Prashant Bhushan, practicing lawyer in the Supreme Court of India and human rights activist argues that there has been a change in the philosophy of court decisions that is affecting justice for the poor.

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 Anyone familiar with India would be aware of the remarkable paradoxes of the country characterized by obscene wealth in the hands of a few “billionaires” among whom are 4 of the ten richest men in the world, existing side by side with appalling poverty where more than 78% of the population lives on less than Rs. 20 (45 cents) per day. The paradox of a “Shining India” comprising of the largest force of IT and financial services professionals in a country aspiring to make India an economic “superpower”, living alongside the largest slum population in the world who live without electricity, running water and sanitation, amidst unimaginable filth. More than 100,000 farmers have committed suicides in the country in the last 10 years. It ranks lower than many countries of Sub Saharan Africa in the Human Development Index.  

      In 1991, India adopted the World Bank-IMF model of “Structural Adjustment”, popularly known as the LPG programme, characterized by Liberalisation, Privatisation and Globalisation. Since then, the rate of GDP growth increased substantially from 3-4% to reach 9% in 2007-8. During this period the number of dollar millionaires increased manifold as did the average income of the top 10% of the population. The number of persons living in acute poverty during the same period however continued to grow. The Arjun Sengupta report shows that 78% of the Indian population (836 Million) now lives on less than Rs. 20 (45 Cents) per day.¹ The average availability of nutrition to people also declined during the same period, most clearly indicating that this spurt in growth, far from being inclusive, was achieved at the expense of the poor and marginalized sections of society. According to one of India’s leading economists, Utsa Patnaik, “Expenditure data from the National Sample Survey Organisation’s 61st Round (2004-05) show that rural and urban per capita cloth consumption, real food expenditure, and calorie intake have all declined from their already low levels since 1993-94. This country remains a Republic of Hunger with a larger proportion of ordinary people being relentlessly pushed down to worse nutritional status. As the tables show, the proportion of rural population unable to access 2,400 calories daily climbed from 75 per cent in 1993-94 to a record high of 87 per cent by 2004-05.The corresponding percentages for urban India, where the nutrition norm is lower at 2,100 calories, are 57% and 64.5%” ²

That was not surprising, since a lot of this “growth” was achieved by acquiring the traditional lands of poor farmers, particularly tribals, for Mining Companies, Real estate companies and “Special Economic Zones”, promoted by Private Companies etc. As the rich/poor divide increased during this period, we have seen the growth in the strength of Left wing Maoist insurgencies which have come to control a significant part of the country.

In an attempt to deal with this numbing poverty of the majority of the people who are unable to even access the judicial system of the country, an activist Supreme Court of India, 30 years ago, created a new jurisdiction which has come to be known as “Public Interest Litigation”.  The basis of this jurisdiction was the creative and expansive interpretation of the Article 21 right to life and liberty. The court declared that the fundamental right to life did not merely guarantee citizens the right to an animal existence or merely protection from being put to arbitrary and unreasonable bodily harm by the State, but to live a life of dignity. This meant that citizens had the right to food, water, shelter, education and health etc., which were all progressively declared by the Supreme Court to be part of Article 21. In a further innovation, the court also declared that Article 21 also encompasses the right to live in a clean and decent environment. The court also declared these rights to be enforceable and by a series of judgments mainly during the 80s it directed the executive to provide these basic amenities in various ways.³ Thus, it declared that it had the Constitutional right and the duty to direct the government to provide these amenities if citizens were deprived of them. Not only this, it also liberalized the concept of Locus Standi, by declaring, that in a country like India, where the majority of citizens are too poor and without resources to approach the courts themselves, anyone could approach the courts on their, behalf pro bono. The PIL revolution, as it came to be known, initially generated great hope that the courts would force the executive to adhere to the Constitutional mandate of fashioning India as a “Socialist, Secular, Democratic, Republic.” During the 80s, there were several path breaking judgements from the Courts which kept this hope alive. 

