Category: Right to Housing

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

Gautam Bhatia8 Comments

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.

Evictions, Homelessness and the Constitution: The Delhi High Court and the Limits of Judicial Imagination

Gautam Bhatia2 Comments

[This is a guest post by Rishika Sahgal.]

Two recent decisions of the Delhi High Court engage with rehabilitation for jhuggi dwellers in the face of the demolition of their homes. On 4 July, in Samarpal v Union of India the Delhi High Court interpreted the relevant rehabilitation policy to hold that the jhuggi dwellers were eligible for rehabilitation. On 2 August, in Shakarpur Slum Union v DDA, the Delhi High Court stayed a demolition exercise and granted temporary relief, but did not order a survey to determine eligibility for rehabilitation for the jhuggi dwellers. I discuss both decisions in detail below.

Overall, these cases are symptomatic of the original sin in Olga Tellis, wherein the Supreme Court recognised only a conditional right to rehabilitation. In subsequent cases, there has been no consistent response of courts regarding the requirement of rehabilitation prior to eviction. The inconsistency and inadequacy of these decisions will be resolved only once courts recognise rehabilitation as an essential component of residents’ right to shelter and housing, so that no evictions can take place without provision of rehabilitation, when the eviction will render residents homeless.

Samarpal

Samarpal represents the best case scenario under the existing framework. In the case, the Delhi High Court interpreted an existing rehabilitation policy in a rights-affirming manner, to hold that residents were eligible for rehabilitation.

Shahid Basti, a settlement near the New Delhi Railway Station, was demolished by the Indian Railways in 2008, to expand and modernise the station. Five residents of Shahid Basti claimed access to rehabilitation under the relevant policy, according to which residents of jhuggis which had been set up on or before 30 November 1998 were eligible for rehabilitation. The Railways claimed that these five residents were ineligible for rehabilitation, because their jhuggis had been set up in 2003. The residents admitted that the jhuggis they were living in at the time of demolition had only been set up in 2003, but they argued that they had been residing in another location near the New Delhi Railway Station since the 1980s, and were evicted by the Railways from that location in 2003, for a prior expansion of the station. They argued that their residence since the 1980s, rather than since 2003, ought to be considered for determining their eligibility for rehabilitation. These facts were not in dispute, and the controversy in the case revolved around how the cut-off date ought to be applied for determining eligibily for rehabilitation – whether residence in the jhuggi being demolished ought to be considered, or whether residence in a prior jhuggi also ought to be taken into account.

Justice C Hari Shankar of the Delhi High Court held that the rehabilitation policy ought to be ‘broadly and liberally interpreted’, given that it was an ameliorative scheme designed to fulfil fundamental rights (the right to shelter as part of the right to life under Article 21) and directive principles of state policy (Articles 38 and 39). If residents were able to indicate their residence prior to the cut-off date of 30 November 1998, albeit not in the jhuggis which were demolished by the Railways in 2008, they ought to be eligible for rehabilitation. This was more so because the Railways was responsible for the prior eviction of residents in 2003, and ought not to be able to take advantage of its prior action to avoid granting rehabilitation to residents eligible under existing policy.

Shakarpur Slum Union

In this case, the Delhi High Court adopted a restrictive approach towards the issue of rehabilitation, rather than the ‘broad and liberal’ approach in Samarpal. The case involved the demolition of 300 jhuggis by the Delhi Development Authority (‘DDA’). No notice was given prior to the demolition, and residents were unable to gather their belongings as their jhuggis were bulldozed.

The petitioners in the case, a union of the residents of Shakarpur basti, argued for the implementation of prior decisions of the Delhi High Court in Sudama Singh and Ajay Maken, The Delhi Slum & JJ Rehabilitation and Relocation Policy 2015, and the protocol framed under the Delhi Urban Shelter Improvement Board Act 2010 (‘DUSIB Act’). They asked that the Court order a survey to be conducted to determine the eligibility of residents for rehabilitation under existing policy, and for rehabilitation to take place through meaningful engagement with residents. They were not asking for a revision of existing policy, nor for the Court to go above and beyond existing policy. Rather, they sought relief within the limits of existing judicial doctrine and state policy.

Justice Subramonium Prasad of the Delhi High Court read the requirements of Sudama Singh, Ajay Maken, the DUSIB Act and the 2015 rehabilitation policy in a restrictive manner. He determined that only those residents were eligible for rehabilitation, who were already notified by DUSIB as being so eligible (para 37). If a jhuggi jhopdi cluster had not already been notified, then it could not be eligible for rehabilitation, even if it fulfilled the requirements of the 2015 policy, and especially the cut-off dates put in place. This was a re-writing of the 2015 policy, and the protocol for eviction, rehabilitation and relocation of jhuggis in Delhi.

The Court simultaneously placed the burden on residents to prove their eligibility under the 2015 policy; and held that a writ court cannot get into ‘excruciating details of fact’ (para 29). But this is effectively having it both ways; instead, the Court ought to have required that these facts be determined by the relevant authority – DUSIB – by conducting a survey through meaningful engagement with residents, in accordance with Sudama Singh, Ajay Maken, the 2015 rehabilitation policy and the relevant protocol.

It is useful to recall the protocol at this point. This was drafted while the Delhi High Court was hearing Ajay Maken (para 41), and requires DUSIB to be involved prior to all evictions taking place in Delhi. The relevant land-owning agency is required to send a proposal for removal of jhuggis to DUSIB sufficiently in advance, and DUSIB is required to determine whether the residents are eligible for rehabilitation under the 2015 policy through conducting a survey. The protocol is explicit that:

If the JJ Basti was in existence prior to 01.01.2006, then the DUSIB will notify the said Basti under s 2(g) of the DUSIB Act, if not notified earlier…

When applied to the Shakarpur case, this should mean that DUSIB conduct a survey to determine the eligibility of residents under the 2015 policy. The protocol contemplates a situation wherein a basti has not already been notified under s 2(g), and requires that the basti be notified once it is found that residents are eligible for rehabilitation. A literal interpretive approach would lead to this conclusion, let alone a broad and liberal construction of the protocol.

While the Delhi High Court in Shakarpur included lengthy quotes from Ajay Maken and the protocol, but it did not enforce the same, and particularly paragraph 189 of Ajay Maken wherein Justice Muralidhar held:

The key elements of the 2015 Policy, which are in conformity with the decisions of the Supreme Court of India discussed in Part VII of this judgment as well as in Sudama Singh, would apply across the board to all bastis and jhuggis across the NCT of Delhi. In other words, conducting a detailed survey prior to the eviction; drawing up a rehabilitation plan in consultation with the dwellers in the JJ bastis and jhuggis; ensuring that upon eviction the dwellers are immediately rehabilitated – will all have to be adhered to prior to an eviction drive. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in all of the above decisions.

