[This is a guest post by Rishika Sahgal.]
Two recent decisions of the Delhi High Court engage with rehabilitation for jhuggi dwellers in the face of the demolition of their homes. On 4 July, in Samarpal v Union of India the Delhi High Court interpreted the relevant rehabilitation policy to hold that the jhuggi dwellers were eligible for rehabilitation. On 2 August, in Shakarpur Slum Union v DDA, the Delhi High Court stayed a demolition exercise and granted temporary relief, but did not order a survey to determine eligibility for rehabilitation for the jhuggi dwellers. I discuss both decisions in detail below.
Overall, these cases are symptomatic of the original sin in Olga Tellis, wherein the Supreme Court recognised only a conditional right to rehabilitation. In subsequent cases, there has been no consistent response of courts regarding the requirement of rehabilitation prior to eviction. The inconsistency and inadequacy of these decisions will be resolved only once courts recognise rehabilitation as an essential component of residents’ right to shelter and housing, so that no evictions can take place without provision of rehabilitation, when the eviction will render residents homeless.
Samarpal
Samarpal represents the best case scenario under the existing framework. In the case, the Delhi High Court interpreted an existing rehabilitation policy in a rights-affirming manner, to hold that residents were eligible for rehabilitation.
Shahid Basti, a settlement near the New Delhi Railway Station, was demolished by the Indian Railways in 2008, to expand and modernise the station. Five residents of Shahid Basti claimed access to rehabilitation under the relevant policy, according to which residents of jhuggis which had been set up on or before 30 November 1998 were eligible for rehabilitation. The Railways claimed that these five residents were ineligible for rehabilitation, because their jhuggis had been set up in 2003. The residents admitted that the jhuggis they were living in at the time of demolition had only been set up in 2003, but they argued that they had been residing in another location near the New Delhi Railway Station since the 1980s, and were evicted by the Railways from that location in 2003, for a prior expansion of the station. They argued that their residence since the 1980s, rather than since 2003, ought to be considered for determining their eligibility for rehabilitation. These facts were not in dispute, and the controversy in the case revolved around how the cut-off date ought to be applied for determining eligibily for rehabilitation – whether residence in the jhuggi being demolished ought to be considered, or whether residence in a prior jhuggi also ought to be taken into account.
Justice C Hari Shankar of the Delhi High Court held that the rehabilitation policy ought to be ‘broadly and liberally interpreted’, given that it was an ameliorative scheme designed to fulfil fundamental rights (the right to shelter as part of the right to life under Article 21) and directive principles of state policy (Articles 38 and 39). If residents were able to indicate their residence prior to the cut-off date of 30 November 1998, albeit not in the jhuggis which were demolished by the Railways in 2008, they ought to be eligible for rehabilitation. This was more so because the Railways was responsible for the prior eviction of residents in 2003, and ought not to be able to take advantage of its prior action to avoid granting rehabilitation to residents eligible under existing policy.
Shakarpur Slum Union
In this case, the Delhi High Court adopted a restrictive approach towards the issue of rehabilitation, rather than the ‘broad and liberal’ approach in Samarpal. The case involved the demolition of 300 jhuggis by the Delhi Development Authority (‘DDA’). No notice was given prior to the demolition, and residents were unable to gather their belongings as their jhuggis were bulldozed.
The petitioners in the case, a union of the residents of Shakarpur basti, argued for the implementation of prior decisions of the Delhi High Court in Sudama Singh and Ajay Maken, The Delhi Slum & JJ Rehabilitation and Relocation Policy 2015, and the protocol framed under the Delhi Urban Shelter Improvement Board Act 2010 (‘DUSIB Act’). They asked that the Court order a survey to be conducted to determine the eligibility of residents for rehabilitation under existing policy, and for rehabilitation to take place through meaningful engagement with residents. They were not asking for a revision of existing policy, nor for the Court to go above and beyond existing policy. Rather, they sought relief within the limits of existing judicial doctrine and state policy.
Justice Subramonium Prasad of the Delhi High Court read the requirements of Sudama Singh, Ajay Maken, the DUSIB Act and the 2015 rehabilitation policy in a restrictive manner. He determined that only those residents were eligible for rehabilitation, who were already notified by DUSIB as being so eligible (para 37). If a jhuggi jhopdi cluster had not already been notified, then it could not be eligible for rehabilitation, even if it fulfilled the requirements of the 2015 policy, and especially the cut-off dates put in place. This was a re-writing of the 2015 policy, and the protocol for eviction, rehabilitation and relocation of jhuggis in Delhi.
The Court simultaneously placed the burden on residents to prove their eligibility under the 2015 policy; and held that a writ court cannot get into ‘excruciating details of fact’ (para 29). But this is effectively having it both ways; instead, the Court ought to have required that these facts be determined by the relevant authority – DUSIB – by conducting a survey through meaningful engagement with residents, in accordance with Sudama Singh, Ajay Maken, the 2015 rehabilitation policy and the relevant protocol.
It is useful to recall the protocol at this point. This was drafted while the Delhi High Court was hearing Ajay Maken (para 41), and requires DUSIB to be involved prior to all evictions taking place in Delhi. The relevant land-owning agency is required to send a proposal for removal of jhuggis to DUSIB sufficiently in advance, and DUSIB is required to determine whether the residents are eligible for rehabilitation under the 2015 policy through conducting a survey. The protocol is explicit that:
If the JJ Basti was in existence prior to 01.01.2006, then the DUSIB will notify the said Basti under s 2(g) of the DUSIB Act, if not notified earlier…
When applied to the Shakarpur case, this should mean that DUSIB conduct a survey to determine the eligibility of residents under the 2015 policy. The protocol contemplates a situation wherein a basti has not already been notified under s 2(g), and requires that the basti be notified once it is found that residents are eligible for rehabilitation. A literal interpretive approach would lead to this conclusion, let alone a broad and liberal construction of the protocol.
