Justice Arun Mishra, who retired from the Supreme Court on September 2, will be discussed for a long time for the omissions and commissions of his six-year term.
But his order in M.C. Mehta v. Union of India, which he passed on August 31, in connection with the piling up of the waste by the sides of railway tracks in Delhi appears particularly to have been delivered without due regard for established precedents, and the Supreme Court’s rich jurisprudence.
The bench comprising Justices Mishra, B.R. Gavai and Krishna Murari made a reference to the affidavit filed by Ashwani Kumar Yadav, the Additional Divisional Railway Manager at the DRM Office of the Delhi Division of Northern Railway under the Ministry of Railways.
The bench chose what was said in passing in that affidavit about the predominant presence of jhuggies (shanties or makeshift slum houses) in Delhi along the 140 km length of track in the NCR region, “where the railway tracks take off in different directions and also include a ring connecting the take off of all these routes”.
“Out of this, about 70 km route length of track is affected by large jhuggie jhopri clusters existing in close vicinity of the tracks. These clusters sum up to a total of about 48000 nos [numbers] of Jhuggies in the region adjacent to Railway tracks.”
The question of removal of encroachments has little to do with removal of waste along the railway tracks – the main issue in the case before the bench. But the bench went ahead by making more observations, and issuing unforeseen directions thus:
“Special Task Force for removal of encroachments from the Railway Property has already been constituted by Railway in terms of the directions and order dated 1.10.2018 passed by the National Green Tribunal’s Principal Bench, New Delhi. [Saloni Singh & Another v Union of India and Others].
“There seems to be some political intervention against removal of such encroachments which are coming in the way. There are certain encroachments which are within the safety zone of the Railways. It is further stated in the affidavit that the Railways have doubled the efforts towards maintaining the clean environment on tracks leading to Delhi and nearby tracks….”
After directing that a plan be executed with respect to removal of plastic bags, garbage etc. within three months and a meeting of all the stakeholders be called next week and work be started soon, the bench issued this totally unexpected directive:
“We also direct all the stakeholders that a comprehensive plan for removal of jhuggies be made and executed in a phased manner. The encroachments which are there in the safety zones should be removed within a period of three months and no interference, political or otherwise, should be there and no court shall grant any stay with respect to removal of the encroachments in the area in question.
“In case any interim order is granted with respect to encroachments, which have been made along with railway tracks, that shall not be effective.”
Without any basis whatsoever, the bench concluded that piling of waste along the sides of the railway tracks was due to human habitation, which had come up unauthorised in the same area. The only possible link between these two is inferred from a certain Report No.111 submitted by the Environment Pollution (Prevention & Control) Authority (EPCA) for the NCR and the reply filed by the Railways.
In Report No.111, the EPCA said nothing about the human habitation or the removal of jhuggies.
Even on February 28, when the Supreme Court directed EPCA, Delhi government, and various municipal corporations to make a concrete plan for the removal of plastic bags, garbage and other waste materials lying on both the sides of railway lines for several kilometres, it made just one statement possibly hinting at a link:
“We take judicial notice of the fact that by the sides of the railway lines in outer Delhi region, heaps of plastic bags and garbage are lying on both sides and people living in the slums. The situation is pathetic”.
The EPCA’s report starts with this observation of the court in its February 28 order, but does not substantiate the link which the court sought to suggest between garbage lying on both the sides of the tracks and the people living in the slums.
Instead, the report observed:
“Under the Municipal Solid Waste (Management and Handling) Rules 2016 (SWM 2016), Indian Railways is termed as a “generator of waste” and categorised as “bulk waster generator”. The EPCA, therefore, has recommended that the Indian Railways is required to ensure segregation of waste at source; facilitate collection of segregated waste in separate streams; handover of recyclable material to either authorized waste pickers or authorized recyclers; process, treat and dispose of bio-degradable waste, through composting or bio-methanation, within the premises as far as possible; hand over the residual waste to the waste collectors or agency as directed by the local body.”
The EPCA noted with dismay that in spite of its repeated efforts, the Indian Railways has not been able to show a proposal or plan for the management of its solid waste and plastic waste as a bulk generator.
“Instead, what it has shown to EPCA is a set of disparate actions, which do not add up to any effective or long-term waste management plan”.
The EPCA critiqued the Indian Railways’ reply as having not provided any detailed plan for how it proposes to manage its solid waste or how it proposes to fence off its land, or secure it so that it does not become a waste dumping ground. Instead, the Railways provided information about some of the fencing it has done; or limited waste management plans it has put into place at certain stations.
“It is not clear how the waste generated and even collected in the waste bins at the station, are segregated and processed as per the Rules,” the EPCA pointed out.
“Only 4 stations have been given to an NGO for segregation and sorting of waste. However, even here it is not clear if the bio-degradable waste is composted on site or any arrangements have been made to compost the waste,” it observed.
The EPCA, therefore, requested the Supreme Court to direct the Railways to present a time-bound plan for the inventory of all solid waste generated in the Northern Region, starting with Delhi and its vicinity. This inventory, it said, must first include the waste generated in trains and in the stations.
Second, it asked that the Railways be directed to prepare an inventory of all lands belonging to it (along the tracks and other land pieces) where there are waste dumps and its plans to handle this on a long-term basis.
