By:- Dushyant Mainali
Advocate
High Court of Uttarakhand
· The Prologue
As per the Census of India 2011, India has more than 1.7 million homeless persons, of which 938,384 are located in urban areas. After nine long years thereafter, however, it seems to be nauseatingly misjudging the real number of homeless persons at present. Civil society organizations estimate that at least one per cent of the population of urban India (about 378 million) is homeless. Based on this estimate, it can be extrapolated that the population of the urban homeless is at least three million.[1] After a thorough study of the Zonal Integrated Police Network (ZipNet) data the Housing and Land Rights Network (HLRN) has calculated that between January 2010 and 31 May 2016, at least 23,846 homeless persons have died from a multitude of reasons: infectious diseases, chronic ailments, exposure to the cold, heat, and rain, violence, sexual abuse, murder, road accidents, and drug overdose.[2]
Living beneath open sky or in makeshift arrangements without any form of refuge seriously increases the susceptibility of the homeless to maltreatments, bloodshed, injury, disease, and untimely deaths. Many of these deaths are preventable, especially if the homeless had access to adequate
housing, food, water, sanitation, and healthcare facilities. Housing being the elementary stride towards dignified living, the shelter has been considered to be the fundamental comfort a person can have. In our Indian Society the axiom “Roti Kapda aur Makan” (food, clothing and shelter) has been used to connote three bare minimum facilities, a human can have for a satisfactory life. Shelter despite being one of the three basic needs has always been in conflict with actions of the local administrative authorities in removing encroachments from public lands and demolishing unauthorized slums and housing structures by implication of force.
· Right to Shelter ; as a social right and human right in the radiance of International Covenants/ Declarations
International Covenant on Economic, Social and Cultural Rights[3] recognizes the right of all individuals to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. Article 11.1 of the ICESCR obligates on the signatory nations as:-
“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consen
Right to housing has also been recognized as a human right under the Universal Declaration of Human Rights[4]. Article 25(1) of Universal Declaration of Human Rights states as under: –
“Article 25
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
· Right to Shelter; as a Fundamental Right in judicial eyesight.
In various pronouncements, the Hon’ble Supreme Court of India has broadened the meaning of life under Article 21 of the Constitution so as to include within its realm, the right to shelter. Before discussing the principles laid down by Supreme Court of India in this regard it will be apposite to refer a recent Allahabad High Court Judgment which carries the essence of the right to shelter through the reference of various precedents which came from the Supreme Court in
last many decades. In Rajesh Yadav v. State of UP[5] decided on 01.07.2019, the Allahabad High Court has held:-
“Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India”.
The signpost Judgment of the Supreme Court, which in 2019 the Allahabad High Court considered, is more than three decades old Olga Telis & Ors. vs. Bombay Municipal Corporation & Others[6], where analyzing the rights of the pavement dwellers the Hon‟ble Supreme Court observed in para 32 of the text of the verdict, as:
“32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely,
that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation.”
Thereafter in 1990 Supreme Court dealt with facets of right to life in a civilized society in Shantistar Builders vs. N.K Totame[7] and observed as under:
“.9. Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well- built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud- built fire-proof accommodation.”
After observing about the importance of right to housing and shelter with right to life the Apex Court went further ahead and categorically held that right to life implies right to shelter and in Chameli Singh vs. State of UP[8], has held that right to life implies right to shelter. The para 8 of the judgment it held:-
“8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home 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 right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under
an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights”.
Thereafter in plethora of judgments the Supreme Court kept
on amplification of the Right to Shelter. In a summarized manner A reference can be made to:-
Ø U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd. (1996):[9]The Supreme Court affirmed that: “The right to shelter is a fundamental right, which springs from the right to residence under Article 19 (1) (e) and the right to life under Article 21.”
Ø Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors. (1997):[10] The Supreme Court directed the state to construct affordable houses for the poor.
Ø People’s Union for Civil Liberties v. Union of India and Others:[11] In this case, a series of orders were passed for ensuring food to the needy under various schemes. The case also included the issue of homelessness and resulted in several landmark orders regulating shelters for the homeless across India.
In PC Gupta Vs State of Gujarat and Ors[12], in 1994, the Court went further by holding that:-
“the right to residence and settlement is a fundamental right under Article 19(1)(e) and it is a facet of inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policy of planned development of the country and has undertaken massive housing schemes. As its part, allotment of houses was adopted, as is enjoined by Arts.38, 39 and 46, Preamble and 19(1)(e), facilities and opportunities to the weaker sections of the society of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is, therefore, imperative of the State to provide permanent housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities within their economic means so that they could make the payment of the price in easy installments and have permanent settlement and residence assured under Article 19(1)(e) and 21 of the Constitution”
Public Lands as a resource and Trusteeship of Government in scrutiny of Public trust doctrine.
