How the Supreme Court and the High Courts have dealt with worst migrant crisis faced by the nation

In our country’s efforts to contain the COVID-19 pandemic, the migrant labourer has paid a huge, painful price. While on one hand, the government has managed the pandemic commendably and has even come forward to support businesses, the migrant worker, who is the very essence of these institutions, has remained largely ignored.

It is ironic that for a virus which was brought into the country by the rich and the privileged, it is the poor worker who is walking hundreds of miles on foot in scorching heat, dying of starvation, and getting killed in accidents.

It is deeply unfortunate that despite having a glorious tradition of commitment to social justice, we have failed the poorest of our society. The government should have considered deployment of the Army to contain the migrant crisis since the present situation is akin to a war and is reminiscent of the 1947 partition.

The Supreme Court has never shirked from resolving the common man’s problems, be it pollution issues or human rights issues. However, migrants have thus far faced only disappointment, as the Apex Court dismissed plea after plea, maintaining a policy of non-interference.

The question at the moment is whether the suo motu cognizance taken by the Court on May 26, after two months since the migrant crisis came to the fore, is delayed? Did the Supreme Court grant too much leeway to the government? The answer to these questions is not possible without examining the manner in which the Supreme Court has treated the various petitions that were filed before it.

Mahua Moitra v. Union of India [Dismissed on April 13]

When the Supreme Court took suo motu cognizance of a letter written by Lok Sabha MP Mahua Moitra, it seemed like a ray of hope. The letter highlighted the plight of migrant workers and appealed that unless a serious and immediate intervention was made by Executive agencies, thousands will perish from starvation and lakhs more will face the risk of contracting and spreading the COVID-19 virus.

She urged the Supreme Court to take notice of this grave humanitarian crisis and sought directions to the Executive agencies to make arrangements for these workers and ensure that their employers provide them full wages, food rations and shelter till the crisis abates.

Harsh Mander & Anr. v. Union of India & Anr. [Disposed of on April 21]

This petition sought directions to the Central and state governments to ensure payments of wages/minimum wages to all the migrant workers. On April 3, when the matter was taken up, the Supreme Court directed the Union to respond to the petition. On April 7, the matter was again taken up and it was directed that it would be listed on April 13 and the Union would in the meanwhile provide a copy of the status report to the petitioners. According to several news reports, it was on this date that a rather strange question was put up to Prashant Bhushan, counsel for the petitioners. CJI SA Bobde reportedly asked:

“If they are being provided meals, then why do they need money for meals?”

Thereafter, on April 21, when the matter was finally heard, Bhushan intimated the Court that despite governmental measures, thousands of labourers still lack access to basic amenities. Solicitor General Tushar Mehta responded by saying that various measures were already in place to address the issue of migrant workers including a helpline number where people could report issues concerning the implementation at the ground level. Relying on the government’s statement at face value, the Court disposed of the writ petition by observing as follows:

“Taking into consideration the material placed before us, we call upon the respondent-Union of India to look into such material and take such steps as it finds fit to resolve the issues raised in the petition."

Swami Agnivesh & Anr. v. Union of India & Ors. [Disposed of on April 21]

Swami Agnivesh filed a plea seeking immediate relief to the poor, informal sector workers, slum dwellers, homeless and economically weaker sections living in hunger during the COVID-19 lockdown. It was alleged in the petition that the government hardly made any provision for providing basic humanitarian aid and emergency services for the poor for the period of lockdown.

It was also mentioned in the petition that the Centre and state governments took initiative for providing relief packages, but the feedback from the ground was that these reliefs mainly remained on paper. It was further mentioned that thousands of workers begun walking from different parts of the Delhi towards the Uttar Pradesh border and that there were no feeding centres, drinking water facilities etc. It was also mentioned that in the existing shelter homes, thousands of people had gathered in the hope of finding food and water.

Again, on April 21, the Supreme Court disposed of the matter after recording the statement of the Solicitor General that the aspects highlighted in the petition will be looked into and if necessary, the government will issue requisite directions.

Arun Roy & Anr. v. Union of India & Anr. [Matter directed to be listed two weeks after the lockdown]

This PIL was filed seeking directions for payment of wages to workers under the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA) during the lockdown and issuance of temporary cards to all migrants who had been able to return to their villages. It is relevant to note that this is one of the few petitions which are still pending and has not been disposed of by the Supreme Court yet.

However, the order which has been passed effectively disposes of the petition. On April 8, the Court simply recorded the submission of the Solicitor General that an amount of Rs. 6,800 has been paid towards arrears of wages and directed that the matter be listed two weeks after the lockdown.

Alakh Alok Srivastava v. Union of India [Disposed of on April 3]

On March 31, the Supreme Court heard two more writ petitions filed for redressal of grievances of migrant labourers in different parts of the country. In these petitions, the petitioners highlighted the plight of migrant workers who were walking hundreds of kilometres from their work places to their villages/towns. On March 30, the Union was directed to submit its response. Subsequently, when the matter was taken up on March 31, the Union had filed a status report.

The Centre claimed that the mass migration had stopped and that all the migrant workers who were on the road had been shifted to relief camps/shelter homes set up at various points in each state/union territory.

The Court lamented the proliferation of fake news as the reason for the panic which caused migration and directed the media to publish the official version of developments, made available by the government in the form of a daily bulletin. Here also, the statement of the Solicitor General was simply recorded where he ensured that trained counsellors and/or community group leaders of all faiths would visit the relief camps/shelter to deal with the issues faced by migrants.

