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| @ | May 14,2020

How has the Covid-19 pandemic affected the functioning of the courts? While most evaluations have focused on the infrastructure of the virtual Courts, the author focuses attention on a more basic issue of justice. Should courts differ to decisions of the executive even when violations of fundamental rights are so evident? Is the policy of the executive beyond the reach of the courts even when it impacts the right to life? What will the post-pandemic court look like? What does this mean for the most marginalized?

 

THE pandemic has led to the closure of courts unless it is ‘urgent matter’. A final argument in a criminal appeal or delivering a reserved judgment in such appeals would hardly qualify as ‘emergency’. What does this mean for a person in jail? He or she can continue in jail, as the case is not ‘urgent’?

Workers getting food, is good enough to satisfy the judicial conscience, thus, requiring no further consideration of any issue related to wages or other entitlements. How many of them do actually get food or shelter or who are the millions marching on foot, travelling on cycles and rickshaw- carts is not a matter which judiciary thinks fit to consider at all and judges seem to think these matters are best left to the executive since they know best how to implement the law.

Is it just a coincidence that only people from the minority community are being arrested in the national capital? After all, it is fair to assume that the police are acting fairly despite news reports suggesting that most of the apprehended are either from the minority community or were somehow related to protests against the ‘Citizenship Amendment Act’ (CAA). It’s not necessary to restrain the zealots running campaigns to vilify sections of Indian citizens, at least for the Supreme Court, and for those who feel the need, may approach some other suitable forum. Anything done by the executive being a matter of ‘policy’ and its review would be forbidden. In doing so, the Courts would only be following the time-honoured principle of not interfering in matters of policy mandated by the separation of powers and to prevent judicial overreach in the executive domain.

 

A necessary lockdown with unnecessary consequences

 

The Lockdown, as it was ordained, may not but be absolutely necessary. But is it blasphemous to suggest that the extreme step should have not been taken unmindful of the consequences for the majority of India’s poor who were compelled to walk home on railway tracks and face certain death? 

The right to life might be a guaranteed right, but if one dies walking or cycling to his or her village thousands of miles away, does the right to life get extinguished? If yes, by whom? Can anyone be held accountable or responsible? Even if not, would the dependents of the deceased be entitled to any compensation for infringement of the right to life? Would this also be a ‘policy’ matter beyond judicial review?  Or worse, would they be blamed for having attempted the journey back home or accused of being ungrateful for having failed to appreciate the generosity of the State and be a part of a conspiracy to malign the government and the nation and thus deserve no sympathy.

The sycophancy of leading voices even from among the legal community suggests that the day is not far away when the tired labourers who fell asleep on railway tracks on their ill-fated journey to their homes and villages are someday held guilty of negligence in some inquiry and the railways are given liberty to sue their families for damages.

The ex-Solicitor General of India, senior advocate Harish Salve, in his op-ed in Times of India, praised the people of India for largely co-operating with the Government and the Judiciary for its ‘reticence’ in entertaining PILs and ‘remarkable deference to the executive’ in times of the war on the Coronavirus. How far Mr. Salve’s expected trajectory of co-operation and deference continues, faced with the situation like blanket suspension of all labour Laws in the biggest state of India with around 20 crore population, remains to be seen.

 

The bureaucracy

 

Another gem from the bureaucracy is the clarification issued on May 3, by the Ministry of Home Affairs (MHA), which clarifies that the order allowing migrant workers to go back to their respective place shall include only those who had moved to the place where they are stuck just before the lockdown and shall not include persons who normally reside there. Construction workers who came a few months before the lockdown shall not be permitted to go back to their native place. Is there no need to question what is the difference between migrant labourers who came a week before lockdown and lost their jobs and migrant labourers who came two months before lockdown and lost their jobs, when both groups want to go back? The question is most likely to arise and may come before the Supreme Court too. However, I not dare predict the judicial outcome. It is not too early to keep ready an obituary for the fundamental right to freedom of trade and movement, even without a formal declaration of emergency.

 

No medical care

 

On May 6, a-31-year old police constable in Delhi despite having been taken to at least two hospitals complaining of symptoms of COVID-19 was neither tested nor admitted for treatment: he was dead by late evening. If this is the situation of a government functionary, what level of medical care can migrants expect especially as they are now jobless and also homeless having been thrown out of rented accommodation, and surviving on distributed food? If the executive fails, who should come to the rescue of the workers or indeed anyone in need? Mr Salve, however, in the same op-ed mentioned earlier, has suggested that those who want to raise such issues before courts should instead go and help such persons themselves. I would have expected a better piece of advice from a former Solicitor General of India. 

