Introduction
India is a democracy in crisis. The last decade has seen a steady decline in the democratic institutions in India. This decline has coincided with constant efforts to undermine the rights of citizens through policy decisions, despite overwhelming opposition by interest groups and civil society, and has been exacerbated by a populist majoritarian government under the leadership of Prime Minister Narendra Modi. apex judicial body, has not held the government responsible for its actions, and the impacts they have had on citizens.
The effect of this decline in India’s democracy is seen most clearly in how the rule of law is undermined in the country by the State’s institutions. Over the last six years, incidents of mob lynching based on identity have become commonplace. This increase has also been accompanied by a rise in extra-judicial killings, all while the Supreme Court of India turns a blind eye to the practice. In fact, on multiple occasions, the apex judicial body, has not held the government responsible for its actions, and the impacts they have had on citizens.
The media, which is often considered the fourth pillar of democracy in the country, has failed in its duty to maintain checks and balances. Today, the majority of news outlets in the country act as government mouthpieces. This is, in part, due to flawed advertising models which have left media houses significantly dependent on advertisement revenue from the government. The government regularly publishes advertisements in all mainstream publications, forming a key source of revenue for media houses in an industry with razor-thin margins. In exchange for advertisement revenue from the government, the media houses implicitly water-down their criticism of the government, wary of the hand that feeds them.
Additionally, the country has seen a constant attack on free speech and independent journalism over the last few years. Independent media in the country is often threatened through tedious and time-consuming litigation, threats of violence or at times, even actual violence. The cold-blooded murders of prominent journalists who were known for their anti-establishment stances have further de-incentivised the media from speaking the truth freely, and left it bereft of free will. As a result, India is now placed 142nd in Press Freedom in the world.
India’s deepening crisis is most clearly reflected in the Economist Intelligence Unit’s Democracy Index where, in January this year, India slipped 10 places to 51st, its lowest since 2006. This fall was a consequence of sustained campaigns to stifle activism and dissent, an increase in instances of mob lynching, rising polarisation and a political majority that increasingly talks about the need to eliminate minorities through the concept of a Hindu state.
A Partisan Supreme Court
The Supreme Court of India is the apex judicial body of the country. Its primary functions involve the protection of the rights of the citizens, and ensuring the existence of adequate checks and balances on the actions of the executive and the legislature.
The Supreme Court of the 1990s was an institution with a very different track record and reputation. The court was unafraid to hard stances against governments in order to protect the common man, earning it the title of the world’s most powerful court.
It was viewed as a pillar of hope, and in instances when the political executive failed its citizens, the court always provided safeguards and spaces for redressal through public interest litigations (“PILs”). Through such PILs, the court oftentimes took an expansive view of the rights of the citizens, even risking judicial overreach to protect the underprivileged sections of society.
However, in a spate of recent decisions, the court has undermined PILs which have tried to seek justice. In multiple instances in the recent past, the courts have chosen to act as silent spectators when outspoken critics of the government were unjustly prosecuted under security laws and denied protection of the laws.
In fact, a large portion of the recent PILs against the ruling government have been outrightly rejected, or have had their hearings before the court delayed for years on end. The general attitude of the judiciary and the government machinery towards such PILs has been extremely dismissive.
The key contributing factor for the emergence of an executive court, i.e., a court which finds itself marching in lockstep with the government, is a flawed system of judicial appointment and the allure of post retirement benefits.
Several top judges have, in the past, been appointed to key posts by the government after they retire. Most recently, the former Chief Justice of India, Ranjan Gogoi, was appointed to the highest legislative chamber of the country at the behest of the government. The appointment came after Mr. Gogoi authored a number of controversial opinions in key cases, each time finding for the government. To a number of scholars, this appointment was synonymous of the declining independence of the judiciary, which finds stands transformed from the government’s biggest critic to its greatest mouthpiece.
The Migrant Labour Crisis and State Failure
India has around 60 million migrant labourers. These individuals have travelled over generations from villages to metropolitan cities in search of employment opportunities. Most migrant labourers are involved in the informal sector, are dependent on getting work daily and are not covered under any healthcare schemes. As a result, they often end up living in makeshift slums, under bridges, on the roadside in the most deplorable conditions.
The government has an inherent responsibility to ensure that the rights of the marginalized are protected. During a global pandemic, the government has an added responsibility towards the more vulnerable sections of society which do not have access to welfare schemes or medical protection. If the State fails to perform its duties, the onus lies upon the judiciary to maintain checks and balances and question the State if it fails to perform its duties.
India declared the world’s largest, and most stringent, lockdown in March 2020, in the wake of the Coronavirus pandemic. Not only did the lockdown lead to a shutdown of all businesses where the migrant labourers could find work, all forms of public transportation including trains and buses ground to a halt. Without governmental support, the unemployed migrant labourers were, in essence, left to fend for themselves.
