V. VENKATESAN IN THE FRONTLINE
In a landmark judgment, the Delhi High Court lifts the freeze on the number of cycle rickshaws allowed to ply on Delhi roads.
It is pointed out that a poor man in India lives with a rich assortment of rights guaranteed by the Constitution. Observers explain that this paradox exists because the fundamental rights of the poor citizen have been growing in recent years, through an activist interpretation of the Constitution, without making any significant impact on his or her life. This has, according to legal scholars, led to a regime of substantial rights and limited access to justice.
It is in this context that the recent Delhi High Court judgment in Manushi Sangthan, Delhi v. Government of Delhi and Others is seen as holding out a promise of how the courts can come to the help of the poor and the needy not only through a creative interpretation of the law but by ensuring that there is substantial compliance with their directions to the authorities. The judgment was delivered on February 10 by Justice Ravindra Bhat on behalf of the full court comprising Chief Justice A.P. Shah, Justice S. Muralidhar and himself.
Cycle rickshaws were introduced in Delhi in 1940 as an improvement over hand-pulled rickshaws. The number of cycle rickshaws plying on the roads of Delhi was 20,000 in 1975. The number grew to between six and seven lakhs in 2006. Cycle rickshaws are an instant source of employment for about seven to eight lakh people and involve low capital investment, typically ranging from Rs.1,200 to Rs.4,500. It is mainly the least skilled and people with the least employment opportunity, that is, seasonal migrant workers, who choose this livelihood.
The cap fixed initially by the Municipal Corporation of Delhi (MCD) on the number of licences that could be issued under the Delhi Municipal Corporation Cycle Rickshaw Bye-laws, 1960, was 750. This was increased to 20,000 in 1975 on the basis of the report of a survey. The MCD again revised the ceiling to 50,000 in 1993 on the basis of another review, even though the number of cycle rickshaws plying on the roads was 4.5 lakhs. The last revision took place in 1997, when the total number of licences that could be issued was capped at 99,000. Curiously, according to the MCD’s admission, the number of cycle rickshaws currently plying on the roads of Delhi is in excess of six lakhs.
Manushi, a welfare organisation espousing the causes of various classes of weaker sections, contended before the High Court that singling out cycle rickshaws for such a cap on licences amounted to hostile discrimination. It pointed out that there were no such quantitative restrictions on the number of licences that could be issued to motor vehicle owners. This implied that the state wished to push out other means of transport, which were cheaper, more efficacious, consumer friendly and most certainly environment friendly, Manushi submitted.
The figures it brought to the notice of the court were startling. More than five million motor vehicles ply on Delhi’s roads. These are owned by 15-20 per cent of the population. Eighty-five per cent of the general public depends on public transport. In other words, motorised vehicles are given undue prominence at the cost of pedestrians and owners of non-motorised vehicles, that is, those who use cycle rickshaws or bicycles.
The MCD had stuck to its ceiling on the number of cycle rickshaws on the basis of the Delhi High Court’s ruling in 2006 in the Hemraj case. The High Court accepted the petitioners’ argument that the order in the Hemraj case was issued without hearing all the affected parties, particularly cycle rickshaw pullers and owners, a blatant neglect of natural justice. The irrational cap fixed by the MCD provided a ready instrument for exploitation and harassment of rickshaw pullers.
The petitioners also brought to the court’s attention the 4th Assessment Report (2007) of the Intergovernmental Panel on Climate Change (IPCC), which emphasised the need for policies that encouraged the use of more fuel-efficient vehicles, hybrid vehicles, non-motorised transport (such as cycling and walking), and better land-use and transport planning, to minimise rise in pollution levels. A study carried out by the Ministry of Environment in 1997 had found that vehicular pollution accounts for 67 per cent of the total air pollution load in Delhi.
The court came to learn more shocking details of the MCD’s discriminatory policy. Most of the rickshaw pullers lack the resources to purchase a cycle rickshaw, but the bye-laws violated their right to rent rickshaws and carry on an occupation by holding cycle rickshaw licences.
An individual or a company may own any number of vehicles, which can be licensed or registered for use on the roads. Such choice is denied to the rickshaw puller, who cannot own and use more than one cycle rickshaw. The petitioner argued that it not only affected their livelihood but destroyed their right to equality and equal opportunity guaranteed under the Constitution.
Agreeing with these contentions, the High Court held the limit of 99,000 placed on the number of cycle rickshaw licences that could be issued as arbitrary and set it aside.
