What is perhaps more surprising is our Supreme Court
also turned its back on those the lockdown left destitute and starving. The criticism of the government is well-known but a recent critique of the Court by Prashant Bhushan
is dismayingly revealing. It suggests the eyes of justice can be blind to the poor and the vulnerable. Let me go into this in greater detail.
Let’s start with the way the Court responded to the right to life of migrant workers. They are destitute, starving and desperate. Hundreds of thousands, if not millions, tried to walk back to their villages. A petition regarding their plight was first moved on March 31. Thereafter, for one reason or another, the government was given additional time and new hearings scheduled. Finally, after three weeks, on April 21, the Court disposed of the petition with an anodyne and tepid request to the government to “take such steps as it finds fit to resolve the issues raised in the petition”. Is this an acceptable way of upholding the right to life of Indian citizens?
In an interview to The Hindu, Chief Justice Sharad Arvind Bobde gave this explanation for not defending fundamental rights: “This is not a situation where declaration of rights has much priority or as much importance as in other times.”
Let’s now come to the sense of priority the court has shown in terms of what it immediately hears and what it defers. Whilst cases to do with the right of migrant labour, stranded in shelter homes, to return to their villages have been deferred to May 27 and the cases to do with NREGA payments will only be heard “two weeks after the lockdown is over”, a petition filed by Arnab Goswami
seeking protection from multiple FIRs was heard within 15 hours.
This is how Chief Justice Bobde defended the Court’s prioritisation: “The courts are doing their best to cope with the situation, in particular they are selecting and prioritising matters they must hear.” That suggests Arnab Goswami
is important but NREGA payment for the destitute is not.
Prashant Bhushan’s critique ends with a quotation from a recent judgment by the High Court of Malawi. It’s what the people of India wanted to hear from our Supreme Court
but did not. I’d like you to read it carefully. If nothing else it proves mighty, India can be shamed by little Malawi.
“The judiciary is enjoined by... the Constitution to ensure that the rule of law is upheld at all times, be it before, during or after the state of emergency... has been declared. The Court is perfectly entitled to enquire into the legality of measures taken by the State in response to a state of emergency... A declaration of a state of emergency... does not give the state carte blanche to exercise power indiscriminately. The substantive and procedural limitations imposed by the law have to be observed.”