The ongoing pandemic has wreaked havoc on all of our lives, affecting our day-to-day activities and making us adapt and adjust. However, certain communities of people have to face a much harsher reality due to their underprivileged state of existence. In the past few days, the problems being faced by the migrants stuck in strange cities, away from home, with a dire shortage of sustenance, have been highlighted by various media channels. And rightly so, for we cannot imagine the hardships they are currently facing. But the situation was worsened by the delayed action taken by the Supreme Court, ignoring the plight of the community in question.
The Beginning of The Issue
The problem began this month when the Supreme Court dismissed a plea regarding migrant workers being charged a fare on their travel back home. The price was in accordance with a government circular which slashed it to 15% of the original fare, but even this amount proved to be too high for them. There were also additional concerns related to the implementation of the measures proposed by the government, in particular, the pre-condition to obtaining medical fitness certificate for travel. However, the bench observed that all necessary steps were being taken care of by the Centre and state in that regard, callously ignoring all data presented by the petitioner.
Filed by Advocate Prashant Bhushan on behalf of the Petitioners, the Affidavit refers to a report by Stranded Workers Action Network which says “4 out of 5 workers who reached out do not have access to government rations, while 68% still do not have access to cooked food. The report also collected data proving that with no cash relief for migrants, 64% have less than Rs. 100 left with them and that more than 97% have not received any cash relief from the government.”
The Affidavit also discloses the discrepancies in the MHA Order mandating that any two States involved in the movement of the migrant worker must both be willing to arrange for their transport. It was submitted that “all the migrant workers who wish to go back to their native hometowns and villages should be allowed to go back after screening as a matter of right and no migrant desirous of travelling back to his/her home should be left behind.”
Furthermore, the Affidavit raised the issue of the inclusion of the word “stranded” in the definition of migrant workers in the MHA Order as it may exclude several migrant workers who may not be living in shelter homes or relief camps and might be living in rented accommodations.
In the aftermath of the dismissal of the plea by the Supreme Court, several incidents took place which proved just how reckless the court had acted in doing so.
Incidents of Suffering
The tragic train accident in Aurangabad is one instance which stands out in a slew of occurrences where migrant workers suffered immensely. It involved fourteen labourers who were walking to Bhusawal from Jaina to board a “Shramik Special” train to return to their homes in Madhya Pradesh. After walking 45 kilometres, the tired workers stopped to rest and fell asleep on the tracks. At around 5:15 AM, a goods train was running along the tracks and although the loco pilot, after noticing an obstruction on the railway tracks, honked and tried to stop the train, he could not slow it down before grotesquely mowing over the workers still sleeping on the tracks.
The NHRC, after taking suo moto cognizance of the media reports, observed that, while the mishap can be termed a train accident by simply observing the facts of the situation, a deeper analysis of situation moves the focus on the cause of the accident. The tragedy would not have taken place had the migrant workers not been forced to walk a long distance due to the non-availability of adequate means of transportation, clearly displaying negligence on the part of the administration.
In another sorrowful incident, a migrant woman, who had been unwell due to the lack of food and water, had been waiting for a special train on the platform. However, the heat, hunger and dehydration proved to be too much and she soon succumbed to them. At the same station, a four-year-old child also died, reportedly from the heat on top of insufficient food.
There have also been several instances of road accidents in different states like Madhya Pradesh and Telangana, amongst others.
All these incidents of the suffering of the migrant workers display a lack of care on the part of the judiciary, which has been severely condemned by various organizations and High Courts.
Criticism of The Judiciary
The Gujarat High court was amongst the first to take Suo moto cognizance of the various media reports of the sufferings of the migrant workers during the lockdown period. The division bench observed that the migrant workers were without food and shelter and even though certain measures had been taken by the State authorities to lessen their discomfort and provide them safe passage back homes, complications have arisen which make it difficult for the workers to avail these special services.
“The situation seems to be going out of control. Although the State Government is doing its best to combat the situation, yet we find that something is wrong somewhere. It appears that there is no proper coordination amongst various departments of the State Government. What is most essential as of now is a more humane approach or touch,” observed the Court.
Within this context, Article 21 of the Indian Constitution plays a major role. The wording of the article is as follows;
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
Now, the word ‘life’ in Article 21 does not merely connote mere animal existence or continued drudgery but has a much wider meaning, including the right to live with human dignity, right to livelihood, right to health, right to a pollution-free environment, amongst others.
In Maneka Gandhi v. Union of India the Supreme Court held that the right to live under Article 21 includes within its ambit a right to live with dignity. Furthermore, in the case of Francis Coralie v. Union Territory of Delhi, the Court held;
“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to the necessities of life and also the right to carry on functions and activities as constituting the bare minimum expression of the human self.”
It would also be prudent to know that Article 21 of the Indian Constitution also includes the right to shelter, as held in Shantistar Builders v. Narayan Khimalal Totame;
“The right to life would take within its sweep the right to food, the right to clothing, and the right to decent environment and reasonable accommodation to live in. The difference between the need for an animal and a human being for shelter has to be kept in view.”
