Passing the buck

OUT OF COURT

Civic problems of almost all our cities are running out of control. Politicians find vote banks in them, the beat constables as well as the local mafia find them lucrative.

Therefore, this is one more problem the authorities conveniently throw into the lap of the courts. The judges have to do the job of the municipal authorities and planners. One relieving factor is that there are no dharnas in front of the courts by interest groups and the orders are seen to be obeyed for the moment.

Two such judgements of the Supreme Court delivered last week dealt with civic problems of Delhi and Mumbai and only time will tell whether the decisions were correct and whether they are implemented in the true spirit.

In Maharashtra Ekta Hawkers' Union vs Municipal Corporation, the Supreme Court tried to bring some order in the chaos created by hawkers in the main streets of Greater Mumbai. The Supreme Court has held in a series of judgements over the past two decades that the hawkers have a fundamental right to indulge in their trade, but subject to reasonable restrictions.

But the problem arises when the authorities try to impose restrictions. Several petitions filed by the hawkers have moved from the high court to the Supreme Court and back over the two decades. Committees have been set up to buy some time. But their reports have given rise to further litigation.

The judges stated that "we have tried to go through the scheme street by street. However, on reconsideration, it appears to us that this court is not really equipped to undergo this exercise." Therefore, another committee has been appointed to examine proposals where hawking can be permitted on more roads. "If without much hindrance to vehicular and pedestrian traffic, hawking can be permitted, it must be permitted," according to the Supreme Court.

Meanwhile, the court added 49 more roads, in addition to 187 existing ones, where hawkers could sell their goods. The court imposed 16 "reasonable restrictions".

This clearly amounted to legislation, and that too on behalf of the municipality. It needed the court's help for the municipality to draft such rules as: hawking must be only between 7 a m and 10 p m; the hawkers must not create any noise or play any instrument or music to attract customers; no more than one member of a family must be given a licence to hawk.

In the second case, the Supreme Court tried to tackle the shortage of residential accommodation in Delhi (In Re: "And Quiet Flows Filthy Yamuna"). In 1994, the court took suo moto action on a news report stating that the Yamuna passing through the capital was no longer a river but a huge drain carrying industrial discharge and urban wastes. The court has been passing several orders to clean up the river, limit the effluents and bring pure water to the city.

Two years ago, the Supreme Court had stayed the implementation of a notification that allowed the construction of additional floors in the metro. The reason was that unless the civic infrastructure was augmented, such permission would strain the services leading to collapse of town planning. Now the court has apparently changed its mind.

After going through several notifications, bye-laws, reports of committees and sub-committees, it has allowed an increase in the floor area ratio without increasing the density of population. It also felt that giving this "much-needed respite to existing bonafide resident owners, it would facilitate the raising of additional resources for upgradation of services." This fond hope is not shared by the amicus curiae, appointed by the court to assist it, who opposed the move.

Ultimately, what started as a public interest petition mooted by the Supreme Court itself to clean the river has ended in permitting more construction within the city. These judgements could provoke a debate on whether judicial interference in civic problems improves the state of affairs.