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

Tags

dialogic review, Evictions, Right to Housing

[This is a guest post by Mohammed Afeef.]

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

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

Question of resettlement and rehabilitation (Pre-Sudama)

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

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

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

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

Crystallizing the right to Rehabilitation & Resettlement of slum dwellers

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

Sudama Singh vs. Govt of Delhi (2010)

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

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

Rutuparna Mohanty vs. State of Orissa,(2010)

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

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

Ajay Maken vs. Union of India,(2019)

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

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

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

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

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

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

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

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

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

Conclusion

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

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

 

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

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

The Delhi High Court on Forced Evictions, Adequate Housing, and a “Right to the City”

Tags

meaningful engagement, Right to Housing, slum rehabiliation, south africa

In an interesting judgment handed down earlier this week, the Delhi High Court laid down some important principles concerning the rights of slum-dwellers to adequate housing, and protection from forced evictions. The case itself had been filed in 2015, in response to demolitions and forced evictions (that had allegedly caused, among other things, the death of a six-year-old child) at Shakur Basti, a jhuggi cluster built on Railways land. In its interim orders (discussed from paragraphs 3 to 48), the High Court found that the Railways had failed to carry out its obligations to conduct a survey determining the eligibility of the residents for rehabilitation under law (set out in paragraph 28), before it commenced eviction. Accordingly, it passed orders on various relief measures, and directed the statutory agencies involved to act in a coordinated manner to deliver them to the displaced citizens. The case proceeded in the form of a continuing mandamus, with the Court monitoring the developments (including the preparation of a Draft Protocol that would coordinate the actions of the agencies) until December 2018, when judgment was reserved on the legal issues.

The High Court was then required to consider the interaction between a complex maze of legal instruments relating to the rights of slum dwellers in the context of forced evictions and rehabilitation: international law (that Muralidhar J. read into the domestic legal landscape via the Protection of Human Rights Act, 1993) (paragraphs 56 to 68), the Indian Constitution (paragraphs 84 to 86), various statutes such as the SAIC Act and the DUSIB Act (paragraphs 93 to 111) and attendant policies (paragraphs 119 to 136), and the Court’s own previous judgments, from the iconic Olga Tellis (paragraphs 87 to 92) to the more recent and specific Sudama Singh (paragraphs 112 – 118). Muralidhar J. also informed his reasoning through an extensive analysis of South African constitutional jurisprudence which – of course – is based upon a categorical right to housing provided by the constitutional text, which we lack (paragraphs 69 to 79).

The Court found that its previous judgment in Sudama Singh, which had interpreted constitutional principles in more concrete terms, providing for a right to rehabilitation and a right to a meaningful engagement before an eviction, had now been codified by the 2015 Policy, and by the Protocol that had been worked out by the parties during the hearing, and which had received their imprimatur. Consequently, the Court held that, in accordance with law:

• Before any eviction can be commenced, there must be a survey in order to determine whether the residents are eligible for rehabilitation in accordance with the existing law and policy.
• In case the answer to the above is “yes”, the eviction cannot be commenced until provisions are made either for in situ rehabilitation, or for alternative accommodation.
•  Any eviction must be preceded by meaningful engagement with the residents on all issues, including the terms and conditions of rehabilitation. (paragraphs 142 – 144)

Muralidhar J.’s judgment is important for a few reasons. At the constitutional level, it clarifies (once again) what, precisely, a “right to housing” might mean in the Indian context. In the absence of an enforceable, textual right to housing, any Court that wants to retain fidelity to the Constitution is constrained in what it can achieve: it cannot, for example, declare that every individual must be provided a house (indeed, the South African Constitution which does have the right has also balked at going so far). However, the guaranteed rights to freedom of movement and residence, as well as the right to life, provides a basis for a more modest – but more rigorously grounded – formulation: that the Government may not impede access to housing – by evicting people in occupation of certain land – without complying with a substantive due process standard. This standard requires, first, “meaningful engagement” with the residents before any action is taken (this is a more fleshed out and rigorous articulation of the right to a hearing, and is drawn from South African jurisprudence), and secondly, rehabilitation, where a right to rehabilitation has been established by law or policy. For readers familiar with the Forest Rights Act, it is a bit similar to the principle that no coercive action can be taken against a resident before the settlement of her rights is completed. Note that neither of the two requirements guarantee an individual a house in a tangible or material sense. What they do, however, is place thick procedural obligations upon the government if it wants to deprive someone of shelter: it is not enough for the government to invoke property rights, label them as “encroachers”, and drive them off.