If exercise of Right to shelter can be exercised is an unfettered manner and it is one of the fundamental rights then the demolitions of slums, huts and other makeshift tents on public lands can seem to be an oppression of the poor by the state at first glance.
Then the question that occurs in forethought is, if not homeless people then who owns the Public Land? Land being a resource like air, sea, forests and water being a gift of nature, should be made freely available to everyone irrespective of the status in life, this is the principle of ancient Roman origin Doctrine of Public Trust. The doctrine bids upon the Government to protect the resources as trustees for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.
Indian Room of public trust doctrine
Accommodating public trust doctrine from common law, the Indian courts have applied this in their Judgments. Articles 48A and 51A of the Constitution of India also furnish the principles of jurisprudence. Under this doctrine, the state has a duty as a trustee under Art 48A to protect and improve the environment and safeguard the forests and wildlife of the country. This also enjoins upon the encroachment free forests and wildlife habitats.
Putting it minimally the Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the reasonable use of the public. As per this Doctrine of Public Trust, the State is the trustee of all national resources which are by nature meant for public use and enjoyment. The Public at large is the beneficiary of the natural recourses including lands. The State as a trustee is under a legal duty to protect the natural resources including public lands; that says these resources including lands meant for public use cannot be converted into private ownership. This Public trust doctrine has matured from Article 21 of the Constitution of India and has been refined by the successive judicial pronouncement.
· The Catastrophe of Forced Evictions from Public Lands.
The tragedy of forced eviction of poor from the public land is widespread in India. The only documented resource in this respect is the data collected by Housing and Land Rights Network, New Delhi, with the assistance of partner organizations, reveals that government authorities, at both the central and state levels, demolished more than 41,700 homes, thereby forcefully evicting at least 202,200 (over 2 lakh) people
across urban and rural India. This is in addition to the over 260,000 people evicted in 2017, the majority of whom were not resettled by the state and thus continue to live in extremely inadequate conditions characterized by high insecurity, lack of access to basic services, precarity, and fear. Furthermore, data compiled by HLRN also reveals that at least 11.3 million people across India live under the threat of eviction and potential displacement.[13]
However, this can be said to be conservative estimate and presents only part of the real picture and scale of forced evictions in the country, as they only reflect cases known to HLRN. The actual number of people evicted and displaced in India as well as those facing the risk of eviction, therefore, is likely to be much higher
Definition of ‘Forced Eviction’
Definition of ‘Forced Eviction’ which HLRN has used in its report uses the definition of ‘forced eviction’ provided by General Comment 7 (1997)1 of the United Nations (UN) Committee on Economic, Social and Cultural Rights[14], as:
“The permanent or temporary removal against the will of individuals, families or communities from their homes or land, which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”
The apathy of lack of Sustainable focus
Across the country, a large number of communities are struggling against projects and freeing public lands that threaten to displace them from their shleters. It is ironic that forced evictions and demolitions have continued across the country despite the much talked about central government’s Pradhan Mantri Awas Yojana (PMAY) or ‘Housing for All–2022’ scheme and other state government housing programmes that claim to focus on the provision of housing for marginalized and low-income populations in urban and rural areas.
Forced evictions violate multiple human rights and have severe impacts on the affected population, both in the short-term and long-term, as well as on social justice and the nation’s development and prosperity.
Despite the severity of the nationwide crisis, the issue of forced eviction not only continues to be ignored by both state and non-state actors, but is being intensified by multiple acts of commission and omission at various levels.
· The repercussions of the Anti-encroachment & area beautification drives.
An analysis of the causes of forced evictions and home demolitions, finds that the majority occurred for reasons related to removal of houses of the urban poor, based on the perception of the state and its agencies that they are “illegal” or “encroachments.” Such “slum-clearance/anti-encroachment/city-beautification” drives, including those related to mega events and for implementation of “slum-free city” schemes, resulted in the highest number of people (over 94,000) being evicted in 2018.
Across the Nation, homes of the urban poor continue to be considered as “illegal/encroachments” by all branches of the government—the legislature, executive, and often the judiciary—and are demolished without any consideration that people have been living at those sites for decades, sometimes 40–50 years, and possess documents such as election and ration cards that validate their ‘legality’ and proof of residence. They work on improving the quality of the land, develop vibrant neighbourhoods and settlements, and contribute to the economy, but when the value of the land on which they live appreciates or when the state decides to commercially develop that land, they are considered dispensable and evicted.[15]
· Prejudiced perception of poor posing security threat & Role of Courts in Forced Evictions
Without any strong foundation a general perception amongst many middle class and wealthy groups in Indian cities is that the urban poor pose a “security threat” to wealthier residents, it is also evident in the way that the state treats them. The Indian Courts despite recognizing Right to shelter as a fundamental right, loud and clear have always impressed upon encroachment free public lands. Sometimes they care for the displaced and often they become ignorant of their troubles.
