The Supreme Court Is in the Thrall of the Government

A month ago, on April 27, a bench of the Supreme Court testily informed activist-lawyer Prashant Bhushan that “this institution is not a hostage to the government”.

And undoubtedly right they were. The Supreme Court of India has for almost four decades been recognised globally as extraordinarily influential and powerful, its verdicts keenly read and commented upon by legal scholars and even constitutional courts throughout the free world; the sheer expanse of its reach has amazed commentators; and it is often referred to as “the most powerful court in the world”.

By the mid-1980s, bouncing back from its ignominious capitulation to the dictates of an all-powerful executive during the emergency years (1975-1977), the Supreme Court made a name for itself as an activist court. This was a court that converted letters and post-cards from under-trial detenus and prisoners into suo motu public interest petitions (PILs), forcing a brute police force to treat prisoners humanely; that weighed in for, and freed, bonded workers in stone quarries near Delhi; that ensured application of labour laws for unprotected migrant workers building the stadia and facilities for the 1982 Asian Games; that acted against torture in police custody; the list goes on and on.

In 1985 the legal scholar Professor Upendra Baxi wrote that “the Supreme Court of  India is at long last becoming, after thirty two years of the Republic, the Supreme Court for Indians”. A few years later, on comparing our top court with those of the US, UK, and elsewhere, Baxi recorded as his opinion that ours was clearly the most powerful. He was echoed a decade later by the Director of the Institute of Advanced Legal Studies, S.P. Sathe, whose book “Judicial Activism in India” (2001) contained the unambiguous statement that “The Supreme Court of India has become the most powerful apex court in the world”.

Chief Justice A.M. Ahmadi, himself one of the activist judges who helped advance the Supreme Court’s assertiveness in matters of governance, acknowledged in a lecture delivered in December 1995 that the moniker of “most powerful court in the world” invited the criticism that the court was transgressing into the domain of the executive and the legislature, and thereby violating the doctrine of separation of powers.

Also read: The Supreme Court Must Resume its Role of Protector of the Rights of the People

But he argued that the critics were missing the difference between traditional notions of private law, and the imperatives of public law driven by the court’s role as an institutional watch-dog of people’s fundamental rights, and it’s standing as the most assertive organ that the nation possesses. “When derelictions of constitutional obligations and gross violations of human rights are brought to the notice of the Supreme Court”, said CJI Ahmadi, “It cannot be expected to split hairs in an effort to maintain the ‘delicate balance’ of power between the wings of Government; it must act and act in a positive manner that will provide relief, which is real and not illusory, to the parties who invoke their fundamental right in invoking its jurisdiction”.

Five years later in 2000, which happened to be the fiftieth year of the republic, Oliver Mendelsohn, legal scholar emeritus at Australia’s La Trobe University, authored a paper titled “The Supreme Court As The Most Trusted Public Institution in India”.   While the title says it all, the author wraps up his 17-page analysis with the words:  “The Supreme Court is now one of the central strengths of Indian public life”.

Closer to the present, the New York Times in September 2018 carried a detailed report headlined: “Hundreds of Cases a Day and a Flair for Drama:  India’s Crusading Supreme Court”. In their 2019 book The Supreme Court of India: An Empirical Overview,  William H.J. Hubbard of the University of Chicago, Sital Kalantry of Cornell University, and Aparna Chandra of the National Law University wrote that “The Supreme Court of India holds a unique status for several reasons”.

After enumerating those reasons, the authors conclude:

“These features distinguish it from several other powerful Supreme Courts, such as the Supreme Court of the United States. And the Supreme Court of India remains a highly respected institution by the people of India (and beyond), giving it a legitimacy when it exercises its broad powers”.

Coming full circle then, there can be no doubt whatsoever that our top court is not hostage to the government. Equally, though, there is little doubt that the Supreme Court has in large measure chosen to play the role of a mute spectator for over two months now, standing by and watching helplessly while the poorest and most vulnerable citizens of India have been put through horrendous privations and suffering.

