A venerable time-honoured institution tends to gather around itself a patina of prestige, legend and traditions apart from its constitutive authority that both enhances its aura and confounds self-reflection. That might even imperceptibly and, in ways unbeknownst to itself, change its character and foundational philosophy.
We do not normally associate Abraham Lincoln’s Republican party with the present-day Republicans of America. Such changes may be benign or unwelcome, but it is vital for the institution to rid itself of its self-image, go in for introspection from time to time, and if necessary, for course-correction too.
The celebrated press conference of the four senior-most judges of the Supreme Court was an indication of serious internal discontent with its role and conduct, though it had an extraordinary denouement. Since then we have had other retired judges or people of standing expressing serious but muted reservations about this august institution. Most recently, retiring justice Deepak Gupta had spoken of law in this country tilting the scales against the poor, and one might wonder if that raised doubt on the guiding role of the higher judiciary.
Not so long ago Justice AP Shah had cast a searching light on the way the courts are tending to sidestep the major issues of justice affecting the common citizens, leaving them in a bleak wilderness.
The Writ Petition moved by social activist Jagdeep S Chhokar on the plight of stranded migrant labour and allegedly unjust charge of rail fare imposed by the Centre on distressed labourers for their transport to home states, and heard by a three-judge bench, seems to have raised portents of a similar unconscious slide in the vantage-point of the Supreme Court on the way it defines its role.
Distinguished lawyer Prashant Bhushan, arguing before the bench, pleaded for a direction from the court to the Centre to clarify public doubts about the burden of rail fare, which goes against the spirit of relief that should have informed the government measure. Indians stranded abroad by lockdowns in different countries had been flown home free of cost. The same attitude should have been displayed by this rescue mission as well.
Bhushan argued that the lockdown suddenly declared by the government with exactly four hours’ notice had actually been the cause of the crisis in the lives of the poor migrant workers. They lost their livelihood, as most worked as daily-wage workers, spent their savings during the long lock-down, and faced hunger and starvation because of it. It therefore was clearly the responsibility of the Centre to come to their rescue, but the Centre looked the other way. The media were forced to report a humanitarian crisis as thousands started trekking back home over many hundreds of kilometres in desperation as no transport was available. Many succumbed on the way to hunger, sickness, accident or despair.
It is arguable that the onset of the Covid-19 pandemic had caught the government by surprise and it too had been compelled by circumstances to take this extraordinary measure. But once such a decision was taken it was morally bound to take responsibility for human suffering caused by it, and take appropriate measures to relieve it. That is not how it worked out. In fact the government seemed to watch the scenes of widespread and immense suffering with incredible equanimity, and it was only the outrage and denunciation in media and other public platforms, and severe criticism by opposition parties that stirred it belatedly to provide rail transport to these wretchedly poor, hungry and desperate victims of the lockdown. To charge allegedly high ticket costs appears under the circumstances the height of callousness, though the actual rate remains a close secret.
When the bench reportedly asked the Solicitor General representing the Centre to respond to such questions raised by the counsel for the petitioner, the Solicitor General replied that he had received from the government no instructions on the matter, and the matter is to be decided between the Indian Railways and the state governments.
Stung by severe and vocal criticism of the inhumanity of the high rates of rail-fare on hapless migrant workers, the Centre had through its Health Secretary Lav Agarwal informed the press that 85% of the fare would be borne by the Centre and 15% by the states. But later on it turned out that the centre’s share was, after all, only “notional”. Further, the states have long been clamouring to the Centre about their cash-starved position, and it is not clear if the 15% cost had been the product of prior consultations. The Solicitor General’s response did not lead to greater clarity.
At this point the honourable judges concluded the proceedings by observing that since the substantial prayer of the PIL petition on providing transport for stranded migrants had been taken care of, they did not desire to expand the scope of the petition by going into the issue of high rail-fares.
Technically, their lordships were quite within their powers in closing the suit with this decision. But the question might arise if the ends of justice had been met, and further if the court had invoked a doctrine of austerity severely limiting its own power in a decisive move with far-reaching consequences. Perhaps it was a “policy matter” and the bench advisedly maintained a distance from it, but it had been a decision affecting the dignity and liberty of the citizens in a critical way.
There was a time, not present in the memory of the present generation, when the Supreme Court had assumed a forceful proactive role in making fundamental constitutional rights as well as the promise of a more equal society implicit in the constitution a living reality. The right to life was vigorously interpreted as “right to life with dignity”. Justice VR Krishna Iyer was particularly concerned to turn the Constitution into a charter mandating for all citizens greater equality and well-being, overcoming historic backlogs, and call upon the state to serve as an agent of such transformation.
That spirit for a long time kept the image of the Supreme Court bright, but this period was followed by one of stasis when the Supreme Court gradually appeared to have lost interest in such a mission. The judgment under discussion seems to have demonstrated a resolute commitment to a “thin” in preference to a “thick” interpretation of both fundamental rights and the state’s role in upholding them. The reluctance in questioning the government’s or the legislature’s lapses in interpreting the ambit of laws probably reveals the same attitude.
Whether there are striking visible changes in the landscape on the surface or not, it surely indicates a tectonic shift.
The author is a socio-political commentator and cultural critic. The views are personal