There were judgments liberalizing civil liberties.  It was held that Handcuffing of prisoners and undertrials was inhuman and a violation of their Article 21 rights⁴. It was held in Meneka Gandhi’s case⁵ that a person could not be deprived of her passport without notice and a hearing. In several cases, the court laid down extensive guidelines about the treatment of Prisoners and undertrials, particularly women.⁶ However in the infamous Habeas Corpus case during the emergency of 1975-77, when fundamental rights had been suspended, the Court held that even a writ of Habeas Corpus did not lie during an emergency, even against illegal detention. ⁷

More recently, in the 90s the court also laid down extensive salutary guidelines about the manner in which the police could deal with people while carrying out arrests.⁸ It also held that in a case of torture in police custody, the Courts exercising writ jurisdiction could also directly award compensation to the victim or his family and also order the prosecution of the offender.⁹

However from the mid 90s, we can see that the court has often sacrificed Civil liberties on the ground of “State security”. This is apparent in the manner in which it has upheld the constitutional validity of several highly draconian legislations such as the Armed Forces Special Powers Act, The Terrorist and Disruptive Activities Act (TADA) and the Prevention of Terrorism Act (POTA).¹⁰ The impunity afforded to the security forces under the Armed Forces Special Powers Act, has enabled them to torture, rape and kill thousands of persons in Kashmir and the North East (where the Act is in force), without any accountability. TADA and POTA both contained provisions making confessions made in police custody admissible and made it virtually impossible for anyone accused under the Acts to get bail. Though TADA and POTA have been repealed, similar provisions have been engrafted in the Unlawful Activities Prevention Act (UAPA) (without, however, the admissibility of police confessions). Under the cover of the Maoist insurgency, the police have been increasingly resorting to targeting Human Rights activists under these draconian laws. One of the cases which illustrates the increasingly illiberal attitude of the Supreme Court towards civil liberties is the much publicized case of Dr. Binayak Sen. Dr. Sen is an internationally celebrated Medical practitioner from the premier medical college of the country, who has spent his life in setting up Community health clinics in some of the most backward tribal areas of India, where there were no public health facilities. He was awarded among others, the prestigious Jonathan Mann award for public Health services. While working there, he came across many cases of gross human rights abuses of these tribals at the hands of the police and a private mercenary army called Salwa Judum which is funded and armed by the State. He therefore also started working with the People’s Union for Civil liberties as its General Secretary for the State of Chhatisgarh. In May 2007 he was arrested under the Unlawful Activities Act and the Chattisgarh Public Security Act on the charge of having carried out 2 letters from a Maoist in Jail to his comrade outside. Sen had been meeting him in connection with his medical condition as well as his complaints of human rights violations in jail. None of these letters are alleged to contain any subversive material. Yet he is charged with having assisted a member of a banned organization. For the last 22 months, Sen has been denied bail, even by the Supreme Court while his trial goes on and on. Though more than 22 Nobel Laureates from around the world had appealed for his release, the Court did not even deem it fit to even give a reason for refusing bail and rejected his bail by a one word order “Dismissed”. This case strikingly illustrates the illiberal attitude of the Apex Court towards the civil liberties of the poor and underprivileged, including those who work for them.

This attitude is also apparent in a recent judgement of the Supreme Court by which it struck down the Constitutional validity of the Illegal Migrants (determination by Tribunals) Act, which had been enacted to provide for a judicial Tribunal to determine any dispute regarding the Nationality of a person. Prior to that, the police used the draconian ‘Foreigners Act’ to harass and deport anyone (particularly poor Bengali Muslims) that they accused of being foreigners, without affording any recourse to a judicial determination of any dispute on that. Those challenging the IMDT Act had alleged that the protracted proceedings before a judicial tribunal were coming in the way of the summary deportation of persons accused by the police of being foreigners.¹¹

Being conscious that an Act of Parliament could only be struck down if Parliament lacked legislative competence to enact it, or if it violated a specific provision of the Constitution, the Court opined that the Act violates Art 355 of the Constitution, which mandates the Central government to protect the States against external aggression and internal disturbance! It went on to say that the onerous provisions of the Act and Rules makes it virtually impossible to expel foreigners and therefore the Act encourages infiltration of illegal migrants from Bangladesh, which amounts to external aggression against India!

