On March 31, the Supreme Court of India (SC), entertaining a writ petition under Article 32, passed an order which raises more questions than it seeks to answer. The writ petition was purportedly filed in the public interest, “for redressal of grievances of migrant workers in different parts of the country”. However, the Court has proceeded to issue several directions which are clearly in favour of the respondent, the Union of India. Amongst others, the following three directions were uncalled for:
One, that under section 54 of the Disaster Management Act, 2005, persons can be punished with imprisonment, which may extend to one year, or with a fine for making or circulating a false alarm or warning. Disobedience of the order including an advisory by a public servant would result in punishment under section 188 of the IPC. Two, all concerned, that is the state government, public authorities and citizens, will faithfully comply with directives, advisory and orders issued by the Union of India in letter and spirit in the interest of public safety. Three, the media should only refer to and publish the official version of the Government of India, publishing a daily bulletin.
After giving substantial reliefs to the Union of India, the SC proceeded to make mere observations about migrant labourers by directing that they should be dealt with “in a humane manner” and that “trained counsellors, community leaders and volunteers must be engaged along with the police to supervise the welfare activities of migrants”. The SC has virtually absolved the government for its handling of the situation.
The basis of the directions is a statement made by the Solicitor General of India and some status reports to the effect that “the exodus of migrant labourers was triggered due to panic created by some fake/misleading news and social media”. The SC has proceeded on assumptions and surmises which were untested and unchallenged. In a matter of such seriousness, the least it should have done was to have appointed an amicus curiae (a friend of the court) to assist it rather than simply accept the self-serving status reports and statements made before it.
The Court overlooked the fact that in India, hundreds of millions of people work during the day and are paid at the end of the day and then go and buy their foodstuffs. They have no savings, nor do they have foodgrains stored. It is surprising that the Court, the custodian of fundamental rights, should be oblivious to this reality. Even workers in the manufacturing or service sectors do not have sufficient means to survive beyond a short period.
The Court should have been mindful that the government should have taken effective measures to prevent this human tragedy since January when China had reported the epidemic. Those in power should have known the peculiar nature of Indian society and the precarious life of its citizens. Even by March 11, when the WHO had declared a pandemic, the Indian government did not stir into action.
When the prime minister called for a janata curfew on March 20, government officials did not take precautionary measures. If the government had directed by then that all the employers should pay advance salaries for March and April and all landlords were prohibited to collect rent for two months and all ration shops were kept open for those below the poverty line, the crisis could have been mitigated. Even as a layman, I could have foreseen the suffering of the people and thought of a few steps to ameliorate it. So, why could the experts in the government not do so? They have a constitutional responsibility to look after the people. The Court should have challenged the Union of India on all these grounds. Instead, it has allowed the Union of India to get away under the premise of “fake news and social media”.
Citizens have the right to freedom of speech and expression. Press freedom is a part of this. Citizens have the right to receive information as well. Article 13 (2) of the Constitution says that the state cannot make any law which takes away or abridges the fundamental rights. If Parliament cannot do so, the Supreme Court — the upholder of the constitutional rights — surely cannot do so.
The SC has itself held in M Nagraj (2006): “A right becomes a fundamental right because it has foundational value. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that part of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled, is to be given a generous and purposive construction.”
One wonders why despite disowning the majority judgment in the infamous ADM Jabalpur, the Court has not been mindful of Justice H R Khanna’s powerful dissent. He said: “The greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the rule of law… Extraordinary powers are always assumed by the government in all countries in times of emergency because of the extraordinary nature of emergency. More is at stake in these cases than the liberty of a few individuals or the correct construction of wording of an order. What is at stake is the Rule of Law.”
The SC has given a carte blanche to the authorities, and citizens appear to have no avenues of redress. Most of all, by condemning the media and social media, holding them responsible for fake news, the SC has done a great disservice to the institution which provides information to citizens and upholds democracy.
The SC should not have made all media subservient to the government by directing that the former “refer to and publish the official version about the developments”. Such an order could be justified only during an emergency and that too by the executive, subject to challenge before the courts.
This article first appeared in print edition on April 3 under the title “Carte blanche and a blind eye”. The writer, a senior advocate, is currently president of the Supreme Court bar association. Views are personal.
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