The Supreme Court has taken over 60 days to direct the Centre to consider not forcing the migrants to pay for their train tickets home. Before Thursday, the apex court refused to admit a petition filed by a lawyer seeking relief for these migrants.  But now, a bench of three judges led by Justice Ashok Bhushan did what a previous two-judge bench failed to do. That is, protect the fundamental right to life of the migrants protected by Article 21, allowing them to approach the Supreme Court under Article 32 of the Constitution.

Earlier, when three lawyers practising in the Supreme Court alleged the constitutional court has failed to protect migrants, it is time for all of us to be very concerned.  Two of these three lawyers are designated seniors. Dushyant Dave continues as the president of the Supreme Court Bar Association despite a move by the Bar Council of India to unseat him. The second critic is Gopal Sankaranarayan. The third is Prashant Bhushan who has got several contempt notices from the apex court, which may be one reason why he has never been designated a senior advocate of the Supreme Court. His detractors allege he belongs to a caucus who allegedly tried to browbeat Supreme Court judges.

Dave has declared the Supreme Court has failed to protect the migrants. The Court remarked: “What can we do? We cannot stop them from walking.” Dave pointed this out in a recent lecture which he delivered.

Another heavyweight to join these lawyers is former Chennai and Delhi high court chief justice Ajit Prakash Shah. He too has pointed out how the Supreme Court has miserably failed to discharge its Constitutional obligations of protecting the fundamental rights of migrant labourers to a source of livelihood, to the right to food and the right to life. The Supreme Court castigated lawyers who filed petitions on behalf of these migrants based on newspaper reports.

To drive home his point, Justice Shah pointed out that the apex court had said the government was the best judge in such circumstances. It was best to leave the government to decide what had to be done in such circumstances. This effectively slammed the door shut on the fate of these migrant labour because the Supreme Court refused to direct the petitioners to approach the high courts for relief.

The Supreme Court refused to give directives to the government on the plight of the migrant workers on the specious ground that this was a matter of “government policy” which meant the judiciary was treading on the toes of the executive by giving it directives.

According to reports, the lockdown 5.0 is likely to be announced in 11 big cities by Prime Minister Narendra Modi on May 31 on his ‘Mann Ki Baat’ programme. If that happens, the travails of these migrant workers are unlikely to end.

The three lawyers and the retired judge seem to be unanimous that while the apex court seems to have immediately entertained the petition of a high-profile anchor seeking quashing of the FIRs against him for alleged hate speech, the migrants who could not afford to hire top-notch lawyers like Mukul Rohatgi or Abhishek Manu Singhvi were not even given a patient hearing. The implicit message being conveyed was that the rule of law was meant for the rich and influential like the high-profile anchor. At the same time, the courts were least bothered about the poor and destitute migrant workers.

The very fact that the court asked the petitioners to trust the government showed the judiciary was not inclined to go against the government. 

The former CJI Ranjan Gogoi’s admission to media that the files of the putative apex court judges were cleared by the Modi government has a sinister implication because the inference that the striking down of the 99th Constitutional amendment and the National Judicial Appointments Commission appears chimerical with the Supreme Court refusing to chastise the government or grant compensation even when these workers were killed while sleeping on the railway tracks.

There is no doubt that the rights of migrants to a source of livelihood, right to food and transport is an inter-state issue rather than an intra-state one. But in what appears to be a throwback to the Emergency era, the high courts are the ones asking disconcerting questions while the Supreme Court has accepted the government version as the gospel truth.

Like his predecessors, former CJIs Dipak Misra and Ranjan Gogoi, the present CJI Sharad Arvind Bobde appears to be allowing the Supreme Court to view the sacrosanct right to life of migrants under Article 21 from the government perspective. The apex court has actively dissuaded these disadvantaged groups from approaching the court to seek enforcement of their right to health, livelihood, food and wages which are all encapsulated under Article 21.

Like the infamous 1976 Additional District Magistrate Jabalpur case where the Supreme Court abdicated its responsibility to act as a sentinel of the citizens’ rights, CJI Sharad Bobde may not have enough time to chart out a path for the Supreme Court. But by refusing to ask inconvenient questions, the judiciary has left judges like Ajit Shah and lawyers like Dushyant Dave, Gopal Sankaranarayan and Prashant Bhushan feeling “anguished.”

“Are they getting two square meals a day? How can we monitor the situation?” Justice L Nageswara Rao asked on behalf of the two-judge bench when the petitioner sought these migrants be paid minimum wages. Or that they were being forced to walk to their home states.

The question here was not of getting two square meals a day but that these migrant workers were being forced to pay exorbitant amounts for their train tickets back home. That too, when their employers had refused to pay their wages.

This piece is not an attempt to deify Justice Ajit Shah whom the former CJI Ranjan Gogoi had flayed for sitting in his ivory tower to champion judicial independence. “One of the cases which came up before us allegedly implicating Justice Ajit Shah was when the property in dispute was auctioned for a few crores when it was worth hundreds of crores.  This caused a huge loss.  I have that case number.  This is one reason why he was not elevated to the Supreme Court”, alleged Gogoi to a TV news channel during an interview.

Just as the Supreme Court had implicit trust in Indira Gandhi's government during 1975-77, when it declared the right to life was a “gift of the state”, the Supreme Court headed by CJI Sharad Bobde may be veering along the path of his predecessors.

When the Supreme Court openly declares it will leave the government to decide what is best for the migrants, we are in for calamitous times.

(Dr Olav Albuquerque is a senior journalist-cum-lawyer of the Bombay High Court. He holds the MSc., LLM and PhD in Law.)