In this case, the Delhi High Court granted limited relief, holding that no demolition could take place without notice, early in the morning or late in the evening, and that a temporary location was to be provided to residents facing demolition so that they weren’t rendered completely shelter-less. The requirement of at least a temporary relocation may yet create more radical possibilities in an otherwise narrow decision.

Bourgeoise environmentalism, fragmentation and polyvocality

It should be noted that the demolition in the Shakarpur case took place upon the orders of the National Green Tribunal (‘NGT’), in a matter regarding rejuvenation of the Yamuna floodplains, whereby jhuggis on the floodplains were required to be removed by the DDA. When the Shakarpur Slum Union raised concerns regarding a violation of their right to housing if the DDA were to execute the NGT’s orders, without following the relevant judicial doctrine and state policy requiring determination of eligibility for rehabilitation prior to eviction, the NGT clarified that ‘it is only concerned with the pollution and is not the authority or forum to entertain pleas against demolition.’ On the other hand, the Delhi High Court held that, ‘as the NGT has assumed jurisdiction of the sensitive issue pertaining to the resuscitation and rejuvenation of the Yamuna floodplains, this Court does not deem it appropriate to disturb the same by way of a mandamus to the DDA to allow DUSIB to conduct a survey.’

This raises two issues. The first is of bourgeois environmentalism. As Baviskar argues, this kind of environmentalism does not strike at the root of what is jeopardising our environment; rather, it sacrifices the urban poor to resolve environmental issues as framed by the urban elite, through solutions that exacerbate inequality and often environmental degradation. It does not begin a shared conversation about environmental concerns that affect everyone, but more so the most marginalised. Here, to protect the Yamuna floodplains, jhuggis were demolished, whereas large scale development on the Yamuna floodplains, including an Information Technology Park, metro depot, and the sprawling Akshardham temple complex have been permitted to remain on the floodplains (see Baviskar ch 6).

Second, it raises the issue of fragmentation. If the NGT is concerned only about the protection of environment, but in the implementation of its orders, the state impinges on the right to housing, then it is a matter of concern that the issue about residents’ right to housing is not to be heard before the same forum. Simultaneously, the High Court cannot simply defer to the NGT without considering the impact on the rights of residents of jhuggis when the DDA implements the orders of the NGT. It ought to have required implementation of relevant judicial doctrine and state policy, especially conducting a survey prior to eviction to determine residents’ eligibility for rehabilitation, as the DDA implemented the NGT’s orders.

The issue of fragmentation of judicial decision-making across different fora should be seen in the backdrop of polyvocality within the courts. The response of Indian courts to the issue of rehabilitation prior to eviction has always been inconsistent, and it is important to recognise that this inconsistency is exacerbated by polyvocality within the High Courts as well as the Supreme Court. The High Courts and Supreme Court do not hear cases en banc, but rather in benches of different strengths. As I have indicated above, two different benches of the Delhi High Court took very different approaches to the issue of rehabilitation prior to eviction in Samarpal and Shakarpur Slum Union, indicating the inconsistent jurisprudence being developed by the Court.

The shifting contours of rehabilitation and the need for resolution

On the whole, Indian courts have not taken a consistent approach towards the requirement of rehabilitation prior to eviction. In Olga Tellis, the Supreme Court recognised a conditional right to rehabilitation, requiring the state to provide alternate land under existing schemes to people being evicted, if they were found to be eligible under those schemes. That has placed constraints upon any future cases engaging with the issue of rehabilitation; arguably for this reason, courts have not held that residents must be eligible for rehabilitation regardless of the limits in existing legislation or state policy. On the other hand, courts have required eviction without rehabilitation, even with the existence of state policy requiring rehabilitation to some extent. While Almitra Patel is a prominent example, perhaps Okhla Factory Owners Association is the most stark case of this kind, wherein the Delhi High Court declared a scheme for rehabilitation unconstitutional when the scheme permitted evictions from public land only when alternate accommodation was made available to all those being evicted.

This inconsistent approach towards the requirement of rehabilitation prior to eviction ought to be resolutely resolved once and for all, by holding that rehabilitation is an essential component of the right to shelter and housing, when an eviction will render people homeless. It has been almost 40 years since a constitutional bench of the Supreme Court last heard a case on the right to housing in Olga Tellis, and perhaps it is time to revisit the issue to strengthen the right to shelter and housing.

Home Demolitions and George Orwell’s Supreme Court

Gautam Bhatia1 Comment

There is a line in George Orwell’s 1984, which goes “the Party told you to reject the evidence of your eyes and ears. It was their final, most essential command.“

Ongoing proceedings before the Supreme Court pertaining to the spate of home demolitions, which have been carried out across the country by municipal authorities, present a striking example of how judges can continuously reject the evidence of their eyes and ears. These proceedings follow a similar pattern: it is pointed out to the Court (as we have discussed previously on this blog) that the home demolitions – which have now been going on in sporadic fashion for many months – are punitive, and designed to extract retribution for participation in protests. State counsel argue that the municipal authorities are acting in accordance with local laws. The Supreme Court bench – it tends to change – makes a rhetorical statement about how demolitions must follow legal process, makes another rhetorical statement about how it can’t pass “omnibus” orders against the demolitions, and then adjourns the case, as it did today (while the demolitions continue).

In continuously refusing to take cognisance of the fact that the home demolitions are punitive and illegal, and follow the same pattern across the country (as argued previously on this blog), these Supreme Court judges reject the evidence of their eyes and ears. They manage to ignore the fact that, coincidentally, the home demolitions in question come immediately upon the heels of a protest that turns violent, time after time, and are specifically targeted against people who are named by the police in FIRs about rioting, time after time; that in Uttar Pradesh, Javed Anand’s home was demolished one day after the UP Police claimed that he was the “mastermind” behind the June 10 riots, and that in Khargone (MP), Khambhat (Gujarat), Nagaon (Assam), Jahangirpuri (Delhi) and in other places, the exact same pattern is followed (indeed, in Jahangirpuri, demolitions swiftly followed a letter from the BJP leader to the Mayor, asking for bulldozer action against “illegal properties of the rioters”).

Not only that, these Supreme Court judges reject the evidence of their eyes and ears where the punitive character is laid bare by agents of the State. A non-representative sample includes, for example, statements by the Home Minister of Madhya Pradesh, in the wake of the Khargone riots, that the “demolition drive against rioters would continue”; a statement by the Divisional Commissioner, Indore, that “the main idea behind the move is to instil fear of financial losses among the accused”; the Khargone District Collector telling journalists that the demolitions were done to “send a message to rioters”; multiple other statements by Khargone officials, collected here; a statement by the District Administration in Khambhat, Gujarat, that “the encroached properties belonging to the accused are being demolished”; the SDGP in Nagaon, Assam, telling journalists that “some of the suspects [involved in a riot] had encroached upon land … the eviction drive was carried out after a case was registered against them”; and this tweet by the media advisor to the government of UP, with an image of a destroyed home, and the caption “उपद्रवी याद रखें, हर शुक्रवार के बाद एक शनिवार ज़रूर आता है…”.

