“Supreme Court excellently performing its constitutional duty, staying clear of politicking over COVID-19 cases,” says former Advocate General of Maharashtra and Senior Counsel Sunil Manohar

COVID-19 has come across to us as not only the highly contagious and deadly virus, but also the heavily polarising and politicising crisis. After it polarised the country on life versus livelihood debate against the backdrop of the serial lockdowns done by the government to curb the spread of pandemic, COVID-19 has now given way to the Indian government’s adversaries to politicise our judiciary by alleging that the Supreme Court of India is favouring the government in petitions against government’s handling of COVID-19 crisis, including migrant labourers issues.

Governments come to power on political agenda and for the welfare of the people. Also for getting the subsequent mandate to attain the power to govern, the governments have to put themselves through the electoral process, so the consistent and constant scrutiny of the governments performance, even in the times of crises like COVID-19, is much needed. But it’s a cause of grave concern for the nation if, as an extension of criticising the executive and the legislative, the government’s adversaries start levelling charges against the judiciary, after not getting the results that they wished for from the judiciary.

A certain section of legal fraternity, including eminent lawyers and retired Supreme Court judges, have added a constitutional crisis dimension to COVID-19 crisis by censuring the Supreme Court of India ?for not upholding fundamental rights of migrant labourers.

In this interview with Nation Next, legal stalwart, former Advocate General of Maharashtra and Senior Counsel Sunil Manohar deconstructs the validity of these charges levelled against the Supreme Court.

In such despairing uncertainties emanated out of COVID-19 crisis, where both life and livelihood are at risk, is it fair to put people’s last hope – the judiciary – in dock

Centreline of the argument must be on what matters people should pin their last hope on the judiciary! Do they think it’s omnipotent and it can do everything under the sun? If you put your hope on the judiciary for what it can do, it’s a valid hope but if you hope that judiciary must do what it’s not supposed to and what it’s not equipped to do, then it’s a misplaced hope. So we must know the authority and the limitations of the judiciary before pining our last hope on the same. While the legislative makes the laws, the executive implements the laws and the judiciary adjudicates the validity, implementation and the legality of the laws and the policies framed and implemented by the legislative and executive, respectively. Judiciary can ascertain the constitutionality of a law but it can’t become the wisdom of framing the laws. Otherwise, the judicial system will itself become authoritarian, which would be an antithesis of the democracy…

A very prominent criticism that is floating in legal and media domain is that the Supreme Court didn’t do enough for forcing the Government of India to solve migrant labourers crisis. In our democracy, what powers the Supreme Court has do the suo moto monitoring of the government’s functioning?

One really wonders if it’s really about migrants or is it about politics and publicity. If the petitioners were really bothered about the migrants, they had to move the courts prepared with data, expertise, detailing, etc. That preparedness, one is afraid, was not seen in these cases.

In the case of migrant labourers issue or other cases pertaining to the government’s handling COVID-19 crisis, the petitioners have to demonstrate before the court if the action of the executive violates either the constitution of India or any other law or that the executive is acting arbitrarily, otherwise judiciary can’t replace its opinion with that of the executive and the legislative. Judiciary can only interfere with the actions of executive or legislative, if their actions are unconstitutional, illegal or atrocious. In these matters of COVID-19 crisis, three articles of the constitution are primarily being referred to – 14, 19 and 21.

The issue regarding the ban on the freedom of movement of migrants has to be squarely raised and proved with cogent evidence. Article 19, which gives the citizens right to freedom of movement, itself gives powers to the governments to curtail that right for multiple reasons including public health. So, if the Government of India decides to restrict the movements of migrant labourers and others for the sake of public health and in the interest of the citizens of India, the courts cannot and would not strike down the decision of the executive, unless it is proved that the said decision is whimsical, without any rationale and/or violates the established law. Unless it’s proved that the action of the government is totally frolicsome, the courts cannot strike it down or replace it with their own wisdom. That’s not in province of the courts. So, if it’s somebodys case that he is not permitted to move freely from one place to another, it is for that person to plead and prove that the restraint is either wholly illegal or arbitrary. Mind you, it is a settled principle of law that the actions of the government will be presumed to be valid unless they are demonstrated to be otherwise.

