Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].
[This is a guest post by Rishika Sahgal.]
On 31 August 2020, a 3-judge bench of the Supreme Court passed an order, requiring the removal of 48,000 jhuggi jhopdis (hutments) built along Railway tracks in Delhi, within a period of 3 months. The order makes no mention of the right to housing of the thousands of residents of these jhuggi jhopdis. The order, besides being callous and oppressive, is contrary to the law, and represents and the kind of PIL cases powerfully critiqued by Anuj Bhuwania in Courting the People.
Olga Tellis and the fundamental right to housing
We can begin with a quick recap of the law as it stands.
In 1985, a 5-judge bench of the Supreme Court established in Olga Tellis, that the right to life under Article 21 of the Indian Constitution includes the right to livelihood and housing. It recognized 2 sets of entitlements as part of the right to housing – a right to notice and hearing prior to evictions, and access to rehabilitation under existing schemes for the same.
These two entitlements are thin and minimal. The notice and hearing framework is too narrow, not offering any meaningful opportunity for residents to challenge evictions. The rehabilitation requirement is also minimal and conditional – it depends on existing policies in place for rehabilitation, which tend to exclude people from access to alternate accommodation based on ‘cut-off dates’.
Olga Tellis has therefore been widely criticised for being too weak, symbolically affirming housing as a right, without offering access to any meaningful entitlements. For instance, Usha Ramanathan has criticised the case for shrinking the right to livelihood and housing ‘to a minimum procedure of notice and hearing’. In similar vein, Anindita Mukherjee has argued that, ‘shelter has been recognised by Indian courts as part of each person’s right to life, but always in a rhetorical manner.’
Nevertheless, these entitlements continue to be the law of the land. As is well established, decisions of a higher bench strength of the Supreme Court, are binding on benches with the same or lower bench strength. A 3-judge bench of the Supreme Court is bound by Olga Tellis, and any failure to abide by that decision is contrary to the law. The Supreme Court’s recent order makes no mention of the right to livelihood and housing of those it ordered to be removed. It makes no mention of the need to provide notice and hearing, as well as rehabilitation in accordance with existing schemes, to those ordered to be removed. It makes no note of Olga Tellis at all. To that extent, the order is contrary to law.
The law in Delhi: Sudama Singh, Ajay Maken and the DUSIB Act
In 2010, in Sudama Singh, the Delhi High Court held that prior to carrying out any eviction, it was the duty of the state to (i) conduct a survey of all persons facing evictions to check their eligibility under existing schemes for rehabilitation, and (ii) to carry out a rehabilitation exercise ‘in consultation with each one of them [persons at risk of an eviction] in a meaningful manner.’ These obligations on the state, and corresponding entitlements for rights holders, formed part of their right to housing under Article 21 of the Constitution.
The Sudama Singh decision was confirmed twice by the Supreme Court. First, while dismissing as withdrawn a special leave petition filed by the Delhi Government against the Sudama Singh decision, the Supreme Court noted that the decision had ‘attained finality’ (SLP (Civil) No. 445-446/2012). Second, while hearing an appeal against an order of the Delhi High Court passed in contempt proceedings, the Supreme Court reaffirmed the Sudama Singh holding, and directed the Government of Delhi to implement it ‘in full measure’ (Civil Appeal Nos. 21806-807/2017).
In 2019, the Delhi High Court reiterated the Sudama Singh entitlements in Ajay Maken. In the case, the Ministry of Railways had forcibly demolished Shakur Basti, built on Railway land in Delhi, rendering 5000 people homeless. The Ministry was unable to present any evidence of having provided a notice to the residents of Shakur Basti prior to the demolition. The Ministry also admitted that no survey had been conducted of the residents regarding their eligibility under existing schemes for rehabilitation. The Delhi High Court held that this was a violation of the entitlements recognised in Sudama Singh, which formed the relevant law for all evictions/demolitions/removals in the state of Delhi, including eviction of settlements on Railway land.
Both Sudama Singh and Ajay Maken have informed the relevant statutory framework for the improvement, redevelopment, as well as removal and resettlement of jhuggi jhopdi bastis in Delhi. The Delhi Slum & JJ Rehabilitation and Relocation Policy 2015 framed under the DUSIB Act 2010, prioritises the in situ redevelopment of bastis, and permits removal of bastis built prior to 2006 only for exceptional reasons. While bastis built in ‘Railway safety zones’ may be removed, the Policy provides access to alternate accommodation to those who fulfil the relevant eligibility criteria. The Draft Protocol framed under the Act requires DUSIB to conduct a survey to determine people’s eligibility for rehabilitation, and to carry out rehabilitation through meaningful engagement with residents of bastis, prior to any eviction/demolition exercise.
The Supreme Court’s order makes no note of the statutory framework and case law applicable to the state of Delhi. It requires the removal of all jhuggi jhopdis built in Railway safety zones within three months, with no reference to the need for a survey and rehabilitation exercise to be conducted through meaningful engagement, prior to any removals. The failure to make any reference to relevant statutory and case law makes this order per incuriam – having no force of law at all.
Continuing the oppressive legacy of Almitra Patel
This order of the Supreme Court is reminiscent of its widely-criticised decision in Almitra Patel. There, too, the Supreme Court treated bastis and consequently basti dwellers as producers of garbage that needed to be cleared away, rather than as rights holders. It paid no attention to the right to a clean environment, besides the right to housing, of jhuggi jhopdi dwellers. It did not, for instance, order the provision of waste disposal and sanitation facilities to the bastis. Rather, it ordered the clearance of the bastis, along with clearance of other garbage. Once again, through this order, the Supreme Court has furthered a bourgeois environmentalism, while trampling on the rights of the urban poor.
