LAW RESOURCE INDIA

Licence to live

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.

Startling figures

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.

Creative interpretation

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.

http://www.frontline.in/stories/20100312270509900.htm

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