On January 5 last month, the Supreme Court stayed the forcible eviction of over 4,000 families, mostly Muslims, from Haldwani in Uttarakhand for purportedly occupying land belonging to the Railways. The residents claimed to have been living there since decades, with valid documents. Turning down the Uttarakhand High Court’s directions to the State government, which included the use of paramilitary forces to vacate the land in seven days, the top court underscored the human angle to the issue and stressed that every occupant could not be painted with the same brush.
Given the poor record of rehabilitating people thrown out of government land on various pretexts, human rights defenders as well as legal and constitutional experts see an opportunity in the Haldwani case for the top court to clarify and reframe the laws related to evictions. Since the right to housing is not guaranteed, they feel that there is a need for a codified law to safeguard housing and protect the livelihood rights of people facing eviction threats. In April last year, a demolition drive was similarly halted in Delhi’s Jahangirpuri following a Supreme Court order.
In the past five years in India, there has been an “alarming dispossession” of the urban and rural poor, according to Housing and Land Rights Network (HLRN), a New Delhi-based NGO. In 2021, on average at least 24 people were evicted every hour, leaving over 36,480 houses demolished and 207,106 people homeless across the nation, according to a HLRN study released on September 22, 2022. A majority of those who bear the brunt of the state’s might include people from the most marginalised and vulnerable sections of society, the study said, adding that about 1.5 crore people continue to live under the threat of eviction and displacement in India.
‘Clarify the principles’
“This is an excellent opportunity for the court to clearly set out the substantive notice-and-hearing and rehabilitation-and-resettlement principles and the scope of their application,” said Supreme Court lawyer Gautam Bhatia about the Haldwani case. “Not only will this help settle the present confusion about the state of the law, but it would also deal with the recent pandemic of evictions and demolitions that is sweeping the country, and which presents a serious threat to constitutionalism and the rule of law.”
Referring to the 1985 judgment in Olga Tellis vs Bombay Municipal Corporation, Bhatia said, “The Supreme Court (and various high courts) have held that the State must respect the constitutional rights to life, livelihoods, and housing, notwithstanding the absence of a formal legal title when carrying out an eviction.” Describing what are generally regarded as “encroachments” as a consequence of the state’s failure to discharge its constitutional obligations to provide basic socio-economic rights (such as housing) to the citizenry, Bhatia said, “When it comes to evictions—especially evictions that would make people homeless—an absence of legal title does not mean that a resident is without any rights and can simply be turned off the land.”
In 1985, the Supreme Court had upheld that not serving notices violated “the principles of natural justice” and any deviation from the due process of law was bound to result in an unjust decision. In February 2010, the Delhi High Court had ruled that the government agencies should identify and rehabilitate eligible people ahead of any eviction. The Supreme Court upheld the same in 2017.
The apex court’s judgment was inspired by the UN Special Rapporteur’s Basic Principles and Guidelines on Development-based Evictions and Displacement, which state that evictions should not render homeless people even more vulnerable to other human rights violations. The Delhi High Court reiterated this in Ajay Maken and Others vs Union of India and Others in 2019. In the 1990 Shantistar Builders vs Narayan Khimalal Totamecase, the Supreme Court said, “The right to life [under Article 21 of the Constitution] would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable accommodation to live in. The difference between the need for an animal and a human being for shelter has to be kept in view.”
In Chameli Singh vs State of Uttar Pradesh (1995), the Supreme Court had said that the right to shelter was a fundamental right. “Shelter for a human being, therefore, is not mere protection of his life and limb,” the court observed. “It is, however, where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads, etc., so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one’s head but the right to all the infrastructure necessary to enable them to live and develop as a human being.”
The Delhi High Court in Sudama Singh and Others vs Government of Delhi had rejected the argument that the jhuggi dwellers don’t deserve rehabilitation. The court observed: “We find force in the submission of the petitioners that even if there is any such policy, it may be for those jhuggi dwellers who deliberately set up their jhuggis on some existing road, footpath, etc., but surely this policy cannot be applied to jhuggi dwellers who have been living on open land for several decades and it is only now discovered that they are settled on a land marked for a road under the Master Plan though when they started living on the said land, there was no existing road.”
As a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, India has an obligation to recognise “the right of everyone to an adequate standard of living for himself and his family, including food, clothing, housing and to the continuous improvement of living conditions” according to Article 11(1) of the ICESCR.
Invisible and unheard
And that brings us to a crucial question: are these judgments as well as constitutional and legal safeguards being followed by the authorities? Whether discussing the issues of displacement due to the creation of Special Economic Zones or the most recent eviction threats in Haldwani or Jammu and Kashmir, such provisions and the Supreme Court guidelines appear to have been routinely ignored.
“Evictions are happening on an ad-hoc basis,” Aishwarya Ayushmaan, who works with the HLRN, told Frontline. “Even the courts are passing and complying with orders without taking into consideration these Supreme Court judgments. There need to be proper guidelines on eviction, explaining the processes that need to be followed before, during and after an eviction. It needs to be codified in the law to protect housing and livelihood rights.”
