Supreme Court ceding its terrain to high courts on migrant issue

The role of the judiciary, in particular the Supreme Court, in monitoring the measures undertaken by the central government to mitigate the hardships of migrant workers seems to have fallen short of public expectations. The completion of two months of lockdown as of now, a measure imposed suddenly by the central government to contain the spread of COVID-19 pandemic, and the consequent heart-wrenching migrant crisis has inevitably necessitated examination of the constitutional and legal viability of some of these measures.

The Disaster Management Act, 2005 (DMA, 2005) appears to provide the Centre unbridled power to regulate the lives and socio-economic conditions of the people. Initially, even the viability of applying the provisions of this enactment to regulate a pandemic of this nature was raised. The definition of “disaster” under the 2005 Act could not sufficiently define the scope of the pandemic. Even then, the DMA, 2005 had been invoked as a measure to regulate and restrict human activity.

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However, this power cannot be exercised in detrimental to the basic rights guaranteed under the Constitution to all its citizens. But, the question always remains as to who should exercise this prerogative to decide the balance. In the normal course, it is the individual or the community that is affected should take recourse to these available and appropriate remedies through courts. While Article 32 of our Constitution allows any of its citizens to directly approach the Supreme Court for any violation of his or her fundamental rights, Article 226 (of our Constitution) provides similar access to high courts for violation of not only fundamental rights, but also any justiciable legal rights. In certain instances, both the Supreme Court and the high courts have taken suo motu (on their own) cognizance of the violations of fundamental rights of the citizens to provide appropriate constitutional remedies against state or executive action.

A patient hearing is all migrants need

But, in the present circumstances a large section of the citizenry of our country in the form of unorganised migrant workers is simply incapable of comprehending this complicated legal process. To put in simple terms, they simply have no idea as to how to get access to courts or justice to protect their own rights. For them livelihood and survival are basic ingredients of their life. Nothing else matters. On the contrary, they have to deal constantly with the tough, dominating and unfriendly local administration.

The access to courts and legal remedies are beyond their means. Justice Deepak Gupta who retired as judge of the Supreme Court on May 6, 2020 captured aptly this dilemma in his virtual (video conferencing) farewell address with all his Supreme Court colleagues, senior advocates and others. He presumably reflected the dilemma faced by the judges of the apex court when he said that the country’s legal system was geared in favour of the rich and the powerful. He said judges “cannot hide their heads like an ostrich” and that they must identify problems with the judiciary and deal with them.”

Although he sat briefly on the bench that heard the matter on migrant workers before his retirement, he choose to provide this advice: “In times of crisis, especially a crisis like this it is not you and I, whose constitutional rights will be violated. It’s the poorest of the poor, whose constitutional rights are always violated. It is these people who have no voice, who suffer. And therefore, if someone who raises the voice for them, I think the courts should at least hear them. Give them a patient hearing, and then if something can be done for them, please do it.”

His peers, notably Justice Madan Lokur, former senior-most judge of the Supreme Court and Justice AP Shah, former Chief Justice of the Delhi High Court have all echoed these sentiments in other forums about the role of the apex court in the current crisis. Justice Lokur even suggested that the court should brainstorm as to how it could define its role in such challenging circumstances.

Why executive shouldn’t mislead judiciary

In such circumstances, the judiciary can play a crucial role in moderating the procedural aspects of implementation, balancing it with the state action vis-à-vis fundamental rights as enshrined in Articles 21 (right life and liberty). Even an observation from the court could go long way in ameliorating these hardships and keep the state (executive) in check from taking an unplanned or arbitrary action.

In the absence of such judicial discretion, the executive can make all kinds of unverified claims. One such claim came up in the first week of the lockdown itself. On March 31, 2020, in the case of Alakh Alok Srivastava vs. Union of India, the apex court noted and recorded the statement of the Solicitor General that there were no migrants walking on the road as of now (at 11 am on March 31, 2020) and that all of them have been provided with adequate food, shelter and other necessities.

The court further noted and concurred with the Solicitor General that all this had been happening on account of fake news either by print, electronic and social media. The court referred to Section 54 of the DMA, 2005 and the Section 188 of the Indian Penal Code as the legal tools to regulate the spread of such news by print, electronic and social media. It also directed all concerned, including the media to comply with these directives. In other words, the court simply endorsed the stand of the Centre without sufficiently examining the ground reality. On the relevant date, when the Solicitor General made this claim, there were thousands of migrants who were already on the road walking towards their distant homes. The court, instead of appreciating the work done by the media, issued an order that virtually questioned their integrity in reporting. The central government was too happy to receive this March 31, 2020 order from the apex court accepting all its submissions and promptly circulated it to all concerned on April 1, 2020 for necessary compliance.