The bare and unsubstantiated word of the government’s law officers, often not even supported by an affidavit, has been deemed sufficient by the court to hold that millions of desperate (and destitute) citizens are being looked after, that there is no migrant problem at all, that there is nothing the court can do to alleviate further suffering, and that in view of the bland oral assurances of law officers, “no purpose will be served in keeping the Writ Petition pending, hence Petition is closed”.

Also read: Migrant Worker Crisis: The Supreme Court Has Abdicated All Responsibility

A brief flashback is necessary. After a nationwide lockdown was announced with under four hours notice on March 24, lakhs of stranded workers tried to move out of large cities to somehow return to their villages. The chief minister of UP, who had provided 37 luxury buses to transport 1800 Gujarati pilgrims from Haridwar to Ahmedabad at the behest of the Union home minister on that very day, tweeted on March 27 that his government had arranged for 1000 buses to transport UP workers stranded in Delhi and Gurugram to their home villages from Ghaziabad.

Thousands of stranded workers gathered at Anand Vihar and Kausambi on March 28, where they were told that the Delhi government would provide buses to drop them where the UP government’s 1000 buses were waiting. Similar scenarios were playing out in other states where millions of workers were stranded.

At this juncture the Union Ministry of Home Affairs (MHA) had a change of heart, and prohibited all inter-State and inter-District movement of migrant workers, directing that they be brought back from wherever they might be, and detained in the nearest quarantine facilities “for a minimum period of 14 days as per standard health protocol”. The March 29 orders said nothing about what would happen to the stranded workers or their families after 14 days, but threatened that the district magistrate and senior police functionaries would be held personally liable for the implementation of these draconian orders.

When a petition filed by a lawyer, Alakh Alokh Srivastav, and another by the former bureaucrat Harsh Mander and social activist Anjali Bhardwaj challenging the inhumane treatment of stranded workers came up on April 3, the Supreme Court asked the solicitor general to respond by April 7. On that day the court directed that a “Status Report” filed by the government, though seen by the court, had not been furnished to the petitioners, and directed that it be given to them.

On April 13, though the petitioners had the status report, the court could not find its copy, so the matter was adjourned to April 20. In the meanwhile, on April 15, a group called Stranded Workers Action Network (SWAN) published a detailed survey report that showed that of the 11,159 workers surveyed, 72% said their rations would be exhausted in two days, and large numbers in Maharashtra and Karnataka said they had food only for one day. Many of the stranded workers said that they were eating only one meal a day, and 96% of those surveyed across the states said that they had not received any rations from the government.

This report, which was reported in daily newspapers as well as on online news platforms, clearly belied the vague assurances contained in the government’s “Status Report”.  Yet, when the Harsh Mander-Anjali Bhardwaj petition came up for hearing on April 21, the court disposed of it after merely calling upon the government to look into the materials placed on record by the petitioners, and to “take such steps as it finds fit to resolve the issues raised in the Petition”.

Also read: The Supreme Court Has Become an Unlikely Detractor of the Free Press

A petition filed by the former director of IIM-Ahmedabad, Jagdeep S. Chhokar, seeking safe passage home for the millions of workers stranded around the country, met a similar fate. By the time this petition was heard on May 5, it had been widely reported that tens of thousands of young citizens stranded in the Competitive Examination Coaching Academies of Kota, had been provided free bus transportation by their home States and repatriated between April 17 and 25, without following any pre-testing or other protocols, even though Kota was then a COVID-19 hotspot.

Yet, when special trains were finally, and grudgingly, provided for stranded workers, numerous near-impossible conditions were imposed on them, and the railways charged them fares which were Rs 50/- per ticket higher than the standard sleeper fares.   Though an attempt was made by the government to gloss over this gouging of destitute migrant workers by claiming that 85% of the fare was subsidised by the central government, most national newspapers on May 5 carried front-page articles explaining that this was accounting skullduggery and sleight-of-hand, and that the stranded workers were in fact required to pay the full normal sleeper fare, and in addition a surcharge of Rs. 50 to Rs 60/- per ticket.