The matter was ultimately disposed of on April 27 and the guidelines contained in the order dated March 31 were to continue.

Jagdeep S Chhokar & Anr. v. Union of India [Disposed of on May 5]

This plea was filed for a direction to the Union to allow migrant workers across the country to return to their hometowns after conducting necessary testing for COVID-19 and to arrange for their safe travel. On April 27, the Court directed the Solicitor General to place on record the proposed protocol, if any, for movement of migrant workers between states. Ultimately, the matter was disposed of on May 5, since the government had permitted the movement of migrant workers and was also starting Shramik Special Trains for them.

It was observed that the substantial part of the prayer was taken care of and though the government had directed the migrant workers to pay 15% of the train fare, it was not for the Supreme Court to issue any directions in that regard under Article 32.

Sagheer Ahmed Khan v. Union of India [Notice issued on May 15]

This petition was filed by a migrant lawyer who is currently practicing before the Bombay High Court. In this petition, it was highlighted that the nationwide lockdown had caused a large exodus of migrant workers. The petitioner himself being a migrant from Sant Kabir Nagar in Uttar Pradesh, sought urgent directions for provision of suitable arrangements to repatriate the migrants belonging to his district by arranging train(s) or any other mode of transportation from Mumbai.

He expressed willingness to personally deposit a sum of Rs. 25 lakh with the Supreme Court for the safe repatriation of these migrants, who belonged to his hometown.

On May 15, the Supreme Court issued notice in the said matter, returnable in two weeks’ time.

It is concerning to read such orders, where matters have been casually disposed of, placing over-reliance on the assurance of the learned Solicitor General. In one of the petitions, the Court has even recorded that there is no migrant on the roads merely based on a statement by the government. The most basic right to life of the poor migrants is being crushed on a daily, while petitions were disposed of in a routine manner.

It bears clarification that the Executive must be given some additional elbow room while it is dealing with a global pandemic of the present nature . However, when the failure of the State is so apparent, the Court could have played a major role in verifying its claims, monitoring the process, and holding the government accountable for its failures.

Response of High Courts

In comparison to the Supreme Court, the High Courts till now have been much more sensitive and forthcoming in dealing with the humanitarian crisis. Some of the recent orders are summarized below:-

Karnataka, Gujarat and Tamil Nadu

Mohammed Arif Jameel v. Union of India [Orders dated May 12, 18 and 21]

In a remarkable order which has received praise from eminent jurists like Fali Nariman, the order of the Karnataka High Court dated May 12 deserves to be discussed. In the controversy surrounding fares of the special trains arranged by the government to repatriate migrant workers, the High Court made strong observations against the state government’s refusal to bear the cost. The High Court directed the state government to immediately take a decision on the issue, while observing,

A day after the Karnataka High Court directed it to clarify its stand on whether it will bear the cost of travel for outgoing migrants amid the COVID-19 lockdown, the state government decided to do so.

Suo Motu v. State of Gujarat, [Orders dated May 11 and 14]

The High Court of Gujarat had registered a suo motu petition in the wake of COVID-19 on March 13. On May 11, the High Court issued fresh notice to the state, after taking cognizance of certain news reports which showed the extreme suffering of migrant workers in the state on account of the lockdown. The Court sought reply of the state with the following observation:

“We would not like to interfere with the day ­to ­day functioning of the StateGovernment in this regard, but, at the same time, we should ensure that the situation does not go from very bad to worst. In such circumstances, the judiciary will have to intervene.”

On May 14, the Court took note of various measures taken by the state, but also sought a reply on the steps taken to ensure the repatriation of migrant workers without charging money, or providing them with food and necessary facilities if they chose to stay.

AP Suryaprakasam v. Superintendent of Police [Order dated May 15]

While hearing Habeas Corpus petitions of 400 migrant workers from Tamil Nadu who were detained in Maharashtra, the High Court of Madras expressed its anguish at the lack of coordination and cooperation between the Central and the state governments to provide necessary aid to the migrant workers. The Court strongly criticized the near complete abdication of responsibility by the governments in dealing with the sufferings of the migrant workers:

"It is not only the duty of the native State of the migrant workers but also the duty of the States where they were working to care for their safety and well being. India is a welfare State and Article 21 of the Constitution of India is paramount and safety and security and supply of food are important. This Court is well aware that Covid-19 is not only a national crisis but also an international crisis. But, it is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers.”

Since the passing of these orders, the High Courts of Bombay, Allahabad, Telangana, and Andhra Pradesh have all passed similar orders seeking the respective governments' response on the measures taken by them to mitigate the suffering of migrant workers.

The Supreme Court of India is considered to be the most powerful Apex Court in the world because of the wide powers of judicial review which have been conferred on it by the Constitution, and the powers it has assumed for itself by way of public interest litigation (PIL) jurisdiction.

In fact, the very invention of PIL was specifically made to address glaring violations of fundamental rights like we have seen during the present migrant labour crisis.

The decisions of the High Courts, inspiring as they are, are handicapped for the reason that they cannot coordinate with other state governments. It is, therefore, clear that the Supreme Court, which has jurisdiction over all authorities in the country, can play a huge role in helping the migrants by issuing orders to different state governments/authorities.

In such circumstances, as the crisis is still ongoing, the Supreme Court has again taken suo motu cognizance of the matter. This has reignited the hopes of millions of people and perhaps the Supreme Court will now rise to the occasion by discharging its constitutional responsibility to the lowest sections of our society.

The authors are advocates practicing at the Supreme Court of India.