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Later in another case, Harsh Mander and Anjali Bharadwaj vs. Union of India on April 21, 2020 which sought payment of consolidated minimum wages to all migrant workers conjointly by the central and the state governments, the Supreme Court upon receiving certain materials and updates from the Solicitor General disposed of the case. Again in the present case, the court without seeking the status report of the migrant crisis completely agreed with the central government. During the hearing of this case, more than the written disposal  order of the Supreme Court, the oral observations from it regarding migrants such as “if they are being provided meals, then why do they need money for meals?” brought to fore the emerging perception the court had with the entire issue of migrant workers.

While the Supreme Court was refusing to concretely question factual matrix and the constitutional validity of the measures taken by the central and state governments in dealing with the plight of the migrant workers, the high court of nearly twelve states passed orders (in some cases suo motu), seeking answers from the concerned governments. The orders passed by Madras High Court and the Karnataka High Court need special mention. Even the doyen of the Indian legal fraternity Fali Nariman could not hide his appreciation when he stated that the order of the Karnataka High Court which sought to allow the migrant workers to travel home free had come as “breath of fresh air.” While saluting the judges of the Karnataka High Court for their humanitarian approach, the jurist Nariman ended by saying that “May their tribe increase”.

How high courts can ensure implementation of human rights

The elaborate Karnataka High Court order dated May 21, 2020 resulted finally in the state government agreeing to bear the cost of travel of migrant workers who want to go back home. Karnataka Chief Minister BS Yediyurappa announced his government’s decision to fund their train travel from the state exchequer on May 22, 2020. This announcement virtually concluded the Karnataka High Court case with high court’s prompt intervention. However, the Karnataka government in its counter had questioned the legal veracity of the high court to pursue the case relating to migrants when the Supreme Court had already decided upon and disposed of the petitions on this. Now that Chief Minister Yediyurappa has agreed to bear the cost of travel, this legal question of overlapping jurisdiction need not be debated.

However, for the sake of clarity on the topic, it is useful just to summarize the views of the Supreme Court on this aspect of overlapping of jurisdiction (could be termed as res judicata) between it and the high courts. Late Justice PN Bhagwati in Bandhuva Mukti Morcha vs. Union of India (1984) laid down the ground rules on this aspect when he stated, “What has been laid down in regard to the exercise of jurisdiction by the Supreme Court under Article 32 must apply equally in relation to the exercise of jurisdiction by the High Courts under Article 226. The jurisdiction of High Courts under Article 226 is much wider, because the High Courts are required to exercise this jurisdiction not only for enforcement of a fundamental right but also for enforcement of any legal right and there are many rights conferred on the poor and the disadvantaged which are the creation of the statute and they need to be enforced as urgently and vigorously as fundamental rights.”

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The Madras High Court order of May 15, 2020 in AP Suryaprakasam vs. Superindent of Police, Sangli district, Maharashtra and Director General of Police, Chennai dealt primarily with a habeas corpus petition for illegally detaining 400 migrant workers in Kupwada of Maharashtra’s Sangli district. The court also wished to know whether coordinated efforts were being made between the central and the state governments to address the sufferings of migrant workers. In its later part of the order, the court suo motu impleaded the secretary of the Ministry of Home Affairs and the chief secretary of Tamil Nadu. After this, the widely circulated and reported emotional observation of the court describing the migrant crisis as a ‘human tragedy’, the court further noted, “…one cannot control his/her tears after seeing the pathetic condition of the migrant labourers shown in the media for the past one month.” Further, the court formulated and sought answers from the newly impleaded parties i.e., the central government on 12 questions that related to the collection and collation of data relating to migrant workers and its implementation.

India has enough laws to protect migrants

There are more than 65 million inter-state migrant workers in our country. Their basic rights towards pay, working conditions and health among others are protected by a plethora of legislations such as The Unorganised Workers’ Social Security Act, 2008, The Contract Labour (Regulation & Abolition) Act, 1970 followed by The Inter-State Migrant Workmen (Regulation of Employment & Conditions of Service) Act, 1979, Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. Besides these, there are labour enactments such as Industrial Disputes Act, Workmen’s Compensation Act, 1923, Employees’ State Insurance Act, 1948, and Employees’ Provident Funds (Miscellaneous Provisions) Act, 1952.

Lastly, the entire Labour Code integrating all these legislations into one law is pending for approval since 2018 before the Parliament. As part of labour reform initiatives, the labour ministry has decided to amalgamate 44 labour laws into four codes—on wages, industrial relations, social security and safety, health and working conditions. India is also party to number of international treaties under the auspices of the International Labour Organisation and also actively endorsed the provisions of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990. Articles 39, 41 and 43 of our Constitution under the rubric of Directive Principles of State Policy endeavour ensure better wages, working conditions and living conditions for all these workers, including all these migrant workers upon whom all these rights are conferred.

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The courts, of course, have before them enough legal tools and teeth to intervene and protect the most vulnerable sections of our society, the migrant workers. As the crisis deepens, the story of their unending plight, in fact, has just begun.

(The writer teaches at the Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University, New Delhi)