Examples could be multiplied, but what is abundantly clear is the two-faced character of the State. To maintain the veneer of legality, in its formal orders, the State claims that the demolitions are following due process, and the action has nothing to do with retribution. These are the arguments that the State’s counsel then make in Court. Quite apart from the fact that these arguments fail on their own terms, the basic point is this: the only way that you can accept the State’s arguments – pace Orwell – is if you choose to reject the evidence of your eyes and ears, not once, not twice, but every single time that State agents engage in targeted demolitions after protests, publicly brag about “teaching the rioters a lesson”, and then send their lawyers to argue in Court that the demolitions have nothing to do with the protests.

Finally, it is important to note that the Court is not precluded from taking the evidence of its eyes and ears into account, and crafting appropriate relief. After all, this is a Court that has, over the last four decades, prided itself on turning postcards into PILs, basing interim orders on (credible) newspaper reports, and wielding Article 142 as a sword of complete justice. Nor is it helpless when it comes to framing remedies: in a previous blog post, we discussed the doctrine of an “unconstitutional state of affairs”, which can allow the Court to take cognisance of a systemic pattern of home demolitions across the country; but even without that, existing doctrines such as that of continuing mandamus can serve to address the situation.

However, having taken on this power to do substantive justice, the Court’s refusal to use it in a case where the violation of the rule of law is clear and unambiguous, is a choice from which it cannot escape responsibility. The Court’s bland, oral observations about “omnibus orders” and “following the law”, and its continued kicking of the can down the road while the demolitions continue, allows this two-faced State action to continue with impunity. And its continued refusal to even acknowledge the evidence of its eyes and ears – the evidence of all our eyes and ears – makes us wonder whether the Supreme Court is on the way to becoming George Orwell’s Court.

Guest Post: The Illegality of the Khargone Demolitions

Gautam Bhatia4 Comments

[This is a guest post by M. Jannani.]

Recently, it was reported that homes and shops were allegedly demolished in Khargone, Madhya Pradesh following the Ram Navami violence, with neither a reasonable notice nor hearing by the district administration. Soon after, the district collector admitted that the demolitions were carried out within 5 kilometers from where the alleged Ram Navami violence took place “in order to teacher rioters a lesson”. Some news reports that reported on this demolitions have alleged that it has disparately affected Muslims in the particular region.  However, the SDO (Revenue) through an RTI reply mentioned that such action was taken against illegal encroachments under the MP Bhu-Rajasva Sanhita 1959 and section 248 of the amended act, 2018.

In Puttaswamy v. Union of India, the opinion authored by Justice Chandrachud laid down the test of proportionality to be followed in the case a state action invades the right to life or personal liberty. The following is the relevant extract of the judgment:

“An invasion of life or personal liberty must meet the threefold requirement of legality, which postulates the existence of law; need, defined in terms of a legitimate State aim; and proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.“ (emphasis supplied)

In this piece, I aim to argue that the Khargone demolitions violate the above mentioned test of proportionality. In the first part of the essay, I justify the use of the proportionality test in the present case. I will then proceed to explain how, in my limited opinion, the different prongs of the proportionality test are violated by the Khargone demolitions.

An infringement of the right to life

In the previous post on this blog, Rishika Sahgal had explained in detail about the procedural safeguards and requirements of adequate notice, reasonable opportunity to be heard and access to rehabilitation facilities that have been interpreted into article 21 by various High Courts and the Supreme Court. The post explained how the judgment in Olga Tellis specifically affirmed that the right to life under article 21 of the Constitution encompassed the right to housing and livelihood, which included the right to hearing and the provision of a notice in the case of evictions. It is also made a very pertinent observation about how the procedural requirements pertaining to demolitions that were laid down in Sudama Singh – notice, hearing, meaningful engagement and rehabilitation – have been crytallized by the Supreme Court through subsequent decisions. Such requirements, the essay argued, have to be met by authorities across the country if they seek to initiate demolitions.

In the case of Khargone, it was alleged by certain persons affected by the demolition that they were neither provided a proper notice nor a reasonable opportunity of being heard before their property was demolished. Thereby, it flies in the face of the precedents discussed above as the demolitions infringe the right to life guaranteed under article 21 of the Constitution of India by violating procedural safeguards. Hence, it justifies the use of the test laid down in Puttaswamy.

Demolitions and section 248 of the Madhya Pradesh Land Revenue Code, 1956

As mentioned earlier, the authorities have justified the demolitions on the ground that the structures violate section 248 of the MP Land Revenue Code. Even though the provision empowers the tahsildar to “summarily eject” in the case of encroachment, it was held in various decisions that such powers contained in the provision are necessarily subject to a reasonable opportunity of being heard offered to the persons against whom the adverse action will be taken against. In Arun Bharti v. Madhya Pradesh, the Madhya Pradesh High Court looked into unauthorized occupations and section 248 of the Code. The court held that section 248 of the Code is a penal provision which inherently contained the “necessity of compliance of the principle of natural justice of audi alteram partem by affording reasonable opportunity of hearing”.

In Turabali v. State of Madhya Pradesh, the Madhya Pradesh HC looked into writ petitions challenging notices issued under section 248 of the Code. In this case, a time period of 3 days was given by the authorities for the removal of an encroachment. The High Court while stating that the time period provided for removal was “absolutely insufficient” also held that:

“Even if they were encroachers, then, it was for the competent authority to give them proper notice, applying proper law and providing them a reasonable time to file reply and also an opportunity of hearing. From the notices it appears that this was not intended.” (Emphasis mine)

It can therefore be observed that section 248 of code inherently allows for a reasonable opportunity of hearing and notice to be provided to persons against whom the coercive action is taken. However, such an opportunity was alleged to have not been provided to the persons against whom the coercive action was taken in the present case. Thereby, the Khargone demolitions are not backed by legality.

Collective punishment

Various ministers of the state cabinet and the district collector justified the demolitions on the ground that it was done in response to the violence that endured during the Ram Navami procession on 10th of April. But later, the action was justified on the ground that the demolitions were done against illegal encroachment and hence the state proceeded under section 248 of the code. However, it is to be noted (as had been discussed above) that the demolitions were alleged to have been done without adherence to natural justice principles. The state action in this case also suffers from over-inclusion since certain properties that did not fall within the category of illegal encroachments were also demolished and persons who owned such property were not afforded an opportunity to present their case just because such the properties were located in a particular area.  

