In an interesting judgment handed down earlier this week, the Delhi High Court laid down some important principles concerning the rights of slum-dwellers to adequate housing, and protection from forced evictions. The case itself had been filed in 2015, in response to demolitions and forced evictions (that had allegedly caused, among other things, the death of a six-year-old child) at Shakur Basti, a jhuggi cluster built on Railways land. In its interim orders (discussed from paragraphs 3 to 48), the High Court found that the Railways had failed to carry out its obligations to conduct a survey determining the eligibility of the residents for rehabilitation under law (set out in paragraph 28), before it commenced eviction. Accordingly, it passed orders on various relief measures, and directed the statutory agencies involved to act in a coordinated manner to deliver them to the displaced citizens. The case proceeded in the form of a continuing mandamus, with the Court monitoring the developments (including the preparation of a Draft Protocol that would coordinate the actions of the agencies) until December 2018, when judgment was reserved on the legal issues.
The High Court was then required to consider the interaction between a complex maze of legal instruments relating to the rights of slum dwellers in the context of forced evictions and rehabilitation: international law (that Muralidhar J. read into the domestic legal landscape via the Protection of Human Rights Act, 1993) (paragraphs 56 to 68), the Indian Constitution (paragraphs 84 to 86), various statutes such as the SAIC Act and the DUSIB Act (paragraphs 93 to 111) and attendant policies (paragraphs 119 to 136), and the Court’s own previous judgments, from the iconic Olga Tellis (paragraphs 87 to 92) to the more recent and specific Sudama Singh (paragraphs 112 – 118). Muralidhar J. also informed his reasoning through an extensive analysis of South African constitutional jurisprudence which – of course – is based upon a categorical right to housing provided by the constitutional text, which we lack (paragraphs 69 to 79).
The Court found that its previous judgment in Sudama Singh, which had interpreted constitutional principles in more concrete terms, providing for a right to rehabilitation and a right to a meaningful engagement before an eviction, had now been codified by the 2015 Policy, and by the Protocol that had been worked out by the parties during the hearing, and which had received their imprimatur. Consequently, the Court held that, in accordance with law:
- Before any eviction can be commenced, there must be a survey in order to determine whether the residents are eligible for rehabilitation in accordance with the existing law and policy.
- In case the answer to the above is “yes”, the eviction cannot be commenced until provisions are made either for in situ rehabilitation, or for alternative accommodation.
- Any eviction must be preceded by meaningful engagement with the residents on all issues, including the terms and conditions of rehabilitation. (paragraphs 142 – 144)
Muralidhar J.’s judgment is important for a few reasons. At the constitutional level, it clarifies (once again) what, precisely, a “right to housing” might mean in the Indian context. In the absence of an enforceable, textual right to housing, any Court that wants to retain fidelity to the Constitution is constrained in what it can achieve: it cannot, for example, declare that every individual must be provided a house (indeed, the South African Constitution which does have the right has also balked at going so far). However, the guaranteed rights to freedom of movement and residence, as well as the right to life, provides a basis for a more modest – but more rigorously grounded – formulation: that the Government may not impede access to housing – by evicting people in occupation of certain land – without complying with a substantive due process standard. This standard requires, first, “meaningful engagement” with the residents before any action is taken (this is a more fleshed out and rigorous articulation of the right to a hearing, and is drawn from South African jurisprudence), and secondly, rehabilitation, where a right to rehabilitation has been established by law or policy. For readers familiar with the Forest Rights Act, it is a bit similar to the principle that no coercive action can be taken against a resident before the settlement of her rights is completed. Note that neither of the two requirements guarantee an individual a house in a tangible or material sense. What they do, however, is place thick procedural obligations upon the government if it wants to deprive someone of shelter: it is not enough for the government to invoke property rights, label them as “encroachers”, and drive them off.
