High Courts Reign Supreme!
By Sourabh Balwani and Ritwik Tyagi
Background
Over a long period of time, and especially during the ongoing pandemic, a glaring deduction that has arisen within the legal fraternity is that of the fissures that have emerged in our judicial machinery in dealing with matters of utmost importance. From the Right to Food to the Freedom of Press, from the mandatory imposition of Aarogya Setu to the charges being levied for ‘Shramik’ special trains, the various Constitutional courts in India have displayed differing standards of concern towards protecting the rights of people from being violated. The Supreme Court has seemingly abdicated its responsibility as a protector of individuals liberties, while the High Courts in India have turned out to be cynosures for the common people. The manner in which the High Courts have dealt with the cases vis-à-vis the Supreme Court, is something which should be scrutinised.
Long gone are the golden days when a common person could regard the Supreme Court of India as the custodian of his/her fundamental rights, as the guardian angel for upholding the collective conscience of the nation, and perhaps as the gatekeeper who prevents the legislative and executive branches from crossing certain boundaries. Here, the emphasis is laid on the word common because for a certain section of the society, the Supreme Court has transformed into a personal court of sorts, where the smallest of their concerns are treated with the utmost importance and prioritised over real troubles of those who are suffering every day.
Recent events in light of the pandemic have demonstrated that the Supreme Court is growing more and more exclusionary in terms of who can knock on its doors. By adopting the use of technology to facilitate virtual courts, the court has shown its inclination to take up only cases of utmost importance. The arbitrary exercise of this power to be able to choose what cases are worthy enough to be considered important has corrupted the functioning of the Court. While the poor never really had the luxury of access to justice, the implementation of virtual courts has put the nail in the coffin by completely blocking their path to the so-called temple of justice.
The Plight of Migrant Workers
It needs no explanation of how this complete shutdown has affected the lives of poor migrant workers. The visuals of them heading back to their villages speak a thousand words about the socio-economic failure of Indian milieu. As we know, a petition to direct the Central Government to allow migrant workers to safely return to their villages was filed before the Supreme Court. The Court, as per its Standard Operating Procedure, considered a petition filed by Arnab Goswami in relation to cases filed against him by Congress party workers, as a matter of extreme urgency and heard the matter within fourteen hours of filing. On the other end of the spectrum, the Supreme Court took ten days to conduct hearings in the petition for safe transportation of migrant workers. The demarcation of matters by the Court stipulated under the list of extreme urgency is an enigma in itself.
What more can be said about the blind lady who weighs the importance of hearing a case based upon the background and affiliations of the person seeking relief? That is precisely why Arnab Goswami’s case was heard expeditiously while cries of help raised on behalf of the destitute and poor aren’t entertained with similar gusto. The bias has become all the more apparent through the case of Mr. Goswami where the Court attempts to portray itself as a protector of the fourth estate but turns a blind eye to the ruling dispensation that has been trying its best to smother and stifle journalists by charging them with the colonial-era law of sedition.
Many other journalists apart from Mr. Goswami are facing FIRs against them filed by the government, and many have also been languishing in jails for questioning the establishment. In Gujarat, journalist Dhaval Patel was charged with sedition and arrested by the police after he penned an article saying the Chief Minister of Gujarat may be replaced due to his mishandling of the COVID crisis. Yet, the Supreme Court chooses to express its desire to protect press freedom only for Mr. Goswami! A recent decision of the Madras High Court in a defamation case involving journalist Sandhya Ravishankar is an apt commentary on the approach of the Supreme Court towards press freedom. Justice GR Swaminathan of Madras HC emphasized, “I am clearly of the view that there is no point in merely singing paeans to freedom of the press, if one cannot go to its rescue when the said right is faced with a serious threat.”
To our utter dismay, many migrant workers lost their lives while treading endless roads towards their native places. This is undeniably a smack on the face of Indian society and its institutions, which have failed to protect the rights of those very people for whom they are constitutionally responsible. The Supreme Court recently dismissed a petition, which sought directions for ensuring the alleviation of the sufferings of workers walking back home, with the remark “How can anyone stop this when they sleep on railway tracks?” The court was referring to the accidental death of sixteen workers who were mowed by a carrier train in Aurangabad while they were sleeping on tracks. The desperation on the part of workers to reach their homes reflects the shortcomings on the part of political and executive organs to ensure decent food and shelter arrangements, and the corollary failure on the part of Supreme Court by accepting the submissions of the Central Government without questioning the veracity of its claims.
On the contrary, some of the High Courts came to the forefront in ensuring that miseries of the thousands walking in the scorching heat are looked into by effective governmental actions. The Karnataka HC, noting the plight of migrants, directed the State Government to place on record its policy of enabling the migrant workers to leave Karnataka and reach their respective States. In a separate hearing, the HC also said that no migrant should be deprived of the opportunity to go back to his own State due to his incapacity to pay for the transport. The Gujarat HC, taking suo motu cognizance, sought response from the Government on issues relating to problems faced by downtrodden people in accessing the food and medical care. Recently, the Gujarat HC also reprimanded Railway authorities for levying charges for transportation of the migrant workers. The court asked that the fares of these ‘Shramik’ trains should either be waived off or be recovered by Railways from the respective State Governments.