      The Court also ruled that the applicability of the IMDT Act only to Assam made it discriminatory and violative of Article 14, since other states did not have to adhere to the more stringent provisions of the IMDT Act before pushing out persons designated as foreigners. In saying so, the court completely overlooked the fact that the IMDT Act as such was applicable throughout India. However the government had not notified it for other parts of the country other than Assam. But that was an executive lapse and the other pending petitions sought precisely the direction from the court- that the government be directed to notify the IMDT Act for other parts of the country. If the Tribunals under the Act were not acting expeditiously (which courts hardly even do), they could have directed the government to take whatever steps were required to remedy that.

      In fact one would have expected the Supreme Court which is constitutionally mandated to protect the fundamental rights of citizens, to have declared the Foreigners Act unconstitutional, insofar as it allows the authorities to throw out citizens alleged to be foreigners, without a judicial determination. Instead, the court says that, “A deep analysis of the IMDT Act and the Rules made thereunder would reveal that they have been purposely so enacted or made so as to give shelter or protection to illegal migrants who came to Assam from Bangladesh on or after 25^th March 1971 rather than to identify and deport them.” Clearly, this judgement reflects an authoritarian and fascist mindset that the police must have the authority to throw out anyone they want without the impediment of independent judicial scrutiny.  And this, coming from the Court who had been fully informed about the high handed and inhuman manner in which the authorities had been treating citizens under the Foreigners Act, is atrocious. The Court’s attitude completely justifies the observation contained in the report of the Citizen’s Campaign for Preserving Democracy, where it was said, “Right from roundup and arrest, to the supposed ‘hearing’ and deportation, no lawful procedure is being followed by the authorities. The entire process contributes to and manifests the criminalization and communalization of the State and the corruption of its legal and judicial institutions”.

      Another trend which is clearly noticeable is that while the Court has been often liberal in making grand pronouncements about rights, it is often slow to implement them. In many cases, the actions of the Court betray an ambiguity about the seriousness of its beliefs in those rights.  D.K. Basu’s judgment¹² for example, about the rights of arrestees and detainees has been wantonly flouted by the authorities, but rarely has the Court applied the principles of Nilabati Bahera¹³ in awarding compensation to the victims or ordering the punishment of offending police officers.  The wide gap between the rights declared by the Court and their actual implementation is evident even more starkly in the judgments on socio-economic and environmental rights.

In the eighties, the Supreme Court, in case after case, while liberally construing Article 21, held that it includes the right to shelter¹⁴, the right to food¹⁵, the right to Education¹⁶, the right to health care¹⁷ and the right of street vendors to earn a livelihood by hawking on the streets.¹⁸

In Olga Tellis¹⁹, the Court held that pavement dwellers residing on the public pavements of Mumbai had a right to hearing before they were sought to be evicted by the Municipal authorities and a right of resettlement if they were evicted.  In Bandhua Mukti Morcha,²⁰ the Court held that workers cannot be held in bondage because of loans that they or their ancestors had taken from their employers.  The Court has gone on to hold that international covenants which India had signed could be read into Municipal law for invoking socio-economic rights from article 21. Thus in Vishaka,²¹ the Court issued various binding guidelines to prevent the sexual harassment of women. 

Where the Court has, however, been most inventive is in using Article 21 to create the right to environmental protection.  In a series of judgments, it held that the right to a clean and healthy environment is also a part of Article 21. While doing so, individual benches of the court used their own subjective understanding of what was needed for a healthy and clean environment.  Some important principles were also evolved, such as the precautionary principle. The Principle was stated thus:

“The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution or major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.”

