Coronavirus and the Constitution – XXXIII: N-95 Masks and the Bombay High Court’s Dialogic Judicial Review [Guest Post]

[This is a guest post by Aakanksha Saxena.]


This blog has previously dealt with orders of the Gujarat and Karnataka High Court as recent exemplary instances of constitutional courts practising dialogic judicial review during the ongoing COVID-19 pandemic and lockdown crisis. Subsequently, the Bombay High Court was faced with the question of whether, in view of the scarcity of certain components of personal protective equipment (“PPE”) such as surgical masks, N-95 masks, hand sanitisers and gloves, the prices of such components were required to be capped – specifically that of N-95 masks. In the course of proceedings culminating in its 9th June 2020 Order, the High Court continued the welcome trend, by (1) throughout the course of hearings, identifying where the respective governments were lacking in their response to the issues raised, and (2) posing pertinent questions with the aim to elicit a positive approach in respect of the policy expected to be framed, all while refraining from judicial overreach and ensuring executive accountability. The Order and the approach leading up to it are a far cry from the decisions seen at the beginning of the national lockdown, which reflected a degree of judicial deference to the executive that has come under great and justifiable critique.   

 Background and Scope of the PIL

The PIL had been filed seeking a host of directions, including a ceiling on the prices of certain goods declared as “essential commodities”, stemming from concerns of hoarding and rampant black marketing of PPE (“PIL”). On a reading of the PIL petition,  it is clear that the primary reliefs prayed for were against the Maharashtra State Government. During previous hearings of the matter, submissions were in fact made by the Union of India, to the extent that the Centre had already placed a ceiling on the price of certain components of PPE, but as far as the N-95 masks were concerned, the issue of a price ceiling had been raised with the Centre by the State Government, and no response had been received. As a result, the Court by an Order granted the Centre time to take instructions specifically on this question, and file an affidavit containing its reply. Thus, while accepting the policy framed by the Centre in respect of price caps for certain PPE goods, the Court remained attuned to the concerns raised in the PIL qua the N-95 masks, which had not been included by the Centre in its formulation, despite having been declared an essential commodity by the Ministry of Consumer Affairs, Food & Public Distribution, with the very object of prevention of hoarding, black marketing and profiteering.

Final Reliefs

Eventually when the matter came up for hearing, the Petitioners apprised the Court of an order dated 11.2.2020 issued by the Central Government, which included medical devices intended for human use within the meaning of drugs under the Drugs and Cosmetics Act, 1940, which would then mean that goods such as N-95 masks fall within the purview of the Drugs (Price Control) Order, 2013 (“Control Order”). Order 20 of the Control Order places an express duty on the executive to “ensure that no manufacturer increases the maximum retail price of a drug more than 10% of the maximum retail price during preceding 12 months; and where increase is beyond 10% of maximum retail price, it shall reduce the same to the level of 10% of maximum retail price in the next 12 months”. Order 19 of the Control Order vests discretion in the Government to fix thr ceiling price or retail price of any drug for such period, as it may deem fit. 

It was established by the Petitioners that the 11.2.2020 Order and consequently the Control Order were not taken into consideration in decisions of the NPPA dated 15.5.2020 and of the Ministry of Chemicals and Fertilizers dated 21.5.2020. Vide its Order dated 15.5.2020, a direction had been passed by the NPPA directing manufacturers /importers /suppliers of the N-95 Masks to maintain parity in prices for non-government procurements and to make available the same at “reasonable” prices, without taking into account that the Control Order itself indicated what price determination was to be followed. It was opined that a price cap was not needed at the time, since the government was directly procuring the said masks from the major manufacturers. “Reasonable prices” therefore, was evidently a vague term deployed by the NPPA, which would have created unwanted discretion in the hands of the manufacturers /importers /suppliers. Where the decision had already been taken placing N-95 masks in the same category as hand sanitisers, gloves, and surgical masks, the distinction in imposing a price ceiling was arbitrary and unjustified.

