Of late, there has been an increasing tendency to criticise the functioning of the institutions adding to the crises of confidence in the institutions whose reputation has been assiduously built over the years. This is rather unfortunate as it leads to erosion in the levels of confidence of people in the institutions.
Alexander Pekelis observes “the Supreme Court is infinitely powerful and at the same time frightfully defenceless”.
The Supreme Court of India with its activism has opened new vistas of jurisprudence and new principles of administrative law have been enunciated. One can say that for the first 25 years from 1950 to 1975, the Courts in India have been looking to the courts from across the frontiers for principles of administrative law. But the post-Maneka era has totally transformed the scenario and the Indian Supreme Court is now looked with awe and admiration for evolving new principles of administrative law. Its contribution in the areas of prison jurisprudence, the emancipation of bonded labour, in spreading human rights culture, in crusading the cause of environmental protection and in providing the right to live with dignity for marginalised has been seminal.
Judicial activism has been necessitated because of executive “non-action”. Justice K.M. Ahmedi, former Chief Justice of India expressed a belief that activism would be only a temporary phenomenon and that the executive and the legislative would sooner than later perform their constitutionally ordained functions. Another former Chief Justice J.S. Verma observed that judicial activism is like a sharp-edged tool which has to be used as a scalpel by a skilful surgeon, to cure the malady and not as a Rampuri knife which can kill.
The quintessence of democracy is the separation of powers. The function of the legislature is to make law, the function of the executive is to enforce the law and the function of the judiciary is to apply the law where it is clear and to make the law clear where it is not.
The role of the three organs of the State is complimentary and never conflicting. The delicate applecart of separation of powers should never be upset. In the instant case of the migrant workers, as the executive has initiated the process in the last week of March, the Supreme Court of India with due deference to the elected representatives has been judiciously observing the action of the executive from 31st March to 26th May before taking the suo motu cognizance of the plight of migrant workers.
Since the establishment of the Supreme Court of India, it has been working consciously and tirelessly to uphold the rule of law and protect the rights of the citizens. During these hard times of the global pandemic, the most affected section of the society is the migrant labourers. While taking the responsibility on its shoulders, the Supreme Court of India on May 26, 2020, suo moto took cognizance of the problems and miseries faced by the migrant labourers; In Ref Problems and Miseries of Migrant Labourers. At the outset, the State/UT Governments were directed to provide information on the steps taken by them pertaining to the situation of the migrant labourers.
In reply to this, Mr Tushar Mehta, the learned Solicitor General of India submitted that “from 01.05.2020, the migrant workers have been sent to their destination i.e. home town by Shramik trains and also by road. From 01.05.2020 to 27.05.2020, 3700 Shramik trains have been operated, 50 lacs migrant workers have been shifted by Shramik trains and about 41 lac migrant workers have been transported by road transport”. After hearing all concerned, the Court issued an interim direction that “No fare either by train or by bus shall be charged from any migrant workers by the States and the Railways. The migrant workers who are stranded at different places in the country shall be provided food free of cost by the concerned States/Union Territories at different places which shall be publicized and notified to them during the period they are waiting for their turn to board the train or bus.
The Court further directed that “the State shall simplify and speed up the process of registration of migrant workers and also provide a help desk for registration at the places where they are stranded. The State shall try to endeavour that after registration the workers should be asked to board the train or bus at the earliest and complete information should be publicized to all the concerned regarding the mode of transport.” And, “those migrant workers who are found walking on the highways or roads shall be immediately taken care of by the concerned State/Union Territories and they shall be provided the transport to the destination and all facilities including food and water be provided to those found walking off the road.”And “the receiving State, after the migrant workers reach his native place, shall provide transport, health screening and other facilities free of cost.”
With the decision, the Supreme Court has upheld the right of migrant labourers to move freely within the territory of India which is guaranteed under Article 19 (1)(d) of Constitution of India. The Supreme Court of India taking the middle path and balancing the fundamental right and government-imposed restrictions directed the Centre and State Governments to provide the necessary support to the hapless labourers. This step of the court was the result of many of them having lost their jobs due to the economic slowdowns faced by businesses, construction firms, etc. which has stopped the financial flow to these labourers and their sustainability has been compromised.
Consequently, these labourers were compelled to migrate from the place of work; walking for hundreds of kilometres was a scene that every citizen of this country witnessed including the State/UT governments. As public transport such as buses, trains, aeroplanes etc., were put on hold, while they were walking on the road, there has been human causality as reported by the media. In such circumstances, a lot of NGOs, private individuals besides local government machinery came out for help and provided some basic necessities to these migrant labourers. At the same time, there has been a considerably good number of public interest litigations throughout the country where the courts including the Supreme Court have taken cognizance of the vulnerability of these migrant labourers and issued directions to the governments for helping and providing transport facility, food and necessary medicine to these labourers.