While the Delhi High Court in Shakarpur included lengthy quotes from Ajay Maken and the protocol, but it did not enforce the same, and particularly paragraph 189 of Ajay Maken wherein Justice Muralidhar held:
The key elements of the 2015 Policy, which are in conformity with the decisions of the Supreme Court of India discussed in Part VII of this judgment as well as in Sudama Singh, would apply across the board to all bastis and jhuggis across the NCT of Delhi. In other words, conducting a detailed survey prior to the eviction; drawing up a rehabilitation plan in consultation with the dwellers in the JJ bastis and jhuggis; ensuring that upon eviction the dwellers are immediately rehabilitated – will all have to be adhered to prior to an eviction drive. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in all of the above decisions.
In this case, the Delhi High Court granted limited relief, holding that no demolition could take place without notice, early in the morning or late in the evening, and that a temporary location was to be provided to residents facing demolition so that they weren’t rendered completely shelter-less. The requirement of at least a temporary relocation may yet create more radical possibilities in an otherwise narrow decision.
Bourgeoise environmentalism, fragmentation and polyvocality
It should be noted that the demolition in the Shakarpur case took place upon the orders of the National Green Tribunal (‘NGT’), in a matter regarding rejuvenation of the Yamuna floodplains, whereby jhuggis on the floodplains were required to be removed by the DDA. When the Shakarpur Slum Union raised concerns regarding a violation of their right to housing if the DDA were to execute the NGT’s orders, without following the relevant judicial doctrine and state policy requiring determination of eligibility for rehabilitation prior to eviction, the NGT clarified that ‘it is only concerned with the pollution and is not the authority or forum to entertain pleas against demolition.’ On the other hand, the Delhi High Court held that, ‘as the NGT has assumed jurisdiction of the sensitive issue pertaining to the resuscitation and rejuvenation of the Yamuna floodplains, this Court does not deem it appropriate to disturb the same by way of a mandamus to the DDA to allow DUSIB to conduct a survey.’
This raises two issues. The first is of bourgeois environmentalism. As Baviskar argues, this kind of environmentalism does not strike at the root of what is jeopardising our environment; rather, it sacrifices the urban poor to resolve environmental issues as framed by the urban elite, through solutions that exacerbate inequality and often environmental degradation. It does not begin a shared conversation about environmental concerns that affect everyone, but more so the most marginalised. Here, to protect the Yamuna floodplains, jhuggis were demolished, whereas large scale development on the Yamuna floodplains, including an Information Technology Park, metro depot, and the sprawling Akshardham temple complex have been permitted to remain on the floodplains (see Baviskar ch 6).
Second, it raises the issue of fragmentation. If the NGT is concerned only about the protection of environment, but in the implementation of its orders, the state impinges on the right to housing, then it is a matter of concern that the issue about residents’ right to housing is not to be heard before the same forum. Simultaneously, the High Court cannot simply defer to the NGT without considering the impact on the rights of residents of jhuggis when the DDA implements the orders of the NGT. It ought to have required implementation of relevant judicial doctrine and state policy, especially conducting a survey prior to eviction to determine residents’ eligibility for rehabilitation, as the DDA implemented the NGT’s orders.
The issue of fragmentation of judicial decision-making across different fora should be seen in the backdrop of polyvocality within the courts. The response of Indian courts to the issue of rehabilitation prior to eviction has always been inconsistent, and it is important to recognise that this inconsistency is exacerbated by polyvocality within the High Courts as well as the Supreme Court. The High Courts and Supreme Court do not hear cases en banc, but rather in benches of different strengths. As I have indicated above, two different benches of the Delhi High Court took very different approaches to the issue of rehabilitation prior to eviction in Samarpal and Shakarpur Slum Union, indicating the inconsistent jurisprudence being developed by the Court.
The shifting contours of rehabilitation and the need for resolution
On the whole, Indian courts have not taken a consistent approach towards the requirement of rehabilitation prior to eviction. In Olga Tellis, the Supreme Court recognised a conditional right to rehabilitation, requiring the state to provide alternate land under existing schemes to people being evicted, if they were found to be eligible under those schemes. That has placed constraints upon any future cases engaging with the issue of rehabilitation; arguably for this reason, courts have not held that residents must be eligible for rehabilitation regardless of the limits in existing legislation or state policy. On the other hand, courts have required eviction without rehabilitation, even with the existence of state policy requiring rehabilitation to some extent. While Almitra Patel is a prominent example, perhaps Okhla Factory Owners Association is the most stark case of this kind, wherein the Delhi High Court declared a scheme for rehabilitation unconstitutional when the scheme permitted evictions from public land only when alternate accommodation was made available to all those being evicted.
This inconsistent approach towards the requirement of rehabilitation prior to eviction ought to be resolutely resolved once and for all, by holding that rehabilitation is an essential component of the right to shelter and housing, when an eviction will render people homeless. It has been almost 40 years since a constitutional bench of the Supreme Court last heard a case on the right to housing in Olga Tellis, and perhaps it is time to revisit the issue to strengthen the right to shelter and housing.