Much has been penned in these and other columns about how the Supreme Court arrived belatedly at taking up the issue concerning the migrant workers’ plight suo motu. However, ever since that step, things have begun to go decidedly awry.

The 85% financial burden on the Railways

First, despite the unequivocal statement made by the Central Government on May 4^th that the Indian Railways would bear 85% of the train fare of the migrant workers, the order of 28^th May in the Suo Motu Writ Petition No.6/2020 records in its very first direction that :

“The railway fare shall be shared by the States as per their arrangement as submitted by the learned Solicitor General and in no case any fare should be asked or charged from any migrant workers by the States and the Railways.”

What happened to the 85% share of the Central Government via the Indian Railways? How did that get completely shifted on to the State Governments to share? What were these mysterious arrangements that were alluded to?

One can understand this is the season of Atmanirbhar and all that, but was it not incumbent for some material to be placed by the Central Government to show that there was a policy shift to put the funding burden on the State Governments? The consequence of this step has been far-reaching.

Over the last week, the number of Shramik trains have suddenly shrunk, and wild claims have been made that the “demand” for such trains have drastically reduced. This is only because most State Governments, cash strapped as they are, have found the new burden cast by the Central Government as onerous. The result of this is that as normal and special trains got pressed into service from 1^st June, the migrants were forced to undertake the burden of the tickets themselves – these not being the extant Shramik trains to which the Court’s order is anticipated to apply.

In fact, lawyer volunteers in Kerala, Chennai, Mumbai and Delhi have gone to the extent of sharing detailed excel sheets of migrants with their names and numbers who are desperate to go back to their home towns and are trying to requisition trains with the help of private contributions. I am personally aware of efforts underway by thousands to head to Bengal, Jharkhand, Uttar Pradesh, Tamil Nadu and the North-East and yet the cold, unsubstantiated claim is that very few migrants are left to reach home.

Many from the legal community who have been contributing generously to migrant initiatives have first-hand experience of migrant families remaining stranded at community shelters, railway platforms and bus stations as a direct consequence of this order. It may be useful to take a look at these photographs taken by volunteers at the New Delhi and Mumbai stations from the last few days to understand what exactly their plight is.

In fact, this video from late last night shows the number of migrants waiting on the road and pavement at New Delhi Railway station, and yet, no Shramik train has been slated today.

While the police, the civil defence and the railway officials have gone above and beyond the call of duty to take care of workers and labourers who have reached stations with their entire livelihoods packed into the bags on their backs, there is little even they can do when faced with a direction of the highest court in the land. It is imperative that this direction of 28^th May is corrected to reflect the fact that 85% of the burden be placed on the Railways, and that State Governments be free to requisition as many trains as are necessary without worrying about the burden to the exchequer.

The Assistance to the Court

The second-course correction that would be welcome is how the Court engages with the public in a Suo Motu petition. Clearly, this issue was important enough for the Court to take notice and ensure that all Governments are represented. However, when there is no Petitioner, how is the Court expected to keep the scales evenly balanced? The preferable and customary option is to have an Amicus Curiae appointed who would channel all relevant material that is sourced from Intervenors and the public to assist the Court. She or he would place their concerns and then assist the Court as the Governments responded. That has not been done.

The alternative is to allow the Interventions and hear them all at length before calling upon the States to respond. Even this was not followed.

In fact, as was evident from the proceedings of 5^th June, the approach of the Court was a curious one. It first allowed the Solicitor General to address the Court for half an hour, followed by the various counsels of the States who placed a number of statistics and several self-congratulatory submissions. Eventually, when the turn of the Intervenors came, the counsels were directed to make submissions as “officers of the court” (as had been done at the previous hearing as well) and their time to submit was severely curtailed before wrapping up matters with another opportunity to the Solicitor General to address the Court. With the greatest humility, this is a less than satisfactory approach when dealing with a story of human distress.

It is for a Constitutional Court to examine in a neutral manner what the circumstances are on the ground. It will always be the Government endeavour to present a rosy picture and avoid any bad press. Equally, Senior Counsel of the Supreme Court are not the people on the ground best placed to present a true picture as “officers of the court”. In legal submissions perhaps, but definitely not on the factual unravelling of a massive rights crisis. It is their clients – the NGOs, the volunteers, the community kitchens, the CSR initiatives and the citizen groups – whose Interventions ought to have been allowed so that the Court could have been better assisted. If this had been done, maybe the Court could have been told that:

1. There is absolutely no communication to the public via the railways website about which Shramik trains are to run. It has become necessary for migrants to actually physically visit the station to find out from a handwritten list (like the one in the photo from New Delhi station last night) and hope that the train will not get cancelled. What is worse is that these lists are sprung onto the unsuspecting commuter only a day in advance, so there is hardly any time to pack and run. As has been discussed on many volunteer groups, just finding out which trains will ply has become a logistical nightmare.

Due to the lack of a centralized multilingual registration system, it has become imperative for civil society organisations to collate data on individual migrants and seek requisition of trains to ferry them home. An illustration is the Migrant Travel Support Network’s appeal to get thousands of migrants back to Jharkhand from Bengaluru. Separate lawyer led initiatives have allowed for trains from Mumbai to Villaipuram and Mumbai to Ranchi, while the requests for more keep piling up.

2. When trains are cancelled or postponed, the onus must squarely be on the local State Governments to make arrangements for food and shelter for the migrants who have scrounged and trudged to make their way in time for their trains. They cannot be permitted to be abandoned to their own devices until the train departs the next day as scheduled.

3. Again, because of the nomadic existence thrust upon the migrant workforce and the delays in trains, food and water alone are of limited succour. There is a need for sanitary pads for women, baby food for infants and sanitizers / masks for all. Again, civil society groups have been overwhelmed by the number of manufacturers who are ready to offer these products for free or at throwaway prices, but there have been no visible efforts by most Governments.

This humanitarian crisis has demanded a cohesive, streamlined strategy which unites the Governments, entrepreneurs and civil society. What we have instead are a number of ad-hoc private initiatives that attempt to stanche a festering wound with band aid. It is time for the Supreme Court to provide critical care.

Gopal Sankaranarayanan is a Senior Advocate at the Supreme Court of India.