RETIRED Justice Madan Lokur has penned a powerful article "Supreme Court Deserves an 'F' Grade For Its Handling of Migrants" which appeared in TheWire on May 28, 2020. While welcoming suo motu action by the Supreme Court on migrant issues, Justice Lokur referred to three earlier instances wherein the Supreme Court could have questioned the government on its handling of migrant issue in cases filed by Alakh Alok Srivastava, Harsh Mander and Anjali Bhardwaj, and Jagdeep Chhokar. While agreeing that the events were unprecedented as far as the Government is concerned, Justice Lokur noted that "the events were unprecedented as far as the migrants are concerned". Justice Lokur criticised the Supreme Court for showing "lack of interest or compassion when the opportunity was handed over on a platter to the Court to be more proactive."
It seems that one learned Judge has reportedly remarked: "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'." One may wonder if a retired Justice of the Supreme Court cannot express his critical opinion on an issue of social justice, who else can do it? Fair criticism of Court is for betterment of the functioning of the institution and it must be taken in that spirit.
A senior journalist has written for Times of India a blog titled "Retired Judges who grade Supreme Court, forget their report cards". It makes reference to a J. Lokur's judgment in Swaraj Abhiyan v UOI wherein a series of directions were issued for effective implementation of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005, National Food Security Act, 2013 and Disaster Management Act, 2005. Justice Lokur had criticised the government for not establishing a mechanism for enforcing NFS Act. Out of the judgment running 61 pages, the journalist has picked up some portions and tried to portray as if Justice Lokur had abdicated his duties. Is this journalism?
There was a time when there was a Social Justice Bench in the Supreme Court of India and Justice Madan Lokur was one of the Judges who headed it.
It is a bench headed by Justice Lokur which condemned the modern-day stigma against widows, while setting up a committee of experts to study reports collected by the court during the past decade and come up with a plan to rehabilitate the hapless widows of Vrindavan and other ashrams by November 30, 2017. In Dr. Ashwani Kumar v UOI, he gave extensive directions for the protection of elderly people were issued to the Government. He took the Armed Forces to task in the case of fake encounters in Manipur and called out the defence of demoralising them through this case as 'suggestive of their weakness'.
Justice Madan Lokur reiterated Sunil Batra case on prison conditions in his judgment In Re- Inhuman Conditions In 1382 Prisons.
"Social justice in the Preamble of our Constitution has been given pride of place and for good reason since it is perhaps the most important and significant form of justice".
In Independent Thought v. Union of India, Justice Madan Lokur struck down Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years making the marital rape of minor girls an offence of rape. It was observed: "It must be remembered that those days are long gone when a married woman or a married girl child could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally a female has equal rights as a male and no statute should be interpreted or understood to derogate from this position".
The Supreme Court Bench headed by Justice Lokur had transferred 16 cases related to the sexual and mental exploitation of children in Bihar shelter homes to the Central Bureau of Investigation, after finding that the State Government's dealing with the case was "shameful" and "inhuman". In Nipun Saxena v. Union of India, (authored by Justice Deepak Gupta on 11.12.2018, a Division Bench to which Justice Lokur was a member), the Supreme Court directed that it is imperative that we should have courts which are child friendly.
Even in Swaraj Abhiyan, that the journalist cites, Justice Madan Lokur comments "Continuing mandamus is now an integral part of constitutional jurisprudence.. Our concern is for the drought-affected persons and animals and indeed we were told by all the learned counsel that that is also their concern. We are mentioning this because over the years, public interest litigation appears to be degenerating into a no-holds barred adversarial litigation—which it is not meant to be."
There had been an obvious consistency in what the Supreme Court itself called a " Social Justice Bench ". The track record speaks for itself .
The journalist's criticism against an active judiciary in general is also unfounded because the Indian Supreme Court has been traditionally exercising vast powers under its writ jurisdiction in public interest. It has in fact not been an exception but the general rule.
The Constitutional Court of South Africa in the Minister of Health versus Treatment Action Campaign rejected the argument that the only power that the Court has was to issue a declaratory order. It was held that "where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted".
Referring to the Indian position, it was held:
"108. Even a cursory perusal of the relevant Indian case law demonstrates a willingness on the part of the Indian courts to grant far-reaching remedial orders. Most striking in this regard is the decision in M.C. Mehta v. State of Tamil Nadu where the Supreme Court granted a wide-ranging order concerning child labour that included highly detailed mandatory and structural injunctions."
It is worth mentioning herein that even the National Disaster Management Act, 2005, which has been invoked for handling the pandemic, came into being as a result of continuing mandamus in Gaurav Kumar Bansal v. Union of India. The bench had observed, "The present writ petition by no stretch of imagination can be treated as adversarial litigation and, in fact, there has to be cooperation from the Union of India, as well as from the other States." The future benches, in this case, ensured drawing up of the National Plan and State Plans under the Act, directed states to make Districts Plans and setting up of State Disaster Management Authority across the country. This is an example of the Supreme Court's role in monitoring the proper implementation of a law and Executive orders.
After retirement from the Indian Supreme Court, Justice Lokur has more freedom to offer an impartial opinion from point of view of a former Judge who had occasion to deal with social justice issues. His views are entitled to serious consideration and doing so will only enhance the everyone's trust in the Supreme Court as an institution. The Supreme Court has adopted a complementary rather than adversarial role in fulfilling the mandate of Constitutional guarantee of social justice and individual dignity. The Executive has largely co-operated with those court in such matters and never taken an adversarial position. Our courts are highly regarded by the legal community all around the globe, precisely for their social justice function. There is no reason why the Court should deviate from that path at the hour of crisis.
[Prashant Padmanabhan is an Advocate-on-Record at the Supreme Court of India]
Note: This is an opinion piece, and the views expressed are the author's own.