Guest Post: The Illegality of the Khargone Demolitions

[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 Land, Evictions, and Horizontal Rights

In January of this year, I had written about the Supreme Court of Kenya’s judgment in Mitu Bell, dealing with questions around evictions and the right to housing. Recall that the judgment in Mitu Bell was delivered in the context of public land, but its reasoning indicated the possibility of something more. In noting that under the 2010 Constitution, “all land in Kenya belongs the people of Kenya collectively as a nation, communities and individuals”, the Supreme Court created a conceptual distinction between a legal right to land (which would be determined by property law, in the normal course of things), and a constitutional interest in land, which was available to all. In using the phrase “all land”, the Supreme Court indicated that when it came to the question of constitutional interest, there was no difference between public land and private land. As I wrote at the time, “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.” And it would follow from the Court’s reasoning that this range of remedies would need to be available in cases of both public and private land.

Today’s judgment of the Supreme Court of Kenya in William Musembi vs The Moi Educational Centre Co. Ltd. takes the logic of Mitu Bell one step further. Petitioners were residents of two informal settlements within the county of Nairobi. It was their case that they had been occupying the land since 1968, when it had been public land. The cause of action arose out of a forced eviction at the instance of the Respondent in 2013; the Respondent claimed private ownership of the land, and was assisted by officers of the State in carrying out the forced eviction and demolition.

In the High Court, Ngugi J found a violation of the petitioners’ rights under to dignity, security, adequate housing, and a violation of the rights of children and elderly persons under the Constitution. She awarded damages. However, this judgment was partially set aside by the Court of Appeal. The Court of Appeal found that there had only been a violation of the rights to dignity and security, and set aside the order of damages. Petitioners appealed to the Supreme Court.

The arguments before the Supreme Court turned upon whether – and to what extent – the right to accessible and adequate housing could be applied inter se between private parties, as well as the State’s obligations in cases of eviction. These intertwined questions were summed up in paragraph 54 of the Supreme Court’s judgment:

“… we are tasked with the making of a determination on the rights of the Petitioners against those of the 1st Respondent; to determine whether the State took an active positive role in ensuring that the fundamental rights and freedoms of all the parties concerned in this instant matter were protected and that in so doing, there was no abuse of the rights of the parties and thus, that the State’s negative obligation not to abuse or violate these rights and fundamental freedoms was carried out.”

Relying upon Mitu Bell, the Supreme Court noted that even where landless people did not have title to land, they nonetheless acquired a “protective right to housing” through occupation (paragraph 56). The Court therefore held that as far as the State was concerned, the principles governing evictions that were set out in Mitu Bell applied to this case as well. And here, the facts that the eviction was violent, that it was done without a Court order, and that no notice was provided, were so evident that “even the man on the street” could tell that the Petitioners’ rights had been violated (paragraph 59).

The question then arose: to what extent was the First Respondent – the private party – also responsible for the violation of constitutional rights. In paragraph 64, the Court held:

… the mandate to ensure the realization and protection of social and economic rights does not extend to the 1st Respondent, a private entity. Even though the 1st Respondent has a negative obligation to ensure that it does not violate the rights of the Petitioners, it is not under any obligation to ensure that those rights are realized, either progressively or immediately.

The Court, thus, drew a distinction between a negative obligation not to interfere with socio-economic rights (such as the right to housing), and the positive obligation to (progressively) realise those rights. The former applied to both public and private parties, whereas the latter only applied to the State.

It is clear that the distinction between negative and positive obligations is doing a lot of work here. Without going into the voluminous literature on the normative and conceptual character of the distinction, a few remarks may be made. The first is that evictions certainly constitute interference with the right to housing. Thus, both the logic of Mitu Bell, and the reasoning in this case, indicate that private parties are bound by the principles governing eviction in the same manner as the State: that is, the requirement of notice, opportunity to salvage, prioritising the rights of the elderly and of children, and so on. However, there are two further questions: what of the rights to public participation and the right not to be evicted without the provision of alternative accommodation?

I would argue that both these rights are also applicable against private parties. Article 10 of the Kenyan Constitution states that “the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them … applies or interprets this Constitution.” According to Article 10(2)(a), participation of the people is one of the “national values and principles of governance” underpinning the Kenyan Constitution. Consequently, given that: (a) Article 10 applies to all persons, including private parties; (b) that evictions from public and private land involve constitutional rights, as held by the Supreme Court – and therefore involves “application and interpretation” of the Constitution; it therefore follows, (c) that principles of public participation – which, in the eviction context, translate into the concept of “meaningful engagement” – are applicable to private parties as well.

On the question of alternative accommodation, it may be pointed out that this is a classic example of a positive obligation, and therefore – in terms of the Supreme Court judgment – not binding upon private parties. In my view, however, a distinction must be drawn between the obligation to provide alternative accommodation, and the obligation not to evict until alternative accommodation is available. The former is indeed a positive obligation and – in terms of the Supreme Court judgment – not binding on private parties. The latter, however, is a classic non-interference obligation, as it is just another pre-condition for when you can evict (like notice, participation, a court order etc.). Indeed, as this case shows, evictions invariably involve concert of action between State forces and private landowners, with the latter relying upon the former (either directly, or through forbearance) to accomplish physically removing people from land. It is thus not far-fetched to argue that it must follow from this judgment that if a private party proposes to evict people from private land, then it is for the State to take on the positive obligation of securing alternative accommodation before that eviction can take place: the relationship is, of necessity, a tripartite one.

My second point is that a blanket rejection of the application of horizontality to positive obligations may not, with respect, be correct. In Juma Musjid, the South African Constitutional Court initially adopted the same position, but then walked back from it in Daniels v Scribante, perhaps recognising that the distinction between negative and positive obligations is, at the end of the day, an artificial one. Indeed, in his concurring opinion in Daniels v Scribante, Froneman J. turned his attention to the existing property distribution regime, noting how property law was a tool to entrench a certain distribution of private property which, in itself, was the source of violations of rights. In Mitu Bell, the Supreme Court had gestured towards such an understanding as well, in noting that the 2010 Constitution guaranteed to all Kenyans an interest in all land, and thus – in a way – aimed at upending traditional legal regimes that depended on a sacralisation of property regimes. It is therefore my submission that in limiting horizontal socio-economic obligations only to the State, the Supreme Court did not take forward the logic of Mitu Bell to the extent that it was possible to do so.

Finally – and crucially – the Supreme Court upheld the High Court’s judgment on damages, noting that the discretion in awarding damages had not been improperly exercised. This issue is particularly important – if less discussed – as the only way in which constitutional rights can have teeth (especially in cases of this kind) is if their breach is met by effective remedies such as compensation. This is, of course, part of the long-standing tradition of “constitutional tort” in Irish Jurisprudence, and the Kenyan courts’ own jurisprudence since 2010.

William Musembi vs Moi Educational Centre is thus landmark discussion on the issue of evictions from private land, which involve the actions of both State and private parties. In many ways, it takes forward the important logic in Mitu Bell, and continues the welcome trend of judicial skepticism towards entrenched property rights (which are themselves, invariably, the outcomes of violence and dispossession). It will be important to see, however, how the Kenyan courts take forward its prescriptions in other concrete eviction cases, where other rights – such as meaningful engagement/participation have been violated.

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

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)


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

[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.


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

[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.


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.