Text of the Prof. M. N. Karna Memorial Lecture on "The Court, Justice System & Social Movements" delivered by Dr. S. Muralidhar, Senior Advocate, Supreme Court, Ex-Chief Justice, Orissa High Court.
I
Before I begin, some caveats might be in order. The topic that I have chosen is indeed much vaster than I imagined and so what follows is but a broad sketch, with no claims whatsoever to being comprehensive or exhaustive. Also, it cannot claim to be totally objective either. My understanding is shaped largely by my exposure to the interplay of law and society through four decades in the field of law – nearly two of those as a lawyer. I must disclose that I was a lawyer in some of the cases I will be discussing, on the side of those resisting the might of the state. This includes the cases involving the tribals displaced on account of the dams over the Narmada, the victims of the Bhopal Gas Disaster, and the case concerning manual scavengers and sewer workers. Also, having spent over 17 years as a judge of the High Court, I am less sanguine than I was when I went over to the Bench about the judiciary’s capacity at finding solutions to the complex problems of law and society thrown up by the policy decisions of the state in the name of development. In fact, I increasingly find myself on the side of those concerned about the judiciary’s capacity to contribute in no small measure to those problems. While I certainly don’t hold a brief for the court, I think its decisions at all levels merit critical appraisal.
II
I begin with the Human Development Report for 2023/2024 titled ‘Managing Interdependence in a polarised world’. For the benefit of the audience, it will be useful to recall that the HD Index (HDI) measures human development in countries by analyzing their performance in three dimensions -Health, Education, and standard of living. The health dimension is assessed by life expectancy at birth, the education dimension is measured by mean of years of schooling for adults aged 25 years and more and expected years of schooling for children of school entering age. The standard of living dimension is measured by gross national income per capita.
In 2022 India’s rank was 134 out of 191 countries. It was far below Russia (56, belonging to the group of Very High HD Countries) and China (75), Sri Lanka (79), Bhutan (89), South Africa (110) Philippines (113) [who fall in the High HD countries group) and is even below Bhutan (125) and Bangladesh (129) in the Medium HD Group). Among the countries in the South Asian sub-continent, only Nepal (146) Pakistan (164) and Afghanistan (182) are blow India.The HD Report notes that “Recent conflicts and geopolitical tensions have surged. The impacts of conflicts spill beyond not only geographical bound aries but also generational boundaries, with the wars in Gaza, Ukraine and Yemen reversing human devel opment gains made over generations and curtailing prospects for entire cohorts of young people.” It notes: “Emerging from con flicts, persecution and human rights violations, the number of people forced to flee their homes reached 108 million, the highest level since World War II and two and a half times the number in 2010. And this does not include the latest displacements—Palestinians in Gaza and the Armenia refugee crisis, among others. One in five children globally lives in or is fleeing conflict. Millions of people, including children, who have been forced to flee their homes due to no fault of their own could live a life of dignity if countries (in volved or not involved in conflicts) could find mutu ally agreeable solutions for displaced people.
What we are witnessing at home is apparently a global trend. The HD Report observes: “In recent years political movements that advocate the domestic over the international and question the need for global cooperation have gained traction in many countries. These movements are char acterized by narrative frames that contrast what is purported to represent the interests of the general population with what serves an established elite, in what has been described as an anti-elite theory of society. Rather than ideology based, these views centre on people’s “moral” superiority over a corrupt elite. Some variants include identity-based organized views, such as nativist movements based on the su periority of one race or ethnicity, or movements that favour strong leaders without checks and balances.” It talks of the ‘emerging democracy paradox’: nearly 9 in 10 peo ple believe that democracy is a fundamental pillar of political systems. But support for leaders who may bypass the fundamental rules of the democratic pro cess has markedly increased. Today, more than half of those polled express support for such leaders.
I next turn to the Social Progress Index allows us to assess a country’s success in turning economic progress into improved social outcomes. The Social Progress Index framework focuses on three distinct (though related) questions:
1. Does a country provide for its people’s most essential needs?
2. Are the building blocks in place for individuals and communities to enhance and sustain wellbeing?
3. Is there opportunity for all individuals to reach their full potential?
In terms of the Social Progress Index 2024, India ranks 111 out of 170 countries with an overall score of 58.06. It is pertinent to note, India has slipped 4 ranks from where it stood last year. While the index lauds our nation’s efforts in areas like Usage of clean fuels and technology for cooking, Access to online governance, and gender inclusivity among others, it also indicates the need to improve in areas like child stunting, sanitation and hygiene, and press freedom etc.
I last turn to the World Happiness Report which is a study launched in 2012 to support the United Nations’ sustainable development goals. People in 143 countries and territories are asked to evaluate their life on a scale from zero to 10, with 10 representing their best possible life. Results from the past three years are averaged to create a ranking. India ranked 126 out of 143 countries, behind Libya, Iraq, Palestine, and Niger. In India, older adults with secondary or higher education and those of dominant social castes report higher life satisfaction than counterparts without formal education and those from Scheduled Castes and Scheduled Tribes. India’s older population is the second largest worldwide, with 140 million Indians aged 60 and over, second only to its 250 million Chinese counterparts. Additionally, the average growth rate for Indians aged 60 and above is three times higher than the overall population growth rate of the country. Lower satisfaction with living arrangements, perceived discrimination, and poor self-rated health were important factors associated with low life satisfaction among older Indians.
III
Throughout human history there have been violent conflicts in the name of religion, race, sovereignty. These have in turn been met with mass uprising and revolts, and of course social movements. We are all aware of the French Revolution, the labour movements in the wake of the Industrial Revolution, the civil rights movement in the United States (and now the Black Lives Matter movement) which continues to fight for a life of dignity for the African Americans, the suffragette movement which was a precursor to the women’s movement, the Anti apartheid movement in S Africa and so on. These have played a very significant role in the shaping of an international legal humans rights order, thus deeply impacting lived lives of millions world over. These have enshrined in the international law lexicon the basic human values of liberty, freedom, equality, dignity and justice.