“It is also explained that if the environmental risks being run by regulatory inaction are in some way “uncertain but non-negligible”, then regulatory action is justified.  This will lead to the question as to what is the “non-negligible risk”.  In such a situation, the burden of proof is to be placed on those attempting to alter the status quo.  They are to discharge this burden by showing the absence of a “reasonable ecological or medical concern”.  That is the required standard of proof.  The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection.” ²²

In several judgments, the Court ordered the stoppage of polluting effluents into various rivers, the closing down of polluting industries near the Taj, the closing down of polluting industries in and around Delhi, the forcible conversion of all commercial vehicles plying in Delhi to Compressed Natural Gas fuel, the clearing of the ridge in Delhi of all structures, etc.  And then there is a long running case regarding deforestation²³ (T.N. Godavarman) in which a permanent bench has been constituted, which sits almost every week consisting of the Chief Justice and two other judges.  This bench made a series of orders to stop non-forest activities in forest areas and even to close down saw mills in and around forest areas in the country.  It even passed an order declaring that no non-forest activity could be carried out in a forest area without the permission of the Court.²⁴ The Forest Conservation Act 1980 required the permission of the Central Government for such non-forest activity in forest areas.  In this case, the Court by judicial fiat mandated the permission of the Court for permitting such activity in any forest area of the country. Thus, each case has to come to the Supreme Court for permission.  However, before examining a case the court directed them to be examined by an expert committee set up by the Court, known as the Centrally Empowered Committee, whose advice the Court normally follows.  However, the Court’s action in such matters has often been whimsical, with poor tribals getting short shrift while powerful corporates get favourable treatment. 

If one examines the recent record of the Supreme Court in its environmental activism, two trends are immediately clear.  1, When environmental protection comes into conflict with socio-economic rights of the poor and the marginalized, the poor usually get short shrift and, 2, when environmental protection comes into conflict with powerful vested commercial and corporate interests or what is perceived by the Court to be “development”, environmental protection usually get short shrift.

As the Court’s powers increased with the widening use of Public Interest Litigation, the executive also began to view it as a handy method for the government to do what it wants to do under the cover of the court, without having to be made democratically accountable for its acts. Thus, if the poor slum dwellers were to be removed to make way for fancy apartments, shopping malls or 5 star hotels, the courts were found as a convenient tool. The government was afraid to take responsibility for such decisions because of the fear of democratic backlash in the next election (fortunately the poor also have equal votes as the rich). The courts were ever willing to clothe such “unpopular decisions” with the authority of Law, since they are not accountable, democratically or otherwise. Howard Zinn, author of A People’s History of the United States, puts it beautifully: “The Rule of Law does not do away with unequal distribution of wealth and power, but reinforces that inequality with the authority of law. It allocates wealth and poverty in such indirect and complicated ways as to leave the victim bewildered.”

In the last few years, tens of thousands of slum dwellers living in Delhi and Mumbai have been evicted by the High Courts of Delhi and Mumbai mainly on the ground that they are polluting the environment.  In Delhi, more than 40,000 temporary slum dwellings on the banks of Yamuna were ordered to be demolished by the Delhi High Court on the presumed ground that they were polluting the river though there was no such evidence before the Court.  The demolition of their homes was ordered without notice to the slum dwellers and without providing them with any alternative housing.  This deprived them of shelter and thus violated their Article 21 rights as declared by the Supreme Court in Chameli Singh’s case.²⁵  The Supreme Court refused to stop those demolitions which effectively threw them out on the streets in the searing heat of the summer.  However, when the same land from which these persons have been evicted on the banks of the river was thereafter sought to be used for the construction of fancy apartment complexes and shopping malls (ostensibly for the Commonwealth Games), in complete violation of the norms of the Environmental Protection Agency, that no permanent structures could be set up on the river banks, the Supreme Court did not deem it fit to stop the construction.  In fact, the Supreme Court stayed the order of the Delhi High Court which had ordered further investigation into the matter by another expert committee.

The same double standards were apparent in the case of Delhi ridge which was ordered to be cleared by the Supreme Court of all structures, including temporary shanties housing poor people, on the ground that it was ecologically very sensitive²⁶ (M.C. Mehta) and part of the lungs of Delhi.  However, when five star hotels and shopping malls were constructed on the same ridge without any environmental clearance, which was required by the law, the Court did not think it fit to stop the construction and allowed those to come up on the same land where even small temporary dwelling units of the poor were not allowed.  The Court went on to say in its judgement:

"Had such parties inkling of an idea that such clearances were not obtained by DDA, they would not have invested such huge sums of money.

