In 1952, when India’s Supreme Court upheld the rights of citizens to assemble peacefully, it said the Constitution had assigned it the responsibility of guarding against violations of fundamental rights the way a sentinel protects a fort.

Sixty eight years later, the sentinel seems to be letting its guard down.

Across India, lakhs of migrant workers, their livelihoods devastated by the nationwide lockdown to slow the spread of Covid-19, are walking hundreds of kilometers in an attempt to get back to their home villages. Approximately 120 of them have died in accidents along the way.

While the Centre mounted a massive mission titled “Vande Bharat” to bring back Indians stranded overseas, it has not shown the same zeal in trying to get poor workers home. Instead, the Centre has put the blame for the chaos on the states.

In the post-Emergency era, the Supreme Court developed the idea of public interest litigation into a diverse and potent jurisdiction. The court became activist, intervening in issues that involved the public good. Since then, many Indians have looked up to the Supreme Court not only to check state excesses when it violates rights, but also as a powerful institution that will nudge the government to do the right thing. Environment protection, for example, owes a great debt to the jurisprudence of public interest litigation.

The court has used PILs so much over the decades that it had even led to criticism that it was transgressing constitutional boundaries and involving itself in policy making.

So it has come as no surprise that several activists and lawyers have approached the Supreme Court over the last few weeks, urging it to help the migrant workers. They expected the court to act as the sentinel of the rights of the workers. But it has fared poorly, accepting the government’s submissions almost mechanically, not doing much to alleviate the sufferings of the workers.

If the Supreme Court was looking for models for how it could have acted, there were some that were right under its nose. Last week, two High Courts, through orders that were marked by empathy and concern, held up a mirror to the Supreme Court.

Migrant workers head home from Patna. Credit: PTI

Supreme Court and migrant workers

On March 31, when a PIL came up seeking measures to help the migrant workers, Solicitor General Tushar Mehta said there were no migrant workers on the roads anymore as governments had ensured that they were being housed and fed. The court accepted this submission and another made by the Centre which said fake news had led to the workers’ exodus.

That these submissions were untrue is borne out by the fact that lakhs have continued to walk home since March 31. Ideally, the court should have suo motu revived the PIL and questioned the Centre on its submissions. This did not happen.

Since then, several PILs have reached the Supreme Court, each facing a similar fate.

If anything, the court seems to have a lack of understanding of the needs of workers. On April 7, responding to submissions that the Centre pay workers their wages, Chief Justice SA Bobde asked the lawyer why the workers need money when they are being fed – failing to acknowledge that people need more than just food to survive.

On April 21, the court again accepted the Centre’s submissions and passed an order asking the same government that had failed to help the workers to consider material produced by the petitioners about the dire situation. The court did not even seek a status report about the measures to be adopted following the petition.

In contrast, the court on May 11 decided to monitor the beautification of a palace garden in Rajasthan.

On May 15, when yet another petition on the workers’ plight came up, the bench observed that it was impossible for courts to monitor or stop the movement of migrant workers across the country. It is for the government to take necessary action in this regard, the bench said.

High Courts and empathy

In the meantime, orders from two High Courts last week acknowledged the seriousness of the migrant worker crisis and were marked by empathy for their plight.

On Friday, the Madras High Court issued an order laced with emotion, something unusual for the courts. In a habeas corpus petition asking the government to produce 400 Tamil workers stuck in Maharashtra, a bench of Justices N Kirubakaran and R Hemalatha said:

“One cannot control his/her tears after seeing the pathetic condition of migrant labourers shown in the media for the past one month. It is nothing but a human tragedy.

It is very unfortunate that those persons were neglected by all the authorities. The heart breaking stories are reported in the print as well as visual media that millions of workers were compelled to start walking to their native States with their little children carrying all their belongings over their head, surviving on the food provided by good Samaritans, as no steps were taken by the Governments to help those migrant workers. is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers.”

The court asked the state and Central governments 12 questions about the measures taken to help the workers and to file a status report by May 22.

Migrant workers in Guntur, Andhra Pradesh, wait for a train to get home to Madhya Pradesh. Credit: PTI

Also on Friday, the Andhra Pradesh High Court cited disturbing news reports to order the state government to take specific measures under seven different heads, including medical, transportation and food.
The court began the order thus:

“This court notices that the labour who have left their ancestral homes and villages and moved to the cities for better livelihood to ensure that all of us live in comfort are on the roads today. 

If at this stage this court does not react and pass these orders, this court would be failing in its role as a protector and alleviator of suffering.” 

In addition, the Karnataka High Court on May 12 directed the governments to decide on paying the transportation cost of workers going back to their villages and towns. It reminded the governments of the huge contribution the workers have made to the country’s development, insisting that the executive should come forward to help them at a time when they have lost their livelihoods.

On the same day, the Gujarat High Court took up the workers’ cause suo motu and sought the response of the governments.