India too has been witness to social movements and their natural extension – mass movements- throughout its history, where the collective voice of the people resisting state excesses and clamouring for change has been heard and responded to in a variety of ways by those in power. In the 19th century we have had many social reform movements that responded to caste and class inequalities. These included the Brahmo Samaj and its offshoot the Arya Samaj movement and later the Theosophical Society with the avowed object of resisting and demanding abolition of child marriages. These movements built the momentum resulting in a law abolishing child marriages being passed in 1929. In the pre-independence era we saw the Vaikom Satyagraha led by Sree Narayana Guru in Kerala and E V Ramaswamy Periyar and the Mahad satyagraha led by Babasaheb Ambedkar which led to passing of a law permitting temple entry to all castes. Then we saw the political movements like the champaran movement and the salt satyagraha which had a deep impact on raising social consciousness and catalysing the growth of the freedom struggle. Many of these movements had an impact on how laws were made, enforced and how courts decided cases. Soon after independence we had the launch of the Bhoodan and Gram Dan movements of Acharya Vinoba Bhave in which many participated and donated large tracts of land with the avowed object of of redistribution among the landless. This inspired a whole set of land reform laws. The peasant movements, the Dalit movements, the women’s movements, the movement of backward classes, the Chipko movement in Uttarakhand to save trees, the backlash in the form of the anti Mandal agitation have shaped the laws and policies on reservations and have had a telling influence on the approach of the judiciary to issues of quotas in education and in government jobs. The movements of the past have inspired events of the present. The tribal revolt led Birsa Munda in Jharkhand and the Telangana movement of the late 1940s were the inspiration for the formation of the separate states of Jharkhand in 2000 and Telangana in 2014.
In 2008 began the India against Corruption movement which in 2012 saw the emergence of a political formation, the Aam Aadmi Party. In the recent we past witnessed two major protests that gained worldwide attention. One was the anti CAA protests, which though unsupported by the courts gained worldwide attention and slowed the implementation of the law by at least four years. The other has been the farmers’ agitation against the proposed farm laws which had a surge of support from a wide cross-section and was able to withstand repeated attempts by the state to discredit and disband it through coercive tactics. The movement ultimately compelled the government to withdraw the three Bills. Throughout history, therefore, social movements have had a lasting impact on law making, law enforcement and advancement of human values of freedom and dignity. There have been, and continue to be, regressive social movements too. The resurgence of the far right and fundamentalist forces world over serves to remind us that unless democracy and freedoms in particular are practised with persistent zeal, they may be lost too easily.
IV
In this lecture, however, I cannot obviously attempt to paint a wide canvass. I will focus therefore on contemporaneous social and mass movements in India which have arisen as a response to the policies and laws of the State that have privileged development over the lives of the lesser privileged and vulnerable populations in India. I began by referring to the three reports to generally make the point that economic progress even in the medium HD countries like India is accompanied by increasing inequalities in society. Concerns over the growing inequalities in Indian society brought about by a model of development that has excluded large sections of the population, have been voiced in judgments of our Supreme Court. In one decision delivered in 2010, which reviewed the government's decision to give the right to explore offshore oil reserves to a private corporation, it was observed:
"The neo-liberal agenda has increasingly eviscerated the State of stature and power, bringing vast benefits to the few, modest benefits for some, while leaving everybody else, the majority, behind. As we cast a glance across the face of our land, the greater incidence of social unrest, and movements for greater self determination, seem to occur by and large in states and regions that have plenty of natural wealth and paradoxically suffer from low levels of human development."
In July of the same year another bench of the Court remarked:
"It is very often the process of development that most starkly confirms the fears expressed by Dr. Ambedkar about our democracy. A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised and guaranteed under the constitution hardly ever reach the most marginalized citizens."
However, the above response should not be mistaken to be the general view of the judiciary as a whole in relation to the issues of law and development in the country. On the contrary, I seek to demonstrate that the response of the judiciary has been uneven, and at times even unprincipled. While in some instances, the response has been informed by reason, at other times utilitarian pragmatism appears to have been the approach. Yet, the judiciary has not been able to ignore the voices brought forth into the public discourse, and therefore into court spaces, by social movements. I will briefly touch upon how social movements have shaped and have been shaped by judicial decisions and these in turn have helped shape public opinion. They have helped ask for greater transparency and accountability from institutions of governance. They have ushered in and developed in a positive way, changes in the fabric of social welfare legislations. While there have been and will continue to be sceptics questioning the competence and legitimacy of judicial intervention in areas of executive and legislative policy, it leaves optimists like me with the hope that this is but a work in progress in what many perceive as a fledgling democracy.
V
Role of the Judiciary
I will now seek to briefly trace the evolution of the role of the judiciary in seeking to recognize, protect and enforce basic rights, including social rights. Overcoming its initial phase of conservatism in interpreting the provisions of the Constitution, the Supreme Court of India in the Fundamental Rights case in 1973 held that what was fundamental in the governance of the country was no less significant than that which was fundamental in the life of an individual. It declared that the justiciable fundamental rights in Part III of the Constitution and the non-justiciable and 'aspirational' DPSP in Part IV were not divisible but complementary.
This led progressively the Supreme Court to declare in 1977 in the now celebrated decision in Maneka Gandhi v. Union of India that the doctrine of substantive due process was integral to the chapter on fundamental rights. The negative right to life under Article 21 restrained the state from denying a person’s right to life and liberty except according to procedure established by law. The further requirement now was that such law had to be “just, fair and reasonable.” In subsequent decisions, the court proceeded to expand the content of the right to life to include “the right to live with human dignity and all that goes with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings.” These decisions laid the foundation for the evolution of the social rights jurisprudence.
