8 Sep 2020 1:45 PM GMT
In August 2020, a three-judge bench of the Supreme Court of India ordered removal of 48000 slum dwellings that were around a 140-km railway track in Delhi without providing for any rehabilitation scheme (henceforth called the "Supreme Court Order"). They were ordered to be removed as they were considered to be in the Railway safety zone. The order asks the stakeholders to come up with...
In August 2020, a three-judge bench of the Supreme Court of India ordered removal of 48000 slum dwellings that were around a 140-km railway track in Delhi without providing for any rehabilitation scheme (henceforth called the "Supreme Court Order"). They were ordered to be removed as they were considered to be in the Railway safety zone. The order asks the stakeholders to come up with a comprehensive plan for removal of the slums within just three months. In the middle of a pandemic, this judgment puts many people at an increased risk.
People living in slums, jhuggis, pavements etc. make important economic contributions towards a city like Delhi. They fill a gap in the supply of labour and contribute to the overall economic development of the city. Protecting their right to housing, shelter and livelihood also plays an important economic function in addition to being a basic human right.
A 2020 report by Housing and Land Rights Network has recorded 45 incidents of forced eviction across India during the COVID-19 pandemic. According to the report, the conservative estimate of forced evictions in 2019 was 22,247 which affected 107,625 people. Forced evictions violate the internationally recognized right to adequate housing and multiple other human rights. They also violate our national legal position on the right to livelihood that has been recognized as part of the right to life and personal liberty (Article 21).
In the well-known Olga Tellis case, a five-judge bench of the Supreme Court of India recognized that for slum-dwellers, forced evictions mean loss of livelihood which is part of Article 21. This case did not find a mention in the August 2020 order of the Supreme Court. Olga Tellis case would be binding on account of its judgment being delivered by a five-judge bench of the Supreme Court.
Problems with the Supreme Court Order
One of the major problems with the August 2020 Supreme Court Order is lack of consultation or representation of the slum dwellers. The fundamental/human rights of a group of people have been violated without even giving them a hearing in the case.
The second major problem with the judgment is that it does not mention rehabilitation of slum dwellers anywhere. In 2010, the Delhi High Court while recognizing the "right to shelter", asked for the petitioners (jhuggi dweller) to be considered for relocation under existing schemes. Last year also, the Delhi HC had held that forceful eviction of slumdwellers, without making provisions for their rehabilitation, was unconstitutional.
A similar direction in the August 2020 Supreme Court Order was vital for protection of the rights of the slum dwellers. The authorities should have been directed to conduct a survey of the residents and to provide for an effective rehabilitation scheme for them. Efforts must be made to relocate them as near to the existing site of the slums, as possible. There should be public transportation available from the new site to their common work areas.
The Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015 (by Delhi Urban Shelter Improvement Board) had provided for the procedure for rehabilitation of JJ Bastis in Railway safety zones. They had given a period of 6 months for relocation of the JJ Bastis, and the clearance and handing over of the land. While the Supreme Court of India has given 3 months to the authorities. The importance of notice before forced evictions is self-evident. The authorities have often been callous about giving notice and have razed slums to the ground without adequate notice.
Although Olga Tellis did talk about right to livelihood, there have been decisions by the Court that have gone against the concept. One of such cases is Almitra Patel case where the Court gave precedence to pollution control and had cast considerable shame on the slum dwellers considering them as illegal occupants of public land.
The scorn, disdain and dismissive attitude of the Court in Almitra Patel case was also followed in other cases including the order being discussed. Our civic sense or protection of public property cannot come t the cost of the fundamental and human rights of slum dwellers. If the problem is the environment, then provide better sanitation facilities. If we want to protect public land, then let's provide them with adequate substitute housing.
The Supreme Court Order also ignores the Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015. In absence of clear jurisprudence, such policies play an important role. This case shows the need for a comprehensive policy at Central as well as State levels that deals with forced evictions for their respective public lands. These policies should follow the best practices set by the United Nations Special Rappoteur on adequate housing such as appropriate notice, public review and hearings, presence of neutral observers during eviction, rehabilitation and compensation etcetera. The Courts should consider such policies while passing their judgments. Alternatively, they should develop sound jurisprudence to protect the rights of slum dwellers in cases of forced evictions.
Views are personal only.
 LiveLaw News Network. (2020, September 3). SC Orders Removal Of 48,000 Slum Dwellings Around Delhi Rail Tracks In 3 Months; Stops Courts From Granting Stay. Accessed September 5, 2020. https://www.livelaw.in/top-stories/sc-orders-removal-of-48000-slum-dwellings-around-delhi-rail-tracks-in-3-months-stops-courts-from-granting-stay-162324
 Housing and Land Rights Network. 2020. Forced Evictions in India in 2019: An Unrelenting National Crisis. (ISBN: 978-81-935672-8-9). https://www.hlrn.org.in/documents/Forced_Evictions_2019.pdf
 Olga Tellis & Ors vs Bombay Municipal Corporation & Ors. Etc., 1986 AIR 180.
 Sahgal, Rishika. (2020, September 5). The Supreme Court's Eviction Order Ignores the Rights of Jhuggi Dwellers. Indian Constitutional Law and Philosophy. https://indconlawphil.wordpress.com/2020/09/05/guest-post-the-supreme-courts-eviction-order-ignores-the-rights-of-jhuggi-dwellers/
 Almitra H. Patel And Anr. vs Union Of India And Ors. (1998) 2 SCC 416.
 2007. Basic Principles And Guidelines On Development based Evictions And Displacement: Annex 1 of the report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living. (A/HRC/4/18). https://www2.ohchr.org/english/issues/housing/docs/guidelines_en.pdf