“This institution is not hostage of government,” the Supreme Court said on Monday, 27 April as it sought reply from the Centre on a plea seeking direction to authorities to allow migrant workers across the country to return home after conducting coronavirus tests.
The top court's remark came after advocate Prashant Bhushan told the court that the government's view is being blindly considered without verifying it, while fundamental rights of people especially migrant workers are not being enforced.
A bench of Justices N V Ramana, Sanjay Kishan Kaul and B R Gavai questioned Bhushan, appearing for petitioners Jagdeep S Chhokar, former director in-charge of IIM, Ahmedabad, and lawyer Gaurav Jain, and said as to why should the court hear him, if he does not have faith in the system.
Bhushan said that this is an institution created by Constitution but the fundamental rights are being violated of these migrant workers and I am entitled express by anguish.
The bench told Bhushan, “You don’t have faith in judiciary. This institution is not hostage of government.”
Clarifying that he never said that he has no faith in this system, Bhushan added he could be wrong but similar opinion is expressed by some retired judges.
The bench told him that he claims to be practising in the apex court for past 30 years and then he must know that some orders are favourable and some are not and therefore he should not say such things.
Solicitor General Tushar Mehta, appearing for Centre told Bhushan that he should not be under the impression that he is the only one who is concerned with enforcement of fundamental rights.
He said the government is very much concerned with the issue and trying to provide all possible help to migrant workers.
Bhushan said that if there was any objection with regard to his appearance as a lawyer in the case, then he was willing to withdraw from the matter and some other lawyer will appear. The bench said that it had never asked him to withdraw from the matter.
Bhushan said the central government seems to have shut its eyes and should consider the distress situation faced by the migrant workers during the lockdown.
He said that more than 90 per cent migrant workers have not received the ration or wages; they are in desperate situation and should be allowed to go to their native places.
Mehta however said that these are incorrect reports and questioned the basis of the data given by the petitioners. He said the Centre is consulting states on the issue as to how many of migrant workers have to be transported, how many have to be given help and what kind of help.
The bench told Mehta hat it means that Centre is in consultation with states and is ready to examine the issue.
Mehta replied that the government is examining everything but the ideas of petitioner are not required and urged the court to not keep the petition pending as there are already several pleas, which have similar prayers.
Bhushan urged the court to allow inter-state transportation of migrant workers which was objected to by Mehta saying that it is for the government to look into all aspects keeping the larger interest of people in mind.
The Solicitor General requested the court to not issue notice and give directions on the plea as it would send wrong message and instead he would file a reply within two weeks.
The bench said it is giving one week time to Centre to respond whether there is any proposal on allowing inter-state transportation of migrant workers.
Meanwhile, the top court disposed of intervention applications filed by advocate Alakh Alok Srivastava on the issue of stopping inter-state migration of workers and said that it is the Central government to look into the issue.
The top court said it is not the coordinating agency between the Centre and states, and the Union government has to take necessary action in this regard.
Chhokar and Jain in their plea had said that in wake of the extension of the nationwide lockdown, the migrant workers who are among the worst affected category of people must be allowed to go back to their homes after being tested for COVID-19.
It said that those migrant workers who test negative for COVID-19 must not be forcefully kept in shelters or away from their homes and families against their wishes.
It said that although the national lockdown has been necessitated because of the unprecedented pandemic of COVID-19 and its imposition is much needed, it is submitted by the petitioners that the fundamental right of the migrant workers enshrined under Article 19(1)(d) (right to move freely throughout India) and Article 19(1)(e) of the Constitution (right to reside and settle in any part of India) cannot be suspended for an indefinite period.
It said that these migrant workers cannot be forced to stay away from their families and living in unpredictable and arduous conditions, as the same is an unreasonable restriction beyond what is envisaged under Article 19(5) of the Constitution.
The petition said that necessary transport services may be provided by the state governments in abundance so that the purpose of 'social distancing' is not defeated.
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