Evictions and the Right to Housing: The Uttarakhand High Court’s Haldwani Judgment

On 20th December 2022, the Uttarakhand High Court delivered judgment in a public interest litigation, titled Ravi Shankar Joshi vs Union of India. In this judgment, a division bench of the High Court held that around 5000 individuals, living in an area called Gaffur Basti, had no legal right to be there, as the land belonged to the Railways. The High Court then passed an order directing the removal of all these individuals from the land within one week, “by use of force” if required.

Summary

A study of the High Court’s 176-page judgment reveals that the main finding turns upon the status of a particular government document from 1907. Put simply, the interveners before the Court – who were people residing on the land (many of whom had been there for decades) – traced their legal rights to this document, which – according to them – declared that the land in question was a specific type of land called “nazul land.” As the High Court itself notes in paragraph 5, up until now – that is, until a public interest litigation was filed seeking the eviction of these people – “the local bodies … had basically foundationed [sic] the class of property to be nazul land.” The High Court, however, finds to the contrary: it holds that the 1907 document was a mere Office Memorandum, which could not determine the classification of the land. And if the land was not nazul land, every succeeding transaction – a sale, or a lease, or a mutation – was also invalid. Therefore, even though many of the affected people had been living there for decades, and did have documents to demonstrate title, they had no legal right to be on the land.

On its own terms, the decision of the High Court is legally questionable (and has been questioned before the Supreme Court). For the present moment, however, the key issue is the High Court’s order of eviction within a week which – at the time of the writing of this post – is underway. Naturally, once the eviction process is completed, the pending appeal before the Supreme Court will become infructuous in most respects. Consequently, what matters at the moment is whether the High Court’s order of eviction is sustainable.

I suggest that it is not. Indeed, the order of eviction is prima facie flawed, and deserves to be stayed by the Supreme Court, when the appeal comes up for admission.

Evictions and the Right to Housing

For the purposes of the argument, let us assume that the High Court’s finding that the residents upon the land do not have an enforceable legal right to it is correct. The question then arises: do the residents nonetheless have certain procedural and substantive constitutional rights before the eviction process can be commenced? To this, the answer is in the affirmative. Going back to the 1985 judgment in Olga Tellis vs Bombay Municipal Corporation, the Supreme Court (and various High Courts) have held when carrying out an eviction, the State must respect the constitutional rights to life, livelihoods, and housing, notwithstanding the absence of formal legal title. This stems from the recognition that what are commonly called “encroachments” are a result of the State’s failure to discharge its constitutional obligations to provide basic socio-economic rights (such as housing) to the citizenry. When it comes to evictions – especially evictions that would make people homeless – an absence of legal title does not mean that a resident is without any rights, and can simply be turfed off the land.

What are these rights? As this piece by Rishika Sahgal explains in some detail, there are two sets of rights: a right to notice-and-hearing, and a right to rehabilitation under existing schemes. Let us consider the right to rehabilitation first. While the Supreme Court had, thus far, refrained from declaring a right to rehabilitation in all cases, it has nonetheless made it clear that before an eviction can be conducted, it must first be ascertained which of the residents are eligible for resettlement and rehabilitation under existing state or central government policies. In judgments after Olga Tellis, certain High Courts (in particular, the Delhi High Court) and the Supreme Court have given concrete content to this right, noting, for example, that the State must conduct a survey of the affected people in order to confirm their eligibility under existing policies; failure to do so is a breach of the residents’ statutory and constitutional rights (see Sudama Singh vs Government of Delhi and Ajay Maken vs Union of India). Admittedly, the High Court does not do this: it proceeds directly from the finding that the residents do not have a legal title to the land, to the order that they be evicted within a week. In this context, it is particularly important to note that most state policies in this regard have cut-off dates, which protect the rights (at the very least) of residents who have been on a piece of land for a long time. In the present case, a significant number of the residents – and this is uncontroverted – had been residing on the land for a long time (a few decades, or more).

Consequently, before ordering eviction, it was incumbent upon the High Court to (a) ascertain which rehabilitation and resettlement policies of the state or central government were relevant to the case at hand (for example, there is a law called The Uttrakhand Reforms, Regularization, Rehabilitation and Resettlement and Prevention of Encroachment of the Slums located in the Urban Local Bodies of the State Act). It is important to note that the absence of a policy is, itself, a breach of the State’s positive obligations to protect the rights to livelihood and housing of the citizenry. And (b) to direct the State to conduct a survey determining which of the residents were eligible for resettlement and rehabilitation under the existing policies. The High Court does not do so, and that is why its judgment is flawed in law.

What of the right-to-notice-and-hearing? One version of the right to hearing is a thin one, limited to individuals submitting representations, which are then acted upon by the competent authority. Given the consequences of eviction orders, however, Courts have developed a richer conception of hearing in such cases, which is called “meaningful engagement.” As the term suggests, meaningful engagement requires the authority to engage on equal terms with the residents, concerning the impact of evictions upon lives and livelihoods, and to take its decisions only after that process has been completed.

