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Above: The 2011 Census estimated the population of Delhi in slums at 17,85,390, more than half of whom live in unidentified slums/Photo: Anil Shakya

In a progressive order, the Delhi High Court has said that “forced eviction” of slum dwellers is unconstitutional as they have “the right to adequate housing” and courts are duty-bound to realise these objectives

By Prof Upendra Baxi

One of the many ways in which the habit of power to rule over others assumes is in the form of allocation of space. From the standpoint of justice, a radically defective society is one where the social space to live and work is produced, distributed, exchanged and consumed unequally.

The whole world, according to Professor Mike Davis, an American writer and political activist, is fast becoming a “planet of slums” owing to heedless and headlong urbanisation. This is largely due to the “neoliberal restructuring of Third World urban economies that has occurred since the late 1970s”, “middle-class hegemony”, “petty landlordism”, “soft imperialism”, “elite homeowners”, NGOs which, he claims, are “captive to the agenda of international donors, and grassroots groups similarly dependent upon international NGOs”. Whether or not we agree with the tableau of social causes, it is sadly true that Indian development has made its own contribution to the growth of the “planet of slums”.

The ways in which “slums” are produced in urban places provide a major index of the deepening inequality. The 2011 Census estimated the population of Delhi in slums at 17,85,390, of which 7,38,915 lived in notified slums and 10,46,475 in unidentified slums. This pliable categorisation of “slums” de-sensitises us to the social reality of how people live in conditions unfit for human beings.

Overall, the population in India inhabiting slums is more than 6.5 crore. Those inhabiting ‘‘notified slums” were over 2.25 crore, those in “recognised slums”, 2.01 crore and those in “identified slums”, 2.28 crore. Many of us saw the movie Slumdog Millionaire and were momentarily moved by the conditions in which co-citizens live, but we also see slums as a necessary evil producing informal labour on which denizens of a city live and thrive.

We revel in governance styles that promote city beautification by periodic slum demolition drives and congratulate resident welfare associations who approach the courts for rapid demolition. And some judicial orders, giving a green signal to this, are so unconstitutionally perverse as to lead some commentators to condemn the entire process of social action litigation as genetically coded towards judicial arbitrariness.

But it must be remembered that the Indian Constitution primarily assigns the constitutional responsibility to rectify social inequalities and inequities to the legislatures and the executive. It is only in recent decades that courts have heroically stepped in to impress upon the state that fundamental human rights do indeed matter in constitutional good governance of the nation.

In a trailblazing decision on February 11, 2010, then Chief Justice AP Shah and Justice S Muralidhar of the Delhi High Court decided, in Sudama Singh, that slum dwellers in Delhi, who at the time of their settlement had no intention or knowledge that they would in future be obstructing the Right of Way, may not be forcefully evicted from the land they occupy unless given an alternate accommodation.

The Court insisted that “jhuggi dwellers should not be treated as ‘secondary citizens’” and that it was the “State’s constitutional and statutory obligation to ensure that if the jhuggi dweller is forcibly evicted and relocated, such jhuggi dweller is not worse off”. Evictions which “may turn out to be a method of brutal state-control” are a far cry from the promises of progressive realisation of the socio-economic rights our Constitution guaranteed 70 years ago. Mindless urbanisation should put the courts on vigilance and they must ensure “that those who are evicted and relocated have a reasonable opportunity of accessing adequate housing within a reasonable time”. Accordingly, they declared that “it is the State‘s constitutional and statutory obligation to ensure” that no jhuggi dweller is forcibly evicted and relocated and that (those to be evicted) have a right to a “meaningful engagement” with relocation plans.

Such engagement to be “meaningful” (the doctrine has travelled from the South African Constitutional Court to the shores of India) has to be conducted either at the “time when all the members of the family are likely to be found or by undertaking repeated visits over a period of time with proper prior announcement”. Further, the availability of documentary proof “of residence crucial to establishing the jhuggi” is important. Hence, “snatching away” or “destruction” of such documents during the demolition may itself amount to denial of the right to housing. And only strong reasons may gainsay in situ relocation.