The Centre sought to support the NPPA decision by way of its affidavit, and further pointed out that the price of masks had since been further reduced by 47%. Given the circumstances, the admitted position on record of reduction in price might have arguably justified judicial deference to executive policy-making, and given a quietus to the matter.

However, the High Court, on a close reading of the affidavit noticed that notwithstanding the reduction in prices, the Government was itself considering imposing a ceiling on the price of PPE. In this background, the High Court correctly directed that instructions be taken on whether the Central Government would revisit and reconsider the question of imposing a cap on the price of N-95 masks. When an affirmative statement was made in this regard, the High Court appropriately finally directed that the Central Government was required to take a fresh decision, by including consideration of the Control Order and the relevant provisions of the EC Act, and other relevant aspects, within a period of 10 days to 2 weeks.

Summing Up

The progress of the price-capping PIL before the High Court is another clear example of how constitutional courts ought to engage in judicial review by setting up an effective dialogue with the executive. Without passing directions in the nature of policy decisions (which were sought by the PIL), the High Court at every stage raised pertinent questions after analysing the stand and submissions on behalf of the government. 

The ongoing lockdown has considerably and unpredictably impacted the right of access to justice on the one hand, and given rise to several instances of grave infractions of constitutional, civil, and socio-economic rights. The rapidly changing developments have led to excessive delegated legislation by way of orders and notifications issued by the Central and State Governments, and a simultaneous deluge of PILs being filed, highlighting concerns where policy is not forthcoming. The need of the hour has therefore been that courts engage with the executive, to ensure that policy is adequately framed, and where framed that it is lawfully justified.

The High Court, in its decision, not only completely complied with precedent on price fixation laid down in Pallavi Refractories v. Singareni Collieries Co. Ltd., (2005) 2 SCC 227, but also by the formulation of relief in the Order placed accountability on the government to ensure that a timely decision is taken (failing which the problem would likely exacerbate) and communicated to the petitioners. The objective, viz. of ensuring that PPE components remain available and affordable was emphasised so as to be kept in mind by the government while reviewing its policy, without any overreaching directions being passed.

Postscript

In the aftermath of the Bombay High Court’s order, a decision by the central and state governments remains to be taken on the issue of the N95 mask price ceiling, pending which no further hearings have taken place in the PIL. The time directed for this decision to be made having lapsed, it remains to be seen whether the High Court will now hold the Centre to a higher degree of accountability, or, in the event of an absence of policy decision making, decide the question itself.

Coronavirus and the Constitution – XXVIII: Dialogic Judicial Review in the Gujarat and Karnataka High Courts

Previously on this blog, we have discussed models of executive accountability in the context of the Covid-19 pandemic, and the role of judicial review during the crisis. As I have argued before, the debate has stemmed from the fact that in most of the cases to come before it, the Supreme Court has framed the issue in terms of a misleading binary: the Court (according to this binary) has one of two options: “take over” the management of the pandemic from the executive, or adopt an entirely quiescent posture towards the executive. Framed this way, this binary admits of only one answer: the executive is obviously better-positioned to deal with the pandemic, and therefore, the second option (quiescence) must be taken.

But, as others have pointed out on this blog, this is a false choice, and indeed, ignores the Supreme Court’s own prior jurisprudence on the question of socio-economic rights. There are a range of alternatives between usurpation and quiescence, that involve holding the executive to account in the judicial forum, without the judiciary necessarily taking over the executive role. Around the world, for example, scholars have articulated the concept of “dialogic judicial review“, where – in certain cases – the judicial forum is a site of dialogue between courts, citizens, and the government; often, the very process of the government being called upon to explain its decisions before the courts reveals important shortcomings in the decision-making process (as well as in the substantive nature of the decision itself), which can then be corrected.

