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Deference to executive action impairs Court's constitutional duty: Senior lawyers to CJI Bobde before SC took cognizance of migrant crisis

Rintu Mariam Biju

The night before the Supreme Court took suo motu cognizance of the crisis faced by migrants in the wake of the COVID-19 pandemic, 21 senior lawyers wrote to Chief Justice of India SA Bobde seeking the Court's intervention. (letter to CJI - Migrant issues)

Prominent lawyers from Delhi and Bombay wrote a letter to CJI Bobde, expressing their anguish at the Court's failure to deal with the issues faced by migrant workers during the lockdown. The letter states,

"The deference shown by the Hon’ble Supreme Court to the Government’s bland assertions and the expressed helplessness of the Hon’ble Supreme Court on the grounds of “issue being policy decision” or “inability to monitor” in the face of an unfolding human disaster, where millions of migrant workers are on the road, walking thousands of kilometers to reach their homes, is a matter of involving the violation of fundamental rights of millions of our poor citizens on account of executive action, that needs urgent attention by the Hon’ble Supreme Court on its judicial side."

The signatories of the letter include renowned lawyers such as including P Chidambaram, Kapil Sibal, CU Singh, Indira Jaising, Sidharth Luthra, Iqbal Chagla, Aspi Chinoy, Gayatri Singh and Janak Dwarkadas, among others.

The letter states that as a consequence of the Court's failure to intervene, migrants were compelled to stay in cramped, unhygienic accommodation without wages and food. This in turn only increased the risk of exposure to the Coronavirus.

It was further pointed out that while hearing a public interest litigation on the plight of the migrant workers, Solicitor General Tushar Mehta stated that “no migrant person was walking on the roads in an attempt to reach his/ her home towns villages."

The letter notes that the Apex Court, in its order dated March 31, expressed satisfaction at the steps taken by the Union of India to combat the pandemic and proceeded to observe that “the migration of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than 3 months".

"As a consequence of the Court’s failure to intervene, even though the number of Covid cases were then only a few hundred at the time, the millions of migrant workers were unable to proceed to their hometowns and were compelled to remain in small cramped tenements or rooms or on the pavements, without any employment or livelihood, and even a definite source of food. Infact this enforced stay in cramped quarters only exposed such poor worker to a higher risk of Covid infection."

The lawyers cited news reports suggesting that more than 90% of migrant workers did not receive government rations in many states and were suffering from dire food shortage.

This sparked the exodus of migrant workers to their home states, the letter states.

"...migrant labourers who were fed up with being virtually incarcerated for the previous 6 weeks, without employment or wages decided that they would be better off trying to go back to their homes."

Subsequently, even when the Shramik trains were introduced to transport the migrants, several onerous conditions were sought to be imposed on them, such as obtaining a medical certificate after getting themselves tested at great cost to themselves. This attempt again proved to be counterproductive as far as the migrants were concerned, the letter notes.

Moreover, the letter mentions that on May 15, the Supreme Court had dismissed an application seeking immediate directions to all the District Magistrates to identify migrant workers who are walking on roads, provide them with appropriate food and shelter, and to facilitate their travel back to their home states free of cost. On this action by the Court, the letter states,

"We respectfully submit that this institutional deference to statements made on behalf of the Government and the Court’s apparent indifference to this enormous humanitarian crisis, would if not rectified immediately, amount to the Court having abdicated its constitutional role and duty to these teeming millions of poor, hungry migrants."

Letter to CJI

It was further affirmed that the migrant workers’ issues are not a “policy issue.” They raise constitutional issues requiring a strict scrutiny of the executive action the letter states. The migrant workers crisis is continuing even today, with millions still stranded on roads at railway stations and state borders. We urge the Hon’ble Supreme Court to intervene and ensure that adequate transport arrangements, food and shelter are immediately provided for by the Central and State governments free of cost.

"The migrant workers crisis is continuing even today, with millions still stranded on roads at railway stations and state borders. We urge the Hon’ble Supreme Court to intervene and ensure that adequate transport arrangements, food and shelter are immediately provided for by the Central and State governments free of cost."

Letter to CJI

The letter was sent to CJI Bobde late at night on May 25. Interestingly, yesterday, the Supreme Court took suo motu cognizance of the problems faced by migrant labourers.

[Read the letter]

letter to CJI - Migrant issues.pdf
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