Public Interest Litigation
In the late 1970s the Supreme Court innovated the public interest litigation (PIL) jurisdiction. The Court wanted to be seen as an institution that worked for the people. The Court realised that if the justice system had to remain relevant to large masses of underprivileged and disadvantaged people, who could not afford to reach the Court, the Court must reach out to them. It ought not to wait for them to knock at its doors. In a sense the Court was seeking legitimacy for its own constitutional role to make social justice a reality for the masses. PIL was seen by the Court as an extended arm of the legal aid movement which would be the constitutional tool to achieve social justice.
In the PIL jurisdiction, any public-spirited person can bring causes affecting not necessarily herself, but a class of persons, before the constitutional courts. The petitions could be informal. The procedures are also flexible. PIL is considered non-adversarial. The focus is on problem solving. The Court is not restrained by having to make choices among binary options. The Court in its PIL jurisdiction has been able to adopt creative ways of overcoming the law versus policy hurdle. Typically, it will issue orders and retain the case to monitor their enforcement. It has explained this technique as 'continuing mandamus.' Where the subject matter is technical, it will ask for reports from experts. It will rope in amicus curiae to help it navigate the technical and legal terrain. The PIL jurisdiction has grown over the years and forms the centrepiece of the Court's functioning. PIL has provided social movements a space in which to get courts to engage with issues of law and society, law and development and people’s access to justice. It has helped raise issues of transparency, accountability and answerability of institutions to the rule of law.
I wish to illustrate what I have just said with certain instances. The first concerns two large dam projects, the next mining projects in two different tribal areas and lastly the issue concerning the right to dignity and health of sweepers and sanitation workers. The issues in these cases were examined on the touchstone of constitutional and statutory provisions including those pertaining to land acquisition, protection of the environment and the rights of forest dwellers.
The Tehri Dam Project
The first case I propose to discuss is the challenge brought forth to the construction of a major multi-purpose dam at the confluence of the Bhagirathi and Bhilangana rivers (both being tributaries to India's longest river: the Ganges) in the Garhwal region of the Himalayas in the northern State of Uttaranchal. The project was first challenged in 1985 in a PIL by a group of concerned public spirited citizens. They based their grounds of challenge on the grave risk the project posed to the safety of the local population, and the irreversible damage to the ecology and environment. They pointed out that the dam was located in a seismic zone that was prone to earthquakes. The threat of the dam breaking and flooding towns and cities downstream was not improbable.
The Government however informed the Court that its expert bodies had unanimously ruled that the dam was safe from all points of view and environmental clearance had been granted on that basis in July 1990.
In a judgment delivered in November 1990, the Supreme Court deferred to the opinion of the Government and its experts. It said that in matters of policy the government was in the best position to decide what was good for the people. The case was dismissed.
Less than a year thereafter on 21st October 1991 an earthquake measuring 6.1 on the Richter scale struck the region. Two villages in the region were completely destroyed and around 2000 persons were killed. The dam which was under construction suffered cracks. But the experts ruled out the possibility of any significant damage to the structure. The Supreme Court was again approached by a group of experts in 1992 in yet another PIL questioning the decision to proceed with the dam. In particular they wondered how environmental clearance could have been given for the project without all the relevant tests being carried out. The petitioners also contended that the environment clearance was conditional upon pari passu implementation of the rehabilitation of the displaced project affected persons. They insisted that in the absence of the rehabilitation of those affected, the construction of the dam ought not to be permitted.
The petition came to be decided only in September 2003 more than a decade after it was filed. This time by a majority of 2:1 the Court again negatived the challenge. Two of the three judges constituting the majority declined to order a re-examination by experts of the safety of the dam. They held that "when the government or the authorities concerned after due consideration of all view points and full application of mind took a decision, then it is not appropriate for the court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte… The consideration in such cases is in the process of decision and not on its merits.”
According to the majority, it was too late in the day to question the decision to construct a large dam. The benefits of such dams were "too well known". It might even improve the environment of areas where the canal waters would reach. As regards the rehabilitation issue, the majority accepted the version of the Government that there was “substantial compliance with all the conditions” The majority left it to the High Court of the region to monitor the fulfillment of the conditions for environment clearance.
The third dissenting Judge differed on both aspects of safety as well as rehabilitation. Applying the precautionary principle of international environmental law that had become part of the domestic law, he held that “it is only after 3-D non-linear analysis of the dam is completed and the opinion of the experts on the safety aspects is again sought that further impoundment of the dam should be allowed.” He acknowledged that “there are economic costs as well as social costs and environmental costs involved in a project of construction of a large dam. The social cost is also too heavy. It results in widespread displacement of local people from their ancestral habitat and loss of their traditional occupations. The displacement of economically weaker sections of the society and tribals, is the most serious aspect of displacement from the point of view of uprooting them from their natural surroundings. Absence of these surroundings in the new settlement colonies shatters tier social, cultural and physical links.”
The conflict of rights in the context of dams and power projects was also noticed. The dissenting judge pointed out that "in the march of progress, the humblest and the weakest should not be left behind." He added that to remove a man living in the hills and rehabilitate him in the plains is like "taking a fish from the river and putting it into an artificial reservoir or an aquarium where it might survive but can never be happy." The judge pointed out: "Such less-advantaged group is expected to be given prior attention by a welfare State like ours which is committed and obliged by the Constitution, particularly by its provisions contained in the preamble, fundamental rights, fundamental duties and directive principles, to take care of such deprived sections of people who are likely to lose their home and source of livelihood.” [The update as of May 2023 is: Tehri oustees lack basics': HC seeks state govt reply]
The Sardar Sarovar Project
The Narmada river in central India which flows for a length of 1312 kms, most of it through the Vindhya ranges. The river begins in Amarkantak in the state of Madhya Pradesh and flows into the Arabian Sea in Gujarat. A 'staircase'' of dams involved 30 big dams, 135 medium dams and 3000 small dams are to be constructed at various points on the river. The dams are to provide a variety of needs, from generating electricity to reaching water to water scarce regions of Gujarat and Rajasthan. The downside is that over 300,000 persons, a sizeable percentage of them tribals in Madhya Pradesh, have faced displacement.
