By failing to curb Tushar Mehta's remarks against 'prophets of doom' who flagged migrant crisis, SC displays fallibility

During the Supreme Court hearing in relation to the migrant labourers’ case last week, Solicitor-General Tushar Mehta fell short of demonstrating the sort of conduct that befits the stature of the second-highest law officer for the Central government. Mehta questioned the patriotism and credentials of those who attempted to draw attention to one of the most tragic humanitarian crises in post-Independent India and referred to them as “prophets of doom”. It is ironic that it was these very “prophets of doom” who impelled the Supreme Court to finally, albeit perfunctorily, suo motu take cognisance of the woes of the migrant labourers. Two months ago, without question or evidence, the Supreme Court had accepted Mehta’s report that there was no migrant worker on the road. The SG, at the time, cited the heartrending story of photojournalist Kevin Carter before the bench. In doing so, he sought to draw parallels between Carter (who was characterised as a “vulture” for pursuing a Pulitzer-winning photograph instead of saving a child’s life), and those who were drawing attention to the plight of the migrant labourers and the government’s handling of the crisis. This would have been fine had Mehta’s version of the story not been the reproduction of a distorted WhatsApp forward. Furthermore, Mehta criticised the high courts that have been questioning the state and Central governments in relation to their handling of the COVID-19 crisis. The SG insisted that some high courts are “running a parallel government”, when they have in fact been performing their constitutional duties and filling in for the Supreme Court in that regard. In this context, it becomes imperative to understand the power of the high courts, and their role vis-à-vis the enforcement of people’s fundamental and other legal rights, especially during the pandemic. [caption id=“attachment_8448331” align=“alignnone” width=“640”] Representational image. PTI[/caption] High courts as protective shields against Executive inaction and excesses Article 226 of the Constitution, in relevant part, provides that “Notwithstanding anything in Article 32, every high court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.” Clearly, in relation to enforcement of fundamental rights, the non-obstante clause referenced above makes it abundantly obvious that the jurisdiction of a high court is concurrent with that of the Supreme Court. In other words, both the Supreme Court and the high courts have equal powers to enforce Fundamental Rights. In fact, Article 226 grants a wider power to high courts to enforce not merely Fundamental Rights, but also any other legal right, whereas Article 32 grants to the Supreme Court, the power to enforce Fundamental Rights only. Owing to this broad authority conferred by Article 226, in the past few weeks, quite a few high courts have been establishing themselves as protective shields against the inaction as well as the excesses of the respective governments. For instance, when the Karnataka government wanted the migrant labourers to bear their own travel costs, the Karnataka High Court intervened and directed the state government to bear the migrant labourers’ cost of travel to their home states. The Andhra Pradesh High Court directed the Andhra Pradesh government to take supplemental measures (such as organising food, drinking water, doctors, temporary toilets etc) to mitigate the suffering of migrant labourers. The Gujarat High Court also has passed a slew of orders in which it came down heavily upon the Central as well as the state governments. The list goes on. In this backdrop, Mehta’s assertion before the Supreme Court, that the high courts are “running as parallel governments” is at the very least, uninformed. Supreme Court: No longer the sentinel on the qui vive? Article 32 of the Constitution, an almost-analogous provision to Article 226, empowers the Supreme Court to enforce Fundamental Rights. However, the most significant difference between the two provisions is that the right to constitutional remedy under Article 32 is itself a Fundamental Right, whereas Article 226 is not. Consequently, it imposes a weightier onus on the Supreme Court to fulfil its most important mandate under the Constitution, ie to provide remedy for a violation of a Fundamental Right. The significance of Article 32 was underlined as early as in December 1948 by several Constituent Assembly members, during the Constituent Assembly Debates. Most prominently, G Durgabai said, “[I]n my view this is a right which is fundamental to all the Fundamental Rights guaranteed under this Constitution… As we are all aware, a right without an expeditious and effective remedy serves no purpose at all, nor is it worth the paper on which it is written.” BR Ambedkar said, “[I]f I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it…” However, as we have it, the Supreme Court’s performance of its Article 32 obligations, in recent times, has been dreadfully inadequate. On the contrary, it has earned an ignominious reputation for doing either of following: (a) It recognises a right but does nothing to enforce it. For instance, earlier this year, in Anuradha Bhasin versus the Union of India, the Supreme Court obliquely recognised the right of the people of Jammu and Kashmir to access the internet, but failed to strike down the internet restrictions. Likewise, in Foundation for Media Professionals versus the Union Territory of Jammu and Kashmir, the Supreme Court found that the prohibition of 4G internet in Jammu and Kashmir was potentially disproportionate, but failed to restore it; or (b) at the outset, it fails to acknowledge violation of rights, until “prophets of doom” vociferously bring these violations to its notice. The protracted delay in opening its doors for the migrant labourers is an example of the latter. After Mehta made his speech, the Supreme Court did not reprimand him on quoting an inaccurate WhatsApp forward. Even worse, it did not check him when he referred to the high courts as “parallel governments”. The apex court’s silence in this regard was another instance of the institution’s fallibility.