The Migrant Crisis Is A Class War, Warns Supreme Court Lawyer Dushyant Dave

Edited excerpts.

In recent public comments you implored the Supreme Court to intervene in this humanitarian crisis. Are you satisfied with what the Supreme Court has ordered today?

Well, yes and no. I can only say as the adage goes, better late than never. But, who will compensate for the sufferings of those hundreds of millions, since the 23rd of March, 2020. It is impossible even to conceive, much less actually compensate for their sufferings. So, I mean, yes, it is a beginning in the right direction. I must confess it is too little and too late. In one sense, one does feel satisfied that at least the court has now decided to intervene because unfortunately, the Supreme Court since 2014, when Prime Minister Modi took over, has virtually ceded the territory to the executive and has refused to seriously question the executive’s actions- however right or wrong they were - in very important matters relating to public interest, and public issues.

So I think, time has come for the Supreme Court to introspect, and I would beseech with folded hands to the Supreme Court that it must critically introspect that its role is to critically examine every decision of the government. However, good it may appear to be, however well it may be projected by the executive - because it is only the Supreme Court which can stand between the tyranny of the executive and the fundamental rights of the citizens. Nobody else can really look after the welfare of the citizens. So this is perhaps a time for the Supreme Court to start seriously introspecting, and maybe today's is a good beginning. I'm in that one sense little sense, definitely satisfied. Although, I would have liked Supreme Court to look into or look after the welfare of the people right from 23rd of March, when a lockdown was declared in four hours’ notice, which was totally arbitrary unconstitutional.

You said too little, too late. I get the too late bit but why'd you say too little? What more do you think the Supreme Court can/should do?

The Supreme Court and you have to understand that the issue is not limited to merely taking the migrant workers to their homes. That's one leg of their journey. The question is, how are they going to survive at their homes in villages, for the next few weeks or months, and a long time? They have no income, there is no livelihood but they want to really survive and feed their families. The agricultural sector is unable to really look after them. That's precisely the reason why they have come to the cities to earn. So it is a combined earning by the migrant worker in the cities and factories and little income from agriculture which can really keep those families alive. Now that big source of income, is gone. How are they going to live and what is the government going to do about it? And what has the Supreme Court thought about it? That is one thing which is really very worrisome.

Because you must realise one thing, these people today, I can assure you, they have lost faith in the nation. They know that this nation has failed them from the 23rd of March and left them to fend for themselves. Can you imagine, can you go into their psyche, to understand what they've gone through? Will they ever trust you and me, or the government or the Supreme Court? It is impossible to conceive a situation of their psychological conditions. In that, they will take a long time even to think, to come back to cities and start working in those factories and mills and services that they were working in. Therefore, in that period they are going to be in an extremely precarious condition and that condition has to be now acknowledged by the government, by the Supreme Court and we must make sure that we can reach the resources, including money and food, to them and their families as quickly as possible because if it doesn't happen, then we are really looking to a grave situation and perhaps large scale starvation.

I don't disagree with you at all on the magnitude of this crisis. But I'm going to try and put forward to a counter legal argument that some might make. Which is not to say that the Supreme Court should not step in to protect the rights of people, but which is also to say that how far can the Supreme Court go? For instance, let me take one of the orders pronounced today - that states must ensure that if there are migrants walking on the road those migrants are taken care of, fed and transported as quickly as possible to their homes. How is the Supreme Court going to enforce any of this? If it can't enforce it then what is the strength of the Supreme Court intervention in a matter like this?

There are many issues that you have raised in that question. Let me first answer the last one. You have to look to the order of the Supreme Court in letter in spirit. You're right - it is not possible that every migrant worker and his family working on every highway in the country can be immediately picked up, put into a bus and taken to his home.

Today, the Supreme Court’s order is an acknowledgement of the failure of the central and state governments and every public authority in this country. That is something which you must understand. The Supreme Court has stepped in because the Supreme Court says that the precarious condition of these millions of migrants is troubling them. So, now it clearly acknowledges that for eight weeks, the government has allowed people to really die. There are hundreds of people; nobody will know how many people have died in this journey for going home.