The Delhi High Court buttressed its articulation of constitutional values by invoking two further principles. The first was the exhortation that the government is not entitled to treat slum dwellers on public land as right-less beings, with all the demeaning connotations that labels such as “encroachers” or “trespassers” bring. Rather, residents were at all times to be treated as rights-bearers, and the government was not entitled to derogate from its constitutional obligations while engaging with them. At the heart of this articulation is the understanding that urban poverty is a structural issue, and simply targeting occupiers of public land as “encroachers” not only mischaracterises the problems, but also violates basic constitutional values. The Indian judiciary has not always been consistent in this understanding, and therefore, its clear articulation by Muralidhar J. is very welcome.

The second was the invocation of a “right to the city” (paragraphs 80 to 83). Drawing upon the work of famous urban space scholars such as Henri Lefebvre and David Harvey, as well as contemporary international law, Muralidhar J. noted that “the right to the city” envisaged “stronger democratic control and wide participation in struggles to reshape the city.” In essence, therefore, the idea is democratisation: the inhabitants of a city ought to have a voice, a stake, and participation in questions such as “how is the city to be designed?”, “who is the city for?”, “how and on what terms are spaces in the city to be accessed?”, and so on. To anyone who lives in Delhi – with its gated colonies, the walled gardens of what is popularly known as the “Lutyens Zone”, and the heavily guarded entrances to gigantic malls – this will be immediately understandable. The point is this: how we access the city, which spaces are open to us and which aren’t, and how we navigate those spaces, are all questions that are presently dependent upon socio-economic class and status, but ought to be subjected to democratic control.

Now you may say that this is all well and good, and ought to be the subject of political struggle and agitation, but what does it have to do with constitutional adjudication? A Court can hardly “enforce” a right to the city by redesigning urban spaces to (for example) reverse the “privatisation of space” that gated colonies have so effectively conducted, and so on: that is a task for urban planners. In this case, however, the idea of the right to the city was what informed the Court’s articulation of meaningful engagement before evictions as a constitutional principle. Furthermore, its applications in other cases can be grasped: readers will recall, for instance, a recent controversy with respect to the Delhi Gymkhana Club, when “guests who look like maids” were denied entry. Now, the debate is rather constrained as long as it is limited to a putative clash between the Club’s “right” to impose a dress code, and the human right to non-discrimination and dignity. However, we can think about this another way: the Club occupies a vast amount of (what would otherwise have been) public space at the heart of Delhi. “A right to the city” raises difficult – but important – questions about the nature of control over such spaces, their possible democratisation, and whether and to what extent socio-economic class (of which dress is a marker) can be made the basis for exclusion. That, of course, will depend upon how future courts develop the concept.

With reference to this case, in particular, the flow of Muralidhar J.’s reasoning may be understood by referring to the following scheme, arranged around descending levels of abstraction:

Level One: Citizens as rights-bearers and not as “subjects”, “encroachers”, and “trespassers”/ “a right to the City” —->

Level Two: The right to adequate housing/right against forced evictions/right to meaningful engagement/right to enforce rehabilitation schemes —->

Level Three: Statutory instruments and policy documents that actualise the above —–>

Level Four: No eviction without compliance wit the above.

But at the end of the day, while this judgment demonstrates the promise of socio-economic rights adjudication, when done rigorously and emphatically, with a view to the principles of participation and engagement, it also reveals the limitations of the judicial role, and the importance of other democratic actors. Here, the Court was only able to do what it did because of the existence of detailed statutory instruments and policy documents that actualised the constitutional principles (to whatever limited extent) – many of which, admittedly, had only come into existence because of judicial pressure. As the Court was careful to note, for example, the rights at issue would kick in if the residents had a prior right to rehabilitation in accordance with extant law and policy (here, for example, the 2015 Policy had a cut-off date of 2015). Now, what if existing law did not provide for that right? To what extent would the Court be able to stipulate or decree it, given that (as everyone agrees) there is no substantive right to housing under the Indian Constitution? The fate of judgments such as Olga Tellis – for example – where much was said, but ultimately, the eviction was upheld – perhaps suggests that this is not an area where the Court can go it alone. The same is true for a “right to the city”: ultimately, any substantive articulation of a “right to the city” will butt heads against the much more entrenched legal principle of private property. The Court’s articulation of a “right to the city” informs us that our present legal landscape is not the only way in which we might imagine the relationship between people and land; but to change that relationship is the onerous task of democracy.