Third, the EPCA said the Railways should be asked to plan for management of solid waste as a bulk generator, to ensure compliance with the SWM Rules 2016.
“These plans must be comprehensive so that all solid waste generated is segregated at source; bio-degradable waste is composted and the rest is given to authorised waste recyclers or pickers. The plan must be time-bound and with clear monitoring provisions,” the EPCA recommended.
Had the EPCA been concerned about the waste allegedly generated by human habitation on the sides of the tracks, and the “unauthorised jhuggi settlements,” which the Court has referred to in its order, it would have certainly recommended eviction of such jhuggi dwellers.
The Railways’ reply affidavit to the Supreme Court, therefore, should be taken for what it is: an evasion of responsibility and making the jhuggi dwellers the scapegoats for its omissions and commissions as a bulk waste generator. But the Arun Mishra bench has not been diligent enough to sift through Railways’ response to examine what real remedial action is required to address the problem of waste management.
The result is that the bench has unleashed a catastrophe of humongous proportions on the hapless jhuggi dwellers, in complete violation of the principles of natural justice. Such a summary decision is not expected from the apex court, which has in the past expanded the right to life to include the right to shelter, and the right to dignity.
While the order refers to 48,000 units, it is oblivious of the number of persons living there. As the EPCA report makes it clear, it is not known how much land is being claimed by the Railways as having been allegedly encroached upon by jhuggi dwellers. In the absence of such basic information, the Supreme Court’s order of eviction appears far-fetched and disproportionate.
Worse, the bench makes no reference to the rehabilitation of those residents who are likely to be ousted from their jhuggis at short notice.
In the immediate aftermath of the COVID-19 crisis, and the lockdown, the Supreme Court had come under severe criticism for letting down the migrant labourers for whose survival and migration to their homes the state showed little concern.
With COVID-19 still raging, the court appears to have learnt no lessons from that initial abdication of its responsibility, which invited universal condemnation. The eviction order smacks of a deep disconnect of the court with the realities of urban poverty and the contribution of the urban poor to the city’s growth and prosperity.
The NGT’s order in Saloni Singh noted that a sum of Rs.11.25 crores was given in 2003-04 for rehabilitation of slum dwellers to the Delhi Urban Shelter Improvement Board. Out of 4410 jhuggies, only 257 had been rehabilitated, it noted.
With such a poor record in rehabilitation, imposing a three-month deadline for eviction seems not only unjust but an invitation to a humanitarian disaster, with the COVID-19 unrelenting on its impact on the urban poor and the marginalised.
The NGT also found that there are jhuggies and residential buildings, within two metres from the railway tracks throwing waste on such tracks. Therefore, the Supreme Court’s obsession with the eviction of jhuggies alone stems from a deep-rooted prejudice against the urban poor.
In one stroke, the Justice Arun Mishra bench has made it impossible for political and legal interventions to offer relief to the affected jhuggie dwellers. While passing such a direction, the bench did not consider appropriate to hear the relevant stake-holders on the question of eviction of such a huge number of families at short notice.
Ignorance of case-law
In Sudama Singh, (2010) the Delhi high court held that persons aggrieved by forced evictions should not be considered to be encroachers and instead the agencies should first determine if the dwellers are eligible for rehabilitation.
The decision in Sudama Singh has attained finality, with the Supreme Court permitting withdrawal of appeal against it by the Delhi government. In an appeal against an order of the Delhi high court in contempt proceedings, the Supreme Court again directed the Delhi government to implement the decision in Sudama Singh in full measure.
In Ajay Maken v. Union of India (2019), relating to evictions of 5,000 slum dwellers on railway land, the Delhi high court held that proper enumeration was not undertaken of the dwellers whose houses were demolished, and that right to adequate housing and rehabilitation cannot be denied to them.
In 1985, the Supreme Court’s five-judge bench had held in Olga Tellis that the right to life under Article 21 includes the right to livelihood and housing, which in turn, entitles the right-holder to a right to notice and hearing prior to evictions, and access to rehabilitation.
One would have assumed that the right granted in Olga Tellis would have further expanded in the next 35 years. But alas, the Justice Mishra bench’s August 31 order only shows how much it has shrunk further.
By not even making a reference to Olga Tellis, the order is liable to be considered as per incuriam. Perhaps it would have been too much to expect Justice Arun Mishra to remember key legal precedents, while passing an eviction order in passing too close to his retirement from the court.
As we have seen in the five-part series on Justice Arun Mishra, respect for judicial precedents is not an attribute which we can credit him with. But it is a disappointment that other judges who sat with him on the bench shared his judicial temperament while deciding a case affecting the livelihood of the poor and marginalised.
The People’s Union for Civil Liberties (PUCL), in a press release, has urged the Delhi Urban Shelter Improvement Board and the Delhi Government to intervene in the case before the Supreme Court and seek suitable modification of the order issued by the Justice Mishra bench on August 31 to ensure that no demolitions are undertaken without the effective rehabilitation of the slum-dwellers being completed first.
More important, the PUCL has emphasised the need to give an opportunity of fair hearing to the slum dwellers before any decision to implement the Supreme Court’s order is taken, to ensure protection of their rights.