Much has been written about the trials and tribulations of the migrant workers walking thousands of kilometers, with young children or ailing parents in tow, without food, shelter or even water, and the criminal negligence and callousness on the part of the Central Government to let that happen. Finally, after six weeks of locking them up, the Government started trains to transport migrant workers to their homes, but the less said about the conditions the better.In fact, the data from Railway Protection Force astonishingly revealed that more than 80 people have died in the shramik special trains from 9th May, 2020 to 27th May, 2020.

In this context, the question is what has the role of the Courts been during the lockdown period to ensure that the Executive operates within the bound of law, and does not impose arbitrary restrictions or takes all steps to guarantee that the poor and disadvantaged populations are provided with proper food, shelter and health facilities. Sadly, that was not the case, especially with the Supreme Court of India.

While hearing a petition in Alakh Alok Srivastava v. Union of India [Writ Petition (Civil) No. 468 of 2020] on the plight of migrant workers filed in March end, the Supreme Court on 31st March, 2020blindly accepted the submissions made by the Solicitor General, Tushar Mehta, and expressed satisfaction with the steps taken by the Central Government with respect to providing food and shelter to migrant workers. In fact, the Solicitor General made a categorical statement in the Court that as of 31stMarch, 2020, not a single migrant person was walking on the road in the entire country, and all have been shifted to government shelter homes.

Accordingly, without looking into independent materials, the Apex Court noted that “the mass migration has stopped according to Union of India. All the migrant labourers who were on the road have been shifted to relief camps/shelter homes, which are set up at various points in each State/Union Territory. The directions issued by the Union of India and the State Governments/Union Territories to provide all basic amenities like food, drinking water, medicines, etc. to the migrants are being complied with by the concerned District Collectors/Magistrates.”

The Court in fact directed its ire at the media on the basis of the Government’s argument that mass migration was allegedly instigated by fake news stating that lockdown would continue for three months creating panic amongst the migrant workers. The Supreme Court then directed the media to adhere to all government notifications pertaining to Covid-19, refrain from fake news, and publish the official version of all Covid related developments.

On 15th May, 2020, the Supreme Court again dismissed an application seeking immediate directions to all the District Magistrates to identify the migrant persons who are walking on roads, provide them with appropriate food and shelter facility, and facilitate their travel back to their home states free of cost. The Bench this time expressed helplessness stating that the Court could not do anything if the migrant persons were ‘choosing’ to walk. The attitude of the Court was succinctly described by the Chief Justice of India, S.A. Bobde, wherein he noted that during times of natural calamity like Covid-19, the country needed the Executive who had three ‘Ms’: Men, Material, and Money, and judiciary had rightly taken a backseat. If one analyses the statements emanating from the Apex Court in April-May, 2020, the entire focus was on administrative procedure of initiating ‘e-courts’, or conducting hearings through video conferences, but sadly forgetting that technology without administration of substantive justice was meaningless.

In contrast to the Supreme Court’s hesitance to make the Executive accountable for their actions during the lockdown period, the High Courts of different States of Gujarat, Karnataka, Madras, Andhra Pradesh, Orissa and Telangana, amongst others, rose to the occasion and discharged their constitutional role of being guarantor of fundamental rights of citizens, and acting as a check on executive excess. It was this discharge of constitutional duty that triggered the Solicitor General to remark that “the High Courts are running a parallel government.” Out of these, some deserve special attention.

On 22nd May, 2020, the Gujarat High Court delivered one of the most fascinating judgments relating to Covid-19 and connected issues, wherein the High Court laid down the entire legal structure underpinning the lockdown regulations, ranging from the Constitutional provisions relating to public health; the Epidemic Diseases Act, 1897, and the Gujarat Epidemic Diseases Covid Regulations, 2020; Disaster Management Act, 2005, the Municipal Corporation provisions, and MHA notifications, amongst others. While highlighting the need for a strong public health care system, and giving slew of directions to ramp up the same, the High Court came down heavily on the private hospitals who were charging exorbitantly for treating covid positive patients.

