Authored by Devashish Tiwari and Ayush Sharma, 4th year students of JEMTEC School of Law.
Introduction
A three-judge bench of the Apex Court headed by Justice Arun Mishra directed via an order dated 31st August 2020 to remove the 48,000 slum dwellings in the vicinity of the railway tracks in New Delhi within a period of three months as they were in the railway safety zone. The order also stated that no court shall pass any order in the context of the evictions, & if so, passed shall be deemed ineffective. As an opportunity cost of keeping the railway tracks clean& beautification the city, the human rights of lakhs of slum dwellers had been proposed to be compromised. What followed the order was a political slugfest, with each political party mudslinging &leveling allegation against each other to gain political mileage[i], leaving slum dwellers urban rights in limbo.
Contentious order in the face of a pandemic
The Supreme Court order dated 31st August 2020 which seeks to remove the 48,000 slum dwellings in the vicinity of the railway tracks in New Delhi 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 be a basic human right. Browbeat eviction of such a magnitude infringes the internationally recognized right to housing besides much cherished human rights.
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 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 are living there ever since their inception.
Right to shelter– Constitutional obligation of the State
The Apex Court has apparently contravened its mandate on the right to shelter upheld in wide-reaching & exhaustive judgments. In the landmark judgment pertaining to pavement-dwellers, a five-judge bench of the Supreme Court in Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors.[ii], 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.[iii], the Supreme Court recognized the “right to shelter” as an indispensable component of the right to life under Article 21[iv]& freedom of movement under Article 19(1)(d)[v] of the constitution. Also, In Francis Coralie Mullin Vs. The Administrator[vi], 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.[vii], that right to shelter is implicit in Article 21[viii]& 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)[ix] and 21[x] of the constitution. 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.[xi].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.
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.[xii], 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.[xiii], 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 lead 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. K. Chandru Vs. State of Tamil Nadu & Ors.
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)[xiv]. UDHR clearly states under Article 25 (1)[xv] that, basic standard of living includes housing. These principles were upheld in the landmark judgement of Grootbroom Vs.Ostenberg Municipality & Ors.[xvi] 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 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’. However, neither the state policies nor the case laws were referred by the court.
Conclusion
In the case of the 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 over the years. Rehabilitation should precede any attempt to evict slum dwellers from their only humble adobe. The notice period of three months should also be extended, keeping in mind the unprecedented global pandemic. This community has already grown through a lot and is already in a state of helplessness, evicting them would shake them to the core & their survival will be put at the stake at these desperate times.
Protection of public property can’t come at the cost of human & fundamental rights, that too amid a pandemic. The marginalized are being inflicted with constant sufferings & have borne the brunt of the crises ever since the inception of the lockdown. It will be reckless in evicting them from their only adobe. Labeling resource-deprived who are compelled by their sorry situation to find shelter on pavements, footpaths, etc. as ‘encroachers’ is equally wrong. The Supreme Court Order apparently overlooked the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015. 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.
References
[i]SanchitKhanna, Shift slum dwellers to vacant flats or we will: BJP ultimatum to AAP, updated on Sept. 12, 2020, https://www.hindustantimes.com/delhi-news/shift-slum-dwellers-to-vacant-flats-or-we-will-bjp-ultimatum-to-aap/story-Lu1yhGBDka2pPFRBqBXbKI.html. [ii]Olga Tellis&Ors. Vs. Bombay Municipal Corporation &Ors., 3 SCC 545 (1985). [iii]Chameli Singh Vs. State of U.P.,Supp (6) SCR 827 (1995). [iv]Article 21, Constitution of India, 1950. [v]Article 19(1)(d), Constitution of India, 1950. [vi]Francis Coralie Mullin Vs. The Administrator, AIR SC 746 (1981). [vii]PG Gupta Vs. State of Gujarat &Ors., (2) SCC 182 (1995). [viii]Supra v. [ix]Article 19(1)(e), Constitution of India, 1950. [x]Supra v. [xi]K. Chandru Vs. State of Tamil Nadu &Ors., AIR 204 (1986). [xii]Sudama Singh &Ors. Vs. Government of Delhi &Ors., WP(C) 8904/2009. [xiii]Ajay Maken&Ors. Vs. Union of India &Ors., W.P.(C) 11616/2015. [xiv]ICESCR, Art. 11(1). [xv]UDHR, Art. 25(1). [xvi]Grootbroom v Ostenberg Municipality and Others, 3 BCLR 277 C (2000).