On Covid, SC caught between judicial activism & restraint

Obiter dicta

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Finally the Supreme Court has intervened to alleviate the plight of millions of migrant workers stranded in various parts of India due to lockdown since March 25.

On May 26, a three-judge Bench headed by Justice Ashok Bhushan took suo motu cognisance of the matter, saying this section of the society needed succour and help in these difficult times as there have been certain lapses on part of the Centre and states.

Two days later, it ordered free food, shelter and travel for migrants to “redeem the situation”. Further, directions are expected on June 5 after the Centre, states and union territories file detailed replies to the court’s notice.

However, its delayed intervention has invited criticism from certain activists, lawyers and former judges who felt it was too little too late.

The timing of the Supreme Court’s intervention has exposed the dilemmas and confusion in judicial thinking at the top in responding to an unfolding crisis of unprecedented nature and scale.

Often criticised for its activist stance, the Supreme Court has created an image of a saviour of the poor since 1980s when it started entertaining PILs. In many cases, it has entered into spheres supposedly reserved for the Legislature or the Executive under the constitutional scheme based on separation of powers. Besides taking the Executive to task for inaction, it has also filled legislative void by using its extraordinary powers under Article 142 of the Constitution.

This is not to suggest that the Supreme Court’s initial response to the migrant workers’ crisis was misplaced. In fact, it was right in being circumspect as primarily it remains the job of the Executive to deal with such situations. Second, the crisis was still unfolding and its enormity was unknown. But once it became clear that migrant workers were walking back home on foot with their families in large numbers, it should have changed its mind, particularly after many of them died midway. Some high courts made better assessments.

There is a lesson to be learnt for the Supreme Court which has created a legitimate expectation among citizens that it would come to their rescue if the Executive falters.

A court which tilts towards activism during normal times can’t have the luxury of exercising restraint when a large section of population is faced with an existential crisis in the midst of a pandemic.