In the case of Chandni Chowk Sarv Vyapar Mandal (Regd.) v. Municipal Corporation of Delhi , the Delhi High Court observed that all shopkeepers and allottees of chabutras could not be characterized as trespassers or encroachers. It also observed that when the state undertakes coercive action which have an effect of causing adverse consequences to persons, there exists a duty for the state to apply its mind with respect to the facts of the particular case. On the aspect of mass action against a class of persons the court held that:

“It is not enough to take precipitate action against a class of persons, with the allegation that all of them are guilty, and tainted. Even if mass action is required, principles of fairness demand that the authority apply its mind to the materials regarding individual cases.” (emphasis supplied)

Thereby, when demolitions are initiated against the properties of a class of persons, it can be observed that by merely asserting the allegation that they are guilty or tainted will not justify the “need” for such an action to be taken by the state.

Means employed is in excess of object that is sought to be achieved

In the context of mass action against a class of persons in violation of the principles of fairness, it is important to note that the Delhi High Court in Chandni Chowk Sarv Vyapar Mandal (Regd.) v. Municipal Corporation of Delhi  referred to the Supreme Court decision in UOI v. Rajesh. The Apex Court in Rajesh held that an adverse action which has an effect of unfairly punishing innocent persons and overlooks contextual considerations, would amount to “throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation”. The Supreme Court further mentioned that such action which is excessive and not in keeping with the gravity of the offence could have the consequence of “virtually rendering such a decision to be irrational”.

Thereby, the means employed in the case of the Khargone demolitions i.e., mass action against persons with disregard to procedural safeguards and factual considerations is in excess of the object the authorities sought to achieve.

For the above mentioned reasons, in my opinion, the Khargone demolitions violate the test of proportionality.

Notes from a Foreign Field: The Kenyan Supreme Court on Housing, Evictions, and the Right to Land

Gautam Bhatia4 Comments

In Mitu-Bell Welfare Society v The Kenya Airports Authority, the Kenyan Supreme Court set out some important propositions with respect to the right to housing, evictions, and structural interdicts. The case involved a set of residents of the Mitumba Village, which was located near the Wilson Airport. On 15th September 2011, a Notice was published in the newspapers by the Attorney-General, giving the residents one week to vacate the land. The residents obtained a stay from the High Court, but the State authorities went ahead and demolished their houses anyway. The residents then asked the High Court to issue a finding that the demolition was illegal, that they were entitled to the land, or – in the alternative – to reasonable alternative accommodation, and to compensation.

The High Court agreed. Mumbi Ngugi J. found that the residents did not have a legal right over the land (it was public land). Despite that, however, the Notice of Eviction was unreasonable; first, because of the short seven-day period; secondly, in the absence of domestic legislation on the subject, international human rights law would apply, and the Eviction Notice fell short of those standards; thirdly, the destruction of the residents’ houses and personal effects violated their right to property under the Kenyan Constitution; fourthly, the refusal to provide reasonable alternative accommodation violated the residents’ right to housing under the Kenyan Constitution; fifthly, the residents’ had a constitutional right to public participation and consultation before eviction, which had not been done; sixthly, that the demolitions had been discriminatory, as multi-story buildings, also in the vicinity of the airport, had not been touched; and finally, the rights of children had been violated (as their school had been demolished). Coming to relief, the High Court crafted a “structural interdict” (what we understand as a continuing mandamus), requiring the State to submit a plan for what it intended to do with respect to shelter and access to housing for marginalised groups, and – for this specific case – to meaningfully engage with the residents and find an appropriate resolution.

The Kenyan Court of Appeal reversed the High Court’s judgment. It held, first, that the State was under no obligation to reallocate land, given that the residents had no legal right to it; secondly, that considerations of “national security” justified the eviction (tragically, the Court of Appeal cited Indian judgments for this purpose); thirdly, that the High Court was not entitled to grant a structural interdict/continuing mandamus, and the format of the structural interdict in the present case involved overstepping judicial boundaries; fourthly, that international human rights law was inapplicable to the present case, as the Kenyan Constitution and legislation covered the issue; fifthly, that socio-economic rights – such as the right to housing – were only progressively realisable, and therefore unenforceable; and finally, that “it is not the role or function of the Courts to re-engineer and redistribute private property rights.”

The case therefore came up to the Kenyan Supreme Court. In a (relatively) narrowly-reasoned opinion, the Supreme Court partially allowed the residents’ appeal, and reversed the judgment of the Court of Appeal (although the judgment of the High Court was not entirely restored). Because of jurisdictional constraints under the Kenyan Constitution, the Supreme Court essentially limited itself to addressing four issues: (a) the role of structural interdicts as a form of judicial remedy; (b) the application of international human rights law in domestic adjudication; (c) the relevance of UN Guidelines in the interpretation of socio-economic rights; (d) the scope of the right to housing under Article 43 of the Kenyan Constitution.

On the first issue, the Supreme Court noted that the scope of remedies was governed by Article 23 of the Kenyan Constitution. Article 23 used the word “may” when setting out forms of judicial relief (declaration, injunction etc.). Article 23, therefore, was an illustrative list, as had been affirmed by precedent. Structural interdicts, thus, were not ruled out by the Constitution. At the same time, the Supreme Court clarified that:

… interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the Courts, have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State Agency vested with a Constitutional or statutory mandate to enforce the order. Most importantly, the Court in issuing such orders, must be realistic, and avoid the temptation of judicial overreach, especially in matters (sic) policy. The orders should not be couched in general terms, nor should they be addressed to third parties who have no Constitutional or statutory mandate to enforce them. Where necessary, a court of law may indicate that the orders it is issuing, are interim in nature, and that the final judgment shall await the crystallization of certain actions. (para 122)

The Supreme Court, therefore, endorsed a form of bounded structural interdict, that would bring it in line with separation of powers. It found that at least a part of the High Court’s order failed to comply with this threshold.