In fact, of late, quite a few High Courts have bucked the trend set by the Supreme Court. In the past few months, a disturbing trend has emerged wherein the Apex Court has forgotten its responsibility of being an impartial referee. The Court takes anything the government and its lawyers submit at face value and never raises doubt on the validity of the figures presented by the Government. For instance, in late March, the Solicitor General Tushar Mehta submitted before the Court that there was not a single migrant walking on the road. This was taken into account by the Court even when there was an abundance of media coverage on the number of people trudging home on the roads. Surely, the learned judges do read the news!
The Madras HC also questioned the response of the Central and State Governments, expressing consternation that even after the egregious wretchedness of the migrant workers, there was no coordination between the executive arms to facilitate the safe passage of migrant workers. The Andhra Pradesh HC, acknowledging its constitutional duty, also remarked that “the non-action by the Court to pass orders at this stage would result in the Court failing in its role as a protector and alleviator of suffering.”
Mandatory Imposition of Aarogya Setu
Compelling both private and public sector employees to download the Aarogya Setu application, the Central Government stoked controversy by issuing a notification that would have led to a potential violation of the right to privacy. A writ petition was filed in the Kerala HC challenging the notification. The Court evinced incertitude about the practicality of the condition on employers to ensure that the application had been downloaded by their employees. The Court, stating the fact that many workers don’t have smartphones, directed the Central Government to file a statement as to why this mandatory imposition should not be considered problematic. Earlier, a division bench of the same Court asked the Central Government to file a statement enlisting the privacy safeguards of the application. After lots of furore, the Government withdrew the impugned notification.
Proactive High Courts
The fact that the High Courts have shown more spine than the Supreme Court in matters relating to fundamental rights violations is true not just for the period of the lockdown. On the contrary, even before the pandemic, High Courts were busy protecting the rights of the citizenry better than the Supreme Court. Take, for starters, the Gauhati HC’s stance on the right to internet access. While directing the Government to restore internet services in the State (which had been suspended in light of the anti-CAA protests), the Court remarked “Shut down of mobile internet service virtually amounts to bringing life to a grinding halt.” The HC took a very progressive view of the issue when compared with the Supreme Court’s approach to the Anuradha Bhasin case, which was concerned with the internet shutdown in J&K, where it failed to take any concrete stand and merely passed the baton to the Centre.
In another matter concerning protests against the CAA, the Allahabad HC took suo moto notice of the decision of the Uttar Pradesh government to put up hoardings containing names, photos, and addresses of persons accused of violence in the protests. The Court observed that the hoardings were an encroachment on personal liberty. Subsequently, the HC directed the concerned authorities to remove all such hoardings that had been put. It was noted that putting up such hoardings qualified as “undemocratic functioning of government agencies which are supposed to treat all members of public with respect and courtesy and at all time should behave in manner that upholds constitutional and democratic values.”
On the same lines, the Karnataka HC had granted bail to several persons who had been arrested on charges of violence from an anti-CAA protest site in Mangalore. The Court noted that “The records indicate that deliberate attempt has been made to trump up evidence and to deprive the liberties of petitioners by fabricating evidence.” It also reprimanded the State for attempting to cover up police excesses.
Conclusion
A prima-facie view of the above instances reflects that the High Courts are more alacritous than the Supreme Court, which is the Court of the highest authority, in ensuring that the individual privileges and rights are not trampled upon. The High Courts have been the sentinels on qui vive, fulfilling the constitutional duty to which they are ordained and supervising the actions of the political and executive authorities.
The lethargic response of the Supreme Court toward holding the executive accountable has cast aspersions on its image as an independent institution. Many legal luminaries have questioned the working of the Supreme Court, in an attempt to remind it of the sacred constitutional duty which it holds towards the people. These questions must be raised, for apprising the court of its promise to the people is not contempt of the court. The Court’s inaction is reminiscent of the emergency era when ADM Jabalpur happened and piercingly prompts us to the ghastly epoch when various High Courts audaciously pinched the governmental excesses, though the Supreme Court overruled their pronouncements.
The Supreme Court has shown supreme indifference to the plight of the poor who have been affected the most by the lockdown. This indifference can be summed up appropriately through the Chief Justice of India’s remark, “If they are being provided meals, then why do they need money for meals?” By refusing to help the poorest section of society in their time of need, the Court has shown its utter incompetence. Although, in a face-saving moment, the Supreme Court did take up suo moto cognizance of the plight of the migrant workers during the pandemic, no concrete direction was given by the Court, rather the Solicitor General was allowed to use the forum to shoot the messengers by labeling the media as prophets of doom.
The Supreme Court has, however, been an emblem of activism, leading the entire judicial machinery of the country. It has, throughout the extensive-time period of its existence, developed a spine to question the transgressions of the legislature and executive. One hopes that the court will emerge out of its inhibitions and prevent this laxity from becoming perpetual.
