How the whims of a few judges threw Delhi into a decade of chaos

Photo by Danish Prakash on Unsplash
Why You Should Read This
  • This is Part Two of a two part summary of Anuj Bhuwania’s 2018 paper about a PIL that transformed Delhi and how the people of Delhi were barely consulted during this process.
  • Focusing on just one case, it shows how PILs, despite being created for the “public good”, are particularly prone to class bias and abuse of power. It’s a wild and scary story about how a judge can just wake up one day and throw a whole city upside-down.
  • You can read it in fullClick on each point to dig deeper and get the complete picture. in 8 minutes or skim itRead only the numbered points. in 2 minutes.
  1. The PIL known as Writ Petition (Civil) 4677, filed in 1985, completely transformed the city of Delhi. It was initially a case about air pollution caused by stone-crushing units. Over the years, it expanded to deal with pollution in the Yamuna river, mining in the Aravalli hills, and “encroachment” in the forests in Delhi — among other issues. The case, which “almost single-handedly led to the deindustrialization of Delhi,” is technically ongoing even today.
    • When MC Mehta first filed WP (C) 4677 before the Supreme Court, it was a complaint against stone-crushing units, which were a major cause of dust pollution in Delhi. The Court ordered the closure of 300 such units in 1992.
    • After that, Mehta continued to file “interlocutory applications,” which added other issues to the existing PIL. These applications were accepted by the Court and the PIL took aim at other issues, such as pollution in the Yamuna river, mining in the Aravalli hills, and protecting the ridge forests in Delhi.
      • The ridge forest order is emblematic of all the issues discussed in this article because the Court announced a blanket order for all “encroachers” to leave the forest.
      • This included more than 30,000 residents — most of whom were tribals and had lived there for decades. Many of them were forced to relocate.
      • At the same time, many “farmhouses” of the rich that were located in the same area were left untouched.
      • This captures how an order to protect the environment in the name of “the public” reveals who is part of the public and who is not. For the judge, class and caste bias decides who he was willing to evict and who he wasn’t.
    • So many people were affected in so many different ways by the outcomes of all these orders that they are still being challenged in court.
      • As the affected people filed interlocutory applications of their own, these cases only became bigger and bigger and more confusing to navigate.
  2. In 1996, Justice Kuldip Singh, who had taken over the case, ordered 168 large polluting industrial units to relocate outside Delhi within five months. This order was a jackpot for factory owners — they could now fire all their workers without worrying about labor laws and sell the prime real estate they owned. The workers were supposed to be compensated, but most weren’t and the Court refused to hear their complaints.
    • When the Court ordered the relocation of these large industries, it also ordered that the factory owners pay workers during the entire moving period as well as a hefty relocation bonus or a retrenchment bonus if the factory chose to shut down.
      • But two years later, it was found only one factory had paid any compensation at all to its workers.
    • Instead, 35,000-50,000 workers had lost their livelihoods and received no compensation. Including their families, this meant that more than 2.5 lakh people suffered because of the Court’s decision.
      • When they tried to argue their case in the courts, they were brushed aside.
    • On the other hand, factory owners were able to get rich by selling much of this now vacant industrial land, which was worth huge amounts of money because of Delhi’s land prices.
      • Some of these lands were originally allotted to industries at subsidised rates by the government. So profits were even higher for these factory owners.
      • This bumper profit wouldn’t have been possible normally because existing labour laws make closing factories almost impossible without going through various procedures to make sure the workers and the factory’s creditors are paid.
      • A few months later, the Court ordered the closure of another 500 factories as well as more than 200 brick kilns and other enterprises.
  3. In 2000, the case made news again. It began with Justice Singh ordering all factories in Delhi located in “residential” areas to relocate to “industrial” areas. After the government delayed implementing the order, the Court lost patience and declared that all the factories be shut down immediately. Overnight, thousands of workers lost their jobs and riots broke out.
    • The Court estimated in 1996 that there were more than 90,000 polluting factories that were actually based in residential areas.
