When the nation was shocked by the plight of migrant workers walking to their homes on national highways, we witnessed a sense of complacency by governments in providing immediate relief. It was the persistent actions of lawyers who relentlessly approached the courts that finally resulted in the Supreme Court taking cognisance of the matter. GAHENA GAMBANI reports on how intervention by lawyers culminated in implementation of various relief measures by governments.
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The COVID-19 pandemic disrupted millions of lives. For some, this was disproportionately more than the others. Several groups found themselves in especially difficult circumstances, being prosecuted when they should have been receiving relief.
The law was their only recourse. This was made possible by lawyers who put their conscience above everything, making the legal community proud.
One such group was migrant workers across the country. People who had shifted base to find work in other states were now forced to make their way back home in the middle of a national lockdown. Struggling to find transportation, they had no choice other than to walk despite the imminent dangers of undertaking such a journey.
When they couldn’t reach out to the courts, we saw several lawyers take the lead in highlighting their problems and calling for orders to intervene and deliver humanitarian relief in the form of food, shelter and transportation.
KNOCKING THE DOORS OF THE COURT
Several PILs were filed over a period of almost three months, attempting to secure this relief for these groups across states. However, the initial results were disheartening, to say the least.
When they couldn’t reach out to the courts, we saw several lawyers take the lead in highlighting their problems and calling for orders to intervene and deliver humanitarian relief in the form of food, shelter and transportation.
One of the earlier petitions was filed by Advocate Jagdeep Chhokar, praying for “a direction to the Central Government to allow migrant workers across the country to return to their hometowns and villages” once they had been tested for the virus.
Citing orders that had been previously issued by the Home Ministry, the bench declared that any specific arrangements for transportation had to be worked out with the respective States and Union Territories, once again declining to issue orders to the Centre.
One of the earlier petitions was filed by Advocate Jagdeep Chhokar, praying for “a direction to the Central Government to allow migrant workers across the country to return to their hometowns and villages” once they had been tested for the virus.
When an additional prayer was made by Senior Advocate Prashant Bhushan, regarding the 15% ticket fee that workers would find difficult to pay, the court’s response was that the matter lay outside its jurisdiction and should be taken up with relevant railway authorities. The judgement also explicitly stated that “substantial relief” had been granted through the given writ petition, the scope of which could not be expanded.
Advocate Alakh Alok Srivastava was one of the first lawyers to file a petition seeking “the redressal of grievances of migrant labourers,” while simultaneously calling for various state governments to accommodate stranded groups in “government shelter homes and accommodations and provide them with basic amenities like food, clean drinking water, medicines, and so on.”
While ruling on the matter, the Supreme Court bench (of Justices L. Nageswara Rao, Sanjay Kishan Kaul and B.R. Gavai) is reported to have made statements such as:
“It is impossible for the court to monitor who is walking and not walking.”
“Let the state decide. Why should the court hear or decide?”
“How can anyone stop this when they sleep on railway tracks? How do you stop migrants who want to keep walking?”
The bench reportedly also commented that Advocate Srivastava’s knowledge was derived solely from newspaper articles and accompanied with the unreasonable expectation that the courts must decide on the matter, which they firmly believed was outside its purview.
When an additional prayer was made by Senior Advocate Prashant Bhushan, regarding the 15% ticket fee that workers would find difficult to pay, the court’s response was that the matter lay outside its jurisdiction and should be taken up with relevant railway authorities.
While it is not possible to vouch for the authenticity of these comments as they are not part of the judgment, the fact remains that no substantive relief was given to the migrant workers.
The judgement focused on the issue of ‘fake news’ which it blamed for creating panic among migrant workers and forcing them to make the dangerous journey on foot in the first place.
Along with the cursory order to the Police and other authorities to “deal with the migrants in a humane manner,” the bench went so far as to state that they were “satisfied with the steps taken by the Government of India for preventing the spread of Coronavirus [COVID-19].”
Advocate Alakh Alok Srivastava was one of the first lawyers to file a petition seeking “the redressal of grievances of migrant labourers,” while simultaneously calling for various state governments to accommodate stranded groups in “government shelter homes and accommodations and provide them with basic amenities like food, clean drinking water, medicines, and so on.”