Let me tell you what the Supreme Court can do. Fortunately for us, and your viewers perhaps would know, that under our constitution which is a very beautiful document that our forefathers gave us, there are very well defined roles by the executive, by the judiciary and by the parliament- the legislature. Besides that, there is a beautiful part of the Constitution, which are the fundamental rights of the citizens. Why did the forefathers give those rights? Because they wanted the people to be protected from the executive, and from the legislature, and perhaps from the judiciary - that those rights were completely inalienable, those rights were not tradeable, and those rights had to be protected and enforced at all points in time. The forefathers also thought that giving rights is not good enough, we must give remedies. So they created Article 32, which gives every citizen the right to move the Supreme Court for enforcement of his fundamental rights, and they gave on the High Courts’ Article 26 to enforce those and other legal rights. This is one thing.

What could the judiciary have done? You have to understand that the judiciary must realise nobody is above the law. Whether it is the Prime Minister, whether it's the Speaker, whether it's the President, or whether it's the Chief Justice of India. Everybody's under the law. Under our Constitution, nobody is imperio in imperium. Now, if that is so, every decision of the government- for example, when demonetisation took place, the Supreme Court had a constitutional obligation and a duty to have tested that decision within one week to ask the government that you satisfy us on what basis you have taken this decision and two, what are its consequences going to be? Now if that had been tested at that point of time, the economy would not have suffered since 2016 as it has suffered.

Likewise, when the lockdown was declared with four hours’ notice, the Supreme Court had the duty to step in within four hours, suo moto, tell the government that sorry Mr. Government, you cannot give four hours’ notice for a lockdown because in this country, hundreds of millions of people are migrated and you have shut the railways, you have shut the buses. You have only allowed planes to fly for your honourable MPs to go back home. There are no means by which these people can go. They have no livelihood now, they have no income, no more savings, they have no food, what are you going to do?

So, I don't agree to this, that the Supreme Court or judiciary has no role to play. They have an absolute clear and defined role under the Constitution because this really means Right to Life of citizens under Article 21 and it must stare in the eye of every judge; that they have a duty to protect every citizens right.

Tell me one thing, how are you going to compensate the families of those who have died while walking their homes, by giving five lakhs and two lakhs of rupees?

I'm not suggesting that the Supreme Court has no role to play. I'm just trying to understand where the boundaries lay. For instance, if the court had to question the lockdown, then would the court also be responsible for the spread of the disease sans a lockdown? I want viewers to understand at what point does it become imperative for a court to step in? On the other hand, several High Courts, for instance the Karnataka High Court, the Andhra Pradesh High Court, they have also questioned the states’ handling of the migrant issue. So, the High Courts are doing some of the things that the Supreme Court has been accused of abdicating from. I'm just asking where do the boundaries lie?

There is no doubt that there are boundaries. I am not for one suggesting that the judiciary should go into the executive functioning. No, but the law demands that if the executive functioning is completely arbitrary, a four hours lockdown notice was, then judiciary has a duty to find out. Nobody can question lockdown. Nobody says that health of the people should be traded with, certainly not. I will be the last person to say so, and the Supreme Court will not do that.

But, if the Supreme Court like today, had said on 23rd of March that if you want to bring lockdown, please kindly wait for a few days. Have you made the arrangements for these millions of people to go back to their homes? Have you made arrangements for them to eat? Have you made arrangements in which for them to access clean water? That is something which the Supreme Court should have done on that particular day, and I am not prepared to accept that any and every single decision that the executive, including the honourable Prime Minister, takes is not subject to judicial review.

Again, this goes to boundaries right? You would recall when the Supreme Court stepped in with regards to the 2G matter, or the coal auctions and overturned these because of wrong due process adopted by the then government. Subsequently, there were impacts on the economy and noted Supreme Court lawyers like Harish Salve said the Supreme Court is one reason why the economy has been damaged. When the Supreme Court decides all Covid-19 testing should be made free there are questions raised by civil society, saying oh my god, all the private labs will shut down. How can you make such an economically unsound decision? So again, we go back to boundaries. What is it that we expect the Supreme Court to do or to accomplish in what is obviously an executive failure at handling this migrant problem; whether the failure lies at the centre’s end or the states’ end?