It’s one thing to say that Supreme Court has the power to interfere with the government’s decision making. Indeed it has the power but whether it needs to exercise the power is a completely separate issue. A case will have to be made out by the petitioners that such power needs to be exercised by the Supreme Court. It has to be proved by judicially manageable standards. The courts, by hunch or by the intuition, cannot decide in the favour of either side. It has to be decided upon the facts and data presented before the court. The court also has to ponder upon the repercussions of any decision pertaining to COVID-19. Also this crisis is highly in the realm of experts like virologists, economists, administration and others, whose inputs are needed to decide upon the movement of migrants, lockdown etc.

They are saying that the Supreme Court is not doing anything about the inefficiency of the government…

Inefficient means that given the resources, the government has completely squandered them. The government that can’t provide you an Utopian state of governance is not inefficient. Inefficient administration is very relative term. It has to be proved that how the government is being inefficient. If the government’s budget is limited, it’s not inefficient. Moreover, if you wish to question the government’s inefficiency in the Courts domain, you have to prove the inefficiency with the help of the experts, data, etc. It has to be properly argued before the court whether the government, to shift the migrant labourers to their native places, could have deployed certain numbers of trains or there was any technical reason behind the government not doing it.

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Just creating a sensation on migrants being stuck and alleging that the government has not put enough efforts is not enough. It has to be logically proved before the court that the action of the government is either unconstitutional, illegal or arbitrary.

In these times, the governments have to do multifarious activities of providing resources for people’s health, food, shelter, curbing the spread of the virus and the transportation for the migrant labourers. We can’t expect that now that we’ve elected a government, nothing will go wrong. If someone thinks that something has really gone wrong, he can, of course, move the court but he has to prove his case within the legal parameters, namely by demonstrating that the action alleged of is either unconstitutional, illegal or completely unreasonable.

America does it better! People have issues related to COVID-19 crisis even in the US. Who has gone to the courts there? They?ll go to the streets to do dharna, to express their views and to show their might. What is this new thing in India that for everything we have started moving the courtsAnd depending on the court, without we doing all that we need to do ourselves. We are overburdening the judiciary by doing this. I am not against people going to the court but they must understand when to move the court, on what matters to move the court and what they have to prove before the court. Every motion to the court must be well thought of, bonafide and it cannot be just impulsive.

Certain lawyers and former judges have equated The Supreme Courts so-called inaction against the government to The Supreme Courts erstwhile facilitation of the imposition of the emergency by the then Indira Gandhi government in late 1970s. Do you find any relevance in this comparison?

 I would like to ask them one question! It is proved by judicial judgement and also it is commonly accepted that the emergency was phoney. Is this pandemic situation phoney? If it’s not, then how can you compare a real pandemic situation with a phoney emergency? The comparison is absolutely misleading. Because the emergency was phoney, the suspension of the fundamental rights, then, was completely unconstitutional. If it had been a real emergency situation like today’s, our perspective towards the emergency would have been different.

I am not astonished with the views of the laypersons but when one sees eminent legal luminaries say that the Supreme Court is favouring the government, it’s distressing! To say that the judgement has gone in favour of the government is alright but saying that the Supreme Court is favouring the government is quite another thing.

Isn?t it contemptuous towards the Supreme Court?

It is! It is irresponsible. One can freely and fearlessly criticise a judgement. To criticise a judgement is not contempt but to attribute motive to a judge is, of course, contempt.

I don’t see any valid reason to say so. One may not like the judgement and the view of the Supreme Court on a particular issue. One is completely free to say so. However, to say that the court is favouring the government is unacceptable and quite irresponsible.

Then, why is the Supreme Court not holding them for contempt? Is the court so helpless

The court is not helpless but wise! In these times of crisis and pandemic, they are not wasting their energies in initiating contempts. They are focusing on the real problems. No judge initiates contempt because he is being vilified. When an action is bringing into disrepute the institution at large, it is a fit case to invoke the contempt jurisdiction. One or two dissenting voices can’t bring into disrepute the credibility of the Supreme Court. It stands on much surer footing. It is not for nothing that the citizens, as you said, pin their last hope on the Supreme Court. The courts have earned it by their ability and performance over decades. One or two disgruntled voices don’t, in any way, matter.