The largest of these dams is the Sardar Sarovar Project (SSP) named after a popular political figure who was also India's first Home Minister. The 455 ft. high dam is expected to submerge 37533 hectares of land. Much before the work on the SSP started, the inter-state River Water Disputes Tribunal gave an Award in 1977 mandating pari passu rehabilitation of the project affected persons. Those losing lands were to be given a larger area of land elsewhere. But this was long drawn out and unsatisfactory. A PIL case was brought before the Supreme Court of India in 1994 by a non-governmental mass-based organisation called the Narmada Bachao Andolan (NBA), representing those affected by the SSP and other large and small dams across the Narmada. NBA questioned the environmental clearance given to the SSP. It was located in a seismically active area. They demanded that a fresh environmental appraisal in the terms of the new stringent norms laid down by statute in 1994 be undertaken. NBA also highlighted the severe hardship faced by the tribal population in Madhya Pradesh. They were losing their habitat. They would be unable to preserve their culture and customary practices. Further, there were glaring procedural irregularities in the land acquisition process. NBA also argued that until there was full rehabilitation of those affected, in terms of the Tribunal's Award, prior to the submergence of their habitats, the project should not be allowed to continue.The Supreme Court of India in a verdict delivered in October 2000 rejected the petition by a majority of 2:1. The majority adverted to two competing public interests: the right of the inhabitants of the water starved regions of Gujarat and Rajasthan to water for drinking and irrigation on the one hand and the rights to shelter and livelihood of over 41,000 families comprising tribals, small farmers, fishing communities facing displacement on the other. The SSP did not require re-examination either on the ground of its cost-effectiveness or in regard to the seismicity aspect. The area of justiciability was confined to the rehabilitation of those displaced by the SSP. The majority was of the view that at the rehabilitation sites the tribals "will have more, and better, amenities than those enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of society will lead to betterment and progress.” Even while it was aware that displacement of the tribal population “would undoubtedly disconnect them from the past, culture, custom and traditions,” the majority explained it away on the utilitarian logic that such displacement “becomes necessary to harvest a river for the larger good.”
The majority opinion further highlighted the two principal concerns of the justiciability debate – legitimacy and competence. It declared that “if a considered policy decision has been taken, which is not in conflict with any law or is not malafide, it will not be in public interest to require the court to go into and investigate those areas which are the functions of the executive.” Further, “whether to have an infrastructural project or not and what is the type of project to be undertaken and how it is to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken.” The Court outsourced the examination of the grievances of the project affected regarding failure by the State to provide the promised rehabilitation to non-judicial Grievance Redressal Authorities.
The dissenting judge, however, found that environmental clearance for the project as required by the law that underwent significant change in 1994 was absent. He directed that till such clearance was accorded “further construction work on the dam shall cease.” He further noted that: “The many interim orders that this court made in the years in which this writ petition was pending show how very little had been done in regard to the relief and rehabilitation of those ousted. It is by reason of the interim orders, and, in fairness, the cooperation and assistance of learned counsel who appeared for the states, that much that was wrong has now been redressed.” He insisted that till environmental impact was again assessed, and there was pari passu rehabilitation of the displaced persons, the further construction should stop.
I pause here to take stock of the key issues that emerged from the two cases I have discussed. First, the decisions re-kindle the debate about the legitimacy and competence of courts to adjudicate cases involving enforcement of social rights. In both cases there was a lack of unanimity among the judges on (a) whether a large dam is necessarily a good thing and (b) whether the court can review the government's decision on that question. While the majority opinion in both cases deferred to the wisdom of the executive on this aspect, the dissenting judges did not buy into the utilitarian logic of the 'greatest good of the greatest number'. If the weak and vulnerable were going to further weakened, what about the role of the Court as a guardian of constitutional rights of the oppressed?
On the aspect of environment clearance, again the utilitarian logic prevailed with the majority. For the dissenters there were two distinct aspects that mattered. One of course was the safety of the dam in an area prone to earthquakes. The other was the destruction of forests that were ecologically sensitive and the biological diversity of which was irreplaceable. Then there was the question of the legal principles on which the reasoning should be based. For the majority judges in both cases, a dam was not a polluting unit, and therefore did not have to meet the stringent environment standards. In the Tehri case, the dissenting judge referred to the Rio Declaration and international environment law principles to support his reasoning.
A third issue, which I consider significant, is the process by which the Court reached the decision in each case. The Court never got to hear the affected persons first hand. There were no visits to the areas affected. The Court preferred pragmatism to principle when it asked the individual grievances to be examined by non-judicial bodies. In fact I wonder what would the result might have been if the Court had, instead of sitting in Delhi which was thousands of miles away from the area, held the hearings where the submergence was happening? What if it had heard the oral testimonies of the people affected speaking in their own voices and language, rather than their lawyers in English? The Court did not think it necessary to put in place any public hearing processes that would be based on the principle of prior informed consent of the people affected. There was no facilitation of meaningful dialogue or engagement between the State and the affected persons. The proceedings were marked by mutual disbelief and mistrust between the state and the affected people. The State used its coercive police power to quell the protests, even where they were peaceful. The NBA which was a spontaneous support of most of the ousters faced repression and coercion at the hands of the State. Nevertheless, the media and international attention it garnered helped when the fresh land acquisition law was enacted in 2013. More of this, later. The Narmada case is a reminder that economic and social rights are inextricably linked to civil and political rights. The Courts cannot and should not attempt to compartmentalise them. The short video clip that I wish to share, helps us understand the plight of the ousters as articulated in their own voices.
