The recent order by the Supreme Court 3-judge bench that threatens the homes and livelihoods of an estimated 48,000 families living along 70 km of railway tracks because they were “encroachments which are there in the safety zones,” has understandably raised many concerns. To place this order in context it is necessary to understand the trajectory of the courts and how they have manoeuvred their way from justice into governance that does not lie within their mandate.

The theme in which this order was pronounced goes back to 1985 when a petition was filed before a 3-judge bench on the pollution of the river Ganga at Haridwar but targeted the downstream tanneries at Kanpur. ​ When the first order was given in 1987 there were 35 advocates present in court representing the municipality, the pollution control board, and the 43 tanneries. In 2020, in the same theme, the number of advocates was 417 and they represented a host of regulatory bodies, municipalities, railways, solid waste handlers, smog tower makers, standards-setting institutions, and 12 thermal power plants.

How the issue of water pollution in the Ganga is linked to air pollution, railway safety, coal-burning plants, solid waste, air purification, and slums – and the list goes on increasing – is an indication of how the Court has kept manoeuvring its mandate to converge apparently unrelated, and contradictory, issues. In the present case, the EPCA recommended that all non-degradable waste be “given to authorised waste recyclers/pickers”, but the court has responded by evicting the waste-pickers! As for the slums as a safety hazard, the Railways’ own finding is that its safety performance is dependent on how much it invests in infrastructure.

This is not the first time the court has done this kind of manoeuvring. Other cases filed at the same time (1985) have been used to close not only 168 polluting industries (1996) but 75,000 non-conforming ones (2004); restrict diesel (1997) but also order the change from 10,000 diesel to 4,000 CNG buses (1998); ban mining (2002) while also removing 3 labour camps next to Bhatti Mines (2006); protect the Ridge (1995) but at the peril of evicting residents of 21 villages (2014). All these were based on the mistaken hope that they would stop the “adverse effect on the public at large.”

Another case before the court that addressed the issue of removal of garbage was also manoeuvred into other issues. While pulling up the municipalities for not removing garbage, the court commented that “slums are major polluters and they should be removed”. It also gratuitously observed, “Rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket.” This casual observation has since been used by many agencies to hold the poor guilty for all problems. In addition, most courts are now following the precedent that the alleged guilty have no right to be heard.

The High Court of Delhi offers several examples of this bias. In 1994 an association of factory owners had filed a writ in this court seeking relief from congestion and the lack of facilities in their industrial area. Another association filed a similar writ for a different area in 2002. They were clubbed together and, suddenly targeting the slums – who were not heard, the Bench held that while “it is undoubtedly the duty of Government authorities to provide shelter for the under privileged”, but “we hereby proceed to squash the same (policy) which requires alternative sites to be provided to slum dwellers.”

At the same time another Bench was hearing 36 petitions by slum dwellers, along with 28 by resident welfare associations, on slum eviction.  This Bench too declined to hear the slum dwellers (arguing that the above Bench was hearing them!) but passed orders for the “demolition of all slum clusters which have come up after February 1997.” The Union Government stepped in to file a Special Leave Petition before the Supreme Court against the squashing of resettlement policy and a stay was granted by the court with the proviso that the Union could “proceed with the impugned policy”.

Faced by this turn of events the High Court then on its own decided to address the issue of slums. The Ministry of Tourism prepared a brief showing that slum dwellers were polluting the river Yamuna. The slum dwellers were not heard although a study showed that the 29 drains from their settlements carried only 0.08% of the total sewerage discharged into the river. The court merely ordered “to forthwith remove all the unauthorised structures, jhuggies, places of worship and/or any other structure which are unauthorisedly put in Yamuna Bed and its embankment, within two months from today.” This order was used to evict 60,000 families living on the river bank while ignoring the 23 encroachments on the river bed by the government, religious institutions, and residences.

In another case, the High Court gave an order to remove a settlement on the land belonging to Delhi Vidyut Board to free the road for smooth flow of traffic. The order stated, “the unauthorised occupants also have buffalos and other animals which not only give way to unhygienic conditions but also create hindrance on the smooth flow of commuters on the ring road of Delhi which are in thousands.” Thus, safety, conservation, pollution, congestion, waste, animals, hygiene, and land are all manoeuvred  to promote action against slums.

At the base of this trajectory is the fact that slums are not illegal. They are defined as unfit for human habitation, dilapidated, overcrowded; with no ventilation, narrow streets, no light or sanitation; and “detrimental to safety, health, or morals.” Also, it is the Delhi Development Authority that is responsible for creation of slums because of its failure to provide even one-third of the LIG housing that it is legally mandated to provide. The executive and the judiciary both know this and that is why the policy of resettlement exists and judgements follow from that. If slums are to be cleared or improved as per the Act, then “habitable” land becomes the critical (and expensive) issue. Proving encroachment is even more problematic because the rich have illegally occupied far more land than the poor.

That is why courts are turning to the belief that slums are “detrimental to safety, health, or morals”. Such a ‘sentiment’ requires less ‘evidence’ than property rights, occupation dates, and illegal squatting. Unless this kind of manoeuvring by a ‘committed’ judiciary and executive is challenged, and service providers held to account by an independent legislature and a free press, this trajectory is going to continue.

Dunu Roy belongs to Hazards Centre


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