The Salve-Seervai Debate: Separating the grain from the chaff

Harish Salve’s defence of the Supreme Court against criticism for its initial refusal to interfere in the government’s handling of the migrant crisis, Navroz Seervai’s response, and other related views on the issue, in my view, set a good background to address some legal issues regarding our PIL jurisprudence.

To be able do so, however, one must leave aside the more controversial issues and only address the serious concerns Harih Salve raises regarding the manner in which the courts have handled PILs in the recent past, and Navroz Seervai’s defence of the same in the present context.

In March 2020, some PILs had been filed in the Supreme Court regarding the plight of migrant workers during the COVID-19 lockdown. Taking note of various measures claimed to have been taken by the government and on the Solicitor General’s submission that the Court’s guidelines will be followed, the PIL was disposed of on April 27.

It appears that the PIL petitioner attempted to reopen the matter and the Court refused to entertain this plea on May 15. It also appears that during the course of these proceedings, the Court made some oral observations regarding its inability to monitor the situation. This led to a barrage of criticism regarding the Court’s alleged insensitivity.

A few days later, the Court took suo motu cognizance of certain ‘inadequacies and lapses’ in the measures taken by the Central and state governments, as gathered from representations and news reports.

On June 9, the Court passed a set of directions, most of which were in accord with the submissions of the various governments. The headline-making direction, that all migrant workers should be transported back to their hometowns within 15 days, was also made on the concurrence of all government counsel present.

A legal analysis of the Court’s actions, I believe, is necessary to address the core issue raised by Salve and addressed by Seervai, even though the former does not take a specific stand on the Court’s approach itself.

The nature of difference between the two views can be seen from the examples pointed out by both senior lawyers in support of their stances on PILs. Salve says,

“Jain Hawala case judgments and the 2G judgments have exposed the dangers of court monitored investigations...The coal allocation judgment and the Goa mining judgment have generously contributed to bringing down the GDP."

Seevrai, however, lays stress on the Court’s role in PILs relating to “the poor and the oppressed.” The great constitutional lawyer late TR Andhyarujina captures the difference between these two categories when he says,

"However, over the years, the social action dimension of PIL has been diluted and eclipsed by another type of “public cause litigation” in courts. In this type of litigation, the court’s intervention is not sought for enforcing the rights of the disadvantaged or poor sections of the society but simply for correcting the actions or omissions of the executive or public officials or departments of government or public bodies..."

There is little disagreement, even in Salve’s argument regarding the Court’s need to intervene in the former category. So, inasmuch as Seervai and all other critics depict the present crisis as one involving violation of fundamental rights of the poor and oppressed migrant workers, there is little scope to question the Court’s powers. This distinction may not be as straightforward on a deeper analysis of the jurisprudence of rights under our Constitution, thereby complicating the justification for the Court’s intervention also.

It is said that the difference between the rights in Part III and the principles in Part IV of our Constitution reflects the difference between negative and positive rights, the former only requiring non-interference or non-infringement and the latter requiring state provision and resources. Many provisions of Part IV relate to the “poor and oppressed classes” and yet were made non-justiciable because of the uncertain demand they may create on the nation’s resources.

According to Dr. BR Ambedkar “it was left for the party in power to answer for them before the electorate at election time.” (Granville Austin, Cornerstone of a Nation, pg. 78). Under this original framework, the migrant workers' “freedom of movement” under Article 19(1)(d) was never meant to cast a positive obligation on the State to provide transport, nor was his right to life under Article 21 meant to empower courts to give directions of the present kind.

This water-tight distinction was to change with the “Court’s turn to populism” (Arun K Thiruvengadam, Constitution of India. - A Contextual Analysis) in the post-Emergency era. The “flowering of public interest litigation” led to fusing of the principles in Part IV with fundamental rights.

According to Madhav Khosla, this did not mean that the Court imposed ‘systemic’ obligations on the state to enforce socio-economic rights, but only ‘conditional’ ones. Referring to the facts in a host of cases that held important socio-economic rights to be part of Article 21, Khosla shows that in all these cases, the Court only provided remedies within the existing policy of the executive or legislature regarding these rights and did not independently cast any obligation on the state to provide for these rights, like by building schools, hospitals etc.

He says some remedies provided by the Court, especially in cases relating to right to health, more closely resemble remedies for constitutional tort rather than positive right protection i.e. remedies for negligence rather than for failure to provide anything.

He refers to the famous South African approach where its Supreme Court looks at whether the state has taken ‘reasonable’ measures to provide for socio-economic rights like the right to housing and says our Supreme Court had followed an even lower standard. The South African Supreme Court specifically rejected the ‘minimum core’ approach, being advocated by some writers in support of our Supreme Court’s interventions during the COVID-19 pandemic, which holds that a modicum of the concerned right must be provided for irrespective of the resource constraints on the state.

Recently, in what appears to be a departure from the jurisprudence traced by Khosla, the Supreme Court in Indibility Creative Pvt. Ltd. v Government of West Bengal, held that “the state is duty bound to ensure the prevalence of conditions in which those freedoms (Article 19) can be exercised”. It must be noticed that in the facts of the case, the Court found that the West Bengal state authorities had coerced cinema halls to stop screening a particular movie and in that sense, the Court was only remedying a egregious violation of free speech and not necessarily creating any positive obligations on the state.

Applying the above analysis to the present crisis, it can be said that in so far as the rights being protected by the Supreme Court (transportation, food, shelter etc) are entirely dependent on state resources, any judicial review is possible only on evidence of any specific act of negligence on the part of the state.

It must be kept in mind that enforcement of these rights may not have been resource-dependent in normal circumstances. For instance, withholding trains that are otherwise normally available when they are the only possible mode of travel to a particular place, in the absence of grounds under Article 19(4), will amount to interference with the “freedom of movement”. But in present circumstances, when resources of every kind, including the human resources necessary to compile and report the data required by the Court, are stretched, to enforce a positive obligation on the state to run trains if the government had chosen another policy course, may not have been a proper exercise of its PIL jurisdiction.

Viewed this way, the Court’s attempt to remedy ‘lapses’ on the part of the state in dealing with migrant workers may fall more correctly in the category of cases Salve and Andhyarujina allude to - ones involving governance lapses - and not the the original PIL cases involving complete state apathy towards the “poor and oppressed” such as languishing under-trials and suffering bonded labourers.

This discussion may be academic now, because the government has, at least on paper, committed to addressing the Court’s concerns. But it is high time the Court lays down a comprehensive PIL jurisprudence based on our Constitutional framework of rights, so that any future decision appears transparent and avoids allegations of deference to the executive.

The author is a lawyer practicing before the Madras High Court.