The Delhi Police justified its move to impound and dismantle unlicensed cycle rickshaws because they not only “add to the congestion on the roads and footpaths, but also occupy space as the rickshaw puller is too poor to own a residence or dwelling. He lives on the pavement, rests in the rickshaw, eats and washes on the pavements which not only causes strain on the civic resources of the city but also encourages them in developing unauthorised colonies/jhuggies giving rise to social problems in the city.” These comments invited expressions of instant surprise from the court over the Delhi Police’s lack of sensitivity.
The court said: “It would be important for public authorities, particularly law enforcement agencies, to display sensitivity when exercising the coercive powers under various statutes to the vulnerable situation in which the underprivileged populations, of which the rickshaw pullers form an integral part, are placed.”
The High Court held that the MCD or the Delhi Police had no power to seize or destroy a rickshaw even if it was found to be driven without a licence or by a person not having a proper licence.
The High Court’s interpretation of dignity of labour is of considerable significance. In the Hemraj case, the High Court felt that the plying of a cycle rickshaw offended human dignity and therefore assumed that the state would eventually eliminate the trade altogether. In the Manushi case, the High Court, however, reversed the ruling, which was based on a mere assumption and went against the freedom to practise any profession (unless it is inherently noxious), guaranteed under Article 19(1) (g) of the Constitution.
The High Court’s creative interpretation of the law also helped it to navigate through a Supreme Court judgment that favoured the MCD’s discriminatory policy. The MCD argued that the correctness of its policy requiring that only owners could ply cycle rickshaws could not be challenged since the Supreme Court had upheld it in the All Delhi Cycle Rickshaw Operators Union case in 1987. The High Court cited the established principle of constitutional law that a piece of legislation or regulation, though once held valid, can be successfully challenged if there is a significant change in circumstances. The High Court thus held that the owner-plier policy, even though it was valid 22 years ago, could not be regarded as non-discriminatory and valid now.
The MCD’s policy also required licensed cycle rickshaws to ply only in certain zones and did not provide any parking space or separate cycle lanes for rickshaws. The High Court felt it was a fit case for the authorities to explore all options to reduce road congestion and consider all proposals from an overall or holistic perspective.
By issuing continuing mandamus, an innovation started by the Supreme Court while disposing of several petitions raising public interest, the High Court resolved to monitor the implementation of its directions in this case. The MCD has decided to appeal against this judgment in the Supreme Court.
V. VENKATESAN IN THE FRONTLINE
Two petitions in the Supreme Court against GM food help make the government accountable.
When Jairam Ramesh, Union Minister of State (Independent Charge) for Environment and Forests, announced his decision not to go ahead with the commercialisation of GM (genetically modified) brinjal, the concerned sections of civil society felt a huge sense of relief. This limited success of civil society would not have been possible but for the sustained efforts of two petitioners and their counsel to seek the Supreme Court’s intervention at every stage in order to make the government accountable.
The two petitioners and the vociferous demand from sections of civil society succeeded in getting the Central government to delay its decision on the issue. The move is by and large perceived to be in the public interest. Media reports about the Supreme Court’s intervention had created a huge awareness, particularly among State governments, about the safety aspects of GM crops.
The first writ petition was filed by Gene Campaign, a research and advocacy organisation that has, since 1993, been working to empower local communities to retain control over their genetic resources. Its convener, Suman Sahai, a geneticist, returned to India from Germany in 1989 after abandoning her teaching career in order to generate awareness about globalisation and its threat to food and livelihood security. The Campaign has worked in 17 States, conducting over 400 district- and village-level meetings over the years.
In 2003, the Campaign organised a national conference on the “Relevance of GM technology to Indian agriculture and food security”. The participants included the full range of stakeholders from industry, research and academia, farmers, political leaders, students and concerned citizens. They made 20 recommendations by consensus and sent them to the Department of Biotechnology (DBT), which rejected them without discussion.
In 2004, the Campaign filed a public interest petition in the Supreme Court, seeking improvements in the regulatory system for genetically modified organisms (GMOs). It urged that unless the regulatory systems were demonstrably more competent, transparent and responsive to public concerns, there should be a moratorium on the commercial release of GM crops.
Specifically, the petition asked the court to direct the Central government to bring in consonance with the Constitution the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989. It demanded that the Rules be declared unconstitutional in the event of the government failing to do so. In October 2006, acting on its application, the court directed the release of technical data relating to such crops.
Even as the court was hearing Gene Campaign’s writ petition, it admitted a writ petition from Aruna Rodrigues, from Mhow, Madhya Pradesh. Aruna Rodrigues was an unlikely gene campaigner. Having worked in England and Kuwait as a development economist for two decades, she returned to India in 1996 to launch a business enterprise to produce and sell solar electricity. Her interests ranged from climate change to nutrition. The health aspects of biodiversity soon drew her attention. Realising that it was a major problem, she looked into it in far more detail.
