Former Law Minister and senior advocate Kapil Sibal says it is a matter of opinion whether or not the Supreme Court should have intervened earlier on the migrant workers’ issue but people can criticise the top court for not addressing the issue earlier. Excerpts from an exclusive interview.
The Supreme Court took suo motu notice of the migrant workers’ issue and gave directions to the Centre. But many jurists, most notably retired Justice A. P. Shah, said it “failed to satisfactorily acknowledge that the fundamental rights of migrant labourers have been violated”. Don’t you think the Court should have intervened earlier ?
First of all, I welcome the suo motu notice by the Supreme Court on the issue of the plight of migrant workers, many of whom are still waiting to reach their homes along with those who are still walking hundreds of kilometres in the hope of joining their families. That the Supreme Court should have taken note of their plight earlier and intervened is a matter of opinion.
Retired Judges have suggested that the concerns of migrant workers, the conditions in which they found themselves pursuant to the Prime Minister announcing a lockdown on March 24, 2020 should have persuaded the court to take up issues brought to their notice by public-spirited citizens. That there could not have been any private motivation in moving the Supreme Court is clear.
Even though no political party had moved the court, I believe that all stakeholders concerned, in the light of a brewing humanitarian crisis, do have the right to bring facts to the notice of the court. It is for the court to then apply its mind and decide whether or not to proceed further. The decision not to interfere earlier and to have accepted the Solicitor General’s statement that there were no migrants on the road is certainly a decision that is open to criticism. There is nothing untoward in making that criticism. People do have the right to criticise the court for it not to have addressed the issue earlier.
There is also a view that court judgments are often caught between opposing political ideologies. Justice Sanjay Kishan Kaul recently pointed out that social media has contributed to the erosion of people’s faith in the institution.
I don’t think the court should, however, be concerned with opposing political ideologies. I have always believed that the court must and should be ideologically neutral. I also believe that social media is not the only platform that has contributed to the erosion of people’s faith in the institution. There are many things that have happened within the court in the recent past that have contributed to this, which is why retired judges of the court have expressed their misgivings about the functioning of the court.
The fact that in January, 2019, four distinguished judges at a press conference expressed concerns about the functioning of the court and the threat to democracy, had nothing to do with the social media. The fact that an ex-Chief Justice presided over a Bench on a Saturday in respect of allegations concerning him had nothing to do with the social media. It is time for the institution to introspect and not blame only those beyond court precincts. It is, however, true that unregulated platforms in the social media can do a lot of damage not just to institutions, but also to individuals and others, depending on who funds the trolling army on social media platforms. It is time for courts to redefine freedom of speech in the context of platforms which allow for free-for-all onslaughts.
The Bar Council of India has accused certain individuals and even former Supreme Court judge of trying to malign the institution. What’s your take on this?
I do not wish to comment on statements made by the Bar Council of India. My take on this is that unless our professional institutions ,including Bar Councils, distance themselves from politics, they might not be able to adhere to standards expected of them consistent with their calling.
Recently, one read of a sharp exchange between you and Solicitor General Tushar Mehta. You said Mr. Mehta’s remarks — comparing media to vultures and charging High Courts with running parallel governments — was not ‘law but politics’. What exactly did you mean?
There was no sharp exchange. The government, through the Solicitor General, at the end of his submissions, treated us to a soliloquy. I happened to be in court. Any denial now is evidence of becoming wiser after the event; better to deny than defend.
The truth can be confirmed by counsel present at the hearing. He also charged High Courts with running parallel governments. For the government to have made that statement, is to say the least, most unfortunate. This had nothing to do with the issue being debated in court. High Court orders were not in appeal. It was purely a political attack against journalists and judges of High Courts dealing with the issue of migrants.
You have expressed reservation about the Centre using the National Disaster Management Act, 2005, to take over administrative powers across the country. But the Act was enacted by the Congress-led United Progressive Alliance. In hindsight, would you say your government drafted a bad law?
In fact, my opinion is just the opposite. I have referred to the statutory provisions of the National Disaster Management Act, 2005, in terms of which the National Disaster Management Authority (NDMA), chaired by the Prime Minister along with nine nominated members is to approve a National Plan to deal with a national disaster.
The NDMA is charged (Section12) with the responsibility of issuing guidelines prescribing minimum standards of relief to persons affected by the disaster including “minimum requirements to be provided in relief camps in relation to shelter, food, drinking water, medical cover and sanitation”. Special provisions are to be made for widows and orphans along with “ex-gratia assistance on account of loss of life and for restoration of means of livelihood”. Unfortunately, the NDMA has washed its hands of these obligations. So your question that the Congress-led UPA drafted a bad law is contrary to reality. In fact, this good law has been followed more in its breach than in compliance thereof.
The BJP has accused the Congress of doing politics even during a pandemic. On the other hand, there are others who believe the government can get away with poor planning because of a weak, if not non-existent, Opposition.
The accusation is entirely unfounded. If we criticise the government for not doing enough for the migrants, is it politics? The country is confronted with a humanitarian crisis. Any attempt to persuade the government to mitigate the misery of migrants and others is to serve a national cause. It is the duty of all political parties to bring to bear pressure on the government to discharge its constitutional and statutory obligations.
In fact, it is the other way round. It is the BJP that should be accused of politicising the genuine efforts of the Opposition to expose this government’s missteps in handling this crisis and to offer constructive criticism in public interest . This government has been insensitive not only to the concerns of hapless migrants but has also mishandled both the lockdown and the unlocking of the lockdown.
