Social distancing from the powerless

Judicial abnegation by the top court is not healthy for an institution trusted as being the protector and enforcer of rights

Published - May 19, 2020 12:02 am IST

Some people who have had near-death experiences narrate how they could see everything happening around them but could not intervene in any manner. They tried shouting into the void but nobody heard and life went on around them, with people even talking about them as having recently passed over.

An isolated court

Thanks to the registry of the Supreme Court of India and its infamous Vidyo, the video conferencing app, I had a similar experience last week. Waiting for my item, I could see and hear the virtual court, but with my microphone and video shut down, I was like my mythical namesake, Sanjaya, who could see and hear and narrate the Mahabharata war, but not participate in any manner. I write in the fond hope that an occasional Dhritarashtra might yet benefit from my narration. My entire online wait, from 10.30 a.m. to noon, was rendered fruitless, but for what I accidentally witnessed.

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While waiting for my own matter to be called out, I happened to witness the Court’s proceedings on the matter of migrant workers who are walking back home in the midst of the national lockdown — an issue which has now attracted universal disapproval on social media and other platforms. I testify that what happened in the hearing was not an unfeeling Court, as has been made out. It was simply an isolated Court, dealing with the matter in a routine way, a habit learned from a time before COVID-19.

It is obvious to me that the judges of the top court have not fully grasped both the threat and the opportunities posed by the new medium of virtual courts. A virtual court on a video app is as different from an open court in physical space as a movie or a television series is from an actual event. A judicial hearing on a video needs different skill sets. It calls for visual performance art on the part of lawyers as well as judges.

Also read: Coronavirus | Lockdown, social distancing measures can’t continue forever: Harsh Vardhan

Justice Gautam Patel of the Bombay High Court, in a recent webinar on the post-COVID-19 legal world, rightly pointed that judges would be required to have a great deal of patience. We are not going to be able to evolve an absolutely perfect system to replace or substitute the earlier system. In adapting video conferencing apps for virtual courts, we have taken something for corporate work and used it for a court’s workflow, which it was not designed to handle.

As someone with some experience of visual media, it seems to me that in a virtual courtroom, judges and lawyers should not only do justice to the matters before them but also be seen to be doing justice after a measured consideration of the issues before them. They must bear in mind that their display of measured consideration is transmitted instantly to the world at large through three court reporters, who are allowed to cover the video feed from the journalists’ lounge of the Supreme Court. The reporters’ instant tweets amplify a routine dismissal or issuance of notice in a petition into an oracular pronouncement from the highest constitutional court to be debated at 9 p.m. in the cacophony on television every day.

Home-bound migrant labour

In the case of the walking migrants, the petition was presented by an advocate who had even earlier during the novel coronavirus pandemic filed and presented public interest litigations (PILs). These petitions, on different issues had been dismissed and he had been threatened with the imposition of costs. According to the Solicitor General’s submission, the lawyer appeared to be combating COVID-19 unemployment by creating work for himself.

While presenting the case, the lawyer referred to the fact that some days earlier, a petition by Prashant Bhushan raising similar issues had been declined by the Court. The dismissal was after a statement of the Solicitor General that there were no migrant workers walking home on the roads for hundreds of kilometres. He wanted that statement of the government to be enforced in a manner that the migrants would not be required to walk endlessly on the road.

It is against this backdrop that the judges asked what they could do in the matter. The petitioner advocate mentioned the case of migrants who had been run over by a train in Aurangabad, Maharashtra earlier this month while walking back home. The Bench responded that it could not prevent people from walking anywhere they wanted. That observation, when taken out of context, looks like a Marie Antoinette moment for the institution.

Thereafter, the advocate (of PIL fame) sought to persist and stood his ground. The Bench gave short shrift to the matter and imposed costs of ₹1 lakh to deter further arguments. I later overheard the presiding judge instruct the stenographer to delete the line imposing these costs. The microphone of the petitioner lawyer was muted and he was locked out of the hearing. Before the next matter was called, the Bench did ask the Solicitor General if anything could be done concerning the issue of the migrant workers. He indicated that not much seemed possible, according to his instructions.

This brief encounter may have not caused comment in normal times as a physical hearing in an open court. It may then have been seen as yet another petition with publicity in mind, where the Court had preferred either not to be drawn into political thickets or to not take over administration in an area where it lacked expertise. However, these are no ordinary times.

On March 31, 2020, a different Bench had been persuaded by the Solicitor General’s submission that migrants had ceased to walk home. At that time, the judges may have been ignorant of the fact that one of their brethren (on March 30, 2020) had stepped out on the roads of Delhi to deliver food packets to migrants walking home.

Over 40 days later, on May 15, when the second petition came up, the continuing exodus of an increasingly hungry, tired and desperate citizenry, walking like the living dead on an uncertain way homewards, is something that the top court ought not to have ignored. The dismissal of the issue earlier was not a binding precedent. In social action litigation, procedure is but handmaiden to justice. Irrespective of the messenger or the form of the message, the issue deserved careful consideration.

A retreat that is jarring

Former Prime Minister P.V. Narasimha Rao had once rationalised, “It is not that I do nothing. I think about it and decide that nothing can be done.” The appearance of even thinking about doing something was given short shrift by the top court. This attitude of judicial abnegation, of being more executive-minded than the executive, is not healthy for an institution rooted in public trust derived from a constitutional mandate of being the protector and enforcer of the rights of all citizens.

Post the Emergency years, the Court had redeemed its earlier surrender to the executive by embarking on an expansion of social action litigation. In recent years, while the judiciary has retreated from expansive jurisdiction, it has still played a significant role in nudging the executive, without necessarily ordering it around. But never has it hitherto socially distanced itself from the powerless.

High Courts show the way

In contrast, on that very day, the same Court granted some modicum of relief to the real estate industry in respect of its loans. By another order, industries with unpaid wages during the pandemic were protected from prosecution. The contrast was only heightened when the High Court of Madras and the High Court of Andhra Pradesh, on the same day eloquently voiced their concern over migrant labour walking back. The High Court of Madras even sought responses and status reports on the issue from the central and State governments.

In our constitutional scheme, High Courts are on a par with the Supreme Court in the enforcement of the fundamental rights of the citizen. The Supreme Court does exercise an appellate jurisdiction but it is final not because it is infallible. It is infallible because it is final. During the Emergency, several High Courts ruled in favour of the citizen only to be overturned by the Supreme Court in ADM Jabalpur . It remains to be seen whether on the issue of the walking migrants, the Supreme Court will be now be moved against the orders of the High Court of Madras and the High Court of Andhra Pradesh.

If such a petition is indeed moved by the Solicitor General, I do hope that somewhere in the Court, there exists a person who remembers Bob Dylan singing: “Yes, ‘n’ how many ears must one man have/Before he can hear people cry?/Yes, ‘n’ how many deaths will it take ‘til he knows/That too many people have died?/The answer, my friend, is blowin’ in the wind/The answer is blowin’ in the wind”.

Sanjay Hegde is a senior advocate of the Supreme Court

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