Since March 25, when India was put under lockdown to contain the spread of Covid-19, the Supreme Court had come under intense criticism for its reluctance to pass strong directions to the government to remedy specific aspects of the crisis. The criticism was especially strong regarding the court’s decisions in pleas relating to the plight of migrant worker, as millions of labourers and their families walked hundreds of kilometers to their hometowns, most often without proper food and water.

Last week, a day after 22 lawyers wrote to Chief Justice of India SA Bobde urging him to intervene in the crisis, the Supreme Court took suo motu cognisance of the workers’ situation. It passed several directions, including one to ensure that the workers would not be asked to pay for the transport to their home villages and towns.

The Covid-19 crisis has opened deep divisions among judges and among lawyers on what the court should do. While former judges have expressed opposing views in newspaper columns, lawyers have fought an acerbic battle of words.

Judges and former judges

Writing in The Wire on May 28, retired Supreme Court judge MB Lokur gave the Supreme Court an “F” grade for its handling of the migrant crisis.

In a sharp piece, he said:

“Images that have haunted us for two months and the horrific struggles of millions will remain etched in our psyche and many will long remember that when it came to the crunch, the Supreme Court did not see those images or read those stories. Over the past few months, constitutional rights and remedies were overlooked and socio-economic justice, a cornerstone in the preamble of our constitution, was disregarded.” 

The column seems to have struck the intended target hard. In an unusual development, a sitting judge of the Supreme Court decided to respond to this criticism, albeit indirectly, during a webinar lecture on freedom of speech during Covid-19 on May 31.

Flagging the rising intolerance to different point of views, Justice SK Kaul said while criticism of a view point or a judgement was not a problem, the institution of the court is damaged when imputations start being made. Some former members of the judiciary seem to have an “after me the deluge” attitude, he declared.

In what was clearly a reference to Justice Lokur’s column, Justice Kaul said:

“The unfortunate part is that in some of us, those who have been part of the institution itself, there is a problem of ‘after me the deluge’. Which is that since we [retired judges] are gone, everything is going wrong. I will say that itself is a danger. People in the past, who speak about it, also have committed many mistakes and blunders.”

Disgruntlement about the court was heard again following the hearing in the suo motu matter on the migrant workers’ distress last week. Lawyers were irate with the court for allowing Solicitor General Tushar Mehta to launch a diatribe against people who speak up against the government.

On June 2, another former judge waded into the debate with his article in the Indian Express. Former Chief Justice of India RC Lahoti cautioned the judiciary against over-activism and warned that it should not “lend its shoulders for somebody else’s gun to rest and fire”. This was, in a sense, a contrary view to Justice Lokur’s position on what the Supreme Court should have done.

On May 25, a day before the Supreme Court took up the workers’ cause suo motu, former Supreme Court judge Gopala Gowda wrote a stirring piece in the Deccan Herald, in which he said the court’s lack of response to the crisis will be remembered as its darkest times.

BCI vs others

While this was the story of the judges, the Bar Council of India Chairman Manan Kumar Mishra took it upon himself to hit out at the critics of the Supreme Court, apparently because the judges cannot respond to the criticism directly.

Mishra has now made it a habit to issue statements under the banner of the Bar Council of India, which is a regulatory body rather than being an association of lawyers. In his statement on May 30, Mishra alleged a syncronised and sustained attack on the Supreme Court. He attacked Justice Lokur for his remarks and said:

“We have heard Justice Lokur giving sermons that no-one from the Bench and the Bar should ever indulge in act that would shake the faith of the public in judiciary. Now, he himself become part of these misguided group of people is a mind-boggling departure by him of his own much hyped principles” contacted Mishra on Tuesday to ask if his statements were the collective response of the Bar Council of India or were his personal opinion. Scroll asked if he felt so strongly about certain members of the bar acting with vested interests, why action had not been initiated against them.

Mishra said that “notice has been issued against one individual”. He declined to elaborate, saying that he had mentioned everything he wanted in the statement. He asked this reporter to call him the next day as he was attending to some family affairs. Mishra did not respond to messages on Wednesday.

On Thursday, the Bar Council passed a resolution against the legal website Live Law for publishing an article that criticised Mishra.

The Bar Council of India’s functioning over the last few months has raised eyebrows. In particular, Mishra, a Bharatiya Janata Party member and a self-declared admirer of Prime Minister Narendra Modi, had taken on the Supreme Court Bar Association and its president Dushyant Dave, who he had in the past accused of political bias.

When the Supreme Court Bar Association suspend its secretary Ashok Arora on May 8, the Bar Council of India responded by passing a resolution to stay the decision. The Supreme Court Bar Association has rejected this decision, claiming that the Bar Council of India did not powers to act in that manner.

The Supreme Court Bar Association suspended Arora for allegedly trying to convene a meeting to remove Dave and others for a resolution that the forum passed on February 25 criticising Justice Arun Mishra for praising Prime Minister Narendra Modi at a conference organised by the Supreme Court in February.

Curiously, a former Supreme Court judge, PB Sawant, decided to wade into this controversy, throwing his weight behind the Bar Council of India.

Dave had also been critical of the Supreme Court for failing to take up the migrant workers’ plight effectively.

Calls and messages to Dave by did not reach him.