By ordering the removal of jhuggi jhopdis in the middle of the covid-19 pandemic, the Supreme Court has endangered the lives, and failed to uphold the interconnected rights, of jhuggi jhopdi dwellers. As recognised by the UN Special Rapporteur on Housing, ‘in the face of this pandemic, being evicted from your home is a potential death sentence.’ The Special Rapporteur has therefore called on states to ensure, amongst other things, an end to the forced eviction or displacement of informal settlements. Courts in other countries have passed orders to prevent any eviction of informal settlements during these times (eg. South Africa). It is a matter of deep concern that the Indian Supreme Court has not only failed in its duty to protect the rights to housing, health and other interconnected rights of jhuggi jhopdi dwellers during the pandemic, but also exacerbated their plight.
PIL, politics and participation
This order was passed in a public interest litigation originally filed in 1984-85 by environmentalist MC Mehta, in what is popularly known as the Delhi Vehicular Pollution Case (see Bhuwania). It isn’t clear why the Supreme Court has continued to keep the case alive while moving beyond the original subject of the petition. The ‘multiple lives’ of this PIL (see Bhuwania), have certainly been devastating for Delhi’s jhuggi jhopdi dwellers. Here, I argue that the Supreme Court’s failure to hear the urban poor before making adverse orders against them in the PIL, may be an important reason for this.
The Supreme Court has previously held that persons who are vitally affected by any decision of courts in exercise of their writ jurisdiction must be heard by the court (see Prabodh Verma, Ranjan Kumar, Bhuwania). Moreover, Article 226(3) of the Indian Constitution is explicit about the need for parties to be heard before an interim order is made against them by High Courts. It is unclear why this basic principle of natural justice has been abandoned by the Supreme Court in PIL cases such as this one (in many ways, typifying the tenure of Justice Arun Mishra, who headed the bench (see here and here). If jhuggi jhopdi dwellers were heard before an order was passed for the removal of their homes, it is likely that many arguments I have presented in this blog, would be canvassed before the Court in support of their right to housing.
The PIL jurisdiction must not be used to exclude the voices of persons whose rights are at stake. In the context of the right to housing, this should apply both when (i) petitions are filed for securing the right to housing of residents of informal settlements, as well as (ii) when petitions involve the right to housing of residents of informal settlements because, for example, the eviction of informal settlements is sought before courts. Excluding the voice of the most marginalised turns the logic of PIL on its head, given that the dilution of rules of standing in PIL cases was justified, among other things, by the need to enable cases that involve people’s fundamental rights to be heard by courts when marginalised people are themselves unable to access the judiciary (SP Gupta).
It is interesting to examine who has been heard by courts in PIL cases involving the eviction of informal settlements. In cases filed to secure the rights to livelihood and housing of residents of pavements and informal settlements, residents themselves have often been heard. In such cases, residents have often secured varying degrees of protection against evictions, or access to alternate accommodation. Olga Tellis was a PIL case filed by the journalist Olga Tellis. Other petitioners in the case included human rights organisations People’s Union of Civil Liberties (‘PUCL’) and the Committee for the Protection of Democratic Rights. At the same time, several petitioners in the case were themselves residents of pavements and informal settlements. Sudama Singh involved several petitions filed directly by residents of informal settlements before the Delhi High Court. Ajay Maken was initially filed as a PIL by politician Ajay Maken, but later two residents of the informal settlement demolished by the state were impleaded as petitioners in the case. As discussed above, in these cases, residents of informal settlements managed to claim some relief with respect to their right to housing.
In cases of the second kind, filed in the interest of various ‘public’ causes other than the right to housing of residents of informal settlements, residents have often not been heard by courts prior to ordering their eviction. For example, Lavanya Rajamani notes that in Almitra Patel, there was limited participation of those evicted on orders of the Supreme Court. While there were limited avenues for participation of NGOs working on behalf of waste-pickers before committees set up by the Court, there weren’t any avenues for the direct participation of those evicted by the order of the Court. Similarly, Bhuwania notes that in eviction cases before the Delhi High Court, residents of informal settlements have seldom been heard before ordering the demolition of their settlements.
If the PIL jurisdiction is to play any useful role in opening the doors of constitutional courts to the most oppressed in India, rights holders themselves must be heard by the courts. Direct participation of rights holders may be the most important means to secure their fundamental rights.
Perhaps the Supreme Court was aware of the power of participation of residents of jhuggi jhopdi bastis, when it ordered that ‘no Court shall grant any stay with respect to removal of the encroachments’. Perhaps it was aware that should residents of bastis approach courts to secure their right to housing, they would be at a solid standing to, at the very least, obtain a stay against eviction. The Court seemed to be even more afraid of ‘political interference’ to put a stop to demolitions. In India, residents of jhuggi jhopdi bastis have sometimes been able to approach their elected representatives to secure their homes against demolitions. This is often derided as ‘vote bank politics’. Instead, I see it as unleashing the potential of universal franchise – when those oppressed by multiple and intersecting institutions of oppression (the caste system, capitalism, patriarchy, able-ism, etc.) are finally able to use the power of political participation to secure their rights. Direct participation by rights holders before courts, in PIL and other cases, as well as before other institutions of democracy, may be the most powerful means to secure their right to housing, besides other rights.