The full rehabilitation of the Project Affected Families, relocated to Gujarat, remains incomplete even after four decades. In Jalsindhi Vasahat in Sankheda taluka of Chhota Udepur district, those displaced from Jalsindhi in present-day Alirajpur in Madhya Pradesh, have been settled since 1985. Speaking in a dialect of Gujarati, 150 families here mostly earn their livelihood from supplying milk or working as farm labourers. S Devajiya Ugrania, 65, says he moved to the settlement in the 1980s at the age of 25. Surrounded by residents, who nod in agreement, Ugrania says, “We have heard that the SSPA is merging the villages into the panchayats. We have no problem with that. But who will provide us with the promised government jobs and water supply before we are merged? The villages are facing a water crisis too and are not in a position to accommodate more people… These issues should be resolved; the able adults should be handed out the jobs that were promised and we will happily merge into the panchayats.”
The Lafarge and Niyamagiri Hills cases
I now move to two other cases. Although in these two cases also the persons affected most were tribals, the projects were to benefit private corporations located outside India. The other distinguishing feature is that both projects were located in exclusive tribal areas which are called 'scheduled areas'. Typically, these are pristine regions which are biologically diverse and rich in mineral resources.
I will digress a bit here to discuss the Fifth and Sixth Schedules to the Constitution of India. These contain provisions that preserve the traditions, customs and laws of tribals located in 'scheduled areas'. The Sixth Schedule applies to states in the north-eastern region of the country, where the tribals are in numerical majority. The Fifth Schedule applies to other areas in the country where the tribals reside, although they are in a numerical minority. One common feature is that in these scheduled areas there cannot be a transfer of land from a tribal to a non-tribal, which also includes the State and its entities. However, there has been no clarity on whether the land acquisition law could be used by the State to acquire lands in scheduled areas.
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or FRA, enacted in 2006 recognises the rights of traditional forest dwellers or adivasis to reside within forest areas and access its resources for their traditional means of survival. Importantly, it envisages a mandatory consultative process involving prior informed consent, with the affected tribals whose habitats are sought to be taken over for 'development' purposes.
It is the above background, that we turn to the third and fourth cases. Lafarge, a French company, was granted lease of lands for mining of limestone. The lands were located in a Sixth Schedule area in Meghalaya in India close to the border between India and Bangladesh. The limestone would be carried by conveyor belt across the border and processed in a factory established by Lafarge in Bangladesh.
In this case too, the challenge raised in the Supreme Court of India was to the environment clearance granted for the mining lease to be operated. The process envisaged by the Environment Protection Act required the project proponent (Lafarge) to prepare and submit an Environment Impact Assessment (EIA) report. This would be followed by public hearings in the area where the affected residents could raise their objections to the EIA.
In this case since the petitioners argued that the local villagers had not consented to the mining project, the Supreme Court ordered a fresh set of hearings to be conducted and called for a report from the forest authorities in Meghalaya. After perusing the report, the Court was satisfied that a meaningful and informed hearing had taken place. It appeared that the tribals of the village themselves desired the limestone deposits should be exploited scientifically and for commercial purposes. In its judgment delivered in 2011 the Supreme Court remarked that "it cannot be presumed that the tribals are not aware of principles of conservation of forests." The environment clearance was upheld.
Now to the last case. Vedanta Alumina Ltd., a company based in the United Kingdom, proposed to set up in Lanjigarh in Odisha a refinery to manufacture aluminum. The raw material was bauxite which is available in abundance on the top of the Niyamagiri Hills. The area is the habitat of the traditional forest dwellers the Dongria Kondhs. This is a scheduled area protected under the Fifth Schedule to the Constitution.
There were two major questions that arose. One was whether the environment clearance was rightly granted for the bauxite mining project by the government? The other was whether the permission under the prevailing forest laws could be given for diverting biologically rich forest land for mining purposes? The tribals here contended that the top of the Niyamagiri Hills where bauxite was found in abundance was a sacred place of worship and therefore could not be touched.
The expert Committees set up by the Government of India found that the mandatory provisions of the FRA which required prior informed consent of the tribals through public hearings and consultation had not taken place. Even the alumina refinery had not complied with the conditions of environmental clearance. Interestingly, in the Supreme Court, while the project proponent was supported by the local state government of Odisha, the public interest petitioners were supported in their stand by the central government.
The approach of the Supreme Court of India in this case was refreshingly different. In a judgment delivered in April 2013, it held that the traditional forest dwellers "have a right to maintain their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands." Further, after extensively referring to domestic and international law on the subject the Court held that if the bauxite mining project, in any way, "affects the religious rights of the Dongria Kondhs, especially their right to worship their deity, known as Niyam Raja, in the hill top of the Niyamagiri range of hills, that right has to be preserved and protected". It mandated that public hearings had to be held in every one of the 14 villages in the area. A judicial officer was asked to be an observer at every such meeting and to certify that it took place uninfluenced by the project proponent or the state government. The central government was asked to take the final decision after the villagers had put forth their points of view.
The aftermath was that the unanimous view of the villagers was that the permission for the bauxite mining project should be refused. People’s collective will prevailed, as the short video clip I am going to play shows. The central government had to therefore also refuse permission. The project proponent through the state government tried to petition the court again in 2016 for a fresh set of public hearings. The court refused this request.
