Several commentators have written that in the lockdown the Supreme Court has failed the people. By intervening only belatedly in the heart rending spectacle of migrant labour walking home, it has been charged with a lack of independence at a time of crisis. A trope familiar from the Emergency has made a comeback that whereas high courts are sympathetic to the citizen, the SC is more executive minded than the executive.
The disappointment expressed has a deeper foundation. Its core basis is that the SC has performed a volte face. Whereas earlier it was open to hearing all kinds of public interest litigations ranging from reorganising cricket administration to providing night shelters for the homeless, in the pandemic, it has slammed the door shut on migrant labour. This amounts to deserting the people when they are most vulnerable.
This disappointment is inevitable. For a majority of citizens, an activist SC is the only known avatar of the court. But its inaction or restraint (depending on your point of view) during the pandemic is only accelerating a trend that was already incipient in the last few years – of a court beginning to recognise its limitations as an all-purpose institution to run government.
Particularly under the stewardship of Chief Justice Bobde, the SC has slowly pulled itself back from being a governance institution to a judicial one. Amongst other examples, it refused to entertain a plea on police action in Jamia and dismissed several petitions filed to prohibit fake news. For each of these actions, the reason was simple – none of them were disputes that involved questions of law for the SC to resolve. As harsh as it may seem, neither are the questions on how to halt the exodus of migrants and secure their passage.
One might well ask: Are the tragic accounts of families walking through deserted streets in Maharashtra hoping to reach their UP villages and tired walkers being run over while sleeping on train tracks not the plainest violation of the fundamental right to life? If so, is the court not bound to intervene? The intuitive answer is yes, but the humanitarian tragedy of the migrant exodus demonstrates that our questions cannot stop there.
We must also ask: Does the court possess a remedy to undo the wrongness? Will the court’s intervention fundamentally change things on the ground? Answering these questions should make us confront some hard truths about the court’s limitations.
The plight of migrants can only be alleviated by prohibiting eviction, providing safe transport, and getting the economy up and running. These are all core functions of the Union and state governments. Even the most well-intentioned court can do little apart from expressing its grief. Although there is some measure of accountability in asking the government to explain its actions in court, as the SC has now done, its effectiveness at this time is dubious. Every government knows that the court is shooting in the dark when wading into the migrants’ question.
Further, during a pandemic the court’s most powerful weapon, its contempt jurisdiction, is unlikely to be exercised against an officer, who, whether effectively or otherwise, is attempting to do her job. In a climate like this, it is unclear what effect accountability seeking will really have. Short of transient newspaper and TV coverage, it is unlikely to change things materially on the ground.
Take the example of the order of the Madras HC on the plight of Tamil migrants in Maharashtra. The judicial acknowledgement of their plight might be an important symbolic protection of their dignity, but it behooves commentators to dig deeper and examine its impact.
When the court states that it is the duty of both the native state (Tamil Nadu) and the state where they are working (Maharashtra) to care for the wellbeing of migrants, it must also clarify what this duty entails and in what proportion it has to be shared between the two states. Without this, a statement of this nature is an expression of judicial helplessness rather than reasoning. It is no longer enough for critical commentary on the court to simply declare that such statements are a bulwark against executive apathy. It must also track the effect of such pronouncements and assess whether they are able to bring about genuine change in government behaviour.
There is an easy temptation to characterise any judicial passivity at this time as a lack of independence. The notion that a judge is only independent when she decides against the government is not only wrong, but also pernicious. It was not as if Germany in the 1930s had an independent judiciary because some land acquisition disputes may have been decided in favour of Jews. Any results based determination of independence is antithetical to judicial integrity that requires a judge to decide according to the law. It incentivises cleverness not rectitude. One may agree or disagree with a judgment on its reasoning, but to impute motive to a judge when disagreeing with the result, is the end of all argument.
If our collective empathy for migrant labour is to have meaning, we must have a national debate on labour reform. Judicial interventions concerned about their current plight won’t get us very far. Let us stop looking towards our courts to be our saviours every time.
DISCLAIMER : Views expressed above are the author’s own
Courtesy The Times of India