Justice Hosbet was speaking at the Anti-Posco Struggle Solidarity Front in Mumbai on May 31. He had traveled to the Posco site between May 24 and May 26 as part of a fact-finding team to talk to villagers, academicians and local journalists about the allegations of repression against Posco Pratirodh Sangram Samiti protesters.
Justice Hosbet, who strongly believes that the Supreme Court's approach towards development issues has changed, spoke to Rediff.com's Prasanna D Zore about why he thinks that only public opinion, and not the Indian judiciary, can save this country.
During your address today (May 31) you said that the apex court should change its attitude towards development projects. What did you mean by that?
You see there was a time, a golden period, when the Supreme Court recognised human rights. A large number of Supreme Court judgments gave a wider meaning to Article 21 (of the Constitution).
The Right to Life included right to roti, kapda, makaan, education and everything else, which in turn included all human rights within the scope of Article 21.
Today the Supreme Court is doing the opposite. Today slums are demolished on the orders of the Supreme Court. How can you demolish slums?
What if these slums are illegal?
There is a difference between what is legal and what is unconstitutional. If I am a poor man, I have no money, I have no home and I have no land of my own, then where do I squat?
If I squat on private land the owner has the right to throw me out because the land belongs to him. Then he goes to an open land which belongs to the government, squats there, builds a shelter over his head which become his home on government land. And when you pull down his home that becomes unconstitutional. I have written a book on why a structure could be illegal, but its demolition can be unconstitutional.
If you look at things legal or illegal in the light of human rights you will get a different meaning altogether. In 1993 the United Nations Human Rights Commission passed a resolution that nobody's home can be demolished unless there is some negotiation or compensation paid.
That is why I say that in those golden era days if some poor person had gone to the Supreme Court stating that he is a poor, homeless man his right to shelter would have been looked upon as a human right. Today the Supreme Court asks for documents to prove ownership. What is this?
What has led to this state of affairs?
You see (former Supreme Court Justice (V R) Krishna Iyer had suggested that when you select judges for the Supreme Court you should at least ensure that the appointees are committed to the Preamble to the Constitution.
This requires the judges's commitment towards social justice, liberty, and equality. Many judges today are not committed to that objective. They commit to it, but do the opposite.
We gave an excellent judgment in Maneka Gandhi's case where we gave a wider meaning to the Right to Liberty.
Laws like TADA (Terrorist and Disruptive Activities (Prevention) Act) and POTA (Prevention of Terrorism Act ) are openly violative of the Maneka Gandhi case.
The Armed Forces Special Powers Act is playing havoc in Manipur, Srinagar etc. Though a number of (human right) violations were pointed to the Supreme Court, and this is a matter of record, the Supreme Court has still upheld these laws.
Today what happens is the State goes to the Supreme Court and says that it is a matter of national security. The moment you raise this bogey, what do you do? That is the fundamental wrong and I have said this openly.
In your address you also said that the judiciary would not save this country... only public opinion will. What kind of pessimism is this coming as it is from a retired high court judge of your eminence?
I will tell you why. There was a time when people would go to the Supreme Court because they sincerely believed that the Supreme Court would do justice to them. That is how we started the concept of Public Interest Litigation.
Justice P N Bhagwati said it is not Public Interest Litigation but social action litigation where either it could have some kind of action through courts. Not that the court could implement the law but where the Supreme Court could declare, pronounce, or restrain.
It was an innovative way of dealing with the grievances of those who sought justice. But today there is not a single petition in the whole country relating to the poor man, relating to the Right to Food or Right to Shelter.
There is only one petition pending that the PUCL (People's Union for Civil Liberties) filed relating to the Right to Food.
But that is kept pending as a peg and from time to time the Supreme Court keeps on passing orders to implement BPL (Below Poverty Line) schemes and anna yojana (food schemes) from different areas. But they have not yet defined what is the scope of the Right to Food.
For me the Right to Food includes its nutritional value as well. The Supreme Court should define the scope.
Today you find PILs filed in various high courts on any number of trivial issues but not for food, shelter, human rights etc. The Supreme Court had almost approved of hire and fire in the name of economic development, GDP. This was not the approach of courts in the past.
Earlier ordinary people could have hoped to send their children to engineering and medical colleges because there were standard fees and no capitation fees.
The Supreme Court changed the whole concept. They brought in privatisation of education and allowed colleges to charge any amount of capitation fees because of which today professional education has become the monopoly of the rich and poor and middle class people cannot hope of sending their children to pursue professional education.