These progressive principles were again reiterated by Justices Dr S Muralidhar and Vibhu Bakhru in Ajay Maken vs Union of India on March 18, 2019, while deciding the ongoing contention between denizens of Shakur Basti and various official agencies. Recalling that “forced eviction” is unlawful and unconstitutional, they held 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”. The iteration of right to adequate housing is momentous; so is the new emphasis on the Right to the City (RTTC), a recent concept developed by UNESCO. The judicial creativity here is of a high order: note that the Court relates the right to housing to all related facets of access and integrates the rights to acquisition and maintenance of capacities (and flourishing, to complete the conception of Amartya Sen).

The Court accepts my viewpoint that RTTC constitutes “a right not in the sense of liberty but in the sense of power; it is an individual as well as collective or common right; it is a right to call for, or achieve, change in our living spaces and ourselves. However, the ‘we-ness’ for transformation is not a given but has to be constructed, forged, or fabricated if only because those who wield economic, social, and political dom­ination aspire always towards fragmentation of the emergent we-ness”. What is more, it accepts the idea that the RTTC “is a right ‘to struggle for maintaining critical social solidarities’” (See Upendra Baxi’s “A Philosophical Reading of the Right to City” in Urban Policies and the Right to the City in India: Rights, Responsibilities and Citizenship, UNESCO, 2011, 17).

The Court thus recognises implicitly a constitutional right to struggle; this right is to be exercised peacefully against eviction ordered by various authorities and the right to move the Court. The struggle is for the right against unjust and unfair evictions and with various facets of access to housing rights of the urban impoverished. The Court is duty-bound to so proceed as to realise these objectives.

The decision is so monumentally basic that it must be nationally binding. But because “land” is a state subject, one may proceed to read this case narrowly and maintain that technically, decisions of a High Court extend to the territory of the state concerned and are at best of persuasive value for other High Courts. It is true that this is a Delhi case concerned with its slum population. And the Court had before it the history of Delhi’s policy and law.

Indeed, an SLP was filed by the Union of India but it was withdrawn on July 31, 2013. Besides, in an order of December 16, 2014, the Supreme Court expanded the ambit of persons who can come before the High Court to challenge eviction even if not directly mentioned in Sudama Singh. And the 2015 policy applicable to Delhi explicitly acknowledges that decision. So did the Supreme Court decision in Government of NCT Delhi vs Union of India (2016).

It would be strange if the decision were to be read this way to be decisively binding only for Delhi. Indeed, a case can be made that it is a binding law on all courts under Article 141 of the Constitution. And in any case, a peaceful exercise of this right is assured by Article 19’s rights (freedom of speech and expression and right to association and assembly), and Article 21’s rights to life and liberty throughout India. And it would be very odd if a constitutional right to struggle were to be limited to the territory of Delhi. The RTTC may not be thus restricted.

Like Delhi, there exists in almost all states, a plethora of agencies that decide on slum conditions and evictions. The Delhi High Court names and enumerates the “multiplicity of agencies” which have the power to evict the slum dwellers. The Delhi Urban Shelter Improvement Board Act, 2010, is admittedly the most recent law, but there are others. Important players also include actors such as the railways and the central government. The Court finds a constitutional flaw with different “land owning agencies” who command vast powers over landless slum dwellers.

Exemplary are the ways in which the devices of interim orders and decisions have been deployed by the Court to secure a grudging executive compliance with judicial directions. Indeed, in the spirit reminiscent of the founding charismatic days of social action litigation, the Court has shown the virtues of how the human “right to have rights” (to evoke a poignant phrase of American philosopher and political theorist Hannah Arendt) can be served by a non-adversarial dialogue between the executive and adjudicatory power.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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