However, the current situation shows a flagrant disregard for the inherent rights of migrant workers all over the country. The death of these people in such tragic accidents is indeed a violation of human rights. The horrendous conditions they are currently living in are also extremely worrying. According to a news report by the Ahmedabad Mirror, “more than 200 people – daily wagers and their families – who have been living on footpaths near Ellisbridge say they haven’t had a morsel to eat for the past four days. Volunteers used to bring their food, but since total lockdown, even that has stopped.”
Although the State authorities have provided certain special means of transportation to aid in their travel back home, the people have to wait for hours in the scorching heat for the buses and trains to arrive. Even then there have been instances when exorbitant amounts were being charged from these people to secure a ticket for their safe passage back home. 
The slew of reports from different parts of the country about the shocking conditions in which the workers were living made the rounds more and more High Courts took it upon themselves to make amends for the rash decision of the Supreme Court.
The Andhra Pradesh High Court emphasized that if it did not react and pass orders at this stage, it would be failing in its role as a “protector and alleviator of suffering”. It took note of the misery of these people and a division bench issued directives to ensure availability of basic amenities, including food, toilets and medical help, amongst others for these migrants, with immediate effect.  The Allahabad High Court too issued a notice to the State Government inquiring into the steps which had been taken to ensure the rehabilitation of migrant workmen and their families in Uttar Pradesh itself.
Finally, on May 26, the Supreme Court took suo moto cognizance of the burning issue and, perhaps taking inspiration from the High Court, issued interim directions to the executive and held it responsible for the suffering of the workmen. These included;
- No fare to be charged by any train or bus from migrant workers.
- Food would be provided free of cost to the workmen.
- The registration process of the migrants would be speeded up and help-desks would be available at the places where they were stranded.
- Migrants found walking along roads would be immediately taken to shelters and provided with food and water.
- The receiving state must provide transport, health screening and other facilities free of cost.
Thus, it seems the Court finally came out of the shadow of the executive and took note of what was needed of it.
But the question remains – why was there such a callous delay in action in the first place and what could have been done to prevent it?
Suggestions and Conclusion
The problem could have been effectively dealt with right in the beginning. But the Court, instead of being the saviour of the downtrodden, chose to stay silent and become blind to the suffering of the migrant workers. It showed an alarming degree of deference to the executive, not offering anything concrete in response to the Affidavit, except for stating, quite callously, that the State authorities were doing the needful.
It not only ignored the data presented by the Petitioners but also displayed a rather discouraging reaction to the PILs filed in this regard. It disregarded the arguments and data presented by the Petitioners and instead, resorted to relying upon the Centre’s assertion that the mass exodus of migrant workers was due to spread of fake news alone. Solicitor General Tushar Mehta stated that “PIL Shops must close down till the country emerges out of this crisis.” By doing so, it belittled and undermined the very real problems being faced by the migrants, showing an appalling amount of insensitivity.
Now, it is an undisputed fact that the Executive must take any such action as it sees fit for the benefit of the people. Also, the pandemic made for a confusing time, where we do not know what may happen the next moment. However, that does not mean that the Court should act blind to the horrific conditions being faced by the people. When approached by the citizens of the country, it is the Court’s inherent duty to see that no rights are violated.
Even in the past, the Supreme Court has taken prompt action to the pleas of the people, by exercising judicial activism. For instance, in November of last year, the Supreme Court had responded admirably to the pollution crisis in the Delhi-NCR territory, issuing appropriate guidelines and even monitored the situation to make it certain that the Executive did not become lackadaisical in fulfilling duties. Also, the court has a metaphorical weapon in its hands, by the name of ‘continuing mandamus’, which, as observed by Justice V R Krishna Iyer in the Ratlam Municipality case, will ensure that the executive is “watch-dogged by the court”.
The current lack of care being displayed by the Apex Court, however, is in stark contrast to the aforementioned incident. Indeed, it has issued interim guidelines now, for better implementation of services for the migrants. But had the Court fulfilled its duty in the first place, such a humanitarian crisis would not have emerged today. Showing such submissiveness to the executive and refusing to into account reliable reports does anything but help resolve the issue. Dismissing or at the very least showing a discouraging attitude towards PILs hinders progress and brings down the morale of the people as a whole.
The judiciary needs to understand the essence of its power and what the Constitution demands it. It is the protector of the rights of the people, the saviour of its citizens. This is not the time for restraint, but pro-active judicial activism on the part of the Court. The institution of the judiciary must reassure all people that their rights matter too, no matter what their social status might be. It has to lend an ear to all the arguments presented and be unbiased in its approach to ensure absolute justice to society. PILs, an important tool to secure the rights of the socially-disadvantaged, cannot be brushed aside as being trivial or inconsequential; instead, it is of utmost importance that the Courts take heed of the agony and hardship and keep an eye on whether the executive is taking any effective and fruitful measures for it or not.
In the end, all that is left to be said is, –
“Judges cannot sit in ivory towers and be blindfolded to the miseries of the citizens of India.”
– Senior Advocate Dushyant Dave.
 Supra, note 4.
 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
 1978 AIR 597
 1981 AIR 746
 AIR 1990 SC 630
 Ritesh Srivastava & Anr v. State of UP, PIL No. 583/2020
 1980 AIR 1622.