Supreme Court On Migrants: Left It Too Late, Then Did Too Little

This is a court that is fully aware of its powers but, for whatever reason, declines to use them in the time of the greatest need.

A migrant feeds his child before boarding a bus, in Amritsar, on May 28, 2020. (Photograph: PTI)
A migrant feeds his child before boarding a bus, in Amritsar, on May 28, 2020. (Photograph: PTI)

A couple of days before the Supreme Court hearing on its suo moto case on migrant workers, #DhoniRetire started trending on Twitter. While the rumours have been dispelled, for now, cricket fans may not all disagree with the sentiment. MS Dhoni, who used to skillfully lead his team in chases by trusting his own ability and skills in battering the ball out of the park, seems like a shadow of his past self in recent games. Dhoni’s infamous struggle in the 2019 cricket World Cup game against England’s bowling suggests that maybe the demand for his retirement is not entirely unjustified.

Dhoni’s late-order troubles are an apt metaphor, in my view, to describe the way in which the Supreme Court has approached the issue of migrant workers under the Covid-19 lockdown: a case of leaving it too late and doing too little to save the day.

First, it showed complete callousness in dismissing it out of hand; then it showed indifference leaving it to the centre and states to figure something out; before a period of awkward embarrassing silence which was filled by the roar of outrage as High Courts picked up the cudgels; finally resulting in a late entry into the issue through this suo moto case.

One cannot but ask – was the court genuinely moved by the plight of migrant workers and their sufferings in a botched lockdown that has robbed them of their livelihoods, lives, and dignity? Or was it the storm of criticism from retired judges, senior lawyers, and commentators on its inaction that finally compelled it to ‘act‘? If it was the former, it is not quite evident in the way the proceedings have been conducted in the Supreme Court so far.

What Could Have Happened, Instead Of What Did

Although public interest litigation is not supposed to be conducted in an adversarial manner this one was made so by the Solicitor General of India Tushar Mehta. Far from acknowledging any failures on the part of the government and promising to fix them, he was more interested in being a poor spokesperson for them, spouting conspiracy theories and hurling accusations at other lawyers present.

Government law officers have a higher duty towards the court given the position they occupy and Mehta has lowered the stature of his office considerably with his behaviour in court.

It is unfortunate that the court indulged his behaviour thus with nary a word of disapproval. One can’t help but agree with Senior Advocate Chandra Uday Singh that the court seems to be in thrall of the government. That it seems to have forgotten that its duty is to uphold the Constitution and protect the individual against a government no matter the size of the majority such government enjoys.

So what should the court have done?

It was possibly for the best that the High Courts have taken up the cause of migrant workers since they can monitor the situation much better than the Supreme Court sitting in Delhi. But, as I have argued elsewhere, this does not justify the complete inaction of the Supreme Court. It could, and should, at least ensure accountability for the actions of the union government. It could have posed tough questions, sought data, and held the government to the letter of the law in the decisions it was taking. There are fine examples of courts holding governments accountable to the law in emergency situations in this country alone but alas the court seems disinclined to take that approach.

What we get, instead, is a wishy-washy order at the end that seems to place all the burden of ensuring protections for migrant workers trying to get back home on the states themselves – something which they were already doing and didn’t exactly need an order of the Supreme Court to do so. It asked only a few questions of the union government, in an almost apologetic manner, and was satisfied with whatever information was placed before it. It added nothing to the orders already passed by the various High Courts across the country on the welfare of migrants.

Nothing that is being asked of the Supreme Court is new or unprecedented. One only needs to read through the orders the court passed in the right to food cases, night shelter cases, cases heard by the “social justice bench” among others to know how the court can ensure accountability and compliance with its orders.

This is a court that is fully aware of its powers but, for whatever reason, declines to use them in the time of the greatest need.

While no one is asking the court to take over management of the Covid-19 issue in its entirety, its inability or unwillingness to question the obvious failures of the union government is perplexing at best. These failings are not the natural outcome of the virus itself – rather the migrant exodus of the cities is a disaster that can be attributed to the poorly thought out lockdown and ill-conceived measures to fight Covid-19. Not least of all the inability or unwillingness of the government to get employers to pay salaries of migrant workers during the lockdown – a decision the Supreme Court thought was perfectly justified.

With Dhoni, one can at least attribute it to increasing age and slowing reflexes. What excuse does the Supreme Court have for failing after leaving it so late?

Alok Prasanna Kumar is Senior Resident Fellow and Team Lead, Vidhi Karnataka.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.