Judicial Co-Governance Through Interim Orders

In two orders, the Supreme Court has felt the need for urgent action on a long-delayed matter of construction of smog towers and waste management in Delhi. But was there a judicial overreach in overlooking a cost-effective solution and the rights of co-citizens?

By Upendra Baxi

While political outcries describe it as so-called “judicial overreach”, apex court Justices expound the arts of institutional self-restraint and commentators move from case to case urging either judicial action or abdication, the social reality remains that the appellate judiciary actually performs the tasks of co-governing the nation. One more instance of this was provided by a series of interim orders passed by the apex court (Justices Arun M Mishra, BR Gavai, and Krishna Murari) on August 31, 2020, in yet another MC Mehta v UOI case.

The 18-page order is worth a close examination because it speaks to us in many ways about a variety of interconnected matters. The interim applications and order relate to a state of affairs which can only be called maximum government and minimal governance.

Despite the marked difference of expert opinion on whether smog towers in Delhi will reduce toxic pollutants in the air, and whether they were cost-effective (some expert opinion went as far as suggesting that if there was five-million kg emissions per month, the whole of the capital would need at least two million such massive air purifiers), the Supreme Court, in January 2020, ordered that construction of these towers should be completed within three months. The Court threatened action against governmental and other entities for wilful disobedience of this order. At long last, undertakings were furnished by the Secretary, Ministry of Environment, Forests and Climate Change, as well as by the principal secretary of the Department of Environment and Forests, Govt. of NCT of Delhi, that “they will be completing the work…within 10 months”. The Court ordered: “Any violation on any ground whatsoever shall be treated as contempt of the order passed by this Court as there is already huge unjustified delay in making the compliance of the order.” The wider issue of how far such antidotes were useful and cost-effective seems not to have bothered the executive or the Court.

Despite the marked difference of ex­pert opinion on whether smog towers in Delhi will reduce toxic pollutants in the air, and whether they were cost-effective, the Supreme Court, in January 2020, ordered that construction of these towers should be completed within three months

The second order by the Supreme Court led to the direction concerning primarily waste-disposal by the Railways, Govt. of NCT of Delhi and concerned municipal corporations as well as the Delhi Urban Shelter Improvement Trust. A “plan” has now to “be executed with respect to removal of the plastic bags, garbage etc. Within a period of three months” and further “a meeting of all the stakeholders…be called next week and work be started forthwith”. There would also be a cost-sharing, “70% of the requisite amount shall be borne by the Railways and 30% by the State Government” and the “manpower be provided by the SDMC, Railways and agencies available with the Government, free of cost, and they will not charge it from each other”. And the relevant executive and administrative agencies shall ensure that their “Contractors do not put the waste/garbage on the sides of the railway tracks”.

One wonders why this inter-agency and inter-governmental squabble should have gone on for such a long time and why ever was Solomonic judicial wisdom considered necessary. Those who complain most loudly about judicial overreach1 are the very people who could not decide for a very long times on plastic and other waste disposal! Those who wax eloquent about separation of powers must only mean by it the governance of convenience and not of constitutional good governance. Even the calling of a meeting of concerned governmental agencies and stakeholders here requires a direction from the apex court!

The direction about the removal of jhuggies is a dream order for every bureaucrat, though a nightmare for outsees and a bad experience for party-political actors who have to work tirelessly for votes at the next elections. The Court directs that while “a comprehensive plan for removal of jhuggies be made and executed in a phased manner”, the “encroachments which are there in the safety zones should be removed within a period of three months” and it forbids any “interference, political or otherwise” and “no Court shall grant any stay with respect to removal of the encroachments in the area…”. The Court goes further: “In case any interim order is granted with respect to encroachments, which have been made along with railway tracks, that shall not be effective.”

In the matter on waste-disposal by the Railways, the apex court completely overlooked that co-citizens, who live in jhuggies and slums, too have a right to shelter and habitat under Article 21

While vested political party interests should not have a decisive say in the matter, this order problematically reverses other binding judicial decisions on the right to shelter and habitat which the apex court itself has enunciated as a core Article 21 right to life and liberty. Moreover, it is doubtful if the Supreme Court has the power to diminish the wide constitutional jurisdiction granted by Article 226 of the Constitution for the protection of fundamental rights and “any other matter”. If a few High Courts were themselves to raise this matter before the Supreme Court, it is doubtful in the extreme where the latter will go so far as to justify the present order, whether in terms of Article 141 or 142 of the Constitution (respectively, the power to declare law binding on all courts throughout the territory and the power to do complete justice). After all, these articles too are integral to judicial review power declared to be the basic structure of the Constitution.

True, the Court felt the need for an urgent action on a long-delayed matter, but it completely overlooked that co-citizens who live in jhuggies and slums too have a right to shelter and habitat under Article 21, which is a judicial duty to respect and reinforce. There is not the slightest whisper of citizen’s rights in this order. Co-governance of the nation does not mean or entail per incuriam governance.

There are certain other aspects to this order. The orders are delivered in Writ Petition(s)(Civil) No(s). 13029/1985 in 2020. And this too in  Covid-19 times! They are heard and disposed of by video-conferencing, testifying to the strength and determination of the judicial system to dispense justice in difficult times.

While the order comprises 18 pages, eight pages dutifully represented the counsel who argued the matter or filed an appearance. The list is a veritable Who’s Who of the Supreme Court Bar. On a quick count, as many as 420 lawyers (including the four reiterations of the name of the learned solicitor-general) are mentioned in these eight pages, of whom a few are women ( a separate story about feminisation of the Bar, which we do not pursue here). The petitioner in whose name the litigation stands is himself a veteran environmental lawyer. It is not clear whether there were any strong voices at the Bar representing the 48,000 jhuggi-jhopri clusters “existing in close vicinity” of about 70-km of route length of the railway track. What assurance is there about respect and reinforcement of their right to live a dignified life of privacy?2

An extra poignancy is added by the Court’s direction about contempt. Recall that the Court has said that “huge unjustified delay in making the compliance of the order” regarding smoke towers outside ten months constitutes contempt. Will proceedings automatically begin in the event of smog towers not being completed within this prescribed time? Or will a more specific contempt proceeding be necessary? What may the courts actually accomplish by way of contempt proceedings in case of transfer or retirement of public servants?

The very last lines of the Supreme Court refer to Contempt Petition (C) No. 467 Of 2020 and orders that notice be issued to Respondent Nos. 1 to 5 only. I have yet to discover that petition; but, regardless, one may not think that the learned Court remains totally indifferent to the obedience of its own orders.

The message for rightless citizens is that, in appropriate cases and situations, the constitutional estate of basic right to life and liberty is not theirs, excepting for occasionally favourable adjudicative and legislative contingencies. Is this message congenial to a constitutional right to city?

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer


1See, Upendra Baxi, “Demsosprudence, or Judicial Overreach and Usurpation?” in Sudha Pai (ed), Constitutional and Democratic Institutions in India: A Critical Analysis, Orient Blackswan,  2020.

2See Upendra Baxi, “A philosophical Reading  of the RTTC’, In Urban  Policies  and  the   Right to  the  City  in  India: Rights, Responsibility, and the Right to City in India,16-21 (New Delhi, UNESCO, 2011Marina Faetanini, ed.).