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Retired Judges who grade Supreme Court, forget their report cards

Author: Dhananjay Mahapatra
Publication: The Times of India
Date:  June 1, 2020
URL:      https://timesofindia.indiatimes.com/blogs/legallythinking/retired-judges-who-grade-supreme-court-forget-their-report-cards/

Justice Madan B Lokur awarded ‘F’ grade to the Supreme Court, from where he retired a year and half ago, disapproving the way it handled PILs seeking judicial intervention to ameliorate the pitiable plight of migrant workers caught in the pandemic caused lockdown.

After retirement, he has been vocal in criticising the SC and has thrown weight behind activists who made name, fame and, as a corollary, money by over-exploiting the PIL field. When the yield is good, so are the courts. When it is bad, the courts got bad grades.

Emmet Fox, an Irish New Thought spiritual leader, had pertinently said, “Criticism is an indirect form of self-boasting.” That appears to be the strategy of retired judges, who forget an unknown saying, “Before you go and criticise the younger generation, just remember who raised them.”

We are not saying Justice Lokur groomed or raised the SC Judges – CJI S A Bobde, Justices N V Ramana, Ashok Bhushan, L N Rao, S K Kaul, M R Shah and B R Gavai – who dealt with PILs on migrant workers. But, Justice Lokur certainly left behind a legacy through his judgments in PILs, which dealt with issues as important as migrant workers. What was his stand as a sitting Judge?

After UPA government was voted out, NGO ‘Swaraj Abhiyan’ in 2015 filed a PIL for implementation of provisions of Disaster Management Act, 2005; declaration of drought as national disaster for providing timely compensation for crop losses and input subsidy for next crop; timely payment of wages for employment under MGNREGA; and, provision of food grains under National Food Security (NFS) Act, 2013 to rural population affected by droughts.

A bench headed by Justice Lokur dealt with the PIL, from inception till disposal in 2018. He authored many voluminous judgments. Since the DM Act was enacted, many droughts have visited us. Even 11 years after DM Act, nine of UPA and NDA’s two, no National Disaster Management Plan was framed. Unaware of UPA track record, senior advocate Kapil Sibal last week was heard complaining to the SC about NDA’s failure to frame a National Plan to deal with the pandemic. The government informed that it actually has framed a national plan!

While dealing with the PIL, the course of adjudication propounded by Justice Lokur appears to have guided the Supreme Court in dealing with PILs on migrant labourers. When Swaraj Abhiyan sought a direction to government to provide dal/lentil and cooking oil at a subsidised rate to drought-affected population, mostly farmers neck deep in debt, Justice Lokur said:

“We find force in the submission of the Additional Solicitor General that no mandamus can be issued by this Court to the State Governments to implement the NFS Act beyond what is required by the terms and provisions of the statute.”

“In other words, it is not possible for us to issue a positive direction to the State Governments to make available to needy persons any item over and above what is mandated by the NFS Act, such as dal/lentil and edible oil (or any other item for that matter) to all households in the drought affected areas. Today, Swaraj Abhiyan prays for the supply of dal/lentil and edible oils; tomorrow some other NGO might pray for the supply of some other items. This might become an endless exercise and would require us to go beyond what Parliament has provided,” he said.

And again, he said, “In matters involving financial issues and prioritisation of finances, this Court should defer to the priorities determined by the State, unless there is a statutory obligation that needs to be fulfilled by the State.”

Justice Lokur had acknowledged that at least one-fourth of the country’s population, which is far larger in number than migrant labourers temporarily affected by the lockdown, were regularly whipped mercilessly by recurring drought. And yet, what did he do?

“All that we can say and do say in this regard is that at least one-fourth of the country’s population (if not one-third) is affected by drought and the State Governments must take appropriate steps to ensure that at least the statutory requirement of food grains is made available to the people in the drought-affected areas of the country. In addition, and to the extent possible, the State Government should take appropriate measures to provide dal/lentil and an appropriate cooking medium and any other items of necessity to persons affected by the drought and if a request is made by a State Government to the Government of India, it must consider the request with compassion.”

What grade will Justice Lokur give himself for the guidelines he laid for future judges of SC? Given the rasping abusive dose criticism the SC receives daily these days, one is reminded of a man who stood up in a congregation to be addressed by Buddha, and kept hurling abuses at him. After he finished, Buddha asked him, “if a person refuses to accept a gift, whom does the gift belong to?” “To the person who offered,” said the man. Buddha said he refused the gift of abuses. SC must adopt Buddha’s approach to gifts of grading by retired Judges-turned-activists.


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