      • One small problem: there was no place to relocate to.
        • A government organisation, Delhi State Industrial Development Corporation, bought land on the outskirts of the city and began to develop it for these factories.
        • But by 2000, the corporation still wasn’t ready with the land. More than 50,000 factories had applied for land but none of them had got permission to relocate yet.
        • The corporation asked for an extension but the judge lost patience.
    • Exasperated with the inefficiency of the government, the Court ordered that all the factories just be shut down. They threatened to charge government officials with contempt of court if they didn’t close these factories immediately.
    • These officials panicked and within a week, more than one lakh factories were sealed shut and their electricity and water was disconnected.
    • A general strike was called and riots broke out as thousands and thousands of workers suddenly lost their incomes overnight. During the riots, the police shot 3 protestors dead and hundreds were injured.
  4. By now, the Court had begun to see the democratic responsibilities of the government as a roadblock. The Court knew that its orders “would adversely affect the livelihood and business of hundreds of thousands of voters,” and yet it implemented them, circumventing democracy by taking the decision out of the hands of elected representatives.
    • There was actually a good reason for these delays as there was a political battle going on between Delhi’s state government and the central government. Delhi’s land use planning is in the hands of the Centre — but all the problems it was causing had to be handled by the state government.
    • In 2000, the Court decided to place implementation of their orders in the hands of a central government body because it felt the state government would never carry out its orders.
      • In this sense, they were aware that their orders were not popular, saying, “Delhi governments lacked the political will to carry out relocation orders, as it would adversely affect the livelihood and business of hundreds of thousands of voters.”
    • With factory owners and the state government stuck, the Court rushed to take action and the people who suffered the most were the workers.
    • Kaveri Gill’s research into the Dalit community that worked in the plastic scrap trade in Delhi shows how even a business that is good for the environment was destroyed by these orders by the court.
      • This particular community was usually able to exert some political pressure through their political representatives but again, because this order came from the Court, those democratic channels were rendered useless.
  5. In 2005, Justice Y.K. Sabharwal took over the PIL. Pollution was now forgotten as the case found an entirely new target: commercial establishments in residential areas, which were all ordered to be relocated. This was impossible because there just wasn’t enough commercial land. But the court refused to budge and announced a 30-day deadline.
    • This idea of a “residential area” was something that only existed on paper in the Delhi Master Plan. Hundreds of thousands of commercial establishments were therefore illegal.
      • The Delhi Municipal Corporation argued that there were so many violations that it would be impossible to shift all of them. The Court accused them of “a lack of will” and giving too much importance to “extraneous considerations”, i.e. the feelings of the people.
      • The state had not developed enough commercial space for the existing establishments. So in some sense, they had no choice but to operate from residential spaces. But the Court refused to acknowledge this. It was going to penalize people for the failure of the state.
        • Bhuwania writes that the Court was “wilfully blind to the impossibility of what it was demanding, by harping on illegalities while ignoring the underlying reason behind them.”
    • When the municipal corporation rolled out a six month timeline with a thorough survey and other essential steps, the Court dismissed them and gave a deadline of 30 days for the commercial establishments to shut down on their own — failing which, they would be shut down and sealed by the authorities.
      • More than 40,000 responses were filed in the Court after this order, but this was still only a fraction of the total number of commercial establishments that were affected.
    • When the forced sealing began, newspapers cheered the Court’s brave actions.
  6. But this time, the Court’s targets, the commercial class of Delhi, were powerful enough to get the government to come to their aid. This led to a back-and-forth of judicial orders and government notifications resulting in thousands of shops being sealed and unsealed and then sealed again.
    • So far, the Court had been shaping Delhi as they saw fit but now, the commercial class of the city was rallying their political strength against them. Of course, when the government tried to intervene, the Court accused them of a “policy of appeasement”.
      • The Court saw the state government as either corrupt or compromised by “vote bank politics” or both.
