Justice Markandey Katju-
I saw the interviews by Karan Thapar of Justices Madan Lokur, former Judge, Supreme Court, and Justice AP Shah, former Chief Justice, Delhi and Madras High Courts, about the Supreme Court order in the Public Interest Litigation (PIL) relating to migrants.
With due respect to both these judges, I submit they were grandstanding and talking nonsense. So let me give my own view on the matter.
First of all let me say that I too am greatly distressed at the plight of the millions of migrants and daily wagers who have lost their livelihoods in view of the nationwide lockdown, and are on the verge of starvation with their families.
Secondly, it is true that the fundamental right to life of these people under Article 21 of the Constitution has been endangered thereby.
But when Justice Lokur says that ” the Supreme Court is not fulfilling its Constitutional role ” and that ” it has let down the migrants “, one would like tp ask what the Supreme Court could have done in this situation?
It must be kept in mind that the Supreme Court cannot solve all the problems of the people. There are no doubt many fundamental rights of the people mentioned in Part 3 of the Constitution, but poverty is destructive of all rights, and a huge percentage of our population is poor. So even before this lockdown, a vast proportion of our people were deprived of fundamental rights. The lockdown has only aggravated the situation.
Justice Lokur says that “If a person has a right, it has to be enforced “, very high sounding words indeed, but hardly realistic. The socio-economic problems of India are so huge that they cannot be resolved within the system. For instance, the right to life in Article 21 would by implication include the right to employment ( for without a job how can one get money to buy food ), but there is a record and growing unemployment in the country ( it is estimated that 12 million youth are entering the job market every year in India, but jobs are getting less ).
So many of the fundamental rights in the Constitution exist only on paper, and in theory, but the Supreme Court cannot in practice enforce them. It does not have an Aladin’s magic lamp to do so. Can the Supreme Court give jobs to everyone in the country. It can no doubt direct the government to do so, but the direction will remain unenforced.
Justice AP Shah said he was disappointed with the Supreme Court as ” The Court did not ask relevant questions, and skirted the fundamental rights issue, which it was very capable of addressing “. He went on to say that the Court should have directed the government to pay minimum wages to the daily wagers and migrants for the duration of the lockdown and ordered for their healthcare and welfare of their families etc.
Again, a wholly unrealistic view. Firstly, we do not know what would be the financial implications of such an order. Secondly, most of the money allotted for this scheme will not reach the needy but will be gobbled up by our largely corrupt bureaucracy, as anyone having even a little knowledge of realities in India knows ( late PM Rajiv Gandhi had admitted only 10 paise for each rupee allotted in a government scheme reaches the poor and needy ).
So, in my opinion, the only correct order which the Supreme Court could have passed, and which it did, was to ask the government to do the needful in the matter.
I spoke on phone with Karan Thapar on this issue some time back. He vehemently disagreed with my view, and his heart seemed to be bleeding for the poor and suffering. I don’t think I have a stone heart, but I do think Justice Lokur, Justice Shah, and Karan were talking poppycock and balderdash.
[Justice Markandey Katju is former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are their own].