On the second and third issues, the Court found – unsurprisingly – that international law principles were applicable in informing the interpretation of Constitutional articles. Consequently, it was permissible for the judge to “refer to the Guidelines as an aid in fashioning appropriate reliefs during the eviction of the appellants. Rather than offending the Constitution, the Guidelines actually do fill the existing lacuna as to how the Government ought to carry out evictions.” (para 142)

It is on the question of the right to housing that the Supreme Court returned its most interesting findings. Article 43 of the Kenyan Constitution states that: “Every person has the right to accessible and adequate housing, and to reasonable standards of sanitation.” Article 21(2) enjoins the State to take measures for the progressive realization of this right. Article 20(5) further provides that if the State claims that it is unable to fulfil an Article 43 right because of a lack of resources, it will bear the burden of showing that, and will also ensure that resources are prioritised to serve the interests of the most marginalised. The Court then noted:

… the right to housing in Kenya is predicated upon one’s ability to “own” land. In other words, unless one has “title” to land under our land laws, he/she will find it almost impossible to mount a claim of a right to housing, even when faced with the grim possibility of eviction. (paragraph 149)

The Court then came to the heart of its argument. While holding that an “illegal occupation” over “private” land could not create prescriptive rights in favour of the occupants, the case was different for public land. In short:

… we are of the considered opinion, that where the landless occupy public land and establish homes thereon, they acquire not title to the land, but a protectable right to housing over the same. Why, one may wonder, should the illegal occupation of public land give rise to the right to shelter, or to any right at all? The retired Constitution did not create a specific category of land known as “public land”. Instead, the constitution recognized what is referred to as “un-alienated government land”. The radical title to this land was vested in the president, who through the Commissioner of lands, could alienate it, almost at will. The consequences of this legal regime have been adequately recorded for posterity elsewhere. The 2010 Constitution has radically transformed land tenure in this country by declaring that all land in Kenya belongs the people of Kenya collectively as a nation, communities and individuals. It also now creates a specific category of land known as public land. Therefore, every individual as part of the collectivity of the Kenyan nation has an interest, however indescribable, however unrecognizable, or however transient, in public land. (paragraph 151)

This is a fascinating – and potentially radical – argument. Effectively, the Kenyan Supreme Court held that in a democratic, constitutional polity, land belonged to the people. For this reason, even where (landless) people did not have a legal right to land, they retained an interest in it. This, then, allowed the Court to go on and hold:

The right to housing over public land crystallizes by virtue of a long period of occupation by people who have established homes and raised families on the land. This right derives from the principle of equitable access to land under Article 60 (1) (a) of the Constitution. Faced with an eviction on grounds of public interest, such potential evictees have a right to petition the Court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that, the eviction may be entirely justifiable in the public interest. But, under Article 23 (3) of the Constitution, the Court may craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (U.N Guidelines), the provision of alternative land for settlement, etc. (para 152)

And:

The right to housing in its base form (shelter) need not be predicated upon “title to land”. Indeed, it is the inability of many citizens to acquire private title to land, that condemns them to the indignity of “informal settlement”. Where the Government fails to provide accessible and adequate housing to all the people, the very least it must do, is to protect the rights and dignity of those in the informal settlements. The Courts are there to ensure that such protection is realized, otherwise these citizens, must forever, wander the corners of their country, in the grim reality of “the wretched of the earth.” (para 153)

In other words, therefore, the Supreme Court decoupled the legal right to land (as set out under a country’s property law regime) from a constitutional interest in land (which, in turn, informed the right to housing), which inhered in all people, by virtue of the democratic principle that all land belongs to the people (one can see similarities with the concept of the “right to the city”). The constitutional interest in land would not always translate into a property right, but it would vest in the occupant a range of enforceable legal rights (for example, against eviction/to alternate accommodation/to reasonable engagement etc.), that the Court would articulate and vindicate, on a case to case basis.

This finding does, however, lead to a certain tension within the Court’s judgment. If indeed there is a democratic principle that all land belongs to the people, then the Court’s distinction between “public land” (where these principles apply) and “private land” (where they do not) is unsustainable. There is no inherent distinction between “private” and “public land” that is external to State law – any such distinction is legally constructed (by the State’s property law regime). The distinction would also mean that every time the State sold land to a private party, the peoples’ rights would be further narrowed. For this reason, it is respectfully submitted that the Supreme Court’s finding that land belongs to the people would, indeed, have to apply to all land, and not just defined “public land” – and the range of remedies spelt out by the Court would apply to occupation on both private and public land.

The Court finished by remitting the case back to the trial Court, with an instruction that it be disposed off in line with its findings and with the original pleadings. It remains to be seen what the High Court – that delivered the most far-reaching judgment of the three Courts – will do. But for now, it is important to note that the Supreme Court’s analysis of the right to land contains the germ of a transformative jurisprudence that recognises that inequality in access to, and control over, land is at the heart of inequality in society. In this case, the Supreme Court did not develop that idea further; perhaps, in later cases, it will.

Guest Post: Slum Rehabilitation and Constitutional Rights – A Bewitching Dream

Gautam BhatiaLeave a comment

[This is a guest post by Vaibhav Charalwar.]

In a population of approximately 2 crore inhabitants in Mumbai, nearly 40% are either living in slums or on the pavements. Dharavi (one of the largest slums in Mumbai and Asia) which houses approximately 8 to 10 lakh people remains infamous for its lack of basic facilities. In order to address this crisis, the State of Maharashtra enacted the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 (Slum Act). Despite enactment of this welfare legislation in 1971, the city of Mumbai is failing to provide a roof, clean water and hygienic living conditions to nearly 40% of its dwellers till date. There is a necessity to develop these slums at a faster pace, as letting them exist in inhuman conditions is a health hazard, which has today brought the city to its knees in this pandemic.

Certain inherent flaws in the Slum Act and the Development Control Regulations are the reason for the proliferation of slums in Mumbai. For a slum dweller to be eligible for an accommodation in the slum rehabilitation scheme, he / she must be a holder of a ‘photo-pass’ which is a document issued by the slum authority. It is issued in the event the dweller is able to prove by documents that her/his structure was in existence prior to 1st January 2000. Allocation of rehabilitated tenement based on an arbitrary cut-off date completely defeats the purpose of slum rehabilitation. The Act further provides that if 51% of the eligible slum dwellers agree to participate in the process of slum rehabilitation, only then would the process of rehabilitation commence. This requirement of consent has led to unending litigation and horse-trading of slum schemes amongst the developers. The article seeks to analyse the flaws and seeks to provide alternate models.

Slum Rehabilitation Act and the Development Control Regulation – General Scheme

Up until the early 1970s, the government treated the slum dwellers as illegal encroachers and their settlements were demolished. The slum dwellers whose hutment suffered the fate of demolition, simply moved to another slum settlement within the city. The response of the Government changed after the implementation of the Slum Rehabilitation Act in 1971. Soft loans were provided to the slum dwellers for renovating their structures. This model did not work as the conditions of the slums did not improve over a period of time despite providing the financial wherewithal.

The next phase involved incentivization of development of slum lands. In order to attract developers to carry out the slum rehabilitation projects, the Government started giving incentives in the form of additional Floor Space Index for carrying out construction of flats in addition to the rehabilitation units. The implementation of this too was fraught with many formalities and permissions, which would be provided with inordinate delay.

