Tuesday, October 3, 2023

The Right of the Disinherited for Habitation : A Review of Justice Krishna Iyer’s Law And The Urban Poor

 

                     

Law And The urban Poor India was written by Justice V.R. Krishna Iyer way back in 1988. It gives a deep insight into the plight of the poor, particularly pavement dwellers in cities such as Mumbai . Krishna Iyer.

This small book  comprising 119 pages  has three chapters with a prologue called ‘prolegomenon‘ and an Afterword.

The first chapter ‘The Social Conscience of the Constitution’. In this the author points out how a shack of one’s own  with basic amenities is the minimum of humanism and the materialist basis of distributive justice.

The rule of law derives its strength from the rule of life and their interaction gives life to both. Our constitution is a paramount document which reflects the people’s  problems and panaceas and their  increasing expectations and frustrations .the pervasive poverty has been our colonial legacy . Gandhi has pointed out this fact and Ambedkar the contradictions between political equality and social inequality which could blow up the structure if not addressed as early as possible. Nehru has also referred to futility of constitution in the absence of removing poverty.

Krishna iyer emphasises humanity and law has to keep it undiminished and its task, to quote Seton Pollock  is “ to meet and master those frustrations that diminish man in his humanity and obstruct the realisation of his freedom and fulfilment within human society.”(7) The preamble of the constitution cannot be dismissed as ’hortative verbalism’ and the term, “We , the people’ includes the millionaire, the small and the most  marginalised known as the’ fourth world’.

Touching on ‘Poverty jurisprudence and human implications’ , he write that every Indian “has a title to personhood and to the inalienable rights inscribed in the preamble thereto, as constitutive of human worth.”(8) and it “cannot be jettisoned by elitist juristics’ (10) He says that that our constitution is “a healing , humanitarian jurisprudence in the hands of the radical jurists with a dialectical perception of the Freedom struggle “(11)

He writes that that we, including judiciary shall not brush the preamble aside as “not integral  to the supreme purpose of creating a Republic” and the words of the preamble are “rich with meaning, especially for those  millions of disinherited humans until now the eternal tenants of an extortionate order .“(12)

Article 39 (b) and ( c) direct the State to secure common good and see the system does not result in the concentration od wealth and means of production. Article 38(1) and (2) also enjoin the State to promote welfare and  to minimise and eliminate inequalities among individuals as well as groups.

 38(1)- “ State to secure a social order for the promotion of welfare of the people. The State shall strive to promote the welfare of the people by securing and protecting   as effectively as it may a social order in which Justice, social, economic and political , shall inform all the institutions of the national life”.

38(2)- The State shall , in particular, strive to minimise the inequalities in income , and endeavour to eliminate inequalities in status, facilities and opportunities , not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations”.

The problem of the pavement dwellers is an extension of the problem of slums and more serious and due to the migration of the landless and jobless ruralites many of whom turn into construction labourers along with entire families. These people suffer from gastro-intestinal issues due to lack of safe drinking  and respiratory problems due to conditions of overcrowding. Malnutrition and starvation lead to deaths of infants as well as children.  In a powerful way , Krishna Iyer writes that “Today, the authorities have been vaccinated against compassion and insulated against constitutional action.”(21)   He criticizes ‘beautification’ of cities by evicting the pavement dwellers  forcibly and at high cost. He points out how the migration of the privileged going abroad or to cities are not condemned whereas the poor migrants are vilified. The planners do not think of affordable houses for them but prescribe “ massive eviction in brazen contradiction of the spirit of the constitution” (24) if the poor are thrown out of the cities , the scarcity of labour will increase the cost of labour , production and of services. This shows their need for the city . The slum dwellers ‘’are not criminals nor animals but decent people with a sense of dignity.”(27) 

    Contrary to   general  perception that the pavement dwellers are useless, the studies reveal that there are  manual workers, self-employees, technicians, clerks, service  persons and others in sundry occupations. They are the supporters of their families back in villages.  Even among slum dwellers one can find factory workers, service sector workers, dock workers, municipal and slaughter house staff, mechanics, machinists, teachers etc. They are all not criminals as  all the rich are not black marketeers.

It is possible to provide housing to all slum dwellers provided if their energies are harnesses in the very construction process as happened in countries such as former Soviet Union, China, Kampuchea , Cuba and Vietnam.  Justice Krishna Iyer also observes, “The moneyocracy of India may not permit it and the elite economists and the high-tech strategists and their political compradors will undermine the constitution from within. “ (36) 

Articles 14, 15 and 39 A ,read together obligate  to “create conditions of life where social and economic disabilities do not deny equal justice in the enjoyment of basic facilities is the task of the legal system.” (36) Article 21 which is considered the last hope  of the poor reads as follows :

     “Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.”  