You’re actually comparing apples and oranges I'm sorry to say. I have no doubt about the fact that Supreme Court's intervention in 2G and Coal-gate was fully justified. Let us understand something, however far reaching the consequences maybe on the economy, if certain decisions were taken by the then government were corrupt and had collateral considerations, there I think it is the duty of the judiciary to strike at those decisions. He cannot allow perpetuity in corruption.

I really wish the same Supreme Court had stepped in subsequently, when the present government's decisions were tested with challenges- like Rafale, like CBI director’s removal... All those decisions from 2014, the Supreme Court has certainly gone into, I would say with great respect, and has been completely unwilling to test the executive’s decision.

See let me tell you one thing, there is no doubt about the fact that Prime Minister Modi is perhaps the only charismatic leader in the country today, within his own party or within opposition. That doesn't mean that the judiciary must treat him with kid gloves. I am not saying that judiciary should set aside his decisions, that's not my job. I’m saying that judiciary must critically examine every decision that the government takes because the constitution is suprema lex. The judiciary alone has a duty to ensure, whether it is fully protected, enforced and performed by the executive. So, merely because you have a larger than life image of the honourable Prime Minister it doesn't mean that you do not go into these issues. You have a duty, you may sometimes agree with that decision of the Prime Minister; you may sometimes disagree with that decision. I don't agree. There is a generalised approach that judiciary has adopted since 2014 that hands off, the government has taken a decision, and we will not intervene. I think that has hurt the Constitution, that has hurt the nation and that certainly has hurt the rights of 1.3 billion citizens.

There have been almost four or five different petitions that have come up in the last month, seeking pretty much the same kind of relief the court has today ordered. Food for migrants, or speedy, efficient travel back home for migrants. These petitions were given short shrift by various benches in the Supreme Court. Then suddenly the Supreme Court decides this week that they're going to take suo moto cognizance of the matter, and then today does a hearing and issues interim orders. What explains the sudden turn around?

Well, I can't answer to that, but I can tell you one thing that the role of the Supreme Court during the lockdown has been deeply disappointing. Some of the decisions that the Supreme Court has given are so seriously against the citizens, constitutional spirit, constitutional morality and the constitutional principles that it really shudders at the top - that is this the Supreme Court that we love? So I am very clear about the fact that Supreme Court has deeply disappointed us and the sole reason is this, that judges today across the country, it's not just the Supreme Court, it’s now that some of the High Courts have started awakening and galvanising themselves to test the executive. What has happened since 2014, with deep respects to the judiciary which I love I belong the judiciary that I respect it immensely, is that they have virtually accepted everything that this government has done as the gospel truth.

This is something not good for us as a nation. This problem is that every institution which is supposed to protect the Constitution, has failed us. It’s media, civil society, judiciary, the legislature. I mean, do you imagine that today in England, the Prime Minister is right now tested by the Parliament and its MPs on several decisions that the Prime Minister has taken while our Parliament is sleeping? Not a single committee meeting is taking place. Is this a kind of a constitution that we envisage - that in a crisis parliament we won't meet and test the government? The whole purpose of the democracy that we have, parliamentary democracy, is that executive decisions will be tested on the floor of the parliament on a daily basis. That's what Ambedkar wanted. He said that American style of democracy is not good for India, because we want a parliamentary democracy, not a presidential form of government, where our government will be tested on the floor of the Parliament.

While much of the blame may lie on the central government's doorstep because they imposed the lockdown, in the issue of migrant workers, the blame is equally distributed across states. And why just states, the employers of these migrant workers which are industries and companies are equally to be blamed because they were simply not provided for at any level- at the micro level of employment and employer, at the level of the state. There was obviously no effort made to be able to speedily get them home. When the order did finally come from the centre, it was for states to provide buses. And, it was only a couple of days after that that the centre agreed to run trains to bring them home. So this is a multiple-level abdication of responsibility that's taken place.

