Why Have Indian Courts Shut Shop When We Need Them the Most?

Image of Supreme Court used for representational purposes.

(Photo: The Quint)

It was disappointing to see the Chief Justice of India uncritically accept the submissions made by the Solicitor General of India to the effect that the massive surge in migration was caused by fake news.

The ‘fake news’ submission of the Solicitor General is only a cover up for the ill-thought out and irrationally executed lockdown that has inflicted unparalleled cruelty on the people of India and will, in all probability, bring the mighty Indian economy to its knees.

Fake news has nothing to do with the migration. The reality is that with the announcement of the lockdown millions of workers lost their jobs and their families are on the brink of starvation. They are unable to move out of their homes to search for petty employment, food and medicines. It is in these circumstances that the migration to their villages began. It is the failure of all Governments to provide effective feeding centres and Mohalla Clinics that led to the present exodus.

• It was of utmost importance for juduciary to conduct proceedings on a regular basis and with full strength looking into hunger and starvation deaths.
  
• At a time when the judiciary should have been most active, judges have reacted with panic and closed down the system.
  
• Judiciary needs to be aware of ground realities.
  
• How difficult is it to have a full day hearing by video conferencing and make a final order in pending cases like that of Jamia students?
  
• A whole new generation of young Indians are growing up with little respect or regard for the justice system.
  

Many Mohalla Clinics in Delhi are closed down. The ration shops have likewise pulled down their shutters. The feeding centres cater only to a minute fraction of the starving population. In any case should a poor person try to reach a hunger relief center or a medical facility he is often beaten with lathis by the Rapid Action Force. It took and intervention by the Delhi High Court to improve the situation.

What the Supreme Court Chose Not to See

Nothing prevents the Indian Judiciary from taking a stand independent of state propaganda. Video conferencing makes it easy for judges to conduct regular full day hearings treating the Corona Virus issue as a Public Interest Litigation of the highest importance. Should the judiciary be so inclined thousands of social activists who are currently in the field across India would provide the judiciary and the country with an intricate alternative factual matrix and a different perspective.

Thus, it was of utmost importance for the High Courts and the Supreme Court to conduct proceedings on a regular basis and with full strength looking into hunger and starvation deaths.

They would have then seen the destitution of women and children, homelessness on a large scale, violence by the police, absence of medical assistance, the closure of private hospitals, the closure of the OPDs of public hospitals, the effect on farmers and food production nationwide, people in jail, juveniles in institutions, and the large scale absenteeism of public officials who ran away when they were needed most while exceptional officers risked their lives.

Judges Should Not Have Panicked

The courts could also look into the shutting down of existing, well established, statutorily mandated and judicially ordered national programmes such as the mid-day meal for all students, the supplementary nutrition programme for children and the National Maternity Benefits Scheme for pregnant women and lactating mothers. Instead, access to justice has become impossible and approaching Courts a herculean task. At a time when the judiciary should have been most active, judges have reacted with panic and closed down the system.

Just as Justice Ravindra Bhatt of the Supreme Court distributed food packets, other judges must learn not to be intimidated by government overkill and evolve a calibrated and careful out-of-the box response, perhaps even by visiting slum areas, anganwadi centres, medical centres and feeding centres where the people are supposed to be adequately looked after.

This would obviate the need for complete reliance on the glib submissions made to them by the very people who caused this anguish and suffering in the first place. It is not too late for the judiciary to change course, but for this the judiciary will need to do some soul searching and take an activist route of finding out for themselves as to what is really happening on ground.

The Case of Riot-Affected Persons of North-East Delhi

The awful treatment of the riot affected persons in Delhi is a case in point. During the riots 62 persons were killed, upwards of 600 injured and hundreds of homes and shops burnt down. Although the state government promptly announced a compensation scheme of 10 Lakhs for every person killed, many households have not received full compensation. Similarly, compensation for houses and shops burnt and for those injured have not been paid to many families. A part from an interim payment of ₹25,000, many have not received anything more. This non-payment of compensation at a time when the riot victims were destitute and needed this amount to reconstruct their lives came as a crippling blow to the minority community.

Even more shocking was the closure of existing facilities. 600 riot victims were housed at Eidgah at Mustafabad. The place was clean, the food was good, and people were treated with dignity. There were, of course, a number of problems such as inadequate toilets and the complete abandonment by government doctors. Nevertheless, the heroic attempts by the Muslim community saw the place run.

Just as the police once again gave permission for four new camps to be established, the government of Delhi took a decision in the opposite direction and closed down the sole existing camp leaving the victims on the roads struggling to find rental places and trying to fit in with relatives who already housed large families in tiny places.

In an act of unprecedented cruelty the camp was closed overnight. According to the testimonies of the residents, persons were pushed out by officials spreading rumours of the virus coupled with the threat of violence by the police. The glib response of the administration that the inmates of the Eidgah left voluntarily was spectacularly exposed by media.

Why is Judiciary Trusting Governments Blindly?

The so called 300 plus food centres allegedly set up by the Delhi government in schools and elsewhere were often slow to become operational and had inadequate food to distribute to the thousands of hungry persons. By the time Delhi government got its act partially together the damage was done. Distrusting all governments and all political parties the urban poor spoke with their feet. They got up and left. The whole plan of social distancing was blown up in a day when tens of thousands of migrant workers clustered shoulder to shoulder in long marches and in overcrowded buses.

When men, women and children began marching to reach the Noida and Haryana borders, not a single feeding centre could be seen and none were reported in the newspapers. Similarly in the Anand Vihar area there was no distribution of food to be seen. Even in areas of Delhi where unorganised labourers were grouping together there was no access to food. Going through the media coverage of the long march it becomes clear that the travelling migrants had no access to food and water.

We are living in a period of unparalleled cruelty and irrational decision making by the executive.

Blind faith of the judiciary in the government is a sign of the times.

So too is the social distancing of the judiciary from reputed social activists and scholars. Intelligence reports and off-the-cuff and ill prepared court submissions take precedence over civil society expertise and commitment. Judges must distance themselves from these self-serving pats on the back and build contacts with civil society organisations who are even today working very closely with people.

This willingness to accept that the government is doing the best possible job in a situation of emergency not only ignores the fact that government often creates or exacerbates the emergency. It also sends out a green signal to governments that in a situation such as the present one, society cannot afford the luxury of human rights discourse. This has already led to the undermining of the rule of law in the country.

As this article goes to the media the Jamia Writ Petitions, where students were massacred by the Delhi Police merely for proposing to conduct a peaceful march to parliament, lies gathering dust in the High Court, despite a Supreme Court order for the matter to be heard. How difficult is it to have a full day hearing by video conferencing and make a final order? What is at stake is not just broken bones and a blinded student.

A whole new generation of young Indians are growing up with little respect or regard for the justice system. The awe and fascination young lawyers like myself had when we joined the profession is nowhere to be seen. This is what we must understand when we close down our courts and make access impossible to all but a chosen few.

(The author is a designated Senior Advocate of the Supreme Court of India and the founder of Human Rights Law Network (HRLN). This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)