The woodpeckers inside: Against Justice Lahoti's criticism of the Supreme Court's interference in the COVID-19 migrant crisis

It is extremely painful for me personally to read the views recently expressed by former Chief Justice of India RC Lahoti. Justice Lahoti belongs to Madhya Pradesh and succeeded at least two great judges of the Madhya Pradesh High Court - Justice AP Sen and Justice JS Verma (who later became the CJI).

Another eminent judge of this High Court, the legendary Justice GP Singh, authored the classic 'Principles of Statutory Interpretation', inspiring many advocates and judges including Justice Lahoti to read and interpret the law in tune with the times.

During my tenure as a judge of the Bombay High Court, I was greatly impressed with and indeed followed the judgments of Justice Lahoti. It is said that a judge speaks through his judgments. They reflect his philosophy, approach and thinking process. Though identified as a traditional, typically conservative, and orthodox judge, Justice Lahoti was also famous for interpreting statutes or any provision thereof purposively if the fact situation so demanded. He would mould relief so as to render complete justice.

The very opening paragraph of a judgement authored by him proves my point. In BP Achala Anand v. S Appi Reddy, His Lordship observed as under:

"Unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by Courts, transforms into Justice.”

Thus, Justice Lahoti granted relief to an estranged wife and allowed her to resist a decree of eviction from the rented premises. That was because the husband tenant did not seriously oppose the landlord’s suit for possession.

In another instance, Justice Lahoti was party to a judement authored by then CJI VN Khare in Saurabh Chaudri v. Union of India wherein following Justice Holmes, the majority referred and applied the salutary principle that the judge must bring to bear his whole experience and not merely consider what was said a hundred years ago. This judgement also quotes Justice Krishna Iyer’s views in Jagadish Saran v. Union of India, with approval.

There are two more examples of Justice Lahoti’s reasoning when His Lordship was a sitting judge. In Harbhajan Singh v. Press Council of India, Justice Lahoti, after referring to the celebrated works and treatises on statutory interpretation (including the one authored by Justice GP Singh), reiterated the golden rule that the words of a statute ought not to be interpreted literally if it produces injustice, absurdity, contradiction or stultification of statutory objective.

Likewise, he held in another decision that every classification by the legislature must stand the test of Article 14 of the Constitution. In P Ramchandra Rao v. State of the Karnataka, speaking of a five Judge Bench, His Lordship held as follows:

"Legislation is that source of law which consists in the declaration of legal rules by a competent authority. When judges by judicial decisions lay down a new principle of general application of the nature specifically reserved for legislature they may be said to have legislated, and not merely declared the law…

...It is not difficult to perceive the dividing line between permissible legislation by judicial directives and enacting law the field exclusively reserved for legislature. We are concerned here to determine whether in prescribing various periods of limitation, adverted to above, the Court transgressed the limit of judicial legislation."

Further,

“...The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated, in a given case or set of cases, depending on facts brought to the notice of the Court. This is permissible for judiciary to do.”

It is therefore astonishing to find the learned judge, with greatest respect to him, now saying that the unelected lot should not attempt to take over the function of elected executives. How a view critical of the Supreme Court’s initial response to the plea of migrants can be opposed on such reasoning is not elaborated at all.

Nobody advocates, much less supports, a wholesale take over of administrative duties and governance by the courts. In some cases the "Lakshman Rekha” may indeed have been crossed, and therefore, the courts have been rightly criticized.

However, if there is a specific allegation of violation of the right to life and liberty which includes fair treatment and protection of the right to move, right to seek and obtain employment anywhere in the territory of India, to settle anywhere in the territory of India faraway from the place of permanent residence, and also to obtain wages and decent living standards, dignified surroundings. If all of the above is jeopardised to return to one’s native place, then all the more intervention of the Constitutional courts in India was warranted.

This fact now stands established by the belated action of the Supreme Court. Justice Lahoti has not articulated as to how the grievance and the cause espoused on behalf of the poor, hungry, injured, battered and oppressed migrants, was not at all worthy of cognizance. At least three High Courts in India felt that prima facie case of injustice and impinging of the right to life is made out. There is a basis for the assumption that the human and constitutional rights of this marginalised section of the society are breached by the governments, (both the state and the Central) and gross neglect and apathy.

Thus, legal issues of general public importance arise such as who should bear the costs of the food, temporary shelter, travel and other arrangements made for these migrants, whether the legal and the constitutional status of all citizens working within and out of India is identical, are they entitled to same protection and treatment during the lockdown or not. Some of these are grey areas, but have far reaching jurisprudential consequences.

Such matters provide an opportunity to the legal setup in India to evolve and develop a “Swadeshi” judicial philosophy and thinking. At least now, we can break the shackles of Anglo-Saxon jurisprudence. In this pandemic, when aircrafts and ships are dispatched to fetch fellow citizens settled abroad, when the same disaster management law is invoked to evacuate in advance people likely to be affected by cyclones and other natural calamities, should not a welfare state extend a helping hand to the urban poor and the unprotected workers suffering the pain and anguish of the COVID-19?

If the Directive Principles of State Policy are fundamental to our governance, then it is plain that the individual’s rights, liberties, and freedoms have to be safeguarded to the fullest by a modern day state. It is its duty and it has failed to perform it.

In the above circumstances, the intervention of the highest court is expected. Once the Court issues binding orders and directions to activate the Executive, then it is forced to devise norms, lay down standards, and take suitable measures to deal with the problems of the displaced, uprooted fellow citizens.

Our own citizens are not “migrants”. They have been ousted from their homes and deprived of their livelihood in this epidemic. The need of the day is a humane, passionate and sensitive view. A modern judge or the presiding officer of a court in 2020 must move swiftly in these matters, unfazed by criticism of those not holding the office. It is satisfying to note that the Supreme Court is now seized of the cause. I have no doubt that it will do its best.

Justice Lahoti should realise that this is not judicial overreach, much less substitution of the Executive. It is to remind those in authority that all the citizens are equals and ought to be treated equally. Everyone including the critics of the Apex Court know that in highlighting the plight of fellow citizens, they ought not divide the judges. They are not pitting the judges of the earlier era or forming part of the previous benches and those presently constituting the bench.

It is with the greatest respect that I say that the uncalled for attack by responsible professionals and fellow judges will drive a wedge and wreck the judiciary from within. This will be too much of a delight for the Executive and other vested interests. As beautifully and succinctly summarised by the Supreme Court in Tarak v. Jyoti Basu,

The criticism of the Supreme Court for its reluctance to intervene earlier is not a cry for judicial adventurism. Nobody says that judges should conduct themselves as Robin Hood. It is only a request to take up the cause of the poor and downtrodden and consider it sympathetically.

I thought that persons like Justice Lahoti would never forget the message of the Father of the Nation. Mahatma Gandhi says “a right cause never fails and a true word never hurts in the end. “ None of us should give up pursuing a just cause. All the more, when it concerns the fundamental rights and guarantees conferred by our own Constitution. The Constitution itself was threatened forty five years ago, and that situation can occur again if we are not vigilant and sensible.

The author is a former Judge of the Bombay High Court.