In 1995, the Slum Rehabilitation Act was substantially amended based on the suggestions of the Afzalpurkar Committee. A Slum Rehabilitation Authority was established under the Act. This authority was established to obviate the hurdles of acquiring permissions from multiple departments of the government. The Slum Act provides for the establishment of the slum authority and substantive provisions for the redevelopment. The procedure for carrying out the Slum Rehabilitation Scheme is specified in the Development Control Regulation, 2034 (DCR), particularly Regulation 33(10).

However, this amended model too has miserably failed. In order to understand the flaws in the legislation, it is first essential to understand the rights that slum dwellers possess.

Rights of Slum Dwellers

In 1981, the then Chief Minister of Maharashtra announced that pavement dwellers and slum dwellers would be forcibly evicted and deported to their respective native places. A petition was filed under Article 32 before the Supreme Court by a public-spirited citizen challenging this order of the Chief Minister. There was another batch of Writ Petitions in which the slum dwellers of the Kamraj Basti challenged this particular resolution by the State government. The Supreme Court in its celebrated judgment of the Olga Tellis case, laid down the foundations of fundamental rights of the slum dwellers. The question which arose before the Court was whether the Municipal Corporation had unfettered powers under Section 314 of the Bombay Municipal Corporation Act to evict persons without notice. The Court held that the pavement dwellers and slum dwellers cannot claim a right on public spaces. However, equally, the state cannot snatch away the residence of the said pavement and slum dweller as they reside in these conditions to be closer to their respective places of work. The Supreme Court in my opinion recognized a ‘right of residence’ for the pavement or slum dwellers. This is a form of right which is otherwise unprecedented in the legal jurisprudence of ownership. The Court effectively recognized that although a pavement or slum dweller does not have a right to claim ownership of the public land being squatted on, however, the state has to ensure that a suitable alternate accommodation is provided to such dwellers to reside at. The Court said this in the context of pavement dwellers and those slum dwellers whose hutments were identified and / or those residing on a particular land for more than 20 years. The court, calling it constitutional phraseology, observed that “Eviction of petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life”.

The ‘right of residence’ often comes at the cost of the ownership rights of either the government or the private individuals on whose lands the slums dwell. The Bombay High Court in the case of Tulsiwadi while addressing wider questions pertaining to the Slum Rehabilitation Act, recognized the encroachment of slum dwellers on government lands and the inability of the government to address it effectively. Despite encroachment the government and private lands, the Court also recognized the need to provide a residence to the pavement and slum dwellers simply because it is the responsibility of the state to protect their fundamental rights. To summarize, in formal terms, although slum dwellers, commence their residence as “encroachers” on lands, however such occupation is not treated as an illegality, and they are entitled to reside either on the same land or in an alternate place where the government can provide appropriate accommodation. The Slum Act however creates hurdles in recognition and enforcement of the constitutional right of residence.

Issuance of Photo-passes

As per the Slum Act, only the slum dwellers who have a photo-pass which is issued by the Government are entitled to receive accommodation in the rehabilitation process. This photo-pass is issued to a protected occupier whose hutment is in existence prior to 1st January 2000. The government resolution which sets out the procedure for issuance of photo-pass makes it mandatory for submission of documents like certified copies of electoral rolls from the year 2000 as a pre-condition for issuance of photo-passes. And herein lies the rub. The date of 1st January 2000 creates a sub-class of persons who are not entitled to benefits because they are unable to prove residence. The rationale behind this date appears to be only to establish the years of residence.

There is a palpable disconnect between the rights that the government wishes to recognise and its understanding of the target – i.e., the rights-bearers. Some of the persons that are entitled to receive these benefits are those who do not have sufficient documents to prove citizenship, let alone years of residence. The rationale behind the date of 1st January 2000 is nowhere to be found, and has no rational nexus with the object the legislation seeks to achieve. By specifying a date, probably with the intent of establishing years of residence, the legislation creates two categories of citizens, both equally in need of housing, and both such classes having the constitutional right of residence recognized by the Supreme Court. One class comprises citizens who are able to prove that the hutment they have been occupying has existed prior to 1st January 2000, and become eligible for accommodation. The other class gets evicted, which leads to them settling in another slum. This requirement of photo-passes in fact causes displacement and leads to an increase in the number of illegal hutments and encroachment on other lands. This process of issuance of photo-passes is exclusionary and does more damage than welfare in a legislation which is intended for the later. The sub-class of citizens it creates is discriminatory and is not based on an intelligible differentia, as the dwellers entitled for accommodation and the ones excluded are both equally in need of accommodation.

An argument can be made that if there is no cut-off date or criteria, there will be mass migrations from other parts of the country into Mumbai and formation of larger slums in order to avail the benefit of free housing in Mumbai. This can be easily obviated by doing a census of all the slums and issuing identification numbers to each hutment which are existing as on date. A slum dweller is not a mere encroacher and is a person whose life and livelihood is protected by Article 21 of the constitution. The Supreme Court has recognized that such class of persons have a vested right of residence which cannot be arbitrarily taken away. Specifying a date ensures that one class of persons is deprived of this right.

51% consent:

The requirement of consent features in Regulation 33(10) of the DCR. Once the eligible slum dwellers are identified, a slum rehabilitation scheme can commence only if 51% of such slum dwellers are willing to participate in such scheme. If 51% vote in favour of participation, a society is formed and it selects the builder who can execute the slum rehabilitation scheme. This rehabilitation scheme includes constructing a rehabilitation building on the very same site where the slum dwellers will be housed, and an additional free-sale building which can be sold by the developer. There is of course an exception set-out in 33(10)(3.14) which states that if the slum are on public lands which are “required for public purpose” and all the dwellers cannot be accommodated on the very same land, then an alternate unencumbered land will be provided by the government itself.

It is very frequently observed by the courts that the developers who are not selected try to buy out factions of slum dwellers creating a deadlock in the selection process. The appointment of the developers is challenged on the ground that they do not enjoy the requisite amount of consent. As a result, orders of injunction are passed stalling the slum rehabilitation schemes causing inordinate delay in implementation. Pertinently, these consents are also not exercised to decide the nature of new houses which are being constructed. As per the provisions of the DCR, house of minimum 27.88 sq. mt. is to be provided to the slum dweller.

In my opinion, the requirement of consent is a perfunctory condition. The lands on which these slum dwellers reside are owned either by the government or private individuals. The need for rehabilitating these areas is immediate due to squalid and unhygienic conditions of residence, which are the result of structural factors. The slum dwellers refusing to grant consent would effectively mean that these conditions are permitted to continue. Further, while an area is being declared a slum area, it is being done because it may be a source of danger to health, safety or the convenience of public of that neighbourhood and the residents themselves. A refusal to participate in a slum rehabilitation scheme is essentially permitting the dwellers to exist in these conditions. The requirement of consent only permits the developers to sway hutment dwellers who support any other developers application, which is in fact the cause of unending litigations in slum schemes.