She found that in Gene Campaign’s petition, there was a gap in terms of scientific evidence before the court. She filed her writ petition in 2005 through her counsel, Prashant Bhushan. P.V. Satheesh from Hyderabad and Rajeev Baruah from Mhow, both specialists in organic farming, and Devinder Sharma, a policy analyst based in New Delhi, joined her as co-petitioners. In her petition, Aruna Rodrigues pointed out that the prevailing practice involved a clear conflict of interests: the test results were not available for public scrutiny and most of the testing was done by the biotech company that had a commercial interest in the approval of the GMO.
She told the court that even for technologies that had been tried and tested and found to be far safer than genetic engineering, for instance, hydroelectric projects, the statute mandates a public notice and public hearing before an environmental impact assessment (EIA) is completed.
In her petition, she invoked other equally important grounds to challenge the government’s policy. The release of GMOs into the environment without a protocol and a transparent, independent, credible and publicly accessible system of testing them for biosafety and environmental hazards was, she said, a violation of the precautionary principle laid down by the apex court in an earlier case.
The principle makes it mandatory for the government to assess environmental risks, warn potential victims of such risks and behave in ways that prevent or mitigate such risks. It puts the onus on the developer to show that an action is environmentally benign.
She argued that any release of GMOs into the environment without the requisite scientific testing for biosafety concerns would be unconstitutional. Such indiscriminate releases would violate the fundamental right to health and environment under Article 21 of the Constitution, she said. The Supreme Court has held in a number of cases that the right to life under Article 21 includes the right to a healthy and safe environment.
The Supreme Court has also held that international treaties signed by India can be read into the country’s domestic law provided they are not in conflict with any statutory provisions. The United Nations Convention on Biological Diversity (CBD), 1992, requires that the contracting parties regulate or manage domestically the risks associated with the use and release of LMOs (Living Modified Organisms) resulting from biotechnology, introduce appropriate procedure to require impact assessment of proposed projects that are likely to have significant adverse effects on biodiversity, and allow public participation in the procedure where appropriate.
Further, Article 19(3) of the CBD urges parties to consider the need for and modalities of a protocol setting out appropriate procedures for the safe transfer, handling and use of LMOs that may have an adverse effect on the conservation and sustainable use of biodiversity. India is a signatory to the CBD, and since its provisions are not in conflict with but in aid of domestic laws, India is bound by its provisions, Aruna Rodrigues argued in her petition.
India is a signatory to the Cartagena Protocol, the binding international agreement on biosafety. The protocol aims to ensure adequate levels of protection in the field for safe transfer, handling and use of LMOs that may have adverse effects on the conservation and sustainable use of biodiversity.
The protocol stipulates, under Article 2(2), that parties must ensure that the development, handling, transport, use, transfer and release of LMOs is undertaken in a manner that prevents or reduces risk to biodiversity.
Article 10(6) of the protocol stipulates that lack of scientific certainty owing to insufficient scientific information and knowledge regarding the extent of potential adverse effects shall not prevent the contracting party from taking an appropriate decision, to avoid/minimise potential adverse effects.
The Cartagena Protocol also stipulates that parties shall consult the public in decision-making processes regarding LMOs and make all relevant decisions available to the public. Further, Article 21(6) of the protocol stipulates that information about a summary of the risk assessment cannot be made confidential.
India is required not only to put such a safety protocol in place but also to ensure that such a protocol will mandate openness, transparency and public participation.
Aruna Rodrigues’ petition pointed out that the decision to release GMOs in India without public access to information regarding the kind of safety tests conducted, and the results of the tests and an opportunity to the public to critique the tests was a violation of this provision of the Cartagena Protocol.
In addition, she pleaded that a labelling mechanism of GM food and GM products be put in place. She urged the court to direct the government to ban the import of any biological mechanism, food or animal feed unless it has been tested, certified and labelled GM-free.
After hearing the petitions, the Supreme Court gave significant interim orders. On May 1, 2006, a Bench directed that field trials of GMOs shall be conducted only with the approval of the Genetic Engineering Approval Committee (GEAC). However, apprehending indiscriminate approvals by the GEAC, Aruna Rodrigues, through an interim application in 2006, prayed that field trials for all GM products be stopped. The court was not inclined to do this, but it directed the GEAC to withhold approvals until it issued further directions after hearing all concerned. The court asked the government to consider associating independent experts with the GEAC. Before suggesting the names of such experts for the purpose, the government should ask prospective candidates whether they were being funded directly or indirectly by the biotech industry, the court said in its order, making it clear that conflict of interest of members was unacceptable.