The Court’s words “even in times of a crisis when people are dying, it is disheartening and extremely exasperating to see these multi­speciality hospitals with world class facilities and immense resources wanting to profit off people’s perils” remain true not just for Gujarat, but for the entire country. The Court further nudged the government to transport migrant workers quickly to their home states, and to provide them with adequate food and shelter, while they were waiting for trains as well as use the State Government buses to transport migrant workers for short distances. The Court’s scrutiny resulted in the Gujarat Government assuring that no migrant worker was denied travel to his hometown on account of non­payment of travel fare.

The Court laid down several other directions, after scrutinizing all the materials available before it, but most importantly, the Court emphasised on ‘emotional intelligence’ of leaders handling the crisis, by stating that “the COVID­19 crisis is a fundamentally human crisis and hence, human life must be prioritized over everything else. It is essential that the leaders realise that it is only them, who hold a position of authority and have built a place of trust in the hearts of the people. And hence, it is only them who need to come forward and adequately deal with the complex anxieties of people and provide them with a sense of physiological security.” [Writ Petition No. 42 of 2020, date of order: 22.05.2020]

The Madras High Court too was moved by the immense suffering of the migrant workers, while stating that “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. When the lock down was announced at the end of March 2020, lakhs and lakhs of migrant workers were stranded throughout the country. Most of the workers lost their jobs, no shelter is said to have been provided apart from lack of supply of adequate food. 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.”

The Court then asked few pointed questions to the Union and State Governments, including data on the total number of migrant workers in each State/Union Territory, including their home town details, the number of migrant workers stranded in each State/UT, what assistance provided to these stranded workers by the respective States and Union Government, and what relief/compensation provided to the families of those workers who lost their lives, while going back to their States. [HCP No. 728 of 2020, date of order: 15.05.2020]

What is common in all the High Court orders is an acute awareness of the role of Courts in the middle of a pandemic, knowledge about the ground reality, and the humanitarian catastrophe unfolding in the country, and a deep compassion for the migrant workers, and disadvantaged class who lost their livelihood, rented accommodation, and even food on the plate. In most cases, the High Courts didn’t take the Central/State Government’s submissions at face value, asked the right questions, scrutinized the materials submitted, applied the law correctly, and nudged the Executive to do their jobs properly, and in a humane manner. This is what the Courts ought to do. No one has asked the Courts to take on executive functioning, especially in a health crisis, but to ensure that the Executive does its job adequately, and the weak and vulnerable sections are protected.

However, none of these aspects were evident, when the Supreme Court took ‘suo moto’ cognizance of the ‘miseries’ of the migrant workers, after eight weeks of the lockdown on 26th May, 2020, possibly being shamed by the outrage expressed by many senior lawyers, and retired Supreme Court, and High Court judges about the complete abdication of the constitutional duty to protect the rights of migrant workers. Accordingly, on 28th May, 2020, the Supreme Court passed certain interim directions, i.e., no migrant worker would charged any fare, either by Railways or in Bus; migrant workers stranded in different places to be provided with free food, and other facilities; Railways/State Governments to provide food and water in the train; simplification of registration process for the transport of migrant workers, and migrant workers who are walking on highways/roads immediately provided food, and transport to their destination.

Despite the interim directions, anyone who followed the court proceedings in the Supreme Court would be dismayed at the way the Solicitor General castigated the journalists, and activists who kept on highlighting the inhuman conditions the migrant workers were facing, calling them ‘vultures’, and ‘prophets of doom’, while the Apex Court made no attempt to shut down such rants. Of course, the interim directions are extremely significant, and though highly belated, would smoothen the process of the transportation of the migrant persons. However, the Court’s order is bereft of any analysis, legal or otherwise, and even basic compassion, which is integral to constitutional law jurisprudence, is lacking. Hopefully, in the following hearings, the Supreme Court would get its ‘head and heart’ back, and act like a constitutional court that the world’s largest democracy deserves. Till then, the citizens of this country have to be ‘atmanirbhar’. (IPA Service)