Another such PIL was the one filed by Harsh Mander, and argued by Advocate Prashant Bhushan. It sought “inter alia, to direct the Central Government and the State Government to jointly and severally ensure payments of wages and minimum wages to all the migrant workers within a week.”
There was no attempt by the Supreme Court to take substantive action in the manner or specify measures to deliver relief to migrant labourers.
Once again, the Supreme Court bench (comprising Justices N.V. Ramana, Sanjay Kishan Kaul and B. R. Gavai) stated that it was satisfied with the information presented on behalf of the government, and their final order was to “call upon the respondent, the Union of India, to take steps as it finds fit to resolve the issues raised in the petition.” There was no attempt by the Supreme Court to take substantive action in the manner or specify measures to deliver relief to migrant labourers.
THE LETTER THAT BROUGHT RELIEF
Alarmed by the continuing trauma of abandonment faced by the migrant labourers and with a view to convincing the court to remedy the continuing tragedy, a group of senior Bombay lawyers on May 23, 2020, wrote to the Chief Justice of India and several other Supreme Court judges urging the highest court to take suo moto cognizance of the matter.
It was then that the Supreme Court finally act on 26th May 2020.
Stressing that “the Court’s apparent indifference to this enormous humanitarian crisis, would if not rectified immediately, amount to the Court having abdicated its constitutional role and duty to these teeming millions of poor, hungry migrants,” several senior members of the Bar called on the Court to “hold the Central Government accountable, and ask that it “fulfill its obligations under the Constitution.”
Alarmed by the continuing trauma of abandonment faced by the migrant labourers and with a view to convincing the court to remedy the continuing tragedy, a group of senior Bombay lawyers on May 23, 2020, wrote to the Chief Justice of India and several other Supreme Court judges urging the highest court to take suo moto cognizance of the matter.
Drawing parallels to the ADM Jabalpur case, they also said, “In the midst of the executive imposed Covid-19 lockdowns, the Hon’ble Supreme Court cannot retreat into a self-effacing deference, leaving millions of Indian citizens, especially those who are poor, vulnerable and impoverished, to the mercy of the executive, reminding us of ADM Jabalpur when detenues were left to the tender mercy of the executive with “Diamond bright Diamond hard” hope that something would be done.”
An especially significant statement was that of their belief that “the survival of Indian democracy and the rule of law, particularly in the current Covid-19 pandemic, is dependent on the Hon’ble Supreme Court actively fulfilling its constitutional obligation of being the guarantor of the fundamental rights of citizens against State action.”
Their final plea was to ask the Supreme Court to intervene and ensure that adequate food, water, shelter and transportation were arranged for the migrant labourers by the Central and State Governments.
The letter was exactly the impetus that this situation needed, and it was not long before the court directed the Union of India and the States to ensure that Shramik trains were provided to all migrants who wish to return “home” during the pandemic.
In its order on May 26, 2020, the Court stated that it found “inadequacies and certain lapses” in the measures undertaken by the Central and State Governments, and called upon the Solicitor General and respective States’ counsel to be present for the relevant hearings.
The letter was exactly the impetus that this situation needed, and it was not long before the court directed the Union of India and the States to ensure that Shramik trains were provided to all migrants who wish to return “home” during the pandemic.
This is the power of collective lawyering.
However, many of the migrants found themselves being prosecuted for having violated orders under the Disaster Management Act, restraining them from leaving their homes. On a similar prayer by the group of lawyers, the court directed the quashing of all such prosecutions.
We pay our tribute to the senior lawyers who wrote that instrumental letter, once again demonstrating the role of lawyers not only inside the courts but especially outside them. They showed us that a commitment to the Constitution means acting in the face of injustice and doing what must be done. They succeeded in their aim of bringing the court back to its true path by delivering justice for the migrants.
This is the power of collective lawyering.
(Gahena Gambani is an economics graduate from Ashoka University interested in law and is an intern with The Leaflet.)