In this context, two recent sets of orders by the Gujarat and Karnataka High Courts present us with examples par excellence of dialogic judicial review, and how it can make a difference to constitutional rights in the times of Covid-19. On 22nd May, the High Court of Gujarat passed a detailed order that dealt with the subject of medical care in the state, the transportation of migrant workers, questions of food and shelter, and so on. The order, authored by Pardiwala and Vora JJ, makes for fascinating reading. Its genesis was a previous order of 14th May, where the Court had put a set of questions to the state government of Gujarat, on the lines set out above. In response, the government filed a detailed affidavit before the Court, answering these questions. The affidavit covers the first twenty pages of the High Court’s order, and includes, inter alia, figures on the total number of migrants in the state (including the methodology used by the government to arrive at those figures), figures on the number of trains that had already left the state to carry migrant workers back home, payments made to various classes of constructions workers, specific work-related issues in Surat and Kutch, Memorandums of Understanding entered into between the state government and various private hospitals, and testing guidelines and discharge policies. In addition, the state government filed affidavits signed by medical officers, and progress reports on medical facilities.

On a study of the data, the Court found that (a) public healthcare facilities were overwhelmed and unequipped to deal with the pandemic; (b) for this reason, the state government had entered into MoUs with private hospitals, (c) but that nonetheless, in certain cases, private hospitals had levied exorbitant charges for treatment (see paragraph 45). On this basis, the Court first issued a direction that, in view of the public health crisis, it would not be open to private hospitals to refuse entering into the MoU with the government. Furthermore, while the state government had issued a notification on 16th May fixing prices and bringing a certain number of private hospitals within its ambit, that notification was ambiguous in what it covered. Additionally, the Court noted that certain specific private hospitals had been left out of the Notification, without any explanation. Consequently, the Court observed:

We would like to know from the respondents as to why the above named hospitals are not in the list. We would also like to know whether any talks were initiated in this regard with the management of the above referred hospitals. The hospitals we have referred to above are reputed hospitals and are capable of admitting thousands of patients in all … we direct the State Government to initiate talks with all the eight hospitals named above and enter into a Memorandum of Understanding in this regard. All the eight hospitals referred to above shall extend their helping hand in this hour of crisis. We are saying so because as days are passing by more and more cases of COVID19 positive are being reported. It is practically impossible now for the Civil Hospital, Ahmedabad and the SVP Hospital, Ahmedabad to admit all these COVID19 patients.

I cite this as one of the (many) examples of dialogic judicial review from the order, as it demonstrates the point with particular clarity: instead of framing policy, the Court examined existing government policy, and found that there was no discernible reason for its limited application, in the context of the pandemic and the accompanying right to health. The absence of a rationale for the decision-making process allowed the Court to then extend the scope of that policy further. In addition – and in stark contrast, for example, to the Supreme Court’s attitude in the free testing case – the Court specifically asked the government to explain (on the next date of hearing) the basis on which the government had worked out the rates of remuneration with private hospitals, and what facilities had been excluded and included. Notably, the Court did not set a particular rate or charge itself, but asked for an explanation of the decision-making process – and it will be interesting to see how that plays out when the matter is heard next, at the end of the month.

In the subsequent parts of its judgment, the Court focused on conditions at civil hospitals – and passed directions on their improvement – appointed a commission to examine the claims raised by reports about abuses in these hospitals, and passed another set of directions on immediate measures to be taken. Further lacunae were also pointed out in the testing process, but here the Court did not pass directions, but rather, advisory observations to the state government on questions of publicity and awareness. On the transportation of migrant workers – based on the government’s own admission that buses were unsuitable for such transport – the Court directed either the Railways or the state government to bear the cost of a one-way train ticket for those migrants who wished to return home. And finally, the Court extended temporary bail orders for another forty-five days.

The order of Pardiwala and Vora JJ exhibits some of the important features of dialogic judicial review: on an initial date, the Court put a series of questions to the government on its handling of the pandemic. The government responded with a detailed report. On the basis of a close study of the facts in the report, the Court (a) on some issues, passed directions tweaking the government’s policy, where it was under-inclusive in its protection of constitutional rights, without any rational basis underlying the decision-making process; (b) on other issues, put further questions to the government, which would be discussed on the next date of hearing; and (c) on a final set of issues, accepted the government’s stance (such as, for example on the legal prohibition upon using RERA money to pay construction workers). In addition, on issues involving core, immediately enforceable constitutional rights – such as temporary bail, and the freedom of movement (that had become a necessity as a result of the government’s own choice of lock-down) – the Court passed direct orders.