The court directed the GEAC to examine in detail the impact of the field test being carried out on the basis of the expert opinion. On February 15, 2007, the court asked the Centre to file a report on the implications and biological results of the field tests. This was in response to a revelation by the petitioners that in 91 varieties field tests were going on without sufficient precautions being taken on contamination of plants of similar species in neighbouring fields.
The court directed the GEAC to ensure that there was a distance of at least 200 metres between the trial fields and other fields cultivating the same crop.
The court lifted its freeze on further approvals by the GEAC on May 8, 2007, as regards Bt cotton. The GEAC sought the court’s permission to consider approvals for other GM crops.
The court asked the Ministry of Environment and Forests (MoEF) to invite Dr P.M. Bhargava, molecular biologist and founder Director, Centre for Cellular and Molecular Biology, Hyderabad, and the renowned agricultural scientist M.S. Swaminathan, to its meetings before granting approvals. These two invitees would have the liberty to express their views to the committee before a final decision was taken, the court said.
The court, however, permitted the GEAC to consider any application presented to it in accordance with the law and take appropriate decisions after considering all aspects, including biosafety. Anyone aggrieved by the decision of the GEAC could appeal to the Appellate Committee, it said.
The court permitted the GEAC to put out on its website its guidelines for granting approvals. The court was apparently not convinced by the arguments that GEAC approvals might become a fait accompli and that the process of remedying wrong approvals was fraught with risks.
In the written submissions to the court in 2009, Prashant Bhushan cautioned that non-compliance with the court’s orders by the regulators meant that India faced de facto deregulation of GM crops.
He pointed out that at no time in the last two years had any tests been conducted to determine the extent of contamination in India despite a decade of GM field trials of virtually all agricultural food crops. Yet, the GEAC claimed, without any proof to back up such a claim, that there was no contamination because sufficient precautions had been taken.
There were no laboratories in India that could perform the required tests to an internationally accredited standard, he claimed. Thus far, validated test protocols had not been announced, nor had sequence information been provided to civil society groups to enable independent testing of plant material/seeds, along with permission to send samples abroad to institutions that test, he said.
He brought to the notice of the court appraisals made by two well-known independent scientists, Seralini and Judy Carmen. They had stated that Bt brinjal was not safe for release and regulatory approval for it had to be withheld on health and environmental grounds; that field trials continued unabated without biosafety tests being conducted in disregard of the ‘Rules’ and the orders of the court, which made the field trials illegal; and that the GEAC took no cognisance of any safety concerns in the matter of field testing, let alone rigour to avoid health hazards and contamination.
Prashant Bhushan’s written submissions show that Bhargava has stated that no GM crop has been adequately tested for environmental, human and animal safety before their release by the regulator. This fact can be attested to from the GEAC’s minutes themselves: “At every stage there is a bias if not deceit all the way. I am only looking at the data provided by the GEAC itself,” Bhargava has said.
The proposal that India must establish an independent publicly funded institution for GMO testing and appraisal has been accepted by the Supreme Court. Such an institution must be capable of undertaking all the tests that are required – both targeted and non-targeted approaches to GMO testing – to an internationally accredited standard.
It must be fully operational, independent of any conflict of interest in its staffing and autonomous in its functioning (secure from government interference).
Until such time as this institution is fully functional with the required certification, the environmental release of any GMO must be put on hold, Prashant Bhushan submitted to the court.
The GEAC has accepted, in principle, Bhargava’s proposal for the need for such an institution (minutes of the GEAC’s 85th meeting). Bhargava has also provided a blueprint for such an institute at the request of the GEAC. While the Centre’s response to this proposal is not clear, it has rejected Bhargava’s other proposal – duly endorsed by Prashant Bhushan – for a National Centre for Assessment of GMOs.
During the last hearing on January 19, 2010, Prashant Bhushan alleged that at various places, open-field testing resulted in the contamination of ordinary plants with GM plants. He argued that such testing should be done only within the greenhouse so that contamination could be avoided. Counsel for Gene Campaign, Sanjay Parekh, told the court that the rules for these experiments were not adequate and the norms were not framed properly.
The court has asked the Centre to file its response to these issues.
