Are not PILs ‘Ravenous wolves in sheep’s clothing?’

To

1. Hon’ble Mr. Justice NV Ramana

Chief Justice of India

Also to,

Hon’ble Mr. Manohar Lal Khattar

Chief Minister of Haryana

Sub: Demolition of the shanties of thousands of migrant laborers and urban poor, in the implementation of a judgement of the Supreme Court in purported PILs, rendered entirely behind their back.

I have been on a campaign since 2010, when I first came to Bombay as a stranger, after being in the Bar for more than 25 years. It may appear strange to your Lordship, the campaign I started was for the “cry of the poor” to borrow an expression from Justice Krishna Iyer, to save them from the courts. The orders which the courts have passed in “public interest litigations” where none of the affected persons are parties, and where the court is the de facto suitor and the judge, both at once. In suo motu PILs, the undeniable fact that the Court acts as a suitor and a judge is evident without even a veil.

More than 4 lakh people were rendered homeless in the year 1995 in Bombay, on the orders of the Bombay High Court rendered in PILs of Janhit Manch and BEAG. Before ordering eviction, even using an armed battalion, the court did not hear even one of the slum dwellers, the affected persons. Again, in the year 2004, the Bombay High Court acting on PILs to protect mangroves, ordered demolition of the shanties of thousands of slum dwellers. At Cuffe Parade, the shanties of thousands who had been living there for many, many decades were demolished even without notice, inspite the fact that by virtue of the Slum Act, they are protected. There is an inherent bias against the poor among the elite, including the high echelons of the executive, judiciary, press and even among lawyers. When it comes to the poor, right to life and Article 14 and 21 are mere ornamental words.

In the compliance of the orders of the Supreme Court in the purported PIL of M C Mehta, thousands of jhuggis of migrants from Bihar, UP, Orissa and other impoverished states, who came to work in the quarries in the Aravali Hills, Faridabad, were ordered to be demolished.

Shri Collin Gonsalves, instituted a PIL in the Supreme Court seeking protection against the demolition and seeking regularisation, claiming protection under right to life and fairness. The vacation bench of Justices AM Khanwilkar and Dinesh Maheshwari, in my humble opinion, ought to have entertained the petition, because it is concerning the very right to life of over 10,000 poor people. The  court instead, it is difficult to believe, directed the Government of Haryana and the Municipal Corporation of Faridabad to remove all encroachments within 6 weeks and to report compliance, and adjourned the case to 27th June, 2021.

The Hon’ble Court observed that “land grabbers cannot take refuge of rule of law and talk of fairness”. They are not land grabbers, but migrant laborers who have set up shanties out of poverty. The Court came to such a conclusion without hearing them, those who were before the court in the PIL were only a handful of affected parties.

What is far more shocking is the order to carry out the demolition within 6 weeks and report compliance. With utmost respect, I beg to submit that the Hon’ble Court could not have at all passed such an order. It had no jurisdiction to do so. The Court could have, in the worst scenario, dismissed the PIL argued by Shri Collin Gonsalves, a lawyer whom I hold in high esteem. At the most the court could have imposed costs. But the Court has no jurisdiction at all to direct the demolition of the jhuggis of thousands of slumdwellers within a  time limit (6 weeks) in a proceedings where they are not a party, without hearing them.

No Court has the power to pass an order against a person who is not before it, atleast in a representative capacity. PIL is not a jurisprudence of representative or class action. The orders passed in PILs do not constitute res judicata. PIL like the basic structure theory, has no foundation in jurisprudence.  Unfortunately, these aberrations are taught in law schools without question. Even Senior Advocates, to my great dismay, often fail to realize that these are against basic jurisprudence. I won’t blame anybody, because even ‘Homer nods at times’, no one is infallible. It shocked me to learn that my esteemed friend, Shri Collin Gonsalves, did not seek permission to withdraw the PIL so that because of his PIL thousands of slum dwellers who were not parties to the PIL are not put to jeopardy because of the said PIL. Despite all good intentions and honest efforts, the PIL filed by Sarina Sarkar through Shri Gonsalves, has brought great misery to the slumdwellers.

I could learn from reliable sources that the Government of Haryana, being fearful of the wrath of the Supreme Court, is all certain to forcefully evict the thousands of urban poor, against its own conscience. The government is considering rehabilitation of slumdwellers who originally belong to Haryana, whom they cannot politically afford to ignore. The poor migrants from UP, Bihar, Jharkhand, are going to be rendered homeless. I am made to understand that the demolition is set to begin shortly. The scenario is horrifying, heartrending. Let me be honest, all this has happened because the Government officers, including law officers, failed to bring to the notice of the Court that the Court’s orders amount to trespass into the exclusive domain of the executive, i.e., governance, and therefore, ought to be recalled, and the complex issue of prevention of migrants occupying government land and rehabilitation of such migrants ought to be left to the Government and the legislature for the simple reason that the Court has no jurisdiction.

It is the solemn duty of the Chief Minister of Haryana to ensure that the thousands of poor migrant laborers are not rendered homeless, especially at a time when the poor face the greatest of struggle, financial, mental and emotional. I thought of addressing the Hon’ble Chief Justice because the human agony and pain here is wholly avoidable. The Chief Justice is vested with all the sagacity and wisdom to avoid such a catastrophe from happening.

With most respectful regards,

Yours Sincerely,

Mathews J. Nedumpara

President

National Lawyers’ Campaign for Judicial Transparency and Reforms