Referring to various articles such as 14, 38, 39A, 41, 43,51 A as  integral to the constitution, the author says that the task is “not to amend the constitution but to enliven it so as to deliver  its meaning to the masses wallowing  in misery as if it were their fate forever.” (41) he also refers to the continuation of colonial legacy in courts and laws  and the necessity to use the constitution as a weapon to fight for change.  The State has bee indifferent to their needs and even forcefully and suddenly  evicts them in the name of’ beautification’ of the city.  The executive, various Acts  such as the IPC, CrPC , Police Acts, Town Nuisance Acts , the Mental Health Acts are used to displace and incarcerate the slum dwellers and pavement dwellers sees as ‘nonpersons’. He wants the laws to be rewritten , people’s energy to be awakened and poignantly questions, “ who is the trespasser in our Republic?   The corneror of community wealth beyond his needs or the eternal tenants of an extortionate system.” (46)

The Supreme court in various cases took the side of the vulnerable sections—All the fundamental right  in   favour of the prisoner ( Sunil Batra), the inclusion of  an affirmative right to free defence by counsel at State’s expense in the right of  personal liberty 9 In re Hoskot) ,the socialistic  concept of deferred wages  into  pensions of public servants ( Nakara Case),  treating nonpayment of minimum wages and  withholding the legally obligatory living conditions as ‘forced labour’ prohibited by Article 23 ( Asiad Case) , the release of bonded labour and their rehabilitation .This has enlivened various Acts. “Municipal property is public property and “the public includes the landless, the shelterless and the destitute.”(47)

Krishna Iyer maintains that “all rights necessary for, and integral to, a fundamental right are also fundamental” (57). He gives the example that if drinking water is essential for life, then the facility of potable water is also essential . So is the right to pursue an activity of fine art is also covered by Article 19 (1) (a0 , because the common basic  feature is freedom of speech and expression.

But the Bombay Municipal authorities argued that the problem lies with regional imbalance in development , the govt. is doing all it can , the evictees would be provided alternative sites sections 312 to 314 under Municipal Corporation Act give powers to remove encroachers of pavements to avoid accidents to the pedestrians.

 Justice Krishna Iyer thinks that the judgement “could not have been hijacked into dehumanised territory’’  provided the judges had better feeling for the poor “against the competing cannibal claims of the mafia of our cities”  (92) he opines that “the Court  should have called for pavement dwellers’ resettlement plans and slum-dwellers’ rehabilitation schemes on a time-bound basis , judicial monitored the operation in the case of a company liquidation and produced social justice , not disposed of writ dockets.”(93)

He thinks better judgment would have come if there were political action by “the  tongueless slum dwellers” (94) article 41 enjoins  the State “to make, with in limits, effective provision for securing to the hapless victims ‘the right to work, to education and to public assistance in cases of unemployment, old age . sickness and disablement and in other cases of undeserved want.” (95)    Article 51 A (e)  for bids  “practices derogatory to the dignity of women” and directs promotion of “ common brotherhood amongst all people of India”. As one can’t torture a dog because it is cruelty and violates 51A(g) and one can’t ignore a fellow human creature. According to Article 38

“The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”

In this process , Justice  Krishna Iyer says, “ lawyer power has an expert role of forensic engineer to secure to every Indian his birth-right of shelter-swaraj” (97)

He quotes Gandhiji’s words in Young India in 1927 as follows: “ (The means of production ) should be freely available to all as God’s air and water are , or ought to be ; they should not be made a vehicle of traffic for the exploitation of others . their monopolization by any country , nation or group of persons would be unjust. “ (99) According to Justice Iyer,

Article 25 swears that “everyone has a right to a standard of living …including food, clothing and housing…’ (106) , The Covenant on Economic , Social and Cultural Rights, in its Article 11 recognises the “ right of every one to…housing …The States Parties will take appropriate steps to ensure the realization of this right…”(106) . Indian constitution protects childhood against moral and material abandonment ( Art.39 F.) and the UN Declaration of the Rights of he child, in principle, 4, state , “ The child shall have the right…housing…” (106)

Justice Krishna Iyer gives a rousing call for action  to the homeless  to unite to gain a home and to save them from ‘bulldozer justice’ . (108) He concludes that the hope of have-nots lies in “unity, aware unity with ability to seek what is their due. Their due is nothing less than a habitation on Indian earth at State expense.” (109) and notwithstanding the reluctance of the State and the haves,  “if the disinherited fight without respite, they will be fulfilled.” (109)

This slim volume gives a deep understanding of the problem of habitation of the slum dwellers and the pavement dwellers to enthuse and energize the readers from  humanized legal  perspective  for working towards a  just social and political order .     

 

No comments:

Post a Comment