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 .
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