Some examples of cases in which the High Courts in India have ordered evictions and removal of people from their place of living for encroaching upon government land and hence denying the right to housing/ shelter are the following:
· Almitra Patel vs. Union of India (2000);[16]
· Navniti CGHS vs. Lt. Governor (2004);[17]
· Hem Raj vs. Commissioner of Police (2005);[18] and,
· Unnamed Girl Child of 13 Days through its Mother the Natural Guardian Noori Sameer Mujavar v. State of Maharashtra andOthers, 2016: ( In this case though recognizing the housing need of those evicted, the state was absolved of its duty and obligation to provide housing to the affected families. )
Though the Supreme Court of India and several state High Courts have, in numerous judgments, upheld the right to housing/shelter as an incontrovertible component of the fundamental right to life, various court orders and their interpretation by state authorities have always been responsible for forced eviction. As recorded by HLRN even in a single year 2018 these Court orders resulted in the eviction of over 52,000 people, including in Chandigarh, Chennai, Dehradun, Delhi, Gurugram, Jaipur, Mumbai, Patna, Prayagraj, and Srinagar, among other locations.[19]
The Madras High Court, in various cases, ordered the removal of low-income houses considered as “encroachments,” primarily for the protection and “restoration of water bodies.” The order of the Madurai Bench of the Madras High Court in W.P. (MD) 20884/2018 resulted in a drive to remove 198 identified settlements along the Panaiyur Canal, during which people protesting the eviction were arrested. In W.P. 29811/2014, the Madras High Court ordered eviction in Konnur High Road, Otteri, Chennai, resulting in the removal of 315 families that had been living there for more than 50 years and who worked in the neighbourhood as domestic workers, construction workers, drivers, rickshaw-pullers, small vendors, and tailors. Similarly, in Salem, nearly
211 houses built on the water-spread area of the Vasishta River, reportedly, were demolished, on an order of the Madras High Court. In Kallikuppam, Chennai, 213 houses were demolished for the restoration of Korattur Lake despite strong protests from residents who had been living at the site for more than 30 years. The Madras High Court, in W.P. 1294/2009, had categorically prohibited the regularization of settlements situated near water bodies such as Korattur Lake, leaving no scope for in situ rehabilitation of the residents, forcing them to relocate to sites situated on city outskirts.
The Madras High Court (W.P. 36135/2015), while supporting removal of homes of the urban poor living along water bodies in Tamil Nadu, also ordered that, “In case the encroachments are not removed even after due process of law, the authorities are at liberty to remove such of those encroachments by use of force, if need be, and in such circumstances, the police authorities shall give all necessary assistance to the authorities for removal of the said encroachments.”
In Prem Nagar, Dehradun, an order of the Uttarakhand High Court in W.P. (PIL) 47/2013 led to the demolition of 50 houses. In the order dated 18 June 2018, the Court stated that, “Towns have been reduced to the status of slum areas,” and consequently, directed the authorities to remove all unauthorized encroachments on public streets “by using its might,” including the imposition of Section 144 of the Criminal Procedure Code60 to aid the demolition process and prevent any protest. In Jaurasi, Roorkee, authorities demolished 42 houses without any notice, acting on the order of the Uttarakhand High Court in W.P. (PIL) 148/2016 to remove encroachments for widening roads in order to accommodate the rise in vehicular traffic. The eviction was carried out despite clarification from the Supreme Court of India, in S.L.P. (C) 30026–30027/2018 that protocol had to be
followed before the eviction, including issuance of adequate notice and opportunity to be heard. Similarly, in W.P. (PIL) 170/2017, the Gujarat High Court ordered the removal of all “encroachments” without any delay from the streets of Ahmedabad to ease vehicular traffic. In its order dated 7 August 2018, the Court observed that if the “encroachers” were allowed “to remain in settled possession for a long period, they may claim a semblance of right.”[20]
These are however a mere references and not conclusive list of incidents but such actions indicate the increasing criminalization of poverty and go against the foundational principles of the Indian Republic as well as the Constitution of India that guarantees everyone the right to equality and the freedom to reside in any part of the country. They also indicate the distortion of the notion of ‘public land,’ as the state that is entrusted with the protection of such land for the people continues to act against the people, by evicting them.