    • The government rushed through a new law just to block the Court order on this issue. This new law — the Delhi Laws (Special Provisions) Act, 2006 — stopped all punitive action for one year.
      • By this time, thousands of commercial places had already been sealed.
      • And now some of these shops were being unsealed.
    • The Court was outraged and started questioning whether the law was constitutional. While they were analysing it, they ordered that all the shops that were unsealed should be resealed again!
      • The logic was that new shops couldn’t be sealed because of the law but it could not undo what the Court had already done.
    • A bandh was called by the shop owners to protest the Court’s actions. Workers whose livelihoods were on the line joined the protests. But in one of the poorest parts of Delhi, police started firing and killed 5 protestors.
  7. Finally, in 2007, the government tried to end the whole mess by notifying a brand new Master Plan for Delhi, which removed the restrictions that were the basis of the Court’s orders so far. In the same year, Justice Sabharwal retired. And with that, the PIL’s lifespan seemed to be at an end.
    • The new Master Plan was immediately challenged in the Supreme Court. But by now this had become normal. Life continued as if the new Master Plan was in effect but with the threat that if the Court ruled against it, chaos would resume again.
    • Justice Sabharwal’s successor didn’t have the same enthusiasm for pursuing the case.
    • Also by this time, the case had become so complicated with so many different petitions and documents filed – including hundreds of requests for unsealing shops – that it was almost impossible to make sense of the case.
      • In 2013, there were more than 900 interlocutory applications still pending.
      • And it seemed that the Supreme Court had given up. The case was kicked down to a lower court.
  8. The sting in the tale of this saga is that after Sabharwal’s retirement, an investigation unearthed the fact that both his sons were developing malls, i.e, commercial spaces that would rise in demand when shops in residential areas had to shut down. The journalists who exposed these facts were jailed. Sabharwal would later complain that the case had lost him many friends.
    • On retirement, Sabharwal spoke openly about how his relatives and friends, who owned commercial establishments in residential areas, were angry and upset with him.
      • This is an important part of why the government was willing to intervene in the case at this point. Because now, the case was affecting the owners of elite commercial establishments – the class of people who were friends and relatives of judges – and not factory workers or auto drivers.
    • In 2007, the newspaper, Midday, reported that just as Sabharwal had made the PIL about commercial establishments, his sons were becoming major mall and property developers.
      • Bhuwania writes, “Suddenly, the repressed aspect of the sealing case was out in the open: it was about mall owners versus shopkeepers.Closing down shops would create a demand for mall space.”
    • But instead of investigating Sabharwal, the journalists were charged with contempt of court and sentenced to 4 months imprisonment by the Delhi High Court.
  9. The story of Writ Petition (Civil) 4677 reveals how PILs can allow a judge to wake up one day and start dictating sweeping orders on complex issues that turn the lives of people upside-down. And since they can do this without hearing the people who would be affected, class bias and abuse of this power seems almost guaranteed.
    • As Bhuwani shows with this story, PILs “enabled a judge to wilfully initiate a roving inquiry into a complex issue like zoning that affected millions. He could then decide on the path to be taken and force its implementation at a citywide level with supervision by his own chosen officials, with his own handpicked lawyer deciding the direction of the case and without necessarily hearing the parties affected by his decisions.”
    • In such a system, he writes, “petty corruption is at the very least an occupational hazard. Ideological predilection leading a judge in such a direction is scarcely less dangerous.”

Source text: The Case that Felled a City: Examining the Politics of Indian Public Interest Litigation through One Case
Publication: South Asia Multidisciplinary Academic Journal (2018)
Author: Anuj Bhuwania

Since this paper was particularly long and complex, we split it into two parts. Read part 1 here.

Note: This is a summary of a single research paper. It reflects one argument that we think would be interesting or useful to discuss. It may not offer the full picture or represent consensus on this topic, both of which are always evolving. If you would like to know how other scholars have built on or critiqued the arguments presented in this paper, click here to see some of the works that cite it.