The Assault On The Poor

There was a time, not so long ago, when the SupremeCourt of India waxed eloquent about the Fundamental right to life and libertyguaranteed by Article 21. It held that the right to life includes the right tofood, the right to employment and the right to shelter: in other words, theright to lead a decent and dignified life. 

That was in the roaring 80s when the Court gave a series of path-breakingjudgements; Olga Tellis (where it held that even pavement dwellers have theright to resettlement and a right of hearing before they are evicted); the AsiadWorkers case (where it held that non payment of minimum wages to the workersviolated their right to life); the Bandhua Mukti Morcha case (where it was heldthat workers cannot be kept in bondage because of loans they or their ancestorshad taken from their employers); in Vishaka (where while giving a liberalinterpretation to sexual harassment of women in the workplace, it held thatinternational covenants signed by India can be read into domestic law). 

A new tool of Public Interest Litigation (PIL) was fashioned where anyonecould invoke the jurisdiction of the Courts even by writing a post card onbehalf of the poor and disadvantaged. It seemed that a new era was dawning andthat the courts were emerging as a new liberal instrument within the state toprovide the poor some respite from the various excesses and assaults of theexecutive.

Alas, all that seems a distant dream now, given the recent role of the courtsin not just failing to protect the rights of the poor that they had themselvesdeclared not long ago, but in fact spearheading the massive assault on the poor,particularly since the era of economic liberalization. 

This is happening in case after case, whether they are of the tribal ousteesof the Narmada Dam, or the urban slum dwellers whose homes are being ruthlesslybulldozed without notice and without rehabilitation, on the orders of the court,or the urban hawkers and rickshaw pullers of Delhi and Mumbai who have beenordered to be removed from the streets by the courts. 

Public Interest Litigation has been turned on its head. Instead of being usedto protect the rights of the poor, it is now being used by commercial interestsand the upper middle classes to launch a massive assault on the poor, in thedrive to take over urban spaces and even rural land occupied by the poor, forcommercial development. 

While the lands of the rural poor are being compulsorily taken over forcommercial real estate development for the wealthy, the urban poor are beingevicted from the public land that they have been occupying for decades forshopping malls and housing for the rich. Roadside hawkers are being evicted onthe orders of the Courts (which will ensure that people will shop only in theseshopping malls). 

All this is being done, not only in violation of the rights of the poordeclared by the Courts, but also in violation of government’s policies.Sometimes these actions of the Court seem to have the tacit and covert approvalof the government (and the court is being used to do what a democraticallyaccountable government cannot or dare not do), but occasionally they are againstthe will of the government. 

Let us examine a few of these cases.

When the Narmada oustees approached the courts againstthe Narmada Control Authority's decision to raise the height of the dam to 122metres in March this year, the Supreme Court, which was originally due to hearthe matter on the 3rd April, postponed it to the 17th, citing non availabilityof the bench. This, despite being told that the ongoing construction wouldsubmerge an additional 150 families by every day of construction. On the 17thApril, the report of the Group of Ministers (GoM) which had reported the grossand total failure of rehabilitation, was placed before the Court. The Courtagain adjourned the case by 2 weeks, giving the States more time to reply.

Meanwhile the construction was allowed to go on, though the court stated thatthey would be forced to stop the construction if it was found thatrehabilitation had not been completed in letter and spirit of the Tribunal’saward which mandated rehabilitation of the oustees a year before submergence.

On the 1st May, the Court heard detailed arguments after the counteraffidavits of the states had been filed. On behalf of the oustees, it waspointed out that it was the admitted position that virtually no oustee had beenprovided land for land. More than 90%of those entitled for land had been givenonly cash compensation. And more than 90% of these had been so far given onlyhalf of their cash entitlement with which they could not even buy half hectareof land despite being entitled for 2 hectares. 

It was also admitted by Madhya Pradesh (MP) in its affidavit that manyrehabilitation sites were incomplete and lacked basic infrastructure. It wasalso pointed, that Gujarat’s claim that the additional height of the dam wouldprovide additional water to Gujarat was bogus, since Gujarat was being able touse only 10% of the Narmada waters already available, on account of thehopelessly incomplete canals and water pipelines.

The court first adjourned the case further to May 8, and on that day observedthat since facts were disputed, they would like to have the report of theShunglu committee which is supposed to report on the state of resettlement ofthe oustees to the PM by the end of June. The court therefore adjourned thematter to the 10th of July. Meanwhile the construction would continue and becompleted by the end of June. In other words, after the dam was completed andthe oustees submerged, the court would decide whether the construction was legalor not!