The Uttarakhand High Court misunderstands the concepts of hearing and meaningful engagement. It determines that the procedural requirements have been fulfilled because it granted to the residents a right to intervene and make legal submissions before the Court. This gets the law wrong in two respects. First, hearing and meaningful engagement are not connected to proving legal right to a particular piece of land. Hearing and meaningful engagement take place in the backdrop of the fact that the residents do not have formal legal title, and how – in such circumstances – their constitutional rights can be protected in the case of an eviction. Secondly – and relatedly – hearing and meaningful engagement is before State authorities, not the Court. The reason for this is obvious: if hearing and meaningful engagement is insufficient or a sham, then the residents have the option of approaching the Court for a remedy (indeed, this is what happened in previous cases such as Ajay Maken). But when the Court itself takes over directly, this two-step process for safeguarding individual rights is bypassed. To take an analogy: if the government bans a book under Sections 95 and 96 of the CrPC, I can make representations to the government, failing which, I can approach the Court asking for judicial review of the ban. However, if the Court itself bans a book directly, the existing two-step safeguard process is undermined.

We can therefore see that the Uttarakhand High Court’s eviction order is legally unsustainable, as it violates both the notice-and-hearing and the rehabilitation-and-resettlement pre-requisites before a mass eviction can take place. For these reasons, it deserves to be stayed.

Inconsistent Application of Procedure

There are a few additional points about this judgment that need to be made. The first is that this is not a case where the State authority (in this case, the Railways) was evicting people, and those people came to Court for protection. Rather, this is a case where an individual filed a public interest litigation in order to get people evicted through a Court order. Now, given that PILs are only maintainable if one demonstrates the violation of a fundamental right, what specific, identifiable right of the PIL petitioner was at stake in the present case? The Court makes no attempt to answer this question; it only reiterates the tautology that PILs are for “the public at large” (para 196), and berates the two or three interveners who had challenged maintainability.

Furthermore, while the High Court is perfectly happy to bend procedural requirements to allow a PIL where the prayer is not to protect a fundamental right but to evict people, it suddenly remembers the importance of procedure when it comes to the interveners (the actually affected people). When a few of the interveners attempt to challenge a demarcation report prepared by an advocate-commissioner in a previous (connected) PIL, the High Court forbids them from doing so, on the ground that it was not challenged at the relevant time (para 132). Quite apart from the fact that the interveners only came to know about the present proceedings because of a public notice – and therefore, arguably, could not have challenged the demarcation report before – this is a bizarre inversion of procedure, where a person filing a PIL to evict people seemingly does not have to satisfy procedural constraints, but the people getting evicted are held to a strict procedural standard.

Vitiation by Judicial Bias

Finally, there are various passages in the judgment that raise a distinct possibility of judicial bias. In paragraph 63, the High Court states:

Owing to the certain most reckoned political shield, which was then being provided by the then Ruling party for its political gains to the unauthorised occupants, just to secure its vote bank, the State itself has filed a Review Petition, for no subsisting and valid reasons, being Review Petition No. 6 of 2017, seeking review of the judgment dated 9th November, 2016, which too was dismissed by the Division Bench vide its judgment dated 10th January, 2017.

This is an extraordinary paragraph. Note that the High Court does not castigate the State; it castigates the “then ruling party” – i.e., a previous government, not a party to the present proceedings – and then engages in a judicial dog-whistle by referring to “vote banks.” Later on in the judgment, the High Court doubles down further, holding in paragraph 247:

This Court will not be hesitant to observe that in the instant case too, the present encroachers over the railway land were sheltered by the political heads of the State Government and were having political patronage, which at the relevant time, when the earlier Division Bench decided the matter, it was in the helm of the affairs, and particularly, the shelter provided by the then sitting M.L.A., who was also enjoying a status of being a Cabinet Minister, in order to secure her vote bank, have been irrationally resisting any act of removal of the unauthorized occupants from the land, in order to protect her vote banks.

Here, the Court now extends its attack not just to a specific government, but also to the “then sitting MLA”, and makes accusations against a specific individual of – effectively – breaking the law for the purpose of protecting her “vote bank.” Once again, the MLA in question was not a party to the case, had no opportunity to have these accusations put to her and to respond to them, but nonetheless is at the receiving end of an adverse finding by the Court. In this context, it is important to recall the words of the Supreme Court in Bhullar, noting the importance of laying aside “private views” in the discharge of judicial functions, as well as the observations in P.D. Dinakaran, stating that “personal prejudice” cannot be a part of the decision-making process. When you look at these paragraphs, however, which amount to an attack on a previous government, an attack on a previous MLA, and accusations of collusion between the MLA and her constituents – none of which have a bearing on the legal issues at hand – it is hard to see how the observations in Bhullar and Dinakaran are not attracted.

Furthermore, at various places, the Court directly berates the interveners, and attributes motive to them. When an intervener challenges the maintainability of the PIL, the Court states that it is a “malicious intent to confuse the Court” (para 191); for another intervener, the Court states that “the learned counsel for the applicant craftly (sic), in order to confuse the issue furthe, and for all clever devices adopted by the applicant…” (para 208); to yet another, it says that “it cannot be ruled out, that a deliberate effort has been made by the applicant was to (sic) confuse the proceedings.” (para 214) It is respectfully submitted that such intemperate language does no credit to the bench.

Conclusion

While the merits of the High Court’s judgment deserve closer examination, the present case also presents an opportunity to the Supreme Court to clarify and restate the law on evictions and the right to housing under the Indian Constitution. This is an excellent opportunity for the Court to clearly set out the substantive notice-and-hearing and rehabilitation-and-resettlement principles and the scope of their application. Not only would this help settle present confusion about the state of the law, but also deal with the recent pandemic of evictions and demolitions that is sweeping the country, and which presents a serious threat to constitutionalism and the rule of law.