one could imagine.
Although Tushar Mehta’s intention in referring to the photograph and the photographer was to persuade the Supreme Court to consider those who approached the court seeking relief on behalf of the stranded migrants as vultures, the bench comprising Justices Ashok Bhushan, Sanjay Kishan Kaul and M.R. Shah, conceded that a large number of migrant workers were still seen walking to different places, even while it remained silent on his vulture theory.
The bench thought it fit to redeem the migrants’ immediate difficulties and directed that no fare be charged for their travel. It also directed that migrant workers should be provided food free of cost by the respective States/Union Territories, and that this facility should be publicised and notified to them during the period they waited for their turn to board a train or bus.
The bench told the States to simplify and speed up the process of registration of migrant workers, provide a help desk for registration at the places where they were stranded, and after the registration process was completed, ask the workers to board the train or bus at the earliest and share the information about the mode of transport with all concerned.
The bench said migrants found walking on highways or roads should be immediately provided food, water and other basic facilities and transportation to their destinations. The States receiving the migrant families and workers were told to provide them health screening facilities and transport to their hometowns free of cost.
Lack of propriety
Tushar Mehta’s insinuation that those who reported and brought to light the migrants’ unending tragedy as a result of the unplanned lockdown could well be vultures is of a piece with his attack on the commitment and credentials of those who sought urgent redress and accountability in the Supreme Court.
Although he sought more time from the court to file his written response to questions by the bench on the relief being accessed by the migrants, his oral replies smacked of a complete lack of sincerity and propriety.
He asked counsel representing some of the petitioners how much they had contributed to alleviate the migrants’ distress, and described the critics of the Centre as “prophets of doom”. He accused the High Courts that intervened in public interest litigation (PIL) petitions seeking relief, as running “a parallel government” (story on page 25). His remark was criticised as intemperate as it put the High Courts and the Supreme Court on a collision course.
In the normal course, Tushar Mehta’s statements could well be dismissed as rants expressed in the heat of the moment during a hearing. But the court’s refusal to allow the Congress’ chief spokesperson, Randeep Surjewala, as a petitioner in the case after questioning his locus on the basis of Tushar Mehta’s statements, caused dismay among observers.
Former Union Law Minister Ashwani Kumar reminded the Supreme Court that political parties, being integral to the processes of democracy, which is a part of the basic structure of the Constitution, could not be foreclosed from agitating issues of public importance before a constitutional court. Senior lawyers’ letter to the Judges
The Supreme Court’s belated intervention in the migrants’ case after stonewalling petitions on the issue for several weeks appears to have been triggered by a letter written by a group of senior advocates to Chief Justice of India S.A. Bobde and other judges of the Supreme Court. “In the midst of the executive-imposed COVID-19 lockdowns, the Hon’ble Supreme Court cannot retreat into a self-effacing deference, leaving millions of Indian citizens, especially those who are poor, vulnerable, and impoverished, to the mercy of the executive, reminding us of A.D.M. Jabalpur when detenus were left to the tender mercy of the executive with “diamond bright diamond hard” hope that something would be done,” the advocates wrote.
They alleged that the Centre imposed a lockdown on March 24 without any consideration for the plight of the poor, especially migrant labourers in major cities, and for whom social/physical distancing was a utopian impossibility. The migrants were thus compelled to start walking back to their home States, hundreds of kilometres away, along with their family members, they said.
As a consequence of the court’s failure to intervene earlier, lakhs of migrant workers were unable to proceed to their hometowns and were compelled to remain in cramped tenements or rooms or on pavements, without any livelihood and even a definite source of food, they told the court.
“In fact, this enforced stay in cramped quarters only exposed such poor workers to a higher risk of COVID infection,” they claimed. They also drew the court’s attention to reports that 90 per cent of the migrant workers did not receive government rations in many States. Dwelling on the absence of transport arrangements to send the migrants back to their hometowns, the senior lawyers asserted that their right to life, liberty and freedom of movement was rendered virtually meaningless.
They were also critical of the court’s institutional deference to statements made on behalf of the government and the court’s apparent indifference to the humanitarian crisis. They urged the court to rectify this immediately, as otherwise it would amount to the court abdicating its constitutional role and duty to the teeming millions of poor, hungry migrants.