· Right to shelter, evictions and observance of due process.
Although most of the incidents of the forced evictions are carried out under court orders, the judiciary has also upheld the right to housing in a few progressive orders and has taken care that even an encroacher be given opportunity of being heard. For instance, in W.P. (C) 11616/2015[21], the High Court of Delhi regularly monitored the condition of people evicted in 2015 in Shakur Basti (West), Delhi, and passed orders for the provision of electricity and installation of toilets. In its final judgment of 18 March 2019, the Court strongly affirmed the right to housing as a human right, held that forced evictions without due process, including survey, notification, and resettlement are illegal, and declared that the urban poor could not be viewed as “encroachers” or illegal occupants of the land. The Delhi Court held that forced eviction without following due process established in the case of Sudama Singh Vs. Government of Delhi[22] and other relevant policies would be illegal.
It stated therein that: “Once a JJ basti/cluster is eligible for rehabilitation, the agencies should cease viewing the JJ dwellers therein as ‘illegal encroachers.’ The decisions of the Supreme Court of India on the right to shelter and the decision of Delhi High Court in Sudama Singh[23] require a Court approached by persons complaining against forced eviction not to view them as ‘encroachers’ and illegal occupants of land, whether public or private, but to require the agencies to first determine if the dwellers are eligible for rehabilitation in terms of the extant law and policy. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in the above decisions [emphasis added].”
The High Court of Delhi also affirmed the ‘right to the city’ of the urban poor, in strong contrast to judgments which presume “illegality” of urban settlements and order eviction. The Court held that:
“The ‘Right to the City’ 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. Prioritizing the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution [emphasis added].”
The Supreme Court of India, in an ongoing case (W.P.(C) 55/2003)[24], has passed a series of positive orders to safeguard the rights of homeless persons across the country. In an order dated 7 September 2018, passed in these proceedings the Court reiterated that “housing is a basic need of everybody” and required all states / Union Territories to formulate a Plan of Action for the urban homeless which would include the methodology for identification of homeless persons, nature of shelters, and identification of land.
· Conclusion
Though, as it apparently comprehensible that the Supreme Court and several state High Courts have, in numerous judgments, have upheld the right to housing /shelter as an inalienable component of the fundamental right to life, but its travesty lies in the non foresighted state actions in demolitions
without prior rehabilitation of the poor encroachers. The due process is mostly not adopted in the encroachment removal drives and housing of the poor is demolished without providing them adequate shelter which renders them homeless and displaces and vulnerable to various diseases and sufferings and infringing their Right to Shelter.
Despite all judicial spotlights, on inalienable Right to Shelter the Governments have not taken any concrete measures to address this crisis of homeless and landless people. The adequate housing is a crisis in India, due to high cost of the land rights which are inaccessible for the poor population, which precludes the approach of the human right to adequate housing for the vast majority of population. In the welfare state, course of action of drawing balance between public trust of public lands, and Right to shelter need to be re- visualized in order to respect and uphold the Right to shelter of the poor marginalization and destitute sections of the society.
******************
[1] Special Rapporteur on the Right to Adequate Housing, Housing and Land Rights Network (India)
[2] http://zipnet.in/
[3] International Covenant on Economic, Social and Cultural Rights Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 (https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx)
[4] The Universal Declaration of Human Rights proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (https://www.un.org/en/universal-declaration-human-rights/)
[5] 2019 SCC OnLine All 2555
[6] (1983) 5 SCC 545
[7] (1990) 1 SCC 520
[8] (1996) 2 SCC 549
[9] (1996) AIR 114 1995 SCC.
[10](1997) 11 SCC 121.
[11]People’s Union for Civil Liberties v. Union of India, W.P. (C) No. 196 of 2001.
[12] JT 1995 (2) 373
[13] Forced Evictions in India in 2018: An Unabating National Crisis, Housing and Land Rights Network, New Delhi, 2019
[14] The right to adequate housing (Art.11.1): forced evictions : . 20/05/97. CESCR General comment 7. (General Comments) (https://www.refworld.org/docid/47a70799d.html)
[15] Ibid 13
[16] (2000) 2 SCC 679.
[17] WP (C) 5697/2002, High Court of Delhi, August 2004.
[18]WP (C) 3419/ 1999, High Court of Delhi, 14 December 2005.
[19] Ibid 13
[20] For Reference Official websites of the respective High Courts (ecourts.gov.in)
[21] ecourts.gov.in
[22] (2010) 168 DLT 218 (DB))
[23] supra
[24] E.R. KUMAR vs. UNION OF INDIA (https://sci.gov.in/case-status)