Devashish Tiwari & Ayush Sharma
The apex court in an order with lamentable ramifications on 31st August ordered the removal of Forty-Eight thousand slum dwellings situated along the railway tracks in Delhi. A three-judge bench headed by Justice Arun Mishra directed state authorities to remove the jhuggi jhopri clusters in the vicinity of the railway safety zone within a period of three months. They were adjured to be removed as they were considered to be in the railway safety zone. To the utter shock, the order stated that no court shall grant any stay & any interim order shall be deemed ineffective. As an opportunity cost of keeping the railway tracks clean & beautification of the city, the human rights of lakhs of slum dwellers have been proposed to be compromised. What followed after the order was a political slugfest, with each political party mudslinging & levelling allegation against each other to gain political mileage, leaving slum dwellers’ urban rights in limbo. Each political party is committed merely in words, but not in deeds. It has been claimed by the centre that slums along Delhi railway tracks wouldn’t be demolished until the final decision by the Centre in consultation with Railways, Delhi Government & Urban Development Ministry, which has only deferred the trepidation of slum dwellers.
The Supreme Court order which seeks to demolish settlements of poor urban residents is dismaying, startling & gut-wrenching and raises inevitable serious legal questions. The order is fundamentally flawed since it has disregarded a plethora of judicial precedents on the right to shelter, principles of natural justice, state policy concerning evictions & human rights. This community plays a vital role in contributing towards the development of the country, therefore protecting their right to livelihood, shelter & housing plays an important role in addition to being a basic human right. Browbeat eviction violates the internationally recognized right to housing & other human rights.
Right to Shelter – State’s Constitutional Obligation
The Apex Court seemed to have defied & contravened its own long-standing jurisprudence on the right to shelter & livelihood upheld in wide-reaching & exhaustive judgements. In the landmark judgement pertaining to pavement-dwellers, a five-judge bench of the Supreme Court in Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors. held that the right to life includes the “right to livelihood” & that no eviction shall be concluded without notice & hearing out those affected by the order. On the same line, it was held in Chameli Singh Vs. State of U.P., the Supreme Court recognized the “right to shelter” as an indispensable component of the right to life under Article 21 & freedom of movement under Article 19(1)(d) of the constitution. Also, In Francis Coralie Mullin Vs. The Administrator, the court held that the right to life includes the right to live with human dignity & all that goes along with it, including adequate shelter, clothing & nutrition. The Supreme Court observed in PG Gupta Vs. State of Gujarat & Ors., that right to shelter is implicit in Article 21 & it is incumbent upon the state to provide permanent housing accommodation to the poor in the housing scheme undertaken by it under Article 19(1)(e) and 21 of the constitution. Moreover, India being a welfare state, expounds an obligation upon the government to constantly strive towards the welfare of the citizens and ensure a dignified life for each citizen of this country as mandated by the multifarious directive principle of state policies.
Flagrant Violation of the Principle of Natural Justice
The order also violates much-cherished principles of natural justice & due process since it passed the order against slum dwellers, without hearing them. The court made an abstruse connection between the prevention of slums & the amassing of garbage along railway tracks & gave an eviction order without giving the residents a fair opportunity of being heard, therefore if evicted, it would be a blatant violation of the established legal principle “Audi Alteram Partem” and would be an unjust act against the community, who have been living there ever since their inception.
Disregarding Precedents & Policies on Slum Eviction
The court also failed miserably in considering the case laws & policies on slum eviction and rehabilitation in Delhi. In Sudama Singh & Ors. Vs. Government of Delhi & Ors., the Delhi High Court held that prior to any form of conviction, a survey must be conducted & those evicted should have a right to “meaningful engagement” with the location plans. The procedure laid down in the case formed the basis for the Delhi Slums, JJ Rehabilitation & Relocation Policy, 2015. The same principles were upheld in Ajay Maken & Ors. Vs. Union of India & Ors., a case pertaining to the demolition of Shakur Basti on railway land, where the Court invoked the idea of the “ right to the city” to safeguard the housing rights of the slum dwellers. These particular landmark judgements led to the drafting of a Draft Protocol for the 2015 Policy on how to meaningfully engage with residents. Also, none of the authorities determined their share of fair compensation & settlement in accordance with the Delhi Slum and JJ Rehabilitation and Relocation Policy, 2015.
India’s Commitment under International Law
Adequate housing was explicitly recognized as part of the right to an adequate standard of living by ICESCR under Article 11(1). Other international human rights treaties have also since recognized the right to adequate housing as a facet of basic human rights. The Committee’s general comments number 4 & 7, on forced evictions elucidated freedoms including the right to protection against forced evictions, right to be free from arbitrary interference with one’s home, to determine where to live and to freedom of movement.