The letter recalled the court’s glorious tradition of PILs that changed the face of Indian constitutional jurisprudence forever, ranging from eradication of bonded labour, prison reforms, environmental compliances, to right to food. Each of these PILs, the letter added, had resulted in far-reaching legal and policy changes positively affecting the lives of millions of people. The Supreme Court’s deference to the government and its unwillingness or expressed helplessness in the face of the above situation, cast a long shadow on the country’s constitutional structure, the letter lamented.
Reminding the court that it had the power bestowed on it by the Constitution under Article 142 to undertake any measure to do complete justice, the letter stated that the survival of Indian democracy and the rule of law, particularly in times of the COVID-19 pandemic, was dependent on the court actively fulfilling its constitutional obligation of being the guarantor of the fundamental rights of citizens against state action.
The signatories to the letter include P. Chidambaram, Anand Grover, Indira Jaising, Mohan Katarki, Sidharth 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.
Air India case
On May 25, the Supreme Court bench comprising Chief Justice Bobde and Justices A.S. Bopanna and Hrishikesh Roy allowed Air India to operate non-scheduled flights with mid-row seat occupied on its aircraft for 10 days until June 6. The Centre and Air India had approached the Supreme Court on an appeal against the Bombay High Court order for an urgent hearing, although May 25 was a declared holiday for Eid-ul-fitr.
The High Court had earlier held that Air India had violated the lockdown guidelines, which made it mandatory to keep one seat between two seats empty while allocating seats at the time of check-in in all rescue/relief flights operated by it. Air India told the Supreme Court that rigid adherence to the guideline would result in dropping of one-third of the passengers, creating massive logistical, international and visa-related issues.
The High Court refused to accept Air India’s submission that social distancing measures would apply only to scheduled flight and not to non-scheduled commercial flights, and again only to domestic operations and not to international operations.
If such arguments were accepted, the whole purpose of preventing the spread of COVID-19 by prescribed measures would be defeated, it had reasoned.
The Supreme Court reversed the High Court’s order for 10 days in view of the Centre’s concerns that the travel plans of families were disrupted because those who had middle seats had to be offloaded. The apex court also shared the Centre’s concern that compliance with the guideline would result in a lot of anxiety and difficulties arising from the need for proper shelter and money at foreign airports. The Supreme Court remanded the matter to the Bombay High Court with a request to pass an effective interim order after hearing all concerned on June 2 or soon thereafter.
On May 15, another bench comprising Justices L. Nageswara Rao, Kaul, and B.R. Gavai wondered how anybody could stop migrants from walking when they slept on railway tracks, as if migrants alone were to be blamed for choosing to walk home.
Juxtaposing the two developments from the court, Alok Prasanna of Vidhi Centre for Legal Policy asked whether the court cared as much about migrants trying to reach home within the country as it did about those coming from abroad. He said the class differences between the two groups of people were too obvious to be missed and one could see which group the court sympathised with.
“It doesn’t help matters that while the court held a special sitting to pass orders to help the latter group, it has dismissed the concerns of the former group with little thought and adjourned matters with no effective remedy,” he wrote on the VCLP’s blog. When contrasted with the tough stands taken by the High Courts vis-a-vis the respective State governments, the Supreme Court looked less like a judicial body and more like an executive agency, he wrote.
As if to vindicate this interpretation, the Supreme Court bench of Justices Ashok Bhushan, Kaul and M.R. Shah, on May 26 extended by three weeks its interim protection for jute mills from coercive action for not paying full wages to its workers during the lockdown.
Retired Supreme Court judge Gopala Gowda, in an article in Deccan Herald , expressed distress that the court had demonstrated unprecedented apathy towards the most vulnerable citizens of the country. “A.D.M. Jabalpur will no longer be remembered as the darkest moment of the Supreme Court. That infamy now belongs to the court’s response to the preventable migrant crisis during the COVID-19 pandemic,” he wrote.
Justice Gowda observed that just as it happened during the Emergency, instead of the Supreme Court setting an example for the High Courts to follow, the High Courts had risen to the occasion in the absence of any leadership from the Supreme Court. The High Courts, he pointed out, refused to take the submissions advanced by their respective State governments at face value or as the gospel truth.