Let me answer you from the perspective of a migrant labour. The failure is all around. Everybody has failed. Have you seen a single member of the parliament or a legislative assembly walking on the roads with the migrant labour and reassuring him or helping him or giving a helping hand to him? Everybody has failed. Civil society is doing some good in patches.

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You think that’s enough? Have you seen the photographs of migrant workers, with their children on the shoulders, with their bags on their heads, and their wives walking behind? Is this the democracy that our forefathers wanted us to have? I am sorry; they fought for us, they have laid their lives for us. Hundreds of millions of Indians died in the freedom struggle. They didn’t want this India. Every one of us has failed and the sooner we realise, sooner we start acknowledging that and sooner we say sorry to them collectively, it's better for us as a nation.

I am sorry to say that but this is serious and this is true and this is an important debate that we must chase as a nation. I mean, everybody is sending all kinds of messages on WhatsApp, and on television, every hour but what does that do for those people?

After eight weeks, you see the scenes that are happening in Surat- we are lathi charging them. Corruption is so bad that migrant workers have to pay money to get train tickets. Where have we come to, that even in these bad times these so-called haves are still willing to extract money out of those people. I have not seen a single report by the government saying that we have arrested those people? What kind of a nation are we?

One last question. The Solicitor General said some very interesting things in court today, which have raised eyebrows. He told the Supreme Court bench that before entertaining any of the intervenors, ask them to file an affidavit on what has been their contribution except for writing on social media, sending articles and giving interviews. I thought that was a rather unique way of disincluding an argument in court. The second thing that he said was more alarming. He said that some High Courts in this country are running parallel governments. I want your assessment of the Solicitor General's way of approaching this.

Well, Mr. Tushar Mehta is a friend, but with great respect to him I must say one thing - these are not the submissions that an officer makes. This is a very serious issue that must be confronted by the nation. In law officers, and I have known at least one law officer Mr. JM Thakur, who was the Advocate General of Gujarat for almost 40 years and who groomed me one sense.

There are two things, ultimately, as lawyers we appear in court, we do it for a cause - that we personally believe in that cause or not is not relevant. It's something which is to be left to our conscience. We may or may not help and I have no doubt that Mr. Sibal and all those who appeared today have contributed in their own way to the cause of the migrant labour and to the citizens of this country.

Secondly, so far as the High Courts are concerned, I don't think really the High Courts are running the administration. The administrations are failing.

You must realise one thing that the administrations are failing because of wrong decisions that they’ve taken.

One of the reasons why the administrations are not doing well, take for example, Kerala, why is it that Kerala is able to fight Covid-19 better than most states? Kerala government is talking to the top doctors virtually on daily basis to get the right advice from them. Now, take for example Gujarat, from where I and Mr Mehta both come, the government has constituted committee of top doctors, not one of them is an epidemiologist. Somebody is a heart specialist, somebody is an orthopaedic surgeon, are they really the people who can advise the government?

Now, the governments are making such serious mistakes about handling this crisis that it has therefore resulted in chaotic conditions. Today in Ahmedabad it is one of the fastest growing Covid-19 situations, the death rate in Gujarat is the highest in the country, at 7% as against 4% on an average basis. Now why has that happened? One, of course because of the visit by President Trump and the arrival of hundreds or maybe thousands of NRIs who came to attend that. Secondly, the Gujarat government is not acknowledging what has really been happening. Likewise, for example, you know the civil hospitals if you see the scenes on Gujarati television channels which I see regularly, it's really appalling. It hurts us that people are being treated the way they are being treated. So what else will the High Court do except to intervene?

So I think the High Courts have a constitutional duty and I don't see anything wrong with the High Courts- whether it is Karnataka, whether it is Tamil Nadu or whether it is Gujarat. Every High Court has rightly intervened, maybe late but ultimately the only people who can stand between executive tyranny and executive failure and constitutional rights are the High Courts, and they have a duty. And I would encourage and acknowledge the High Courts. They have a duty and I would encourage them. I acknowledge that the High Courts have done the right thing and I applaud them, I congratulate them.