Something similar is visible in a set of orders passed by the Karnataka High Court, involving migrant workers. A bench of Chief Justice Oka and Nagarathna J. were seized of the matter. On 5th May, the bench passed an order on the issue of the transport of these migrant workers. The state of government of Karnataka filed written submissions in response. These were considered by the Court in a detailed order dated 12th May, 2020. The state government cited MHA orders, and a protocol for the inter-state movement of migrant workers, as covering the field. On this basis, the Court found that there was now a policy decision taken by the state government that migrant workers from other states could return home through special trains. Having noted this, the Court then observed that it was the burden of the state government to communicate this policy decision to the migrant workers in question.

This brought the Court to the question of train fares. Importantly, the Court framed this as a question of constitutional rights. It noted that the reason why migrant workers needed to travel back home – and, correspondingly, their desperate situation – was a loss of livelihood (paragraph 10). This loss of livelihood – as we have discussed above – was itself caused by the decision of the central and state governments to impose a nationwide lockdown to deal with the Covid-19 pandemic. Thus, with the link between State action and deprivation of constitutional rights clear, the Court noted that “prima facieit appears that considering the constitutional rights of the migrant workers, no one should be deprived of an opportunity to go back to his own State only for the reason that he has no capacity to pay for his transport.” The Court did not, however, pass an immediate order on the issue; rather, it asked the state government to take an “immediate decision” on the question of paying the railways fares of those migrants who were unable to pay, and to work out a schedule for the same. Importantly, it asked the government to place its response on these issues before it, within a week from the order.

It is important to note the aftermath of this: that the state government of Karnataka did formally agree to pay the rail fares of migrant workers. However, this was apparently partial, and applied only to migrant workers originally from Karnataka, who wanted to come back, and not the other way round. This policy was then questioned by the Court in a subsequent order, where it was reiterated that constitutional rights were at stake. In its most recent order – dated 22nd May – the High Court asked the state whether money from the National Disaster Response Fund could be used to pay for the fares*; the next date of hearing is 26th May (Tuesday). This, then, is a classic example of dialogic review in action: the High Court of Karnataka’s initial probing compelled a change in executive policy; nonetheless, the change was found to be insufficiently protective of fundamental rights, and at the time of writing, the executive is being called upon to justify itself in the judicial forum, with the Court itself playing a role in engaging with other possible solutions that could be found.

The set of orders passed by the Gujarat and Karnataka High Courts are granular and specific in nature. They deal with issues arising within state borders, and do not purport to offer grand solutions to the problems caused by the pandemic and the lockdown. However, this is precisely where their importance lies, within the framework of dialogic judicial review: they demonstrate clearly that the binary postulated by the Supreme Court’s orders on the subject is a false one. The task of the Court is not to frame policy, but nor is it to leave the field, especially in times like Covid-19, where individual rights are particularly vulnerable to exploitation. Here, the task of the Court becomes one of oversight and scrutiny, through the method of dialogue in the judicial forum. This dialogue, as we have seen, is a continuing one, and its continued articulation in following hearings will be important to follow.


*Readers will recall the Chief Justice of India’s extraordinary observation, soon after the lockdown was announced, about why workers needed wages if they were getting two square meals a day. Interestingly, an observation by the Karnataka High Court in this order lays bare the hollowness of that statement. As the Court noted:

We must record here that it is not merely an issue of survival of the migrant workers who are unable to go back to their respective States because they do not have money, there are other needs of the migrant workers, such as their health, their families. The migrant workers who are staying in the State by leaving their families in the States of their origin are in precarious position because they are unable to send money for the maintenance of their respective families. These are all human issues which need to be addressed by the State Government as well as the Central Government, considering the concept of Welfare State.

 

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

[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 hereMaken  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.