 

 

Ask no questions, we don’t want bad press

 

There is another argument and concern expressed before the Courts nowadays with increasing frequency and which appears to receive due appreciation. If the Court questions the Government or even asks for details of any steps taken by the Government to honour its own expressed commitments, it might result in the bad press: in other words, it might affect the ratings of the Government and so no questions should be asked. We are told that after all, we are in the middle of a war against an invisible enemy. The Court must, therefore, not even seek details or the status regarding the steps taken by the Government to ameliorate the sufferings of the most vulnerable, should not even express concern in such matters, since on being reported it would create the impression that the Executive and the Government are not doing enough.  In India, we have treated migrants workers like enemy forcing them to walk home miles away and often for on the journey out of fatigue and hunger. Our neighbour Bangladesh did better and have them adequate notice before the lockdown to enable them to make their plans for travel.

Mr Salve in his Op-ed also assures us that any restrictions or infringements on rights are not going to stay once the present crisis ends. The fact, however, is that the process of constricting the role of the Judiciary began before the pandemic by bringing it under pressure through strategies such as delaying and interfering with appointment and transfer of judges, undermining its authority in the public domain by referring to it as an unelected body, and publicly accusing the judiciary of overreach. When the ruling dispensation claims victory for some judgments such as Triple Talaq and Ram Mandir, it sends a message to the judiciary that they are on the right track, in so far as the State is concerned. Add to this, post-retirement rewards of judges and the faith of the citizens in the judiciary is lost. An already weakened judiciary is likely denying itself an effective role in justice delivery for some time to come and it’s difficult to see Mr Salves fond hopes come true.

 

Hope not evidence based

 

Expectations from the judiciary in India appear to be more a matter of faith rather than based on a rigorous examination of the role of the judiciary when faced with tough choices. Though the 1975 emergency era- ADMJabalpur judgment may continue to be the most widely known letdown of the judicial process in public memory, the present period has seen what some have described as an undeclared emergency and the performance of the judiciary is yet to be evaluated in this period.

Studies elsewhere, however, suggest we need to be circumspect in our expectations from judicial institutions. One such study in the context of American Constitutional Courts is by Bradley W. Joondeph (Professor of Law at Santa Clara University and a well-known author on federalism, judicial behaviour, and American constitutional development). He states in his article (The Many Meanings of “Politics” in Judicial Decision Making, 77 UMKC L. Rev. 347: 2008), that the ‘political’ for him includes allocation of contested resources to some and decision on who will pay the cost for it.

The study of American decision making takes into account decisions including Dread Scott (Scott V. Stanford, 60 U.S. (19How.)393(1857), a Supreme Court judgment that the Congress lacked the authority to legislate on slavery to abolish it and Brown v. Board of Education, 347 U.S. 483 (1954) where despite holding racial segregation in schools unconstitutional, racial segregation could be stopped only much later. It’s shown that the Judges do act politically. In acting politically, sometimes they seek to preserve or save the institution and avoid direct conflict with the powerful, sometimes in play is the inherent human tendency to be seeking approval from the powers that be and the wider public.  At other times, there is the awareness of the fact that the Executive does have a say in the appointment of judges, allocation of resources to the judiciary, conferring, and taking away jurisdiction by statute. Very often matters that the judiciary is called upon to decide on an urgent basis rather than other matters, is dictated by the choice and the preference of the Executive, rather than bases on a rational pattern. 

In the Indian context it will not be out of place to quote from the same article:

“As Mark Graber has suggested, the process of legal change and constitutional evolution in the United States is a bit like the game of basketball: spectators tend to pay disproportionate attention to the players who handle the ball and put it in the basket. But basketball players cannot score (at least with any regularity) unless several other players have worked hard to create those opportunities-playing defense, setting screens, rebounding, and moving without the ball. These facilitative acts may be less obvious, especially to the untrained eye. But they require a great deal of coordinated effort, and they are indispensable to the ultimate result. Legal policy-making is similar. Though judges may be the most salient actors, the most important action is often away from the ball.”

The realization for sure is dawning incrementally. Fairly recently, in this context, the well-known writer and thinker Pratap Bhanu Mehta wrote in his article in Indian Express published on December 12, 2019:

“The lesson here is that we can rely on the courts, if at all, only if we do a lot of work outside the courts. This is why it will be a mistake to rely just on the Supreme Court. The political challenge is to make sure that one party’s diabolical version of what is reasonable is not mistaken to be common sense. It will require using the BJP’s tactics: Political and ideological mobilisation outside the law to convey the sense that Indian citizens will not stand for a Republic that is discriminatory, fearful and panders to its own worst instincts. Only then may even the judges move.”

I could not agree more, however, with the caveat that the state of affairs where the poor and vulnerable appear increasingly marginalized in the judicial discourse does not mean that the judicial institution has changed its character only recently. The underlying logic of the judicial decision-making process more or less has been the same throughout, within the same constraints not only in India but the world over and dependent on what ideas hold sway in the society and nation. Filing Petitions is all right but the situation probably calls for a bit more initiative than filing petitions in Courts, we need to assert our rights as citizens and call out injustice everywhere.

 

 

(Ravindra S Garia is a Delhi-based advocate)

Note: This is an opinion piece, and the views expressed are the author’s own.

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