ABHINAV CHANDRACHUD IN THE INDIAN EXPRESS
A few weeks ago, one of India’s finest judges, Chief Justice A.P. Shah, retired from judicial office at the age of 62. The occasion of his retirement was marked by glowing tributes, even as the legal community deeply lamented the fact that he was not elevated to the Supreme Court. While Chief Justice Shah’s retirement raises questions concerning the methodology of judicial appointments, the consequent debate surrounding the elevation of capable judges to the Supreme Court of India tends to underestimate the value of the high court judges of this country. What his retirement ought to do, however, is remind us that the Supreme Court of India is not the only place where the capable judge is found, or good law made.
Chief Justice Shah had an illustrious career, first as a senior lawyer, then as a judge on the high courts of Bombay, Madras and Delhi. The perseverance, intellect and integrity which he brought to his work stood out. However, Justice Shah’s retirement as a “mere” high court judge should not be seen as an affront to his accomplishments. Many seem to believe that allowing a great judge of his stature to “languish” in India’s high courts without an eventual elevation to the Supreme Court constitutes a “waste” of talent. However, the fact that Justice Shah was not elevated to the Supreme Court should be irrelevant in how we measure his accomplishments.
There seem to be two discernible schools of thought surrounding Justice Shah’s retirement: first, that the Supreme Court of India is in some way qualitatively superior to the high courts and that therefore Justice Shah would have benefited by elevation; second, that elevation to the Supreme Court constitutes some form of reward to high court judges, and that Justice Shah was denied this privilege. Each of these beliefs is rooted in a questionable understanding of India’s judicial system.
While Joseph Story may have been appointed to the US Supreme Court at age 32, most judges on the Indian Supreme Court tend to be significantly older: the primary criterion for appointment is seniority. This means two things. First, that judges in India are seldom appointed young; and second, that good judges may never get “promoted” if someone younger was appointed before them. That a judge’s elevation would depend more on her age than her performance speaks as much to the near absence of qualitative standards for Supreme Court elevation as it does to the commendable insulation of India’s judiciary from executive discretion. SC judges would therefore necessarily represent the oldest of the old, those fortunate enough to have been appointed at a young age, and with no judges even younger ahead of them. While the quality of the Supreme Court of India should not be underplayed, its qualitative “superiority” to India’s high courts must seriously be questioned.
Indian lawyers often romanticise a Supreme Court practice, and judges dream of serving in its clustered courtrooms as a “reward” for doing good work, but we often confuse the fact of the SC’s appellate finality with qualitative superiority. Indeed, our perception seems to have suffered a tectonic shift from what it once was: judges were often rumoured in the past to have turned down offers to rise to the SC, if they were in contention for the post of high court chief justice. Today, that post is viewed by some as a mere stepping stone to the Supreme Court.
However, experience tells us that it is not the court’s “status” which determines the identity or quality of the judge. For example, the erudition that M.C. Chagla, former chief justice of the Bombay HC, brought to the judicial office stands out as a shining example not merely in the corridors of that court, but equally in the curtained courtrooms of India’s Supreme Court. Similarly, although the opinions of Judge Learned Hand, a former American circuit court judge, did not bear the stamp of having originated in the US Supreme Court, they nonetheless carried the impress of his erudition and learning. In today’s globalised world, judges such as Richard Posner of America’s seventh circuit and Dennis Davis of South Africa’s high court at Cape Town, are perhaps more widely respected than many of their brethren on their country’s supreme courts. Even Lord Denning, arguably the most widely known judge in the Commonwealth, retired (after serving in the House of Lords) as a judge on the Court of Appeals. Chief Justice A.P. Shah, no doubt, belongs to this league of extraordinary judges.
The quality and calibre of a judge, thus, cannot be equated or confused with the court to which she belongs. Similarly, the elevation of a judge to the Supreme Court cannot be used as a yardstick to measure success. Let us not forget that the high courts have produced some of India’s finest legal moments: during the Emergency, the high courts of Madhya Pradesh and Bombay recognised the writ of habeas corpus while the Supreme Court floundered, while the foundational “basic structure” theory in India’s constitutional jurisprudence is said to have originated in a High Court.
Chief Justice Shah, despite being senior and able enough, may not have been appointed to the Supreme Court — but the hierarchy of the court on which he sat will not matter in how his judicial contributions are remembered. We must ask why high court judges retire at 62, when supreme court judges continue until 65. We must also seek greater transparency for the basis on which capable senior judges like Justice Shah are denied elevation. However, in so doing we must continue to celebrate Justice Shah not for the court on which he sat, but for what he achieved as a judge, and the example that he set for India’s supreme yet fallible judiciary.
The writer worked as law clerk to a judge in Justice A.P. Shah’s court in Mumbai.