UDHR clearly states under Article 25 (1) that basic standard of living includes housing. These principles were upheld in the landmark judgement of Grootbroom Vs. Ostenberg Municipality & Ors. Where in 1996, South Africa felt the need to borrow from Indian jurisprudence on the justiciability of economic and sociable rights, perhaps we in India, now need to look towards the South African Court’s decisions, especially after the Grootbroom judgment, to further develop our commitment to the issue of housing rights under International law.
Further, as remarked by the UN Special Rapporteur on Housing, ‘In the face of this pandemic, being evicted from your home is a potential death sentence’. The Special Rapporteur has appealed to states to end the forced eviction of informal settlements, courts in other countries have already passed orders to prevent any such evictions in such times. However, neither the state policies nor the case laws were referred by the court.
Pandemic & Evictions
The court also ought to take into consideration that there is an economic & public health crisis across the country. The marginalized are being inflicted with constant sufferings & have borne the brunt of the crises ever since the inception of the lockdown. It will also put them under the risk of contracting vicious coronavirus when the country is reporting close to one lakh cases a day, and therefore it will be reckless to evict them from their only abode. Labelling resource-deprived people who are compelled by their sorry state of affairs to find shelter on pavements, foot-paths, etc as ‘encroachers’ is equally wrong. The court should definitely take into consideration the plight of the community. The Supreme Court once rightly granted an eviction of time in eviction proceedings against poor dwellers, due to the rainy season in Madras in K. Chandru Vs. State of Tamil Nadu & Ors., This community has already gone through a lot and is already in a state of helplessness, evicting them would shake them to the core & their survival will be put on the stake in these desperate times.
The restorative measures suggested in the cases of Shantistar Builders Vs. Narayan K. Totame, Chameli Singh Vs. State of U.P. & Ahmedabad Municipal Corporation Vs. Nawab Khan Gulab Khan, can be termed as an example of judicial activism at its best because of the sensitivity of the Court in dealing with them, however, as in the case of present eviction of Delhi slum dwellers, judicial activism inculcated over the year seemed to have been overlooked this time. The problem of adequate housing in India has not been addressed & has been an abject failure. The nimble growth of congested slums in urban India speaks volumes about problems being faced by the dwellers.
Protection of public property can’t come at the cost of human & fundamental rights, that too amid a pandemic. The Supreme Court Order apparently overlooked the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015. Such Policies have a paramount role to play in the absence of any concrete jurisprudence on the issue. The present situation is a manifestation of flagrant disregard of democratic principles. The Apex Court order that threatens to leave lakhs of migrants homeless amid a pandemic is unconscionable & callous. The courts have played an active role in the demolition of such settlements, under the garb of environmental protection. Such action represents a dangerous turn of Public Interest Litigation jurisprudence whereby their procedural relaxations are used to abnegate principles of natural justice to the most vulnerable group.
The right to housing as enumerated in Sudama Singh & Ajay Maken is being undone by an insidious attempt that preempts other courts for staying the conviction. If we want to protect public land, rehabilitation should precede any attempt to displace slum dwellers from their humble abode. The case highlights the need for a comprehensive policy at State & Central levels, pertaining to forced evictions for their respective public lands. These policies should follow the best practices established by the United Nations Special Rapporteur on adequate housing, including appropriate notice, hearings, public review & compensation etcetera. The notice period of three months should also be extended, keeping in mind the unprecedented global pandemic. The slum dwellers now need to employ a combination of legal & political strategies to safeguard their housing rights & ensure that no rehabilitation or eviction is conducted without their prior informed consent.
The authors are BBA LLB Candidates from JEMTEC School of Law, affiliated by Guru Gobind Singh Indraprastha University.
 Sanchit Khanna, Shift slum dwellers to vacant flats or we will: BJP ultimatum to AAP, updated on Sept. 12, 2020, ( Last Accessed on Sept. 17, 2020, 8:56 PM ) https://www.hindustantimes.com/delhi-news/shift-slum-dwellers-to-vacant-flats-or-we-will-bjp-ultimatum-to-aap/story-Lu1yhGBDka2pPFRBqBXbKI.html.
 Deepak Nagpal, Temporary relief for 48K slum dwellers in Delhi; no eviction from ‘jhuggis’ for at least 4 weeks, updated on Sept. 14, 2020, (last accessed on Sept. 16, 2020, 04:48 PM ) https://www.timesnownews.com/delhi/article/temporary-relief-for-48k-slum-dwellers-in-delhi-no-eviction-from-jhuggis-for-at-least-4-weeks/652313.
 ICESCR, Art. 11(1).
 UNO Habitat, Office of the United Nations High Commissioner for Human Rights, The Right to Adequate Housing, fact sheet no. 21/rev.1, ( Last Accessed on Sept. 16, 2020, 05:38 PM ) https://www.ohchr.org/Documents/Publications/FS21_rev_1_Housing_en.pdf .
 UDHR, Art. 25(1).
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