The Delhi High Court buttressed its articulation of constitutional values by invoking two further principles. The first was the exhortation that the government is not entitled to treat slum dwellers on public land as right-less beings, with all the demeaning connotations that labels such as “encroachers” or “trespassers” bring. Rather, residents were at all times to be treated as rights-bearers, and the government was not entitled to derogate from its constitutional obligations while engaging with them. At the heart of this articulation is the understanding that urban poverty is a structural issue, and simply targeting occupiers of public land as “encroachers” not only mischaracterises the problems, but also violates basic constitutional values. The Indian judiciary has not always been consistent in this understanding, and therefore, its clear articulation by Muralidhar J. is very welcome.
The second was the invocation of a “right to the city” (paragraphs 80 to 83). Drawing upon the work of famous urban space scholars such as Henri Lefebvre and David Harvey, as well as contemporary international law, Muralidhar J. noted that “the right to the city” envisaged “stronger democratic control and wide participation in struggles to reshape the city.” In essence, therefore, the idea is democratisation: the inhabitants of a city ought to have a voice, a stake, and participation in questions such as “how is the city to be designed?”, “who is the city for?”, “how and on what terms are spaces in the city to be accessed?”, and so on. To anyone who lives in Delhi – with its gated colonies, the walled gardens of what is popularly known as the “Lutyens Zone”, and the heavily guarded entrances to gigantic malls – this will be immediately understandable. The point is this: how we access the city, which spaces are open to us and which aren’t, and how we navigate those spaces, are all questions that are presently dependent upon socio-economic class and status, but ought to be subjected to democratic control.
Now you may say that this is all well and good, and ought to be the subject of political struggle and agitation, but what does it have to do with constitutional adjudication? A Court can hardly “enforce” a right to the city by redesigning urban spaces to (for example) reverse the “privatisation of space” that gated colonies have so effectively conducted, and so on: that is a task for urban planners. In this case, however, the idea of the right to the city was what informed the Court’s articulation of meaningful engagement before evictions as a constitutional principle. Furthermore, its applications in other cases can be grasped: readers will recall, for instance, a recent controversy with respect to the Delhi Gymkhana Club, when “guests who look like maids” were denied entry. Now, the debate is rather constrained as long as it is limited to a putative clash between the Club’s “right” to impose a dress code, and the human right to non-discrimination and dignity. However, we can think about this another way: the Club occupies a vast amount of (what would otherwise have been) public space at the heart of Delhi. “A right to the city” raises difficult – but important – questions about the nature of control over such spaces, their possible democratisation, and whether and to what extent socio-economic class (of which dress is a marker) can be made the basis for exclusion. That, of course, will depend upon how future courts develop the concept.
With reference to this case, in particular, the flow of Muralidhar J.’s reasoning may be understood by referring to the following scheme, arranged around descending levels of abstraction:
Level One: Citizens as rights-bearers and not as “subjects”, “encroachers”, and “trespassers”/ “a right to the City” —->
Level Two: The right to adequate housing/right against forced evictions/right to meaningful engagement/right to enforce rehabilitation schemes —->
Level Three: Statutory instruments and policy documents that actualise the above —–>
Level Four: No eviction without compliance wit the above.
But at the end of the day, while this judgment demonstrates the promise of socio-economic rights adjudication, when done rigorously and emphatically, with a view to the principles of participation and engagement, it also reveals the limitations of the judicial role, and the importance of other democratic actors. Here, the Court was only able to do what it did because of the existence of detailed statutory instruments and policy documents that actualised the constitutional principles (to whatever limited extent) – many of which, admittedly, had only come into existence because of judicial pressure. As the Court was careful to note, for example, the rights at issue would kick in if the residents had a prior right to rehabilitation in accordance with extant law and policy (here, for example, the 2015 Policy had a cut-off date of 2015). Now, what if existing law did not provide for that right? To what extent would the Court be able to stipulate or decree it, given that (as everyone agrees) there is no substantive right to housing under the Indian Constitution? The fate of judgments such as Olga Tellis – for example – where much was said, but ultimately, the eviction was upheld – perhaps suggests that this is not an area where the Court can go it alone. The same is true for a “right to the city”: ultimately, any substantive articulation of a “right to the city” will butt heads against the much more entrenched legal principle of private property. The Court’s articulation of a “right to the city” informs us that our present legal landscape is not the only way in which we might imagine the relationship between people and land; but to change that relationship is the onerous task of democracy.