DECCAN HERALD Friday, December 22, 2000

SHIFT IN NATURE OF PUBLIC INTEREST LITIGATION

The sword against the poor

By SURESH HOSBET

E M S Namboodiripad, former Chief Minister of Kerala, had once said that in a court of law, if a pot-bellied rich person is on one side as against an ill-clad poor man on the other, the court is inclined to lean in favour of the former as against the latter. Namboodiripad was held guilty of contempt of court. Today the poor man has no space in the court.

A large number of people are poor  more than 50 per cent of the population. They live in sub-human conditions, with no proper nutrition, with dirt and squalor all around, illiterate, and in abject poverty. They are the victims of oppression, exploitation, and injustices due to neglect and indifference on the part of the government and its officials, and those who have money and muscle power to stifle the poor.

It was precisely for this reason that we developed the concept of public interest litigation, not for the purpose of enforcing the right of an individual against another, but to prosecute and vindicate public interest ''which demands that violation of constitutional or legal rights, of a large number of people who are poor, ignorant or socially and economically in disadvantaged position, should not go unnoticed, unredressed...`` All such petitions were for the benefit of the weaker sections of society, and it is in that sense to redress a public injury. The emphasis is on social and economic justice with a positive obligation that it shall be delivered to the poor and the needy.

However, during the last decade or so we find a shift in the nature of public interest litigation. There is hardly any public interest litigation concerning the poor. Today, the public interest litigation centres around issues like environment, corruption, government lapses, and on all sorts of problems that have nothing to do with the concept of social justice. The Supreme Court and the high courts have now become a part of the system of governance monitoring official actions giving, from time to time, such fiats as they think proper, expecting unquestioned allegiance to every word that falls from the lips of these superlords.

The tragedy is that the assumption of these powers is in the hands of an elitist class of a few men and women in black robes  mostly erstwhile lawyers for private corporations, public sector undertakings, banks, property owners, contractors and politicians, and mostly government pleaders and public prosecutors, who are appointed for reasons for which there is no transparency. It is they who give decisions which are final  sometimes fanciful, sometimes oppressive  but rendering all those who are affected helpless.

This is what happened in the Delhi polluting industries case. The court passed an order in 1996, that all polluting industries which are in non-conforming and based in residential areas be removed from Delhi and relocated elsewhere by 1999, on the basis of right to a clean environment for Delhites. The task is not an easy job. The State government says that there are 1,26,218 small scale industries (SSIs) in Delhi, of which 97,411 are located in non-conforming areas. Of these 2,224 are stated to be polluting and these have been shut down. Some 20 lakh workers are estimated to be employed in these SSIs and tiny units.

If these industries are to be removed from Delhi, it would mean total dislocation of more than 50 lakh people from their homes. The court is oblivious to the plight of these people. The workers were never heard when the orders were passed. Even now the people are not being heard.

The court insists that all these industrial units be removed by the end of the month.

The question is not one of apportionment of blame as between the Delhi government and the Union government. The question is how do you balance between the right to environment and the right to livelihood and what is the response of the court. It is theoretically feasible to have a pollution-free, environmentally-friendly society, with a faultless environmental record. In reality, sustaining the environment is closely connected with the question of alleviating poverty. Poverty has a direct relation to environment. Environment cannot be isolated from economic problems. Rectification of environmental problems entails social and economic action. Thus it follows that there can be no environmental justice without social justice. In many environmental matters, the court has failed to notice that economic emancipation is the crucial precondition for a clean environment.

In Bombay, the court has passed an order in the name of environment, which has the effect of eviction of nearly half a million of marginalised people from their homes. There is a vast area of government land loosely named Sanjay Gandhi National Park (SGNP). There is a core area which is the park proper, which is intact. Around the periphery, there are hillocks, which on paper have been shown as forest area, but, in fact, are occupied by 78,000 to 86,000 huts i.e. between 3,90,000 and 4,30,000 people. They have been there for decades, with municipal corporation schools, dispensaries, ration shops and with water, sanitation, electricity, telephones, all sanctioned by the authorities. The Bombay Environmental Action Group filed a so-called public interest petition seeking a direction against the State forest officials to demolish these structures on the basis that the occupants are encroachers, and their continuance would have ''ecologically disastrous effects.`` Though, initially, the forest officials explained the difficulty in removing these large number of slum-dwellers from their homes and rehabilitating them, the court was induced to pass an order by consent, the effect of which is to uproot these people from their homes, some of whom have been in existence for nearly five decades.

The order is an extra-ordinary one, the like of which has not been heard anywhere in the judiciary. The order directs to demolish the structures, confiscate all building materials, disconnect all water, electricity and telephone connections, close down ration shops, schools and dispensaries, discontinue public transport such as buses and autos, all to be carried out under the supervision of a retired army colonel with SRP battalions and helicopter surveillance. All appeals filed against this order in the Supreme Court and all petitions to review and reconsider have failed. The structures are being demolished every day, though not one has been rehabilitated.

The court considered these poor slum-dwellers as ''encroachers.`` The court forgot that even such people have basic human rights which guarantee them the right to live with dignity. Even otherwise, how can a court describe these landless and homeless people who are economically incapable of having a home of their own, and who have no choice but to occupy public land (and not private land), as encroachers? If that is so, 40 per cent of the people who live below the poverty line are all ''encroachers`` on this land of ours!

Still more shocking is the observation of the Supreme Court in a recent case (Almitra H Patel`s case) where the question was one of giving alternative land for slum-dwellers in Delhi. The Judge says: ''Rewarding an encroacher on public land a free alternative site is like giving a reward to a pickpocket.`` So, in the eyes of this judge, the slum-dwellers are ''pickpockets``! No wonder, for the Supreme Court, the number of families that would be displaced by the Sardar Sarovar Dam  40,000 families officially, and according to NBA about 85,000 families  would not matter much at all.

(The writer is a former judge of the Bombay High Court)


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