Senior advocate Colin Gonsalves, appearing for a petitioner in the Haldwani case in the Supreme Court, raised the following questions in the Special Leave Petition: “Can the Railways lay claim to the land in question when it could not file a single document before the High Court showing right, title, or interest in the said land? Was it lawful and equitable to order the demolition of 4,500 houses of 50,000 persons who have been residing at the site for periods extending since before independence? Was it not excessive and harsh for the High Court to call for the use of ‘paramilitary forces’, to evict the inhabitants en masse ‘by use of force to any extent’ and to also use ‘full police force’ even after realising that the majority of the residents were poor and working class people and that the area had a large number of public and private schools, colleges, two dispensaries, one bank, places of worship, 21 Anganwadi centres and the like? Could a more humane and accommodating approach not be taken? Though legal experts believe that the Uttarakhand High Court’s 176-page judgment calls for a closer examination, the petition maintained, ‘Without a single document on record showing Railway right in the land that the court concluded that the land is Railway land and the Railways are directed to demolish and evict’.”
In its January 27, 2023, edition, Frontline (“The Great Land Grab”) reported on how tens of thousands of people in Jammu and Kashmir were going to be evicted from state land. The affected people enjoyed the right to cultivation and habitation over government land before their semi-autonomous status was scrapped in 2019. Most of them happen to be the beneficiaries of historic land reforms that were implemented in several phases.
Paradoxically, the Union Territory administration has filed a review petition in the High Court to reconsider its decision in the so-called Roshni land scam but that has not stopped it from retrieving land from marginal farmers who got state land regularised under the Jammu & Kashmir State Land (Vesting of Ownership to the Occupants) Act, 2001. Some petitions are pending before the Supreme Court as well.
While the government has ordered the revenue authorities to vacate the lands across Jammu and Kashmir by January 31, the move has triggered widespread resentment and protests. Terming the government action an “administration-sponsored land grab”, CPI(M) leader Mohammed Yousuf Tarigami said, “In the name of retrieving ‘State land’, the government is making desperate attempts to pauperise people by snatching their land and creating private land banks.”
The Democratic Azad Party has held protest demonstrations at several district headquarters recently. “We want this order to be revoked immediately,” said Salman Nizami, a party leader. “The order is anti-poor. It should be revoked immediately by the government. It is hitting the poor and needy people.” The party is leading protests in the Jammu region. Other Opposition parties such as the Congress, the Peoples Democratic Party and the National Conference have also staged demonstrations and mobilised public opinion against Lieutenant Governor Manoj Sinha’s administration for “weaponising” land laws against the local residents.
‘Evictions politically engineered’
The Supreme Court intervention in the Haldwani case coincided with the ongoing demolition drives in Delhi. “Despite the severe cold and fog in Delhi, officials from the Public Works Department (PWD) demolished 20 houses in Punjabi Bagh, leaving families homeless without any rehabilitation,” said Aishwarya Ayushmaan.
In the face of the Delhi Development Authority decision to demolish multiple slums across the national capital, Delhi Deputy Chief Minister Manish Sisodia, who also holds the PWD portfolio, tweeted, “PWD officials have been ordered to immediately withdraw the order to demolish slums located near Dhaula Kuan. Demolishing the houses of the poor in the cold without providing any alternate housing is not acceptable under any circumstances. The Arvind Kejriwal government will never support a decision to render people homeless.”
After the Bharatiya Janata Party (BJP) lost the Municipal Corporation of Delhi (MCD) elections to the Aam Aadmi Party (AAP) last month, the national capital has been witnessing an ugly showdown between the two parties. The AAP-led State government and the BJP-led Central government are involved in a Supreme Court battle over the governance over Delhi. Meanwhile, the AAP staged angry protests against the Ministry of Housing and Urban Affairs over the demolition drive last week, accusing the BJP of vendetta politics. The party reminded the BJP about its ‘ Jahan Jhuggi Wahan Makaan’ election eve promise, a Union government scheme that promises to set up houses where slums stand. Delhi Chief Minister Arvind Kejriwal has also accused Delhi Lieutenant Governor V.K. Saxena of “interfering” in the functioning of the Delhi government. Addressing the State Assembly, Kejriwal said: “It has become a norm for governors in Opposition-ruled States to stall the working of democratically elected governments in the country.”
Indu Prakash, a Delhi-based crusader for housing rights, is a member of a Supreme Court committee tasked with monitoring shelter homes in the national capital. “These evictions are politically engineered,” he said. “It is being done to attack minorities and the vote bank of the Opposition parties. Why are they demolishing homes in Delhi? Because the BJP didn’t get votes from the low-income groups during the recent MCD polls? In the wake of a policy deficit, the BJP has been exploiting the poor to coerce them into voting for it. The Supreme Court is the last ray of hope for the people.”
- In the past five years in India, there has been an “alarming dispossession” of the urban and rural poor, said Housing and Land Rights Network.
- “Haldwani case is an excellent opportunity for the court to clearly set out the substantive notice-and-hearing and rehabilitation-and-resettlement principles and the scope of their application,” said Supreme Court lawyer Gautam Bhatia.
- “Delhi evictions are politically engineered,” said Indu Prakash, a crusader for housing rights.