This, after the admission by MP that many of their rehabilitation sites werenot ready, and after the scathing report of the Group of Ministers. Thecourt’s repeated adjournments of the hearing, and then allowing theconstruction to be completed for getting the Shunglu Committee’s report,clearly demonstrated a total lack of sensitivity to the oustees and the completesubordination of their rights to the commercial interests of thoseindustrialists led by Narendra Modi who are eyeing the Narmada waters for theirindustries, water parks and golf courses. The gap between the rhetoric and theactions of the Court could not be more yawning.

Meanwhile, as the Narmada oustees were being submergedwithout rehabilitation, a massive programme of urban displacement of slumdwellers without rehabilitation was being carried out in Delhi and Bombay, alsoon the orders of the High Courts. Sometimes on the applications of upper middleclass colonies, sometimes on their own, the Courts have been issuing a spate oforders for clearing slums by bulldozing the jhuggis on public land. Some of thisis being done with the tacit approval of the government, such as the slums onthe banks of the Yamuna which are being cleared for making way for theconstructions for the Commonwealth games. But elsewhere the demolitions arebeing ordered despite the government saying that the slum dwellers are entitledfor rehabilitation on the governments own policy and that right now they do nothave the land to rehabilitate them. Instead of stopping the demolitions in suchcircumstances, the Delhi High Court has ordered the demolitions to continueregardless. And all this, without even issuing notices to the slum dwellers, inviolation of the principles of natural justice.

The matter was taken to the Supreme Court, where it was pointed out that theHigh Court’s orders were in violation of at least two rights of the slumdwellers: that poor persons occupying public spaces had a right to be heardbefore eviction, and if they had been there for a considerable time, they had aright to be given alternative spaces, prior to their eviction. However, ignoringthe jurisprudence developed over two decades by it, the Court dismissed thepetitions and orally observed that nobody asked these persons to come to Delhi,if they could not afford housing here, and that they have no right to occupypublic land.

This was not all. The Court’s relentless assaults on the poor continuedwith the Supreme Court ordering the eviction of Hawkers from the streets ofBombay and Delhi. Again, turning their backs on Constitution bench judgements ofthe Court that Hawkers have a fundamental right to hawk on the streets, whichcould however be regulated, the Court now observed that streets exist primarilyfor traffic. They thus ordered the Municipality and the police to remove"unlicenced hawkers" from the streets of Delhi. All this again without anynotice or hearing to the hawkers. This effectively meant that almost all themore than 1.5 lakh hawkers would be placed at the mercy of the authorities,since less than 3 percent had been given licences.

More recently, the Delhi High Court has ordered the removal of rickshaws fromthe Chandni Chowk area, ostensibly to pave the way for CNG buses. This orderwill not only deprive tens of thousands of rickshaw pullers of a harmless andenvironmentally friendly source of livelihood, it will also cause enormousinconvenience to tens of thousands of commuters who use that mode of transport.

Interestingly, witness in this context, the alacrity and speed with which thehon'ble Parliamentarians moved to pass and notify the The Delhi Laws (SpecialProvisions) Act-2006 seeking immediate halt to the demolition and sealing driveagainst illegal structures in the capital under court orders for a period of oneyear, showing once again how electoral considerations unite the politicians ofall hues, and contrast this with the stance of the government in the NBA case.

The country today is living through a phase where thecountry’s billionaires are growing as rapidly as farmers suicides in thecountryside; where opulent shopping malls, commercial complexes and futuristicIT cities are coming up on land which the poor are being forced to vacate. Thusthe poor are being deprived of the only real resources that they have, land, andare being made homeless and destitute in order to feed the greed of the wealthy.All this is being accomplished with the help of the courts, with the courtsoften leading the assault. 

This is breeding enormous resentment among the poor and the destitute.Feeling helpless and abandoned, nay violated, by every organ of the state,particularly the judiciary, many are committing suicides, but some are taking toviolence. That explains the growing cadres of the Maoists who now control manydistricts and even states like Chhatisgarh. The government and the rulingestablishment thinks that they can deal with this menace by stongarm militarymethods. That explains why the government relies more and more on the advice offormer policemen and why there is talk of using the Army and Air Force againstthe Maoists. Tribals in Chhattisgarh are being forced to join a mercenary armyfunded by the state by the name of Salva Judum to fight the Maoists. But allthis will breed more Maoists. No insurrection bred out of desperation can bequelled by strong-arm tactics. The very tactics breed more misery anddesperation and will push more people to the Maoists.

Unless urgent steps are taken to correct the course that the eliteestablishment of this country is embarked upon, we will soon have an insurgencyon our hands which will be impossible to control. Then, when the history of thecountry’s descent towards violence and chaos is written, the judiciary of thecountry can claim pride of place among those who speeded up this process.

Prashant Bhushan is a noted Supreme Court lawyer and rights activist.