“Surplus Humanity” and the Margins of Legality - Chapman University

Do Not Delete 12/12/2010 7:34 PM
44 Chapman Law Review [Vol. 14:1
India.‖ 290 PIL emerged precisely at the moment of the collapse of
the nationalist development project.
Progressive PIL decisions by the courts brought major
changes in, among other things, the state of urban life. These
actions included removal and relocation of large urban industries
to outside city limits, 291 the conversion of all public transport and
private commercial transport to the use of compressed natural
gas, 292 ridding the River Ganges of effluents, 293 and removal of
garbage from the cities. 294 The courts‘ involvement extended into
oversight of implementation of their directives. 295 Encouraged by
judicial pronouncements, in 1990, the Indian Law Commission
recommended a new law to give statutory basis to a right of
slum-dwellers to resettlement, preceding destruction of their
homes. 296 No such law was ever enacted. Similarly, an attempt
to amend the Constitution to make the right to housing a
fundamental right failed. Neoliberalism had arrived to change
not only the rules of the game, but the game itself.
B. Encroachers in the Showcase City
PIL may well have stayed on its path, had not the global
rules of the game changed so markedly with the neoliberal turn.
In its new iteration, PIL was used by the courts to assume the
role of policy maker and policy enforcer with the backing of the
urban professional-managerial classes, who, under the spell of
ideologies of corporate capital, have turned away from the state
as the primary orchestrator of change. The judiciary, the nonpolitical
branch of government, became an instrumentality to depoliticize
political questions of distribution, equity, access, and
opportunity.
As neoliberal deregulation of the economy, down-sizing of the
public sector, and ―free market‖ ideologies became entrenched,
the courts took a dramatic turn. Judicial activism in the interest
290 Upendra Baxi, The Avatars of Indian Judicial Activism: Explorations in the
Geography of [In]justice, in FIFTY YEARS OF THE SUPREME COURT OF INDIA: ITS GRASP AND
REACH 156, 157 (S. K. Verma, Kusum & A.S. Anand eds., 2000) (emphasis added).
291 M. C. Mehta v. Union of India, Petition No. 13381 (Taj Trapenzium Case 1984).
292 M. C. Mehta v. Union of India, Petition No. 13029 (Dehli Vehicular Pollution Case
1985).
293 M. C. Mehta v. Union of India, Writ Petition No. 3727 (Ganges Pollution Case
1985).
294 Almitra Patel v. Union of India, Writ Petition No. 888 (Garbage Removal Case
1996).
295 See Rajamani, supra note 288, at 315. In this regard, the courts were not only the
arbiters of law and justice, but also functioned as parallel administrative and executive
bodies in matters of urban affairs.
296 LAW COMMISSION OF INDIA, ONE HUNDRED THIRTY-EIGHTH REPORT ON
LEGISLATIVE PROTECTION FOR SLUM AND PAVEMENT DWELLERS 26 (1990).