MAC: Mines and Communities

Once respected around the world as an independent and forthright final arbiter, the Supreme Court's

Published by MAC on 2006-05-15

Once respected around the world as an independent and forthright final arbiter, the Supreme Court's recent failures to implement decisions on the Narmada dam, and rights of pavement dwellers, indicates that it is "spearheading a massive assault on the poor" according to a well known civil liberties lawyer.



May 2006

New Delhi - There was a time, not so long ago, when the Supreme Court of India waxed eloquent about the Fundamental right to life and liberty guaranteed by Article 21 of the Constitution to include all that it takes to lead a decent and dignified life. They thus held that the right to life includes the right to food, the right to employment and the right to shelter: in other words, the right to all the basic necessities of life. That was in the roaring 80's when the Court gave a series of path breaking judgements; Olga Tellis (where it held that even pavement dwellers have the right to resettlement and a right of hearing before they are evicted); the Asiad Workers case, where it held that non payment of minimum wages to the workers violated their right to life; the Bandhua Mukti Morcha case, where it was held that workers cannot be kept in bondage because of loans they had taken from their employers; in Vishaka where while giving a liberal interpretation to sexual harassment of women in the workplace, they held that international covenants signed by India can be read into domestic law. A new tool of Public Interest Litigation was fashioned where anyone could invoke the jurisdiction of the Courts even by writing a post card on behalf of the poor and disadvantaged who were too weak to approach the courts themselves. It seemed that a new era was dawning and that the courts were emerging as a new liberal instrument within the State to provide the poor some respite from the various excesses and assaults of the executive.

Alas, all that seems a distant dream now, given the recent role of the courts in not just failing to protect the rights of the poor that they had themselves declared 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 oustees of the Narmada Dam, or the urban slum dwellers whose homes are being ruthlessly bulldozed without notice and without rehabilitation, on the orders of the court, or the urban hawkers and rickshaw pullers of Delhi and Mumbai who have been ordered to be removed from the streets again on the orders of the court. Public Interest Litigation has been turned on its head. Instead of being used to protect the rights of the poor, it is now being used by commercial interests and the upper middle classes to launch a massive assault on the poor, in the drive to take over urban spaces and even rural land occupied by the poor, for commercial development. While the lands of the rural poor are being compulsorily taken over for commercial real estate development for the wealthy, the urban poor are being evicted from the public land that they have been occupying for decades for commercial development by big builders, for shopping malls and housing for the rich. Roadside hawkers are being evicted on the orders of the Courts (which will ensure that people will shop only in these shopping malls). All this is being done, not only in violation of the rights of the poor declared by the Courts, but also in violation of the policies for slum dwellers and hawkers which have been formulated by the governments. Sometimes these actions of the Court seem to have the tacit and covert approval of the government (and the court is being used to do what a democratically accountable government cannot or dare not do), but occasionally they are against the will of the government. Let us examine a few of these cases.

In the main judgement of the Narmada Bachao Andolan case on the Sardar Sarovar Dam, the majority judges in the Supreme Court ruled in October 2000, that the project need not be reviewed, despite Justice Bharucha holding that a cost benefit analysis of the project had never been done, since even the Environmental impact studies had not been done. While giving the go ahead for the project, the majority judges justified it by saying that the Narmada Water Disputes tribunal's award had given a very humane and generous land based rehabilitation package for the oustees of the project which must be implemented, and which will ensure that the oustees will be better off after their displacement and rehabilitation. They also ruled that the award which mandated that rehabilitation must precede submergence and displacement must be adhered to at all costs.

