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What Is 'Right To The City' Discussed By Delhi High Court?

Manu Sebastian
20 March 2019 4:47 PM GMT
What Is

The Court discussed this Right while ordering against forceful, unannounced eviction of slum dwellers.

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In the judgment passed by Delhi High Court on Tuesday against forceful dispossession of slum dwellers, the concept of 'Right To The City' was discussed.

As mentioned in the judgment, the foundation of this concept was laid in the Istanbul Declaration on Human Settlements made at a Istanbul, Turkey in 1996. There were two major themes at that conference: adequate shelter for all and sustainable human settlement development in an urbanising unit.

The policy paper of the 'New Urban Agenda'  unanimously adopted at the United Nations Conference on Housing and Sustainable Urban Development (Habitat III) in Quito, Ecuador on 20 October 2016, defined Right To The City as :

The right to the city is…defined as the right of all inhabitants present and future, to occupy, use and produce just, inclusive and sustainable cities, defined as a common good essential to the quality of life. The right to the city further implies responsibilities on governments and people to claim, defend, and promote this right.

The policy paper also sets out a non-exhaustive list of components that ensure the "city as a common good', as below:

(a) a city free of discrimination; (b) a city of inclusive citizenship; (c) a city with enhanced political participation in all aspects of urban planning; (d) a city ensuring equitable access for all to shelter, goods and services; (e) a city with quality public spaces for enhancing social interaction; (f) a city of gender equality; (g) a city with cultural diversity; (h) a city with inclusive economies; and, (i) a city respecting urban-rural linkages, biodiversity and natural habitats.

In the context of Delhi, the Court said that Right To The City(RTTC) acknowledged that slum dwellers contribute to the social and economic life of the city.

"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 and to its obligations flowing from the ICESCR and the Indian Constitution", observed the judgment of the division bench of Justices  Muralidhar and Vibhu Bakhru.

The RTTC is an extension and an elaboration of the core elements of the right to shelter and helps understand the broad contours of that right, explained the judgment authored by Justice Muralidhar.

Seen from this perspective, slum dwellers are not treated as encroachers or illegal occupants but as a populace supporting the existence and growth of the city, who are forced to live in pitiable conditions owing to the failure of the State to provide adequate shelter.

"The right to housing is a bundle of rights not limited to a bare shelter over one's head. It includes the right to livelihood, right to health, right to education and right to food, including right to clean drinking water, sewerage and transport facilities", expounded the Court.

It further said :

"The law explained by the Supreme Court in several of its decisions discussed hereinbefore and the decision in Sudama Singh discourage a narrow view of the dweller in a JJ basti or jhuggi as an illegal occupant without rights. They acknowledge 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. They recognise such persons as rights bearers whose full panoply of constitutional guarantees require recognition, protection and enforcement".

The ruling was given in a PIL  by Congress leader Ajay Maken, which was filed in the wake of forced eviction of nearly 5000 slum dwellers at Shankur Basti in Delhi on December 12, 2015. Many of them claimed that they had lived there for two decades