There is a post note to this. In October 2023 a fresh EIA hearing was attempted in Sijimali in Rayagada district. This has left the villagers disenchanted. Prafulla Samantara, noted environmental activist, said, “the administration handled the public hearing in a suspicious manner. Hundreds of people were waiting outside the venue to speak their hearts out. Sensing overwhelming resistance against the project, the public hearing was winded up within two hours.”
Both the Lafarge and the Niyamagiri Hills cases saw the Indian Supreme Court giving importance to the views of the local affected population and not simply deferring to the executive standpoint on what was the greater common good. The insistence on prior informed consent of the affected population restored the perception of the court as an institution that will protect and enforce the rights of the less privileged. The usual arguments of whether to promote industrial activity in a certain region being in the realm of executive policy, did not impress the Court. The resort to international covenants to meaningfully interpret the scope of the rights of indigenous persons to their customary forms of worship and traditions under the domestic law is a significant aspect of the Niyamagiri Hills case.
The outcome in the two cases may have been different but the Court insisted on the strict adherence to the process of consultation and dialogue with the affected populations on the principle of prior informed consent. The difference in the approach of the court in the two cases involving dams and these two cases is palpable.
The Safai Karamchari Andolan Case
I would like also to refer to another remarkable decision delivered by the Supreme Court of India in a class action litigation brought forth by the Safai Karamchari Andolan, a campaign for protection and enforcement of the fundamental right to dignity of the over 700,000 manual scavengers in the country. After ten years of perseverance, the Supreme Court handed down a landmark judgment acknowledging the history of indignity and injustice they had been subject to. Not only did the Court acknowledge the injustice resulting from the non-implementation of the 1993 legislation that prohibited the operation of dry latrines and manual scavenging but clarified that the subsequent statute viz., in no way, neither dilutes the constitutional mandate of Article 17 nor does it condone the inaction on the part of Union and State Governments under the 1993 Act. What the 2013 Act does in addition is to expressly acknowledge Article 17 and Article 21 rights of the persons engaged in sewage cleaning and cleaning tanks as well persons cleaning human excreta on railway tracks. Apart from issuing a series of direction to the Railways to sop using sanitation workers for cleaning railway tracks of excreta, the Supreme Court ordered that the families of all persons who have died in sewerage work (manholes, septic tanks) since 1993 have to be identified and compensation of Rs.10 lakhs has to be paid for each such death to the family members depending on them. (This has recently been revised to 30 lakhs). This is a beginning of a new phase in their struggle. It is certainly not the end, but an important milestone in the course of their struggle which they have rightly taken control of. It has done something remarkable to their sense of self-worth and dignity. The build-up to the above verdict was a nation-wide Maila Mukti Yatra undertaken by the sanitation workers themselves. They unequivocally asserted that they would be the makers of their own destinies. Let us hear them speak about this. (a video clip was played)
Social movements in the areas of civil liberties (for e.g. the PUCL), health (the Jan Swasthya Abhiyan), rights of agricultural labour ((Paschim Banga Khet Majoor Samity) have been able to bring forth PIL cases in Courts for enforcing, even if they do not expressly articulate it as such, certain ‘minimum core obligations’. This is in the context of the right to health where it held the right to emergency medical treatment and primary health care as part of the right to life (Paschim Banga Khet Majoor Samiti case); in the context of the right to food where it recognised the right to minimum nutritional content required for human sustenance (PUCL Case) and in the context of shelter where it upheld the right to procedural fairness in the context of forcible evictions (the Olga Tellis Case).
Conflict of interests in PIL cases
While PIL has provided space to social movements to articulate their demands, there have been instances of the jurisdiction being invoked by groups working at cross purposes. A typical example is a court intervention in a PIL at the instance of an environment protection group which results in loss of livelihoods and access to resources to vulnerable groups like fisher folk or forest dwellers. Another instance is residents in apartments in middle-class urban localities invoking their fundamental right to housing and seeking forced eviction of slums in the neighbourhood thus depriving the slum-dwellers of their rights to shelter, livelihood and a bundle of associated inter-dependent ESC and civil and political rights. The Courts have then to ensure that the basic minimum protection of the Constitutional guarantees of the slum-dwellers are not sacrificed on the altar of protection of the rights to housing of the apartment-dwellers. A conservative approach could be to ask whether the slum-dwellers have a right to continue to dwell on private or public land? The human rights sensitive approach would be to ask whether prior to their eviction, alternative arrangements have been made to ensure that their displacement does not result in deprivation of a whole bundle of rights apart from the right to shelter which might include the right to health, the right to the livelihood, the right to education of children in the slums and so on. This changed approach signals the importance of respecting the economic and social rights and not viewing them in isolation. The Delhi High Court has in two cases (Sudama Singh and Ajay Maken), adopted this approach by drawing upon both the international human rights law and South African jurisprudence on meaningful engagement with the affected communities. This has been described by Prof Roberto Gargarella of Argentina as an instance of adoption of a deliberative democratic approach. Nevertheless, the overall contribution by the judiciary to developing a jurisprudence around protection and enforcement of ESC rights cannot be gainsaid.
