Letter to the CJ of Bombay High Court- My Lords hear the slumdwellers before your Lordships order their eviction

7.7.2021

Hon’ble Mr. Justice Dipankar Datta,
Chief Justice of the High Court of Judicature at Bombay

May it please your Lordship

Sub: Hearing of suo motu PIL- demolition of the shanties of slumdwellers- without there being a single slumdweller on the party array or any kind of representation on their behalf.

1. What I came to notice from picking up today’s newspaper is a report titled is “Is Government land executive’s paternal property: CJ”. The report by Times of India correspondent Rosy Sequeira goes on to say that the Hon’ble the Chief Justice criticized the policy of the successive governments in granting protection to the slumdwellers. To me, the said statement attributed to your Lordship was quite unbelievable. But I found Mr. Narsi Benwal of the Free Press Journal had come out with a nearly identical caption, “Governments acted as though state property was paternal property: HC. Court comes down heavily on past state govts; says played fraud on Constitution by tinkering with laws for slums”. I still find it difficult to believe that your Lordship made such scathing comments, which on the face of it, I am afraid to say, is anti-poor.
2. Sixty percent of the population of Mumbai live in slums or matchbox-like structures, without bare minimum amenities like toilets and clean drinking water. The legislature which represents the will of thr people, in its wisdom, to ameliorate their sufferings, enacted the Slum Act, protecting their shanties which otherwise would be labeled by the heartless and privileged as illegal. The Government extended the initial cut off date of 1.1.1995 to 1.1.2000. The privileged class including lawyers, judges, even some members of the press carry an acquired, non conscious prejudice against the poor who provide them services as house maids, drivers, nay, all forms of physical labour. The city was built on their sweat, it lives on their sweat. But as a society we are thankless. I am afraid to say that, though the constitution envisaged this Court to extend them anchor and support, for this Court is the sentinel qui vive, the guardian of their fundamental rights, the most important of which is a roof over their head, the jurisdiction of this Court has been abused by certain self-appointed guardians of public interest like the BEAG and Janhit Manch. This Court in 1995 acting on their PILs, which Justice Krishna Iyer in his book ‘Off the Bench’ described as ravenous wolves in sheep’s clothing, ordered demolion of the shanties of more 4 lakh people without providing them alternative accommodation. This great crime against humanity happened only because the Advocate General and other law officers of the state failed to point out to the Court that the said PILs are not maintainable. They ought to have told the Court that what is maintainable as a pro bono litigation is petition for the enforcement of a ‘private right’ of a person who out of his poverty, illiteracy or like reason is unable to institute a case and the person who acts on his behalf is not the litigant, but the person aggrieved, for instance an undertrial. The said PILs were not class action litigation. On the contrary, they were busybodies whose rights were not infringed.
3. In 2004, on a similar PIL, a bench headed by Chief Justice Dalveer Bhandari ordered demolition of the shanties of the poor located within 50m of the shoreline. Representating the state and other authorities 5 senior counsel appeared. But it did not occur to them that demolition of shanties as the PIL Petitioners demanded would render thousands homeless, nay, uproot them from where they have been living for decades, and that if what we follow is a worthy legal system no Court could pass an order against the slumdwellers without them on the party array and without affording them a due opportunity to be heard.
4. In 2007, Janhit Manch came with yet another PIL. This was when I was a total stranger to Bombay. The orders of this Court in the said PIL came to me as a shock, when in 2010 some slumdwellers of Kalwa approached me. My struggle for securing justice for the slumdwellers began then. I still was only an occasional visitor to Bombay. In the said PIL, the bench of Chief Justice Mohit Shah, acceding to my plea for a modicum of fairness, directed that the slumdwellers on government/forest land etc. ought to be given notice before demolition and an opportunity to establish their claim for protection under the Slum Act. If their plea was rejected an appeal would lie to the appellate authority which the said judgement created. This meant some relief for the slumdwellers. However, after a few years, in the purported implementation of the judgment in above mentioned PIL of 2004, the authorities went on to demolish the shanties of the poor without any notice. The justification was that the 2010 judgement is not applicable to shanties which fall within CRZ-1.
5. With utmost respect, I beg to submit that the executive which is accountable to the legislature and thereby responsible to the people for its existence at every moment, which is what the concept of responsible Parliamentary democracy would mean, alone has the jurisdiction to decide to remove a slum dwelling or not. It is a matter which falls within the exclusive province of the Executive. No PIL will lie because it is not in the enforcement of a right of any person aggrieved. Not even a class action litigation will lie, no one can claim a public injury, for regularisation of slums or removal thereof is a matter of public policy.
6. With utmost respect, I beg to state that this Court has no jurisdiction to invoke suo motu PILs as the one reported in today’s newspaper. The reason is simple. Nemo potest esse simul actor et judex – nobody can be a suitor and a judge both at once. The inherent power of this Court, invoking which alone a suo motu proceedings can be initiated, is extremely narrow, to correct an error ex debito justiciea, and certainly not to enter into the province of governance. I beg to state so because the orders which this Court has passed, even constituting committees for carrying out demolition and even prescribing a time limit has rendered thousands and thousands poor people homeless. Their personal belongs, the little they own for their survival are destroyed. The orders of this Court has violated their fundamental rights.
7. Had their homes been destroyed by the executive in an illegal manner, they could have approached this Court, and exercised a very valuable right of judicial review. When the Court acts suo motu, or on PILs, as in PIL no. 140/2014, where a bench headed by Justice Bilal Nazki ordered the forceful removal of thousands of slumdwellers living on the sidelines of Thane pipeline without providing them alternative accommodation, the Court instead of being a protector and guardian of fundamental right, becomes a violator thereof. The persons aggrieved then have no forum to seek justice. For them the concept of judicial review is rendered redundant.
8. I was unwell due to covid, and was in Cochin. I came to know about the current proceedings only now. I fear that because there was none to represent the cause of the poor, this Court may pass orders adversely affecting their rights. I therefore, request that your Lordship list the matter for hearing and request that I may be heard. I would be grateful if your Lordship would treat this letter an an application for intervention.

I await to hearing from your Lordship through the Registry

With most respectful regards,

Yours Sincerely,

Mathews J. Nedumpara