Holds a brief for the argumentative Indian


Evolution of jurisprudence in India has in the past month or so thrown up two fascinating questions. First, should people be able to go to courts against the government? Second, what do we do with the Constitution of India?

Let us take a summary tour of some of the events which have transpired. In early April, in a petition seeking quick payment of wages to lakhs of migrant labourers, the apex court posed a query: “If they are being provided meals, then why do they need money for meals?” To a submission that the food being provided in some shelters was inedible, the court said, “We do not plan to supplant the wisdom of the government with our wisdom. We are not experts in health or management…”

A report in a leading national daily on this hearing finally concludes with the following observation of the apex court: “We don’t want to interfere in government decisions for the next 10-15 days”. This radical decision of the court was clearly not amplified adequately because soon enough a petition challenging the legality of the PM-Cares Fund, created despite the existence of the Prime Minister’s Relief Fund, reached the Supreme Court. The court threw it out, saying it was politically motivated but the truth is that regardless of the petitioner’s motivations the petition raised serious questions about the use of public funds in a crisis. If the court wanted, it could have thrown out the petitioner and not the petition, and appointed an amicus curiae but it did not.

In a hearing in another petition, demanding that transport be arranged for migrant workers who continue to walk, the Solicitor General Tushar Mehta told the petitioner that “this is none of your business, Government will see”. Rights of fellow citizens are not the business of citizens? I’m struggling to understand this but I will try harder.

As reported in a leading daily, a survey conducted by Stranded Workers’ Action Network has revealed that “between April 8 and April 13, more than 90% did not receive rations from the government. Close to 90% of those surveyed did not get paid by their employers. From March 27 to April 13, 70% of the surveyed workers had only less than Rs 200 left with them.”

Read these figures with the fact that in an interview to the same newspaper, the sitting Chief Justice of India said, “Executive with its three ‘Ms’ of money, men and material is better-suited to deal with Covid-19 crisis.” What does this sentence mean? I’m not sure. Of course, the executive is ‘better-suited’ to govern and run administration with or without any crisis. It is, in fact, the organ designed solely for this purpose. No one is asking or expecting the Judiciary to suspend the executive, step in and govern. It is not a ‘either government or judiciary’ situation. Citizens have rights against the acts and omissions of the Executive and the Legislature for which they go to the Judiciary which is ‘better-suited’/the only organ designed for upholding the rights guaranteed by the Constitution.

So why should the court not continue to do its job? The argument seems to be that the fact that there is a pandemic ought to alter things. My question is, why? Citizens don’t stop having rights during a health crisis. In fact, the fulfilment of these rights becomes more urgent than ever before. In the same interview, the CJI observes: “Very few actions are being taken in the country which normally generate litigation. The courts are not executing decrees, landlords are not throwing tenants out, there is no employer-employee trouble…”

As evidenced by a letter written to the Government of India by over 2,000 transgender people, they are suffering widespread eviction from their homes. Maharashtra and Delhi have ‘requested’ landlords to defer rent. Citizens have rights. Governments sometimes fail to uphold these rights. Courts correct this.

If the court is such a hindrance in the functioning of the government, should this manner of functioning not be continued post Covid-19 as well? There can be one final judgment. “Government Knows Best”, after which perhaps courts can restrict themselves to issues of law and order etc. Is the seemingly endless delay over serious constitutional issues like legality of electoral bonds a sign that we may already be moving in this direction? Difficult to say.

However, some high courts appear to be taking a divergent view. The Madras High Court has just delivered a ruling on the right to privacy of people infected with Covid. The Delhi High Court has passed a judgment pertaining to the functioning of ration shops and the entitlement of those without ration cards. The Delhi and Madras high courts do not seem to be arguing in favour of their irrelevance.

The odd book out in this entire situation is the Constitution of India. It does not state that there can be a substantial altering in the functioning of a certain organ of the state in a health crisis. It, of course, provides for imposition of emergency but not for unsaid understandings and near immunity to the government’s functioning even for ‘10-15’ days. Be that as it may, it is clear that we live in a time when the very definitions of rights, governance, democracy, judiciary etc are undergoing a radical change.

courtesy Mumbai Mirror