VI
Law as an instrument of social change and social movements as a driver of legal change
Civil society groups have either emerged from or have been principal supports to social movements, as we saw during the anti CAA protests and the protests by farmers against the proposed farm laws a couple of years ago. They have been involved in mobilising, organising and educating various interest groups to articulate their concerns in the public domain, helping them to engage with institutions and those in power. Whether it is a gathering of the Narmada dam oustees spearheaded by the NBA, or the groups of Bhopal gas victims, they have been a force to reckon with politically. These mass movements have perhaps contributed in no small measure to law and policy making in both the international and national spheres. In the last four decades, there has been a persistent groundswell of mass movements and civil society campaigns around recognition, protection and enforcement of a range of ESC rights. This has contributed in large measure to the legislature in India according statutory recognition of the minimum core elements of economic and social rights by enacting a series of legislations like the rural employment guarantee legislation that fixes the daily wage and the number of days of work to afford a decent standard of living to rural households, the National Food Security legislation that mandates States to provide minimum nutritional levels and within the larger group identify the more vulnerable ones like children, lactating mothers, the elderly and those living below the poverty line as being entitled to these basic minimum nutritional food.In the context of land acquisition, a newer form of the legislation was enacted in 2013 which sets down the basic minimum standard of what could constitute shelter in a rehabilitation colony and provides for taking of land to be replaced by arable land. The legislation providing the right to information also came about as a result of sustained campaign by a grassroots movement in Rajasthan. This ‘bottom up approach’ to law making also saw the enactment of the FRA in 2016 which recognises the rights of traditional forest dwellers. The slum improvement laws and other transitory laws applicable in major metropolises have acknowledged the acute need for shelter among the millions of homeless persons including street dwellers and ordered a moratorium on evictions. Even the right to health has been increasingly acknowledged in State policy as ‘entitlements’. These have come through greater awareness, intense campaigns by people’s movements. Another example of a people’s movement leading to making of a law is the Anna Hazare led movement against corruption leading to the passing of the Lok Pal (or Public Ombudsman) Act. The Association for Democratic Reforms has through consistent campaign brought about greater transparency in electoral politics, and has been instrumental in getting the scheme of electoral bonds invalidated by the Supreme Court of India. The women’s movement in India has been instrumental in bringing about laws that recognise and seek to alleviate the peculiar disadvantages faced by victims of rape, of domestic violence, of sexual harassment at the workplace, of discrimination in the matter of payment of wages and maternity benefits.
ESC rights legislations have also been shaped by the international human rights law instruments themselves. With the enactment of the Protection of Human Rights Act 1993 which set up the National Human Rights Commission, the Indian Parliament has formally incorporated the international covenants into domestic law. Section 2 (d) of the Act defines ‘human rights’ to mean “the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.” Section 2 (f) defines ‘international covenants” to include both the ICCPR and the ICESCR apart from other treaties ratified by India. The CEDAW,the Child Rights Conventionand the Disabilities Rights Conventionhave influenced the corresponding domestic law in a major way.
The mere enactment of a law is not a complete solution to the problem it seeks to tackle. The law has to be worked and that too effectively. Selective and half-hearted approaches to implementation can compound the problem. Yet, statutes and Covenants do perform an important task of norm setting. Further the international Covenants like the ICESCR and ICCPR have helped provide a jurisprudential basis for Courts to identify ‘deliberately retrogressive measures’ by State and to apply ‘reasonableness standards’ in evaluating the actions of the State. They help us understand that principle and not pragmatism has to be the basis for judicial decisions if they have to have a lasting impact. The ICESCR has also underscored the need to provide adequate access to information. For instance, the environmental protection legislation in India mandates the conduct of environmental impact assessment (EIA) hearings and the Land Acquisition Legislation of 2013 mandates the holding of social impact assessment hearings prior to green signalling projects involving large scale acquisition of land resulting in possible displacement. Courts have been insisting on strict compliance of the procedures in the holding of the EIA hearings which are expected to disseminate adequate information regarding the projects to the affected people prior to their being approved.
The role of the global multi-national corporations and businesses in dictating the outcomes at the treaty negotiations has also been widely commented upon. In India the Bhopal Gas Disaster of December 1984 was a stark reminder of our unpreparedness to deal with a situation of mass torts resulting from the careless acts of a multi-national corporation which was unable to be made accountable for the over 4,000 deaths and several lakh injured as a result of leak of a deadly MIC gas from the plant in Bhopal. Our legal system was unequal to meet the enormous challenge of enforcing the civil and criminal liability of the MNC, the Union Carbide Corporation. In 2017 the Committee on ESC rights issued a General Comment No. 24 which recognises the State’s obligation to adopt legal and regulatory frameworks that provide for effective oversight of business activities, and to ensure that businesses are held accountable for any violations of human rights. General Comment No. 24 also recognizes the important role of businesses themselves in respecting human rights and emphasises the need for meaningful engagement and consultation with affected communities in the development and implementation of business activities. It highlights the importance of businesses carrying out human rights due diligence, and of providing effective remedies for individuals and communities who have been negatively impacted by their activities.
VII
In this the penultimate part of my talk, I attempt to understand the issue of engagement of social movements with the courts through the lens of jurisprudence. In other words, the theoretical framework that can explain why what is happening is happening.
In his article ‘Constitutional change, Courts and social movements’, Douglas deJaine points out how the Labour, Civil Rights and women’s movement shaped constitutional norms and in turn have been shaped by those norms. He argues that in Courts “constitutional meanings can be asserted and defended. Courts therefore offer opportunities for extrajudicial actors to articulate and hone a variety of constitutional visions. Courts eventually validate meanings that have become reasonable through the course of continued debate and persuasion. New constitutional meaning becomes authoritative not because the court decided so independently but because social movements have persuaded political forces, opinion leaders, the public and the judges that the new position is reasonable and in fact correct. In this way constitutional change is a bottom-up process in which courts are not leading but instead responding to external changes.”
Claims once thought unthinkable become reasonable not because of the new-found wisdom of judges but because of the ways in which social movement activism shapes popular and elite understandings of the meaning of constitutional values. Even a decade ago, one could not have imagined that there would be open public debate on the rights of the LGBT community. Judicial intervention in these areas has undoubtedly opened up the spaces for dialogue.There is a churning. The NALSA judgment is another example of the Court playing a major role in not only highlighting the plight of a special interest group but ushering social change through law.