Given the ineptitude of the central and state governments in providing any methods of transport, the migrant labourers decide to walk, hitchhike, cycle back independently to their villages. What followed were days of acute struggle where hundreds of migrantslost their lives to starvation, dehydration, road accidents, and alleged suicides because of poverty and despair. Different media outlets place the number of deaths at around 300. However, due to no centralized accountability, and the government claiming that it has no numbers on the said crisis, there are no official figures for the number of deaths caused by the migrant crisis.
A number of PILs regarding the plight of the migrant workers, and the need for measures to be taken for their safety and welfare, were received on March 31st by the Supreme Court of India. The Court however, delayed accepting such PILs. With every delay and rejection of these cases, the institutions of democracy continued to fail the migrant workers. However, once accepted, a number of relevant questions were raised in the court of law regarding the government’s handling of the crisis including the payment of wages, executive inefficiency, and whether the migrant workers had been transported safely.
In direct contradiction to facts on the ground, the Solicitor General of India, Tushar Mehta, claimed that there were no migrant workers on the roads anymore as governments had ensured that they were being housed and fed. In the government’s submission, the existence of the migrant exodus was merely ‘fake news’.
The Supreme Court, in its judgement, was of the view, that workers did not need to be paid entire wages as they were being given food. The assumption underlying this claim was that migrant labourers did not have any needs beyond the minimum food they were being provided while being kept in tents. The extremely reductionist view of the value of one’s life and needs was supremely insensitive, and contrary to established precedence.
In fact, Article 21 of the Constitution of India, which is a part of the Fundamental Rights guaranteed to all citizens, mandates both through precedence and the constitutional debates that ‘life’ is not merely the physical act of breathing. It does not mean mere animal existence. Instead, with the evolution of a society’s morality, a broader understanding of what life entails also develops. So from the idea of animalistic existence, ideas of human dignity, of rights such as a clean environment and privacy have been interpreted to be part of the ambit of this expansive article.
In A.K Gopalan v State of Madras, the Supreme Court adopted a narrow interpretation of what life and personal liberty should entail. In its opinion, the court stated that personal liberty is only infringed in cases of coercion and physical restraint.
However, inManeka Gandhi v Union of India, this very interpretation was widened. The Supreme Court overruled its earlier decision, and widened the ambit of the right to life and personal liberty to include the idea of a life with dignity. Over time, Article 21 and the right to life under it has come to include the right to health, clean environment, health, dignity, information, education, etc.
Despite the well-recognised existence of a right to life with dignity, the plight of the migrant workers was insufficient to create sympathy in the Supreme Court. Instead, the Court turned a blind eye and chose to ignore the government’s mishandling of the crisis.
The government and judiciary’s blindness to the plight of the migrant workers is nothing new. Through the ages, governments have been able to ignore or silence the unempowered migrant workers as a result of two key reasons. Firstly, migrant workers consist predominantly of people from historically oppressed castes. Despite this, policies seeking to protect migrant workers fail to take into account their caste, which is often a determining factor in how the job market plays out for them. Individuals belonging to classes which have been historically oppressed often face tougher situations in the job market and lack the upward social mobility available to those belonging to privileged castes. As a result, migrant workers are oppressed not only economically, but also socially. This in itself is a key reason why this particular section of society is overlooked during policy making.
Moreover, a second reason why migrant workers are often overlooked during policy decisions is the fact that the migrant workers often don’t, or are unable to, vote. As a result, governments can often ignore issues plaguing the migrant workers without significant backlash, as it was when the government imposed the initial lockdown, leaving the migrant workers stranded.
Conclusion
The Supreme Court has, on numerous instances, has given mandates on matters of policy in the past. The Vishaka guidelines on sexual harassment in the workplace; the right to food; and various environmental protection policies are but a few instances where the court identified a lacuna in the law and enacted guidelines to protect the most vulnerable sections of society.
However, the denial of wages, the lack of safety and transportation measures, and a failure to acknowledge the plight of the workers exhibits a dearth of compassion of the Supreme Court towards an extremely vulnerable group it is supposed to protect.
More than mere apathy, the active dissuasion of these PILs before their eventual acceptance also showed the adversarial lens that they were being received in. PILs are a specific instrument designed to ensure the protection of the rights of the poor, downtrodden and vulnerable, and “any member of the public” can seek appropriate directions on their behalf. The court’s approach, thus, was astonishing.
The exodus also served to highlight the crisis that India’s democratic systems are in. The lack of empathy by the government because of which little or no support was extended to the labourers, the lack of checks and balances maintained by the Supreme Court, and the failings of India’s executive in creating safe travel routes for the workers is a grim reminder that the country not only fails to protect its vulnerable, but also that the systems created to protect them are out of reach.