The stand that wherever constructions have been made unauthorisedly demolition is the only option cannot apply to the present cases, more particularly, when they unlike, where some private individuals or private limited companies or firms being allotted to have made contraventions, are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise." ²⁷

The recent attitude of the Court towards slum dwellers is summarized by the observation of Justice B.N. Kirpal in Almitra Patel’s case²⁸ in which he said in the context of giving alternative land to evicted slum dwellers, “Rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket.” So in the eyes of the court, large corporates cannot indulge in malpractice and slumdwellers are pickpockets!

India has a large tribal population which has traditionally lived within forests and their rights have not been recognised or declared for the past more than hundred years with the result that many of them continue to live in forests which have been declared as Reserve or Protected forests, without declaration of their rights, in them. Recently, Parliament passed the Forest Rights Act giving rights to forest dwellers over the land on which they were residing for more than a certain number of years.  This Act has been stayed by several High Courts on the ground that this will lead to the destruction of forests, though in fact forests have been best preserved mostly in these areas where forest dwelling tribes have been residing.  However, the Supreme Court has been very solicitous towards large corporates like Posco and Vedanta in allowing them mining leases in large tracts of forest land.  This was allowed by the Court, despite the fact that these mining leases in forest lands would displace thousands of tribal families and that the Supreme Court’s own Expert Committee had strongly recommended against giving these leases on environmental grounds.²⁹

In the Narmada Bachao Andolan case,³⁰ despite the strong dissenting judgement of Justice Bharucha, who pointed out that the Sardar Sarovar Dam project was proceeding without a comprehensive environmental appraisal and without even the necessary environmental impact studies being done, the majority judges still went on to approve the project and allowed it to go on without any comprehensive environmental impact assessment which was necessary even according to the governments own rules and notifications. The underlying reasons and ideology behind the subordination of the cause of the environment to the cause of "development", is also evident from the majority judgement. There are several passages in the majority judgement, extolling the virtues of the kind of development brought in by large dams. The judgement even goes on to gratuitously emphasize the myth that the Bhakra dam was responsible for the green revolution in the country. This, despite the fact that the court had specifically restrained the Petitioner Andolan from making any submissions on the pros and cons of large dams. The court also went on to make disparaging remarks against the NBA as being an anti development organization.

The same subordination of environmental interests to the cause of “development” is evident in the Supreme Court's judgement in the Tehri Dam case,³¹ where the governments own expert committee had given an elaborate report pointing out a series of violations of the conditions on which environmental clearance to the project had been given by the Ministry of Environment. The committee had pointed out that a number of studies which were necessary to evaluate the environmental impact of the project had not been conducted and had recommended these be immediately conducted.  Justice Dharmadhikari held that in order to ensure compliance with the conditions of environmental clearance, it was necessary to constitute an independent expert committee which would monitor the compliance with these conditions, and further construction of the Dam could only proceed on the green signal of this expert committee. The majority judges however did not even bother to ensure compliance with the conditions of environmental clearance of the project. Again, the judgement makes remarks extolling the virtues of development projects like such large dams.

This attitude showing the Court favouring “development” over the rights of oustees or the environment is most clearly evident in the manner in which the court has sought to push the Mega project called “Interlinking of rivers”. Consider the circumstances. On Independence Day in 2003, a paragraph was added in the President's speech to the effect that the problems of floods and drought can perhaps be solved by interlinking the rivers.  This paragraph was enough for a lawyer appointed by the Supreme Court as amicus curiae (to assist the court) in the Yamuna pollution case to file a short application praying that the court should direct the government to take up this project. As if on cue, the bench headed by the then Chief Justice B.N.Kripal issued notices to all the States and the Centre.  On the next day of hearing, which was the day before the retirement of the then Chief Justice, an order was passed which is now effectively being treated by the government as a direction by the court to undertake this project and complete it within the shortest possible time.  The order noted that only the Union of India and the State of Tamil Nadu had filed responses to the notice issued by the court.  It stated that the Union of India pointed out that the project would cost Rs. 5,60,000 crores, would take 43 years, and would need the consent of the States.  The State of Tamil Nadu had filed an innocuous affidavit, virtually saying nothing.  The court noted that no other State had filed any affidavit and therefore it could be assumed that none had any objection to the implementation of this project! After orally noting, that funds cannot be any constraint for the government for a project in national interest, the court observed in its order that the project should be completed within 10 years!  It also went on to advise the government that in case consent was not forthcoming from the States, the government should consider passing a legislation to obviate consent of the States for this project.