Retired judges like Justice Gowda and Justice Katju also criticised the Supreme Court for its ?inaction? in, especially, migrant labourers issue. To which Justice Sanjay Kishan Kaul, who’s hearing the PIL pertaining to migrant labourers issue, said, It’s unfortunate that people associated with the institution are criticising the same institution that they served. Isn?t our judicial system heavily politicised

It’s not heavily politicised. Though there may be attempts to politicise it. And the Supreme Court is doing excellently well to stay clear of that. I don’t think that the Supreme Court has committed any error in passing any order in these matters till this stage. It’s completely losing ones sense of responsibility. You go to court to discredit the government. Do it by all means. Prove it that the government is behaving illegally, unconstitutionally or totally arbitrarily. But if you fail to prove it, then don’t start discrediting the court itself! They go to the court to discredit the government and when the court doesn’t hold in their favour, they start discrediting both the government and the court. This is unfortunate.

Doesn’t this mudslinging affect the psyche of the judges concerned

No. Those who are sitting in the Supreme Court are very mature judges. By that time they reach there, they very well know that whatever judges do is a thankless job. In any case, one party loses, another wins. It has become common to blame the courts, instead of ourselves, when we lose. That’s the easiest way out for a few. Judges, after all, are human beings. The pressures, which engulf the nation, do not pass them by. Yet, by their judicial training, the judges acquire equipoise and are able to decide matters in a detached way. Talking about the Supreme Court of America, Justice Holmes one said, We are very quiet here. But it is the quiet of the storm centre. We citizens must realise this. The last thing the executives at the courts need at this point of time is misplaced and irresponsible criticism. Constructive suggestions are always welcome.

Another criticism that the Supreme Court is facing is it didn’t use common sense and prudence to call Government of India’s Solicitor General Tushar Mehtas bluff, when he painted a false picture in the court about migrant labourers not walking on roads.

That the Supreme Court must use common sense to infer whats happening on the roads is neither common sense nor prudence. It must be proved on basis of the facts. Have you proved your case to the hilt? Why should the court assume that what you say is the gospel? Keep Tushar Mehta aside; ask the petitioners what have they proved. At first, they must prove instances where the government has fallen short. Then, they have to prove what the government was required to do, it could have done but it hasn’t done. And the government doesn’t have a justifiable reason for not having done it.

This entire chaos around the migrant labourers PIL, letters by the lawyers and the retired judges criticising the Supreme Court… has polarised not only legal fraternity, but also the media. In this tug of war, the sanctity of the sacrosanct Supreme Court, what does a layperson make out of it?

We cannot perpetually keep on calling ourselves lay people and keep on expecting from the Supreme Court sitting judges to keep on educating us. In the US, the citizens are so enlightened that they elect their own judges. We can’t even dream of it in India because our citizenry, without acquiring knowledge about judiciary, keep on cribbing being lay people. Every educated person must know the basics of ones system. Isn?t it inane for these laypersons to pin their last hope on the judiciary without having knowledge about what to expect from their judiciary, democracy and constitution. Also, if certain former judges are criticising the court, why should sitting judges even give them importance? The judges speak through their judgements. Their judgements answer every criticism. If a judge is criticised ex cathedra, he cannot and shouldn’t answer the criticism. It’s enough that his judgement speaks for itself.

Government is also not lagging behind in mudslinging over judiciary. How do you perceive Solicitor Generals remark in the SC that certain High Courts are running their parallel governments in the states

True. On both the sides, people, particularly lawyers, have been making statements, which, it were better, if they had not made. It’s depressing when legal experts cast unwarranted and uncalled for aspersions on the courts. From what I gather, one can hardly find a legal or constitutional issue being astutely argued.

If you see extracts of the arguments between the Solicitor General and the petitioners, you can read only allegations, counter allegations and quotable quotes from both the sides. There used to be pearls of legal wisdom in erstwhile constitutional matters.

Personally, I would like legal arguments to galore in the Supreme Court than just making reckless allegations, and, at times, lawyers getting personal.

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