Once again, in spite of the glaring double-speak by the government, the court at its hearing on May 5 proceeded to “close” Jagdeep Chhokar’s petition after accepting the government’s orally offered platitude that “all necessary steps were being taken care of by the Centre and States”.

One could endlessly multiply instances such as the above, but that would serve no purpose. Suffice to state that commentators ranging from constitutional scholars to retired judges, from eminent jurists to practicing lawyers, from court reporters to seasoned political columnists, have during the past two months highlighted the near-abdication of function by our highest court.

The all-too-public and intensely-documented suffering of millions of stranded workers was repeatedly brushed aside; when well-known social reformers and human rights activists like Swami Agnivesh, Aruna Roy, Nikhil Dey, Harsh Mander, Anjali Bhardwaj, Nandini Sunder and Jagdeep Chhokar filed petitions based on considerable documentation as well as their own knowledge of the unfolding human tragedy, the court told them that the solicitor general would look into the monumental failures of planning and human rights abuses indulged in by his own client, the government; when lesser mortals like practising advocates approached the court as petitioners on the basis of news reports, they were given marching orders with taunts like “you have no work during the lockdown so you are filing petitions”.

Habeas corpus petitions challenging repetitive detentions were put on the back burner; the plight of Kashmiri students denied their right to education, and of lakhs of citizens denied online access to medical information and care because of the forced lack of 4G connectivity, though it evoked an eloquent judgment on human rights from the court, resulted in nothing more than the court asking the very government officials who had imposed these appalling curbs, to consider whether they might decide to relax the restrictions at some unspecified time in the future. In sum, the Supreme Court evolved what one constitutional scholar dubbed a “hope and trust jurisprudence”.

Instead of framing questions and calling upon the government to answer them on affidavit, as has been the invariable practice in PILs over the past 40 years, the Supreme Court in the times of COVID-19 has displayed a deep and abiding faith in the oral word of the government’s law officers. Sadly, this faith was not eroded even when week after week threw up an avalanche of facts and figures and photographs and video clips which laid bare the oral assurances and platitudes.

Also read: The Supreme Court Is Locked Down and Justice Is in ‘Emergency’ Care

It was only on May 26, a full month after that exasperated retort to Prashant Bhushan, that the Supreme Court became alive to the untold suffering visited upon stranded workers and their families since late March.  The court took suo motu notice of their plight, and called upon the Centre and states to appear in court and explain what steps were being taken to alleviate their misery.

I started by stating that the bench was undeniably right when it declared that the institution is not hostage to the government. It certainly is not. The truth seems to be that the Supreme Court is in thrall to the government. It has somehow come to believe the relentless propaganda machine that tells us that a government that won an absolute electoral majority is entitled to be the sole decision-maker for 130 crore Indians, and that even the courts should not question any decision taken by such majority government.

Indeed, this idea was driven home during the past two months’ hearings by the solicitor general, who often reminded the PIL petitioners as well as the court that his government knew best how to take care of the people. Tempting as it might be to place its “hope and trust” in a government that has an absolute majority, the Supreme Court might do well to remind itself that the ruling party secured 22.9 crore votes in 2019, representing 25.16% of the total electors, and 37.76% of the valid votes cast; as a proportion of the total population of the country, the votes garnered by the ruling party account for only 17.6%.

The balance 107.1 crore Indians who either were not registered voters, or chose not to vote for the ruling party, surely need to have a voice. And it is time that the Supreme Court hears those voices, and restores Oliver Mendelsohn’s image of it as “the most trusted public institution in India”.

Chander Uday Singh is a senior advocate practising in the Supreme Court.