Court In Covid Times
FRONTLINE|May 08, 2020
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Court In Covid Times
The judiciary’s handling of cases relating to mitigation of the common man’s suffering leaves much to be desired.
V. Venkatesan

The guidelines issued on March 24 on the measures that the Centre and the State/Union Territory governments should take for containment of COVID-19 do not specifically suspend the functioning of judicial services, including courts. The list of exceptions to suspended services too does not include judicial or legal services. Such omission is valid because the executive cannot circumscribe the functioning of the judiciary in deference to the doctrine of separation of powers and the independence of the judiciary.

But that does not mean that the judiciary, on its own, cannot adapt itself to changing times. From March 25, the Supreme Court and the High Courts decided to hear matters involving “extreme urgency” through video-conferencing and e-filing of petitions and affidavits during the nationwide lockdown, which now stands extended till May 3.

But the limited functioning of the courts has hampered their contribution to mitigating the common man’s suffering. The Supreme Court, for instance, is yet to prioritise hearing of pending cases relating to issues such as the repeal of Jammu and Kashmir’s special status under the Constitution, electoral bonds, women’s right to worship at Sabarimala, and the Citizenship Amendment Act. The hearing of such cases would require the court to adopt technology in a big way in order to comply with the physical distancing norms. Currently, there are two virtual courts, each comprising two or three judges, even though the effective strength of the court is 33. But the court’s response to pleas for intervention by or on behalf of those in distress has not been entirely satisfactory.

MIGRANT LABOURERS ’ LIVELIHOOD

In Harsh Mander vs Union of India, the petitioners Harsh Mander and Anjali Bharadwaj, both social activists, told the Supreme Court that the lockdown caused untold hardship and suffering to migrant workers, who are dependent on daily wages to provide for their families and themselves. It disrupted their daily work and their ability to earn wages. This, the petitioners argued, created panic and resulted in their mass exodus to their villages on foot. Citing news reports, the petition claimed that even those who were in shelter homes were being herded together, which exposed them seriously to the virus.

The lockdown and the subsequent government orders to prevent their reverse migration had subjected migrant workers to unimaginable distress and misery, the petition said. The government has ordered that employers should pay wages to all the labourers employed by them. With employers of migrant labourers not complying with this direction, the state should immediately make direct transfers (in cash, at their doorsteps or through their bank accounts) of at least the minimum wage during the lockdown, the petition said.

On April 7, the bench presided by Chief Justice of India (CJI) S.A. Bobde and comprising Justices Sanjay Kishan Kaul and Deepak Gupta asked the petitioners’ counsel, Prashant Bhushan, why the migrant workers needed money for meals if they were being provided meals at the shelter homes. This apparently insensitive question from the bench made one wonder whether the court, having authored landmark judgments in the past espousing the point that right to life and liberty meant more than mere animal existence and involved right to life with human dignity, suffered from institutional amnesia.

When Prashant Bhushan told the bench that they needed not just food but money that could be sent to their families back home, the CJI said the court could not supplant the government’s wisdom on providing succour to lakhs of migrant labourers across the country.

The bench also said that it was not an expert body to deal with the health and management issues of migrant workers and would rather ask the government to set up helplines for the needy. In the past, the court had willingly sought experts’ help in cases where it felt it lacked the expertise to understand and respond to an issue before it. The petitioners contended that private sector companies might not be able to fulfil the Centre’s directives regarding payment of wages as many of them were on the verge of closure. Therefore, the onus of paying their workers was on the Centre and the State governments, they argued.

Their plea, however, met with stiff resistance from the Centre. The Solicitor General, Tushar Mehta, suggested that “PIL [public interest litigation] shops” should close down until the country emerged out of the crisis.

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May 08, 2020