And yet, Court intervention is but one many strategies that interest groups have to advance the cause of the repressed. It has to be combined with constant engagement, dialogue, advocacy and some times contestation with other actors, state and non-state. Social legal scholars engaged in legal mobilisation and cause lawyering often remind us that social movement advocates neither put all their hopes in courts nor look to courts to single-handedly produce change. Instead these advocates view litigation as a significant but partial tactic - one that works in conjunction with other tactics and deeds rather than displaces other forms of mobilisation. They come to the courts in the expectation that it might provide them the democratic space in which to articulate and test the persuasive strength of the group’s claims. Numerical and other minorities present their concerns and importantly seek and obtain information concerning themselves, which might otherwise be routinely denied to them by an opaque, and inaccessible state. They can compel the state and other opposing interest groups to acknowledge their presence, their issues. Courts might also facilitate such marginalised groups convert their constitutional claims into enforceable legal entitlements.
Professor Roberto Gargarella of Argentina too sees courts as being the proper spaces for experimentation in deliberative democratic practices. Courts, he believes, can while adjudicating social rights foster dialogue between the state and the people. He states: “Judicial decisions in the area of social rights should contribute to integrate groups that were improperly marginalized by the political system; or by forcing political authorities to justify their decisions in a more solid way." He has spoken of popular and dialogic constitutionalism as a preferred approach. He is sceptical of the checks and balances approach which he sees as being institution centric, limiting and not facilitating meaningful dialogue. Recently, however, Prof Gargarella has expressed doubts whether dialogic processes, without equality (where all participants in the dialogue are on a equal footing) deliberation (which he describes as exchange of ideas) and inclusion (where no affected set of people are left out), can achieve the desired result. He is not sanguine about the judiciary's attempts at ordering public hearings in structural cases. There is, he says, too much dependence on the good will and discretion of sensitized judges. He believes that the 'top down' attitude of the judges persists. For him, simply having provisions in the Constitution that facilitate social justice is not enough. The "engine room" of the Constitution has to undergo changes he says.
There are other jurists who require to be heeded. Legal scholar Professor Karl Klare talks of ‘transformative constitutionalism’ as being the guiding principle for ushering a more equal and equitable society. This he says involves “a long-term project of constitutional enactment, interpretation, and enforcement committed (not in isolation, of course, but in a historical context of conducive political developments) to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction." After studying a decade’s work of the South African Constitutional Court, Klare has this to say to the judges: “future generations will not judge the Constitutional Court by how closely it followed traditional strategies of analysis, but rather by the extent to which it contributed to the many issues of social and political transformation – equality, social justice, democracy, multiracialism and dignity.”
VIII
The task of the social movements going ahead
One can safely estimate that for every ‘success’ in court there may have been several prior and later failures. And some of the successes could be ‘qualified’ successes. We should recall here the critiques around the decisions of Brown v. Board of Education of the US Supreme Court, Grootboom of the S African Constitutional Court and Olga Tellis of the Indian Supreme Court. There is a justified misgiving that in these decisions the Courts only went that far and no further.
Civil society groups (CSGs) in India, as perhaps elsewhere in the world, are aware that having a law enacted, or having a judgment in their favour, that recognises, protects and provides a mechanism for enforcement of ESC rights is but the first step in a long struggle for realising the emancipatory function of these instruments of social change. There has to be a continuous engagement with the organs of the State – be it the government of the day, the legislature or the judiciary – to make the law work for the people. CSGs are neither complacent because of their momentary victories or despondent because of failed attempts at persuading courts and legislatures. They know that this is a work in progress. That coming generations will and should pick up the baton from where they leave it. Fact gathering, public hearings, demanding accountability, transparency, going back to the Court for enforcement of its decisions are all part of a bouquet of strategies that require to be deployed over a period of time for realising the full potential of the laws that have come about as a result of long years of sustained campaign. Nothing can and should be taken for granted. And there is a teaching that has to be imparted for later generations to keep the democratic traditions alive.It is in this context that the moves to curb the activities of CSGs especially those working in the area of poverty alleviation, by cutting off their sources of funds and subjecting them to intense scrutiny by law enforcement agencies must come in for critical comment. History teaches us that since CSGs do practice a form of left-leaning alternative politics, not unsurprisingly they have met with countervailing moves from state and corporate interest groups to have their own CSGs or co-opt those already in the fray. And then there are religious and caste formations jostling for space in this so-called non-political space. India has its share of social movements morphing into political formations with the demasking facilitated by a conducive combination of circumstances. All of this in a vibrant democracy is par for the course. Where social movements eschew the temptation to share power with political formations, subject themselves to strict scrutiny for democratic and transparent practices, be prepared to share information of their sources of funding and their expenditure in the public domain, will garner the trust and confidence of the constituents they are working for. We still have in our midst organisations and individuals remaining steadfast in their adoption of Gandhian ideals. Of course, Father Stan Swamy’s example is a grim reminder that this by itself is not a guarantee against arbitrary state action.
The democratic spaces in our country are undoubtedly ‘noisy’ but it is important that amidst the churning and the chaos we are able to forge forward with a clarity of vision. While a democratic form of government is no doubt an essential prerequisite for the realization of human rights, unless people constantly work the Constitution, keep asserting their rights and freedoms and demand the recognition, protection and enforcement of ESC rights, the realization of human rights would remain aspirational and not emancipatory. It is then an imperative for social movements and definitely the CSGs to comprise those who are prepared to internalise the constitutional values enshrined in the Preamble to our Constitution at a personal level and be constantly reminded of the expectation and promise of the practice of ‘constitutional morality’.
Let us then, in the end, be inspired by this stirring speech delivered by the principal architect of our Constitution on 17th December 1946 in the Constituent Assembly. The lecture ended with the playing of Dr Ambedkar’s speech in the Constituent Assembly.
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