In 2002 however, the NBA went to court again against the permission to raise the height of the dam to 100 metres, when it was clear from the government's own records and reports that the oustees to be submerged at that level had not been rehabilitated. The court first adjourned the matter because of a difference of opinion between the judges hearing the case, and finally, Justice Kirpal, who had written the majority judgement in 2000, dismissed it by saying that NBA could not approach the court on behalf of the oustees, who had to come on their own and after first ventilating their grievance before the Grievance Redressal Authorities. The whole basis of Public Interest Litigation developed over the last 25 years, which allowed any public spirited person to approach the court on behalf of persons too weak to approach the courts themselves, was casually set at naught for these Narmada oustees. And of course the construction and submergence went on without rehabilitation.

In 2004, when permission was given to construct the Dam to 110 metres, some of the affected oustees from 2 villages approached the Apex court again after having gone through the motions of having first approached the geriatric and moribund Grievance Redressal Authority of M.P., who would either keep their grievances pending or dispose them off on the basis of the claims of the authorities, without bothering to get a field verification done. Two of the grievances of these oustees were, that the authorities and the GRA were not offering rehabilitation to the major sons of oustees and to those whose lands and houses would be temporarily submerged during the monsoon. The court finally ruled in 2005 that the temporarily affected oustees as well as the major sons were entitled for rehabilitation. Again however the construction was allowed to go on, resulting in the lands and homes of thousands of families getting submerged without rehabilitation.

In March 2006, the Narmada Control authority gave permission for raising the height of the Dam to 122 metres, which would result in the submergence of another 15 thousand additional families. This, when M.P. had not offered cultivable agricultural land to virtually anyone, and none of their rehabilitation sites were ready with the infrastructure of roads, water supply, electricity, and sanitation. It took more than a month long agitation and an indefinite fast by Medha Patkar for the Prime Minister to send a team of 3 Ministers to the valley to verify the facts. The team made a hurried visit to 7-8 rehabilitation and submergence sites and gave a scathing report pointing out that virtually none of the oustees had been resettled and none of the rehabilitation sites were even ready to house the oustees. In the Narmada review committee, consisting of the Chief Ministers of the 4 states and Union Ministers of Water resources and environment, there was a split on party lines, with the BJP CMs voting to continue construction and the 3 UPA members voting to stop it. The matter was referred to the PM who had been designated by the Supreme Court as the final authority in such a situation. Manmohan Singh however preferred to duck his responsibility and passed the buck to the Supreme Court which was due to hear a petition by the affected oustees a few days later.

The Supreme Court, which was originally due to hear the matter on the 3rd April, had earlier postponed it to the 17th, citing the non availability of the bench to hear the matter. This, despite being told that the ongoing construction would submerge an additional 150 families by every day of construction. On the 17th April, the report of the Group of Ministers which had reported the gross and total failure of rehabilitation, was placed before the Court. The Court again adjourned the case by 2 weeks, giving the States more time to reply to the applications of the oustees and the report of the Ministers. Meanwhile the construction was allowed to go on, though the court stated that they would be forced to stop the construction if it was found that rehabilitation had not been completed in letter and spirit of the award.

On the 1st May, the Court heard detailed arguments after the counter affidavits of the States had been filed. On behalf of the oustees it was pointed out that it was the admitted position that virtually no oustee had been provided land for land. More than 90%of those entitled for land had been given only cash compensation. And more than 90% of these had been so far given only half of their cash entitlement with which they could not even buy half hectare of land despite being entitled for 2 hectares. The Award mandated that rehabilitation had to be completed a year before submergence. It was also admitted by M.P. in its affidavit that many rehabilitation sites meant for these oustees were incomplete and lacked basic infrastructure. It was also pointed out to the court, that Gujarat's claim that the additional height of the Dam was necessary for providing additional water to the drought prone regions of Gujarat was bogus, since Gujarat was being able to use only 10% of the water already available from the existing height of Sardar Sarovar on account of the hopelessly incomplete canals and water pipelines.

