The Tragedy of Judicial Non-intervention in Time – Post-Corona

Bhaskar Majumder

The tragedy reflected in the sight of sobbing migrant workers at nook and corner of the country called India has been so piercing that my younger daughter declined to communicate on it. She had to encounter this group sobbing while going to work for them in the city of Bangalore on May 14-16, 2020. As a little bit less sensitive person in the club of the middle section, I asked her to tell me telephonically to enable me to convey the ground reality to the state that includes the Judiciary also. The Media that could have played a concerted constructive role as a fourth pillar seems divided for reasons I fail to understand. The elite class seems above sensitivity though has touch-sense.

It was Saborir Pratiksha – as the story portrayed in the Great Epic Ramayana till Rama came to rescue Sabori. The migrant workers were on wait for the Sarkar (Government) to come to their rescue – they were waiting for 40+ days post-declaration of lockdown where all the families were asked to stay in-door or home-locked. Where were the migrant workers then when the announcement was made by the competent authority? They had to be in the destination-state – engaged in “roti-roji’’. How could they be home-locked for their homes were 1,000 km away? No prior arrangement was made on behalf of any of the stakeholders like the thekedar, the real estate dealer, the businessman, or any such competent agency to facilitate them to reach home before they were left out to die on road. The Inter-State Migration Act, 1979 had the provision for the migrant workers. Had they been aware, they would not have sobbed after 40+ days of being destination-locked and would have gone for assertion. It is a different aspect that the Act itself is four-decade old that needs care.

The precise point was/is the migrant workers were/are never in a position to assert. Politically, they remained non-voters. Culturally, they remained illiterate. They lived or died in fait accompli. The fact remains that the Railway authority, the Ministry of Home Affairs and the state governments started operating or cooperating post-40+ days of lockdown after inter-state movements had been banned and related executive measures were in operation along with police with baton chasing the law-violators. One young migrant worker murmured, “Ghar se nikaalne ke vaad sei danda kha raha hun...’’ (I am being lathicharged after I came out from home).  The workers got at least the chance to sob for many of their peer groups died on roads and on railway tracks before they got the same chance and many of the surviving ones were on trauma.

There is no denial of the fact that the migrant manual (often termed as unskilled) workers are looked down upon by the non-workers, the latter often self-claimed as elite, Bhadralok, and Pundit depending on birth-location-occupation. This, of course, is not the reason why the migrant workers remained neglected till completion of Lockdown 2. Was the strategy like: “keep the workers under pressure’’? Or, was it like, “make the workers understand who protects them?’’ Responses to these questions are difficult for the migrant workers have two homes – one at root-state where family lives and the other the make-shift or transit home at the destination-state. Having two homes seems a matter of privilege. In reality the processes are so tragic for the migrant workers that the privileged people may like to take the risk of experiencing it at least once in lifetime.

If a system that evolved over decades continues to function at a sub-optimum level, then the first two pillars, legislative and executive, may be inadequate to take prompt actions to save man and humanity. Assuming each one is competent enough to take policies and hence Acts and actions, the value of human rights is respected only when there is judicial intervention that is not to be interpreted as interference. Non-stepping in domains of national urgency may be read as escapism. People in India had last faith in law and the law-enforcer when most of the doors had been closed for them. The Judiciary might take up conditions of migrant workers abandoned to walk on roads suo motu based on reports from Media and civil society apart from its own observations for Judiciary is not faceless.

The public roads for the past fortnight were full of migrant workers walking with children on lap and luggage. Any observation would have made it clear that these workers were fatigued for foodlessness and all that. Night travel by own car would have made it clear that these workers had no night shelter to sleep. Of course, many of these migrant workers rooted in the home-land Heartland had the habit of sleeping under the sky – at home on a tattered gamcha (indigenous towel) spread on a khatia (indigenous cot) under a tree-shade outside home at the destination. But then post-40+ days, it was a different story. Post-50+ days of being destination-locked reports of clash between the police and mob are being reported mostly in the advanced state of Gujarat, mob means the migrant workers some of who had been arrested by the police based on CCTV footage. This contrasts the death of the migrant workers on road mostly in the backward state of Uttar Pradesh, though state-wise death counts are yet to be finalized pending deaths-on-queue.

Surely, human rights are not Judiciary-specific that one readily understands from the debate on Rawls versus Sen, where for the former it has to be addressed in the court of law while for the latter it extends beyond the court of law. No migrant worker approached the Court of law just as Eklavya in the Great Epic Mahabharata did not approach any King why his thumb was cut. So where do we go from here? Did the Apex Court or any High Court wait for the victim – the migrant worker – would approach the respective Court filing a suit against the Government of India or against the state governments at destination or root or against the thekedar or employer?            

The esteemed SC wisdomopined (opined wisdom-based) it could not stop or monitor migrants' movement. After all, India’s road length is so vast – it is not like a cricket pitch to calculate what distance Tendulkar ran on the pitch over his formal cricket life-span. The Centre launched an online dashboard post-50+days of lockdown to monitor and facilitate the smooth movement of migrant workers and their contact-tracing during lockdown across India long after SC declined to monitor – this meant the operational domain was clear and SC judged it well. This partially confirms a strong inner-bonding of pillars of the state that rejects partially the Myrdal proposition in Asian Drama that Indian state is soft – it is really hard, if not coercive for the downtrodden, internally. Rational thinkers are, however, not the only mirror to show the nature of the state for the latter changes its position to often remain unnoticed to the viewer with a fixed mirror. Masked state befools the mirror and the viewer. For the sensitive tiny civil society it was difficult to understand what was going to happen for that sensitive society was not in the process of formulating Acts or damage control. Pending what happens ultimately in the intra-Judiciary architecture, the Madras High Court has accepted the issue of migrant workers.     

Every tragedy cannot be recorded. Every tragedy cannot be addressed instantaneously. The tragedy that my daughter encountered with was not for her recording – still I insisted for I am an academician what she is not, and of course, the migrant workers are not. So I intervene notwithstanding the gossip that the Apex Court allegedly declined to deal with the migrant workers issue post-Corona, 2019/2020. Hopefully I am state-authorized by my profession to intervene. Hence, what I penned above was to console my conscience and not to show anybody guilty of neglecting anew who remained neglected for centuries.

Apology: I have total faith on Judiciary.  

Bhaskar Majumder, Professor of Economics, G. B. Pant Social Science Institute, Allahabad - 211019

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May 19, 2020

Prof. Bhaskar Majumder

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