This condition of 51% consent is contained in the DCR which is a delegated legislation only in aid of the Slum Rehabilitation Act. The concept of consents does not feature anywhere in the Slum Act itself as it is a procedural provision and not a substantive one. The requirement of consent as elaborated hereafter is a part of the DCR only for the sake of consistency and in my opinion this concept of consent does not logically find its place in DCR 33(10) which pertains to slum redevelopment. The provision is manifestly arbitrary and has no rational nexus with the object of reduction of slums.

This requirement of consent features in the DCR more with the intention of maintaining consistency in the DCR than logic. In the other forms of redevelopment in which owners of the buildings agree to redevelop old structures the condition of consents exists because there is an aspect of ownership of lands. This other form of redevelopment involves owners coming together to redevelop their respective units, as opposed to a Slum Rehabilitation Scheme which involves dwellers who are recipients of housing schemes under a welfare legislation. Granting the option of consent entails that the slum dwellers can refuse redevelopment of their hutments altogether. A refusal to redevelop a slum puts not only the slum dwellers at risk, but also inhabitants of neighbouring areas.

An alternate and more effective way of redevelopment would be to first identify all the eligible slum dwellers who will be receiving their alternate accommodations and make the lands feasible for redevelopment. The government can regularize all the impediments on the lands (like reservations under the Town Planning Act and Coastal Regulatory Zone restrictions) making the schemes viable for commercial utilization as well. Tenders can be floated and bids can be invited from developers which would then be in the nature of a public private venture. It would be an obligation in which the developer would be contractually bound and answerable to the State in case of lapses. This would ensure a more focussed and faster redevelopment of slums and would obviate the horse trading and inordinate delays caused by the criteria of consent.

Tests of Manifest Arbitrariness

A provision which does not have a rational nexus with the object it seeks to achieve and is arbitrary falls foul of the rigors of Article 14 of the Constitution of India. The Supreme Court in the case of Shyra Bano laid down the tests for manifest arbitrariness. The Court relying on a plethora of earlier judgments held that a provision which is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in promotion of healthy competition is held to be manifestly arbitrary. In this case, the statutory provision relies on an arbitrary date which is 1st January 2000. Further, the requirement of consents as shown hereinabove is not only being abused but finds no logical place in order to facilitate the process of slum rehabilitation.

Conclusion:

A slum rehabilitation scheme lies at the heart of moving towards a classless egalitarian regime and achieving housing and basic amenities for everyone. The government by not addressing the issue of slums is not only perpetrating their proliferation, but also absolutely failing in providing basic amenities to the most vulnerable class of persons. The deeper problem lies in the relationship between a slum dweller and the state. Despite being citizens, or aliens with rights of residence, the state has been floundering in providing facilities and amenities as the intended recipient of the largess is not leading in contributing monetarily to the progress of the state.

In the early 1990s, when the BJP – Shiv Sena proposed construction of 40 Lakh slum rehabilitation tenements for slum dwellers based on this very model, Shirish Patel’s prophetic question was if it is “A bewitching dream that will evaporate within minutes of waking up?”. It appears the question still looms large.

Guest Post: Slum Evictions and a Constitutional Right to Resettlement and Rehabilitation

Gautam Bhatia2 Comments

[This is a guest post by Mohammed Afeef.]

In this post, I explain how the cases of Sudama Singh and Ajay Maken, decided by the Delhi High Court, and Rutuparna Mohanty, decided by the Orissa High Court, uphold the proposition that for any forced eviction of a slum, resettlement and rehabilitation [“R&R”] (preferably in-situ) have to be carried out or ensured prior to the de facto eviction of slum residents from both public and private land.

This piece does not examine the legality or illegality of forced slum eviction per se. However, in the event of a forced eviction, there are certain non-negotiable safeguards available to slum residents under law. These include the right to be rehabilitated and the right to be heard with regard to the form and shape of rehabilitation; it is only these aspects this piece will address. I also explain how the trio of cases mentioned represents a shift from the dominant trend of viewing slum dwellers as ‘encroachers’ to rights bearers.

Question of resettlement and rehabilitation (Pre-Sudama)

Initial cases relating to slum eviction before the Supreme Court include Olga Tellis & Ors.vs.Bombay Municipal Corporation (1985) and K. Chandru vs. State of Tamil Nadu (1985). In Olga Tellis, eviction of pavement and slum residents was allowed after prior notice and the opportunity of being heard; however, the court held that the highest priority must be given to resettlement of the slum dwellers. In K. Chandru, based on the affidavit of State of Tamil Nadu, the Court expressed its confidence that the Government would continue to rehabilitate in such cases. However, this R&R as a right was not articulated nor backed by a statute.

The consequence of this was the emergence of the legal discourse of ‘slums’ as nuisance during the post-1990 period, as pointed out by D. Asher Ghertner. The right to rehabilitation of slum residents was denied in a slew of judgments. In Almitra H. Patel vs. Union of India (2000), the Court, while referring to slum dwellers as encroachers, held that rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket.

Anuj Bhuwania, in his book, points out that the Delhi High Court, emboldened by the ‘pickpocket’ analogy of the Supreme Court, made Public Interest Litigation in Delhi at least for the time period 1998-2010, a ‘Slum Demolition machine’. The Delhi High Court in Okhla Factory Owners Association, (2002) quashed the Delhi government’s slum resettlement policy itself, following the same approach: that ‘an encroacher does not deserve R&R’. While this order was subsequently stayed by the Supreme Court, as Bhuwania explains, this didn’t stop the Delhi High Court from continuing its demolition drive via PILs, such as the Yamuna Pushta demolitions, which resulted in the displacement of 35,000 families.

These judgments are similarly premised. First, they distinguish between citizens “who squat on public land” and “citizens who have paid for land”, pitting their rights against each other and deciding in favour of the latter. As Ghertner points out, in doing this, the Court elevates and prioritizes the concern of preservation and prosperity of private property. Second, there is a complete blindness to the positive obligations of the State to provide livelihood and shelter to its citizens.

Crystallizing the right to Rehabilitation & Resettlement of slum dwellers

In the cases of Sudama Singh, Rutuparna Mohanty and Ajay Maken, one notices a shift from the earlier phase regarding the recognition the right of R&R of evicted slum dwellers, irrespective of the kind of land involved i.e. public or private.

Sudama Singh vs. Govt of Delhi (2010)

In the first of these three cases, the petitioners were seeking R&R to a suitable place after the demolition of their ‘jhuggies’ (hutments). At the time, the Delhi Government had a policy for relocation and rehabilitation; however, the stand of the State Government was that that alternative land was not required to be allotted to the inhabitants of lands which came under the right of way.

