Has the Judiciary Turned Its Back on the Poor?

HAS THE JUDICIARY TURNED ITS BACK ON THE POOR? A Report on the Seminar 4th November 2006 At Indian Society for International Law 9, Bhagwan Dass Raod, New Delhi A film by Ruzbeh N.Barucha – “yamuna gently weeps” was shown in the beginning of the seminar. The film was very emotive and reflected the trauma the oustees have undergone in Yamuna Pushta Demolition drive ordered by the Delhi High Court in January 2004. Welcome by Shri Prashant Bhushan, Advocate, Supreme Court However, it was a very powerful film as we saw just now. 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 necessities of life. 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 liberalisation. 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 were being ruthlessly bulldozed without notice and without rehabilitation. Similarly, the hawkers of Delhi and Mumbai have been evicted from the streets pursuant to the orders of the court. Public Interest Litigation has been turned on its head. Roadside hawkers are being evicted on the orders of the Courts. Rickshaw pullers have been directed by the Delhi High Court to be removed from certain parts of Delhi, depriving thousands of people of their livelihood, and thousands of others of a non- polluting and convenient means of transport. In cities like Delhi and Bombay, the poor no longer regard the judiciary as a protector of their rights. It is being increasingly seen as an instrumentality of the wealthy and influential sections of society, which is now being used in tandem with other instrumentalities of the ruling elite, like the police, to deprive the poor of whatever natural resources that they still have access to. The Has the Judiciary turned its back on the Poor? A report 20 judiciary has come to play an increasingly important role in the governance of the country and its role affects everyone, even those who may not be accessing the courts for their individual disputes. It is therefore important that there is informed public discussion and debate on the recent role of the judiciary, particularly between thinking citizens who work with the poor and the judges themselves. It is important that the judges understand what responsible citizens are thinking about the role of the courts and they in turn understand the viewpoint of the judges. We invited sensitive judges to this forum but it does not seem to happen. There is an immediate need to form a campaign and demand the accountability of the judges in giving anti-poor judgments; there is also a need to ask for constructive judicial reforms. Inaugural Address by Justice J.S.Verma It is important to begin from the infamous role of Supreme Court in A.D.M. Jabalpur case during emergency, which let down the people. The judges who were responsible for passing the judgment had put many of us in shame. It is also a misconception to think that it was in Maneka Gandhi’s case in 1978 that for the first time ‘fairness’ and ‘reasonable’ was incorporated in Article 14. It was actually the judge Vivan Bose who in 1952 said that ‘fair justice’ and ‘reasonable’ is the requirement of Article 14. We all have to make judges to do serious introspection and examine the merits. In the recent past three news items caught my attention, which is seemingly unrelated, but to my mind they ought to be integrated. One item was the reporting on the high degree of pollution in Vapi in Gujarat. Then few days later, another news report a judgment by a single judge of Gujarat High Court, which not only dismissed a writ, which had allegation of pollution by an industry in Vapi, but also imposed a penalty of Rs 48 lakhs on the petitioner. Even if the PIL was motivated but still Rs 48 Lakhs as penalty in India is a huge amount. In Law of Evidence, there are three things; proved, not proved and disproved. If it is not proved then there is not enough evidence. Only when it is positively disproved then one goes to the extent of judging against the petitioner. If this is the case, then how many people would take the risk of filing a PIL and end –up paying Rs. 48 lakhs. The third news was the headlines in Hindustan Times, which says Gujarat Muslims give up right to buy peace. It was very sad read this item, when I am still waiting for a culmination of the Gujarat communal violence case in which I was initially involved. If they give up their rights to buy peace it is the worst thing. The Directive Principles of State Policy in Article 37 was merely brought so that people do not directly bring the writ to the court. But this is what the Supreme Has the Judiciary turned its back on the Poor? A report 20 Court did; it read Directive Principles of State Policy into the fundamental rights so to enlarge the scope. Well, one of the focuses of today’s meeting is displacement of slum dwellers. The film also mentioned about Akshardham Temple. Every time I pass Nizamuddin Bridge especially at night, I am so upset seeing such a well-lit temple. Where is the distributive justice that we have promised in the Directive Principles of State Policy? Article 37 says these are fundamental principles in governance, which the legislative and the executive have to keep in mind while making laws. The judiciary should also keep those in mind for the purpose of interpreting the laws. Likewise, one would not consider right to food, health not merely as the right to get some food, but the right to be free from hunger, if directive principles are not read into it. The right to adequate means of livelihood in Article 39 is an obligation of the state which compels state to ensure that everyone is able to have adequate means of livelihood. So that one is empowered enough not to depend on someone else’s charity to get food, that is our concept for a welfare state and of distributive justice. The area occupied by the displaced families is not more than the area occupied by the Common Wealth Games or the Akshardham Temple. There is elite population, having more than one houses and have been allotted more houses in the same area. Governments make these discretionary allotments and courts upheld it. Olga Tellis, twenty years back, had held the right to shelter as a human right, right to development a basic human right and right to adequate means of livelihood as envisaged in Article 39. The rights in all the international covenants are included in Article 14 and 21. These are the things, which judiciary has done earlier and if the judiciary is reversing this approach , then it is a matter of serious concern more for those who are in the judiciary. There should be greater public awareness and the peopl e should have participatory role in governance. That’s what democracy is all about. People’s role is not merely to vote at sporadic elections but to monitor constantly the performance of all institutions including the judiciary. Judicial Accountability includes all these things. There is considerable rather almost total lack of any effort at fair criticism of the judgments and role of judiciary. There is a ‘law quarterly review’, which reviews the modern judgments, which could help the judges to do self-introspection, but most of the articles written by the advocates are to please the judges. We need to write articles which should objectively analyze judgments and render a fair view. According to me, the misuse of the contempt power is something, which erodes the credibility of the judiciary most. Even before the Act was amended, truth should be a permissible defense. People, who don’t want to say something, take the pretext of the contempt of court but we should remove this misapprehension by encouraging honest criticism. Has the Judiciary turned its back on the Poor? A report 20 The cause of the migration towards urban areas is related to lack of good governance. The standard of education in Delhi is much higher and most development happens in Delhi. So anyone who can afford comes here while those who cannot afford comes and lives in slums. If we strictly speak on legal terms then we have the law of Adverse Possession. Wherein a person occupying a piece of land for more than 12 years (against private citizen) and 60 years (against the govt.) which is now for 30 years, will have to be made owner of the land. When these provisions have legally empowered the occupier of a particular land that the state should not be evicting inhabitants living on the land for more then 30 years. In Pannalal’s case justice Vivan Bose delivered a good judgment on Adverse Possession, which was reported in AIR 1937, Nagpur.

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