In a laudable judgment, the Delhi High Court has recognised that the right to shelter has to be protected by courts, and pulled up the DDA for rendering people homeless with bulldozers in midnight demolitions

Over the past few decades, there has been a paradigm shift in the understanding of slum dwellers and their rights. From being viewed as illegal occupants without any rights, they are now seen as people with rights and entitled to shelter by the government.
This view was recently acknowledged by the Delhi High Court which ruled that the Delhi Development Authority (DDA) cannot evict alleged encroachers from their residence with a bulldozer at their doorstep early in the morning or late in the evening without any notice, rendering them completely shelterless.

The Court of Justice Subramonium Prasad was dealing with a plea filed by a union comprising residents of Jhuggi Jhopri Bastis (JJ Bastis) and slums of Delhi’s Shakarpur district. They alleged demolition of several jhuggis in the district by DDA officials in June last year without any prior intimation. It was stated in the plea that the demolition lasted three days and many of the people whose jhuggis were demolished could not even collect their belongings.

It was contended in the petition that the slum in question had been in existence since 1980 and that the residents were mainly labourers, rag pickers, rickshaw pullers, auto drivers and domestic workers, all of whom were migrants from Bihar, Uttar Pradesh and Bengal.

Alleging that JJ Bastis in the area were entitled for rehabilitation and relocation in accordance with the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015, the plea sought suspension of further demolition activities. It also asked for maintaining the status quo at the demolished site until all residents were surveyed and rehabilitated as per the Delhi Urban Shelter Improvement Board (DUSIB) policy.

It further sought a direction to DUSIB to conduct a survey of the affected residents and rehabilitate them in accordance with the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015.

At the outset, the apex court, in a catena of judgments, including M/s Shantistar Builders vs Narayan Khimalal Totame (1990) and Chameli Singh vs State of UP (1996) recognised that the right to life is not a right to mere animal existence. Also, the right to housing or a reasonable residence is an indispensable necessity for fulfilling the constitutional goal in the matter of development of man and should be taken as included in “life” in Article 21.
Furthermore, in Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan, (1997), the Court noted that even poverty stricken persons on public land have a fundamental right to housing. The Court held that when slum dwellers have been at a place for some time, it is the duty of the government to make schemes for housing them.

The Delhi High Court recognised that the right to shelter is a right which has to be protected by courts, especially for those who will have no place to go with their family and belongings if faced with midnight demolitions. The Court in Sudama Singh & Ors vs Government of Delhi & Anr (2010) directed the state government to formulate a comprehensive protocol to ensure that persons who have encroached on government lands are not rendered shelterless and to chalk out a rehabilitation policy to rehabilitate them.

“It is not uncommon to find a jhuggi dweller, with the bulldozer at the door­step, desperately trying to save whatever precious little belongings and documents they have, which could perhaps testify to the fact that the jhuggi dweller resided at that place,” observed the Court in its decision in Sudama Singh.

“It cannot be expected that human beings in a jhuggi cluster will simply vanish if their homes are uprooted and their names effaced from government records. They are the citizens who help rest of the city to live a decent life they deserve protection and the respect of the rights to life and dignity which the Constitution guarantees them,” the Court added.

Additionally, the apex court in Gainda Ram vs Municipal Corporation of Delhi (2010), reiterated that the poor who come to the city for work must reside reasonably close to their place of work. It said that these basic legal requirements in dealing with jhuggi jhopri dwellers cannot be given a go-by the central government in relation to slums on land of the central government.

Following this, the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015, was formulated, laying down a framework following the decision in Sudama Singh which had to be followed by concerned authorities in case of eviction of slum dwellers. The DUSIB was made the nodal agency for rehabilitation of persons living in JJ clusters. Parameters were laid down as to who would be entitled to the benefit of the DUSIB Policy.

Later in 2019, the Delhi High Court in Ajay Maken vs Union of India (2019), held that slum dwellers whose houses had been demolished were entitled to adequate housing. Invoking the idea of the “Right to the City (RTTC)” to uphold the housing rights of slum dwellers, the Court held that RTTC was an extension and elaboration of the core elements of the right to shelter and helps understand the broad contours of that right.

“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,” observed the Court in its 2019 judgment.

Relying on the decision in Sudama Singh and other cases, Justice Prasad, in the present case, noted: “The action of DDA in removing a person, whom they claim to be an encroacher, overnight from his residence, cannot be accepted. The DDA has to act in consultation with the DUSIB before embarking upon any such venture and persons cannot be evicted with a bulldozer at their door step early in the morning or late in the evening, without any notice, rendering them completely shelterless.” He added: “A reasonable period has to be given to such persons and temporary location has to be provided to them before embarking on any demolition activities.”

Justice Prasad disposed of the petition while directing the DDA to carry out further demolition only in consultation with the DUSIB. The DDA was further directed to give sufficient time to the dwellers to make alternate arrangements or, alternatively, steps should be taken to accommodate them in shelters provided by the DUSIB for three months so that they are able to find some alternate accommodation.

—By Banshika Garg and India Legal Bureau

A Public Interest Litigation (PIL) has been filed in the Supreme Court seeking direction to the Central Government to frame stringent and effective rules regulations and guidelines to control population explosion in order to secure the important fundamental rights viz. right to clean air, right to clean water, right to health, right to peaceful sleep, right to shelter, right to livelihood, right to education, and right to dignity.  