The Supreme Court of India on 9th June 2020 observed that migrant workers should not be prosecuted for trying to reach home during the national lockdown. Observing that “society as a whole was moved by their miseries and difficulties”, the Court directed the States/Union Territories to consider withdrawal of prosecutions/complaints under Section 51 of the Disaster Management Act and other related offences lodged against migrant workers. The Bench ordered the States and the Union Territories to bring the stranded migrant workers home within the next 15 days. The States and the Union Territories were directed to conduct extensive skill-mapping of returned workers. The court passed an order after suo moto taking cognizance of the migrant workers’ exodus.
Therefore, the steps taken by the Apex court of the country seem to be in right direction which deserve appreciation. This is indeed an example of JUDICIOUS ACTIVISM.
Let us remember the following words of Justice Earl Warren:-
“The Supreme Court standing alone cannot ensure justice for all citizens. Such a goal will be accomplished only if all elements of the legal system, the law makers, the practising attorneys, legal scholars and judges worked in harmony to apply the principles which are fundamental to freedom.”
Another Institution that has been the target of criticism is the Bar Council of India. The Bar Council of India consists of democratically elected representatives of the Members of the Bar all over the country. Under the Advocates Act, 1961, Bar Council of India is entrusted with its responsibility of maintaining professional standards and standards in legal education. Bar Council of India is an elected statutory body imbibing the principles of democracy in its functioning. It has to its credit efforts that have yielded remarkable achievements in the field of legal education including the sponsoring of NLSIU, Bengaluru (the first Law School).
Section 7 Clause I (d) of the Advocates Act, 1961 empowers the Bar Council of India “to safeguard the rights, privileges and interest of Advocates”. As such when an Advocate complaints to the Bar Council of India as has happened in the recent case of SCBA, the Bar Council has the onerous responsibility to act on the same.
Hence, without allowing the Bar Council to perform its functions, to criticise the Bar Council is a bit unfortunate.
Lastly the argument that an immediate lockdown was unconstitutional seems untenable principally because everybody wanted to lockdown without delay to pre-empt the spread of the disease. Today investigations in Britain are going on as to why lockdowns were delayed and the consensus is that delayed lockdown resulted in large scale loss of life. The court and eminent lawyers are not equipped to come to this decision. Some senior members of the bar have disregarded some very essential points during the entire debate. Firstly, there is scientific consensus that lockdowns are crucial in reducing the pandemic.
Second, there was clear scientific advice in India to pre-empt large scale deaths, it would be preferable that India went into a lockdown mode. This was discussed in-extenso in the media. In fact, at that point there was a chorus of demands from members of the opposition demanding that India immediately go under lockdown. It is, therefore, a little bit strange that this sort of idea comes in hindsight whereby, they start protesting that why lockdown has instituted in India in the first place. Lockdown is an international practice; it has been used in various different countries from the USA to the UK to Australia to Russia. In fact, every country in the world instituted some form of lockdown so as to lessen the impact of the disease. In India lockdown has been greatly effective, otherwise, the cost of going on as usual without the lockdown would have been huge in terms of economics and mortality.
Even today, there are various opposition ruled States which have demanded extension of the lockdowns. Even though the Government has asked them to open up, whether it is Punjab or whether it be West Bengal. There was even a demand in Delhi a few days back keeping in mind the increasing number of patients affected to go under 14 days lockdown. At the present Chennai has gone into 14 days lockdown to ensure that there is a cutdown of the people affected by the pandemic.
The lockdown itself is not a vaccine, it is not a medicine but it is a sort of a social method to reduce the effect of the pandemic on the people. Strangely enough when the lockdown was declared the same members of the bar did not oppose it. In fact, there was no one who opposed the imposition of the lockdown, which was brought in terms of the National Disaster Management Act. Today when the lockdown is nearly over because we have opened up, it is strange that the same set of people want to make a case as if imposition of lockdown itself is bad, at the first instance when there has never ever been a challenge legally or even politically to the imposition of the lockdown itself. If these senior members of the bar had felt so strongly about the lockdown he should have at least put forward his views then, rather than articulating now after the process of opening up is nearly a month old.
The question of the tragic case of migrant labour was something which was incumbent upon states to take care of. Some states did an exceptional job, some failed, irrespective of political affiliation. To shift the blame on the Union in retrospect is disingenuous.
To argue that lockdown took away people’s liberty hold little water as the Government’s primary focus is and has been on protecting lives; liberty comes after that. It would have also been better had the eminent lawyers and activists looked at High Court orders before writing letters to the Supreme Court, knowing fully well that the High Courts are not subordinate. Apparently, some people are more interested in demolition, than giving constructive ideas and preserving the sanctity of institutions. In a democracy, our effort should be towards strengthening the functioning of the institutions by criticising them and not by destroying them.
(This article has been authored by Prof. R. Venkata Rao, the Former Vice-Chancellor, National Law School of India University, Bengaluru and the Chairperson, Vivekananda School of Law, VIPS, Delhi)