The court first adjourned the case further to May 8, and then observed that since facts were disputed, they would like to have the report of the 3 member committee, formed by the PM, headed by the former CAG, V.N. Shunglu. This committee is supposed to give a report on the state of resettlement of the oustees to the PM by the end of June. The court therefore adjourned the matter to the 10th of July, after which they would decide whether the construction of the Dam was legal or not. Meanwhile the construction would continue and be completed by the end of June. In other words, after the Dam was completed and the oustees submerged, the court would decide whether the construction was legal or not! This, after the admission by M.P. that many of their rehabilitation sites were not ready, and after the scathing report of the Group of Ministers. The court's behaviour in first refusing to hear the matter, then repeatedly adjourning it, then allowing the construction to be completed on the specious ground that they needed the report of the Shunglu Committee, clearly demonstrated a total lack of sensitivity to the oustees and the complete subordination of their rights to the commercial interests of those industrialists led by Narendra Modi who are eyeing the Narmada waters for their industries, water parks and golf courses. The gap between the rhetoric and the actions of the Court could not be more yawning.

Meanwhile, as the Narmada oustees were being submerged without rehabilitation, a massive programme of urban displacement of slum dwellers without rehabilitation was being carried out in Delhi and Bombay, also on the orders of the High Courts. Sometimes on the applications of upper middle class colonies, sometimes on their own, the Courts have been issuing a spate of orders for clearing slums by bulldozing the jhuggis on them, on the ground that they are on public land. Some of this is being done with the tacit approval of the government, such as the slums on the banks of the Yamuna which are being cleared for making way for the constructions for the Commonwealth games. But elsewhere the demolitions are being ordered despite the government saying that the slum dwellers are entitled for rehabilitation on the governments own policy and that right now they do not have the land to rehabilitate them. Instead of stopping the demolitions in such circumstances, the Delhi High Court has ordered the demolitions to continue regardless. And all this, without even issuing notices to the slum dwellers, in violation of the principles of natural justice.

The matter was taken to the Supreme Court, where it was pointed out that the High Court's orders were in violation of at least two rights of the slum dwellers, which had been reiterated by the courts in a series of judgements of the eighties and nineties, starting with the pavement dwellers case of Bombay in 1984, where the Apex Court had held that poor persons occupying public pavements had a right to be heard before eviction and if they had been there for a considerable time, they had a right to be given alternative places, prior to their eviction. However, ignoring the jurisprudence developed over 2 decades by it, the Court dismissed the petitions 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 occupy public land.

This was not all. The Court's relentless assaults on the poor continued with the Supreme Court ordering the eviction of Hawkers from the streets of Bombay and Delhi. Again, turning their backs on Constitution bench judgements of the Court that Hawkers have a fundamental right to hawk on the streets, which could however be regulated, the Court now observed that streets exist primarily for traffic. They thus ordered the Municipality and the police to remove the "unlicenced hawkers" from the streets of Delhi. All this again without any notice or hearing to the hawkers. This effectively meant that almost all the more 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 from the Chandni Chowk area, ostensively to pave the way for CNG buses. This order will not only deprive tens of thousands of rickshaw pullers of a harmless and environmentally friendly source of livelihood, it will also cause enormous inconvenience to tens of thousands of commuters who use that mode of transport.

The country today is living through a phase where the country's billionaires are growing as rapidly as farmers suicides in the countryside; where opulent shopping malls, commercial complexes and futuristic IT cities are coming up on land which the poor are being forced to vacate. Thus the poor are being deprived of the only real resources that they have, land, and are 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 courts often leading the assault. This has bred and is continuing to breed 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 to violence. That explains the growing cadres of the Maoists who now control many districts and even States like Chhatisgarh. The government and the ruling establishment thinks that they can deal with this menace by stongarm military methods. That explains why the government relies more and more on the advice of former policemen and why there is talk of using the Army and Air Force against the Maoists. Tribals in Chhattisgarh are being forced to join a mercenary army funded by the State by the name of Salva Judum to fight the Maoists. But all this will breed more Maoists. No insurrection bred out of desperation can be quelled by strongarm tactics. The very tactics breed more misery and desperation and will push more people to the Maoists.

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

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