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Justice in the Time of Covid

As migrants trudge home and questions rise about their future, it is the duty of the executive to protect their rights. The time is ripe for a law under Article 32(3) to empower district and sessions judges to help them. By Justice (Retd.) Kamaljit Singh Garewal

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The first few decades of our republic were a period of building steel plants and dams, five-year plans, widespread land reforms, scrapping of privileges and privy purses of princes and nationalisation of private banks. In spite of all the planning, the promise of welfare-based social justice remained a distant dream for a large number of people. These economically weaker sections remained illiterate, unemployed and poor. The children of this socialist era grew to adulthood in the 1990s, the period of liberalisation, but the promised trickle down of wealth stopped at the booming 250 million middle class. Poverty didn’t vanish but pushed many of the rural poor to towns and cities to look for work to feed their families, while the rich became richer.

Fast forward to the present. It is shocking to discover that the number of India’s migrants is estimated at a staggering 100 million people. They are still working away from home as unskilled and casual labour. And now this migrant labour force is forced to move from their construction sites and is trudging home, many hundreds of kilometres away in different states.

Various questions arise about who will compensate them for the loss of work, who will pay for the return travel, will they be able to come back after the lockdown is lifted… Then there are issues of unpaid wages, medical check-ups and compulsory quarantine on reaching home.

Justice for the migrants has many facets. And not all of them have judicial solutions. Courts deal with matters which come before them. In the absence of the aggrieved appellant or petitioner, courts have neither the power nor the machinery to dispense justice in an even-handed manner. Well-meaning persons have been filing petitions in public interest or PILs but they cannot cover the entire body of migrants or the entire range of issues. Outside the judicial system, it is only the minister for justice who can help the migrants by framing a long-term welfare and justice policy. It is, therefore, the duty of the State to act before PILs start clogging the courts.

The doctrine of independence of the judiciary need not prevent the State from performing its duty towards its citizens. In this crisis, many rights of citizens need protection. First of all, someone should enumerate how many persons are internally displaced and prepare an ersatz register of migrants. The National Population Register certainly has great usefulness. Where are these people from, when did they leave their homes and where are they heading? People have been moving on foot, bicycles, trains, buses or whatever mode of transport they can find to get to the safety of their homes. Huge internal displacement of people is underway. So how should the State protect them? It could not have been the intention of the founding fathers of the Constitution that its citizens shall be left to fend for themselves. In the situation which exists today, and not just on account of the pandemic, it is still up to the citizen to seek protection of his rights.

A welfare state model was propounded in Part IV of the Constitution “to secure a social order for the promotion of the welfare of the people”. This part also contained directions to treat all citizens equally and provide adequate means of livelihood, give equal pay for equal work, ensure the health of workers and children, secure equal justice, free legal aid, right to work, education and public assistance, etc.

There is an urgent need to have a re-look at Part IV. Sadly, the Directive Principles of State Policy have been treated dismissively by branding them as unenforceable. Nevertheless, these principles are a manifesto of governance.

Are citizens expected to file PILs to enforce their rights or try and first reach home for safety? The executive has the duty to protect their rights. The judiciary steps into to help enforce the rights when these are broken.

The point that needs to be stressed is that instead of the citizen going to the judiciary, hundreds of kilometres away in the state or the national capital, to enforce his rights, the state should get close to the citizen to protect his rights. One could say that justice should be at the door step. National and State Legal Services Authorities could step in but there is no evidence of this actual happening.

The time is now ripe for Parliament to consider a law under Article 32(3) of the Constitution to empower district and sessions judges to exercise some or all the powers of the Supreme Court under Article 32 within their jurisdiction. This will help citizens present their grievances to a court which is close to them.

There is a contrary conservative view supporting status quo. After all, procedures are in place in the Supreme Court and High Courts to entertain petitions under Articles 32 and 226 of the Constitution. This may be suitable for the rich and the powerful. But a migrant labourer from Bihar or Rajasthan, who has just about managed to reach home from Mumbai or Delhi, cannot be expected to undertake another trek to seek protection of his rights. It has to be said that there was great hope in growth of the economy from 1990s onwards and there is still a glimmer that we shall come out of the crisis soon and rebuild the economy. But one has to confess that migrant crisis has shown chinks in our governance model.

India must make a new beginning and lay down a viable welfare state model based on the Directive Principles. The federal scheme ought to be re-structured on the principle of subsidiarity so that local issues such as health, school education, employment and housing are addressed at the local level. More powers need to devolve to the states. Panchayats and municipalities must be strengthened. Judicial powers of district and sessions judges should include writ jurisdiction under Article 32(3) of the Constitution.

From the Covid-19 crisis shall rise phoenix-like, a new India to take into its embrace each and every citizen. The weak shall then begin to walk hand in hand with the strong.

The writer is former judge, Punjab & Haryana High Court, Chandigarh and former judge, United Nations Appeals Tribunal, New York

Photo: UNI

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