The
Judiciary: Cutting Edge
Of A Predator State
By Prashant Bhushan
07 December, 2006
Countercurrents.org
At
a time when the dominant class in India is obsessed with power and when
India appears to be at the threshold of becoming an “economic
and military superpower”, it is interesting that Tehelka has organized
this seminar called, “The summit of the powerless”. Though
one hardly sees any powerless people here, or even many who represent
them, it is still important that a meeting on this theme has been organized
by Tehelka.
It is this obsession with
power which is the driving force behind the vision of India of the ruling
elite of this country. That is why we see the frequent “power
summits” being organized by major media organizations which are
dominated by talk of India as an “emerging superpower”,
with a booming sensex and a GDP growth poised to reach 8, 9 and even
10%. And it is this power crazed libido of the elite which have made
them the cheerleaders of the government which is straining to become
the Asian right hand of the United States. This single minded pursuit
of a strategic relationship with the US has made us lose our moral bearings
as we vote against our old friends like Iran and keep quiet on unimaginable
atrocities being committed by the US in Iraq and by Israel in Palestine.
What kind of society is
this “power driven” vision of India producing. While the
elite celebrate the booming sensex, the consumer boom among the middle
classes which the spectacular GDP growth appear to be giving them, the
poor are pushed to greater and greater destitution, as the agricultural
economy collapses and they are sought to be deprived of whatever little
they have in terms of land and other natural resources. After all, when
agriculture is not contributing to the GDP growth, why not take away
the land, water and other resources from agriculture and give them to
the sectors which are leading the growth-the SEZs and the IT industry
for example. That (and the opportunity for a real estate killing) explains
the stampede for setting up SEZs and IT parks, which will be high growth
privileged enclaves, helped no doubt by the cheap compulsory acquisition
of land, the absence of taxes, labour and environmental laws. They are
envisioned almost as private and self governing States with their own
police and courts. It makes no difference to those who hope to occupy
these enclaves that India is almost at the bottom of the heap in terms
of the Human Development Index, in terms of the percentage of people
in the country who have access to housing, food, water, sanitation,
education and healthcare.
So as the rural economy
is destroyed (partly by agricultural imports) and the poor are deprived
of their land, their forests, their water and indeed all their resources,
to make way for mining leases, dams, SEZs and IT parks, all of which
augur faster GDP growth, the poor get pushed to suicide or to urban
slums. Here they struggle for existence in subhuman conditions with
no sanitation, water, electricity, and always at the mercy of the weather,
corrupt policemen and municipal officials. These slums often exist side
by side with luxurious enclaves of the ultra rich who pass by them with
barely a scornful glance and regard them as a nuisance who should be
put away beyond their gaze. And if the government cannot accomplish
that, there are always the courts to lend a helping hand. In the past
two years about 2 lakh slum dwellers from the Yamuna Pushta and other
Jhuggi colonies of Delhi have been removed on the orders of the court
and thrown to the streets or dumped in the boondocks of Bawana (40 Kms
from Delhi) and without any sanitation, water, electricity or even drainage.
It would be surprising if many of them do not become criminals or join
the ranks of naxalites who have come to control greater and greater
parts of the country.
What kind of society are
we creating? A society which is not only deeply divided in economic
classes with a vast chasm dividing them, but also one where the preoccupations
of the dominant classes are becoming increasingly crassly materialistic,
narcissistic and base. If one were to examine the content of the mainstream
electronic media-even news channels, particularly private channels which
are the main source of information and entertainment for the middle
class elite, one would find that it is characterized by an increasingly
vacuous intellectual content and pandering more and more to the baser
instincts of sex, violence and a morbid fascination for gossip particularly
about the private lives of Bollywood stars. Stories about real people
and serious public interest issues have been reduced to mere sound bytes
of a few seconds. The interest of the middle classes in and their attention
span for serious issues of public interest have been reduced to a vanishing
point, as the culture of consumerism and self indulgence has taken over
contemporary society. Even as scientific evidence piles up about how
the world is headed towards environmental catastrophe due to global
warming, not many among our well to do elite have even bothered to understand
the issue, let alone bother about tackling the problem. They are oblivious
of and unconcerned about the disaster which will certainly affect their
children if not themselves during their lifetimes.
A sickness afflicts the
soul of the dominant elite of India today. It is a sickness which has
led to a total loss of vision and has made us lose our moral bearings.