All this for a project which will displace hundreds of thousands of persons, have unprecedented environmental consequences and would require funds equal to the total irrigation budget of the country for the next 44 years. And all this without hearing any interested party, not even the States, without any discussion or debate whatsoever, without completing even feasibility studies, leave aside the question of social, environmental, economic or optimality assessments!

      In TATA Housing Development Company vs. Goa Foundation,³² the court again went against the report of its own expert committee in allowing the construction of a housing colony on land which had been held by the committee to be forest land. The court held that the committee had wrongly classified this land as forest land, by holding that the committee had deviated from its own norms. The court also relied on the reports of some other private experts filed by the Tata Housing development Company. Without entering into an elaborate discussion of the merits of this judgement, it may only be noted, that such microscopic examination of a report of the courts own expert committee has never been done at the instance of a poor or weak petitioner. For example, the court did not critically examine or interfere with the report and recommendations of the Centrally empowered committee appointed by the court, regarding fishing by poor local fishermen in the Jambudvip islands. The courts orders based on the committee's report had effectively deprived hundreds of poor fishermen of their livelihood who were using the Jambudvip islands.

The Right to environmental protection has thus been whimsically applied by individual judges according to their own subjective preferences usually without clear principles guiding them about the circumstances in which the Court could issue a mandamus for environmental protection. 

The trend of recent cases, therefore, suggests that (1) the Court has often subordinated civil liberties to the perceived imperative of state security, particularly in the context of the recent “war on terror”, (2) The Courts’ liberal and expansive pronouncements on socio-economic rights under article 21 have not been matched by a determination to implement those rights, (3) That since the liberalization of the Indian economy, even the courts’ rhetoric on socio-economic rights have been weakening, (4) That very often the Court has itself ordered the violation of those rights, violating in the process even the principles of natural justice, (5) That whenever socio-economic rights of the poor come into conflict with environmental protection, the Court has usually subordinated those rights to environmental protection, (6) That whenever environmental protection comes into conflict with what is perceived by the Court to be “development” or powerful commercial vested interests, environmental protection is usually subordinated at the altar of “development”, or such powerful interests. There are of course exceptional judgements which defy these trends, Particularly from High Courts.

All the above seriously calls into question the commitment of the Indian courts to the rights of the poor and to the constitutional imperative of creating an egalitarian socialist republic.  There can be little doubt that the Indian courts have failed to protect the socio-economic rights of the common people of India who constitute the vast majority of the Indian population.  Part of the reason for this undoubtedly lies in the class structure of the Indian judiciary.  The higher judiciary in India almost invariably comes from the elite section of the society and has become a self-appointing and self-perpetuating oligarchy.  The Indian judges appoint themselves with the help of a remarkably self-serving judgment by which the power of appointment was appropriated from the government by the judiciary.  In the absence of any transparency or even any method or system in the manner of appointments, the process lends itself to large scale arbitrariness and nepotism.  No criteria has been established for choosing and selecting judges. The understanding of, or the sensitivity towards the problems and concerns of the poor is certainly not a deseridata in the selection of the judges.  On top of this, there is no accountability of the higher judiciary in India. There is no performance audit of judges by which they could be made accountable for their conduct. Even public criticism of judges has often been held to be contempt of Court. They have also virtually insulated themselves from the Right to Information Act. It is, therefore, not surprising that the common people of India do not regard the judiciary as an institution which offers the hope of justice to them. Many have indeed come to regard it as the last bastion of an entrenched oligarchy which rules the country.