A bench comprising of A.P. Shah, C.J and Muralidhar,J. of the Delhi High Court rejected the stand of the Government, holding that nothing in the policy excluded this category of persons and that the Master Plan for Delhi (MPD) – 2021 prepared by the Delhi Development Authority was of binding nature, and that it envisaged rehabilitation or relocation of the existing squatter settlement/jhuggi dwellers Subsequently, the Court proposed a mechanism, wherein the exercise of conducting a survey had to be undertaken for the purposes of providing alternative accommodation. The sequence is clear: the positive obligation of the State to provide or ensure R&R has to be prior to initiating moves for evictions. The Court also reiterated that the denial of the benefit of the rehabilitation violates their right to shelter under Article 21.

Rutuparna Mohanty vs. State of Orissa,(2010)

Similarly, in this matter; slum dwellers that were evicted from the premises of S.C.B. Medical College approached the Orissa High Court, seeking (i) interim measures such as shelter, food, education ii) a direction to the State Government to formulate a scheme for R&R; and (iii) an alternative site to the displaced slum dwellers. The stand of the State Government was that it had to ensure that the unauthorized occupants are removed.

Gopala Gowda, C.J. and I. Mahanty, J. of the Orissa High Court rejected the State’s stand and granted the reliefs sought. The Court, firstly, highlighted various existing rehabilitation schemes, both central and state, that had not been implemented in Cuttack. Secondly, the Court located the positive legal obligation to rehabilitate to Article 243W (Powers, authority and responsibilities of Municipalities) read with entries of the 12th Schedule that relate to Slum improvement and Urban poverty alleviation. The Court then read various DPSPs such as Articles 38 and39(a) along with Article 19(1)(e) and (g).

Ajay Maken vs. Union of India,(2019)

The Ministry of Railways (Union of India), with the assistance of the Delhi Police, forcibly evicted around 5,000 dwellers of a jhuggi jhopri basti located on railway land. The stand of the Railways was that the area was required to be developed and that the Railways were concerned about the safety of the persons who were living perilously close to the railway tracks.

A bench consisting of S. Muralidhar J. and Vibhu Bakhru J. of the Delhi High Court, held that on facts, sufficient notice was not given to the slum residents and that Delhi Urban Shelter Improvement Board did not carry out a survey of slum residents before the eviction the as per the Act and Sudama Singh. A series of interim orders was passed, directing all relevant authorities to work in co-ordination and carry out a comprehensive survey for the purposes of preparing a list of persons whose jhuggis were demolished on the day (the Court also granted some temporary relief for those who were displaced).

The final judgment in this case sets itself apart, in terms of its articulation of the Right to adequate housing and Rehabilitation, in a subject area, wherein Courts in the past have often mechanistically applied either the local municipal laws or the state slum improvement and clearance laws to a dispute. In developing the jurisprudence of the right to adequate housing it, the court drew certain principles from five South African Constitutional Court decisions:-

One is the refusal by the South African Constitutional Court to rigidly separate civil and political rights from socio-economic rights…. the effective protection of socioeconomic rights entails imposing a duty on the State to refrain from interfering with people‘s existing access to socio-economic resources. The other important facet is the emphasis placed by the Constitutional Court on deliberative democratic practices through the device of ‘meaningful engagement’with the affected groups. …… The State is obliged to take into confidence the affected groups about the schemes for rehabilitation it proposes for them and is prepared to review and re-shape them based on their inputs.

Two points emerge from the Court’s judgment: first, is the inter-connectedness of socio-economic and civil-political rights and second, that the affected parties must be heard and involved in the process of rehabilitation, and that the Constitutional Courts ought to function as a dialogue facilitating authority.

In a first, the Court also recognised the right to the city (RTTC) as a framework to make sense or give meaning to the Right to Shelter. In brief, the RTTC framework looks at urban settlements as a common good. Connecting this to India’s international legal obligations and the Constitution the court held:-

The RTTC acknowledges that those living in JJ clusters in jhuggis/slums continue to contribute to the social and economic life of a city. These could include those catering to the basic amenities of an urban population, and in the context of Delhi, it would include sanitation workers, garbage collectors, domestic help, rickshaw pullers, labourers and a wide range of service providers indispensable to a healthy urban life. Many of them travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life. Prioritising the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution. The RTTC is an extension and an elaboration of the core elements of the right to shelter and helps understand the broad contours of that right.

The Court then relied on the Delhi Slum & JJ Rehabilitation and Relocation policy, 2015,(framed under section 11 of the act) and the binding nature of Sudama Singh’s case to grant reliefs to JJ dwellers First, it directed the board to complete a survey and consult the JJ dwellers for the purposes of rehabilitation as per the 2015 policy. Second, only if in situ rehabilitation (alternate accommodation within 5 km radius) was not feasible, would adequate time be given to dwellers to make arrangements to move to the relocation site.

The stand of the Railway was that since the land concerned belonged to the Railways (Central government), the DUSIB act and the 2015 Policy which stemmed from the act was rejected. To this the Court held that the basic procedural protections and acknowledgment of the rights to adequate housing and against forced evictions were spelt out in Sudama Singh and would continue to govern the removal and resettlement of such jhuggis.

Conclusion

These three judgments mark a paradigm shift in the understanding of slum dwellers and their rights: from slum dwellers being viewed as ‘pickpockets’ or a ‘nuisance’ , to right bearing persons who are entitled to shelter by the State. Such an approach is abundantly clear in Ajay Maken, where the Court observed:

The law explained by the Supreme Court in several of its decisions discussed hereinbefore and the decision in Sudama Singh discourage a narrow view of the dweller in a JJ basti or jhuggi as an illegal occupant without rights. They acknowledge that the right to adequate housing is a right to access several facets that preserve the capability of a person to enjoy the freedom to live in the city. They recognise such persons as rights bearers whose full panoply of constitutional guarantees require recognition, protection and enforcement.

 

Thus, the act of evicting slum dwellers cannot be carried out unless the relevant State agencies first undertake the exercise of determining if the dwellers are eligible for rehabilitation in terms of the extant law and policy before any steps are taken to evict. 

The judgment in Ajay Maken fundamentally transforms the adjudication of ‘slum demolition’ cases, firstly, by bringing the focus back on the State’s positive obligation of providing affordable housing and in the absence of such a performance, framing the right to shelter as a negative socio-economic right (non-interference into one’s existing housing). Secondly, it relates to the shifting standards of review in enforcing socio-economic rights, which has been argued here. Maken  points to the court’s role as a dialogic facilitator, as a step towards a way out of the difficulty of shifting standards, wherein the court acts as a public forum for the government to justify and explain its policies.