It is this sickness which is allowing us to celebrate our great GDP
growth and our emerging superpower status when the majority of our countrymen
sink to deeper and deeper depths of destitution and despair. It is this
sickness which allows us to rejoice in our becoming the main sidekick
of the global bully, while we shut our eyes to the enormous injustice
being done to the oppressed people of Iraq, Palestine and other countries
at the receiving end of the bully’s muscle. It is this sickness
which has produced the vision of the State as the facilitator of this
rapaciously exploitative model of development. A vision where the State’s
role is seen as an institution which tries to facilitate the maximization
of GDP growth. Which naturally requires the State to withdraw from its
welfare obligations and facilitate a privatized society run on laissez
faire economics. After all, private enterprise, run on the profit motive
is the best bet for maximizing GDP growth. It is this model which snatches
land from the farmer for the SEZs, the IT parks and the mines. That
vision is producing a society which is intoxicated with a kind of development
and feeling of “power” which are sowing the seeds of its
own destruction in not too far a future. We have become a society of
many Neros who are fiddling while the country is on fire.
It is not surprising then
that the “powerless” regard the State as predator rather
than protector. Even more unfortunately, the recent role of the judiciary
which was mandated by the constitution to protect the rights of the
people is making it appear as if it has become the cutting edge of a
predator State.
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 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 which the poor could access to get 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 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 in
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
wealthy. 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.
Usually these actions of the Court seem to have the tacit and covert
approval of the government (and the court is used to do what a democratically
accountable government cannot do). Let us examine a few of these cases.
In the Narmada case, the
Court recently refused to restrain further construction of the Dam which
would submerge thousands of families without rehabilitation even when
it was clear that this was not only in violation of the Narmada Tribunal
Award, but against their declared fundamental rights. 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 a total 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. And all this, without even issuing notices to the slum dwellers,
in violation of the principles of natural justice.
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.
Several recent judgements
of the court have grossly diluted the various labour laws which were
enacted to protect the rights of workers. The government has been wanting
to dilute these laws for bringing about what they call “labour
reforms”, in line with the new economic policies, but they have
been unable to do so because of political opposition. The courts have
thus stepped in to do what the government cannot do politically. They
have not only diluted the protection afforded to workmen by various
laws but have openly stated that the Court’s interpretation of
the Laws must be in line with the government’s new economic policy-
a fantastic proposition which means that the executive government can
override parliamentary legislation by executive policy. The same proposition
was enunciated by the Supreme Court in the Mauritius double taxation
case, where the court said that the government can by executive notification
give a tax holiday to Mauritius based companies, even though it is well
settled that tax exemptions can only be given by the Finance Act which
has to be passed by Parliament. Thus we find that the Courts are becoming
a convenient instrument for the government to bypass Parliament and
implement executive policy which is in violation of even Parliamentary
legislation. This congruence of interest between the executive and the
courts is most common when it comes to policies which are designed to
benefit the wealthy elite.
One important reason why
the court can do such things is because it is completely unaccountable.
The executive government must seek reelection every 5 years which acts
as a restraint on its anti poor policies. The court has no such restraint.
There is no disciplinary authority over judges, with the system of impeachment
having been found to be completely impractical. On top of this, the
Supreme Court has by a self serving judgement removed judges from accountability
from even criminal acts by declaring that no criminal investigation
can be conducted against judges without the prior approval of the Chief
Justice of India. This has resulted in a situation where no criminal
investigation has been conducted against any judge in the last 15 years
since this judgement despite common knowledge of widespread corruption
in the judiciary. Even serious public criticism and scrutiny of the
judiciary has been effectively barred by the threat of contempt of Court.
And now, they have effectively declared themselves as exempt from even
the right to information Act. Is it surprising then that they suffer
from judicial arrogance which enables them to deliver such judgements.
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 cops like Gill and Narayanan 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.
We desperately and urgently need a new vision for the country as well
as for the judiciary. We need to rediscover and perhaps reinvent the
concept of the State as a welfare State. Our judiciary was created by
the British who created it mainly to protect the interests of the empire.
That is one of the reasons why it in inaccessible to the common people.
We need to reinvent the judiciary in line with a new vision for India.
A judiciary which will really be people friendly, which can be accessed
without the mediation of professional lawyers and which will consider
it its mission to protect the rights of the poor. Unless we can demonstrate
the capacity to form that vision and translate in into action, we are
headed for serious trouble.
Prashant Bhushan is a senior lawyer in the Supreme
Court of India. This is the full text of a speech delivered at Tehelka's
summit of the powerless.
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