The PIL filed by Social Activist Amber Zaidi through Advocate Ashwani Kumar Dubey also seeks direction to the Center to ascertain the feasibility of making Two-Child Norm as a mandatory criterion for government jobs, aids, subsidies, right to vote, right to contest, and right to free shelter, etc and to declare First Sunday of every month as ‘ Population Control Day in place of ‘ Polio Day ‘ to spread awareness on population explosion and provide contraceptive pill, condoms, vaccines, etc. to EWS and BPL families, with polio vaccines.  

In the alternative, the PIL seeks direction from the Law Commission of India to examine population control laws and policies of the developed countries and prepare a comprehensive report within three months.

According to the Petition,  on 12.12.2020   in a written reply in Top Court, Health Ministry said that the Center is against forcing family planning and won’t take coercion action. It is necessary to state that “Population Control and Family Planning” is part of List – III of Seventh Schedule ( Entry 20A ) hence Center can make stringent rules – regulations to control population explosion but it has not taken appropriate steps to enact a stringent law till date.  

The Petitioner submitted that the injury caused to citizens’ particularly women is extremely large.  The perils of population explosion on the economy and its ramifications are often discussed.  But, the impact that repeated childbearing has on a woman is seldom highlighted outside the niche areas.  

“Incidence of grand multiparity, which is defined as more than 4 viable births, in developing countries like India is 20 % while it is only 2 % in developed countries.  The ill effects of repeated pregnancies both on the women and the newborns are devastating.  In India, malnutrition – anemia is rampant in expecting mothers. This becomes worse with repeated pregnancies jeopardizing their health and leading to further adverse pregnancy outcomes.  There is an increased risk of abortions also in such mothers.  Mothers become more prone to infections with repeated pregnancies”, the Petition alleged.

It is argued that the risk of complications during delivery such as cord prolapse, post-dated pregnancy, labor induction, instrumental deliveries, assisted vaginal deliveries and cesarean sections are also higher.  Grand multiparity is itself a risk factor both for antepartum hemorrhage that is bleeding before the onset of labor and postpartum hemorrhage, which is increased bleeding after childbirth.

The Petition stated that such women also suffer from more genital tract injuries including rupture of the uterus sometimes leading to hysterectomy ( surgical removal of the womb ).  Overall it results in mothers having a longer stay in the hospital, more blood transfusions, more frequent admissions to Intensive care units ( ICU ), and even increased deaths.  The harmful effects of multiple pregnancies are seen not only in mothers but also in babies who are born to such mothers.  These babies may be premature, or of low birth weight ( < 2.5 kg ), and may have poor outcomes as indicated by low “Appearance, Pulse, Grimace Activity, and Respiration.” (APGAR0  score.  

“Sometimes they have a large fetal size that leads to increased birth trauma.  There is also an increased incidence of congenital anomalies in such babies.  More newborns need admissions to ICU arising due to fetal distress, abnormal CTG, or sometimes even stillbirths and increased perinatal mortality “, said the Petition

It is highlighted in the PIL that the deleterious effects of multiple pregnancies are not only limited to the said medical conditions.  These women spend the most productive – active years of their lives performing the task of childbearing and breastfeeding.  With a lesser number of children, they can pursue their hobbies, dreams and may be able to move towards a better quality of life.  A decreased pregnancy load would not only help them achieve their full potential but can also lead to the upliftment of their families.  

The Petitioner mentioned that In order to maintain a higher standard of living people prefer to have a small family.  According to the survey, those who earn less than Rs.  100 per month have on average a reproduction rate of 4 children and those earning more than Rs.  300 per month have a reproduction rate of 3 children._Self – control is the best powerful method to control the population.  It is an ideal and healthy approach and people should be encouraged to follow._It helps in reducing the birth rate.  This method implies family by choice and not by 1 chance.  By applying preventive measures, people can regulate the birth rate.  This method is being used extensively;  The success of this method depends on the availability of cheap contraceptive devices for birth control.  The birth rate will likely to fall if there are different recreational facilities – cinema;  theater, sports, dance, etc. are available to people.

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“It is indeed heartening that India’s population growth has come down.  However, a strong and effective population control law on the lines of China is the need of the hour.  More emphasis needs to be laid on women’s education and health.  They are the foundation for future generations.  If they are physical – mentally fit, confident independent, they can bring a paradigm change in the society”, read the Petition.

It is pertinent to note that in June last this year a Public Interest Litigation has been filed in the Apex Court by Firoz Bakht Ahmed, Chancellor of Maulana Azad National Urdu University, seeking direction to the Union of India to frame effective rules regulations, and guidelines to control population explosion and to ascertain the feasibility of making Two-Child Law as a criterion for government jobs, aids and subsidies, right to vote, right to contest, right to property, right to free shelter, etc.

Earlier, the Supreme Court has allowed a plea to make the Ministry of Health and Family Welfare a party to a PIL that has sought certain steps, including the two-child norm, to control the country’s growing population. A bench of Justice Sanjiv Khanna passed the directions on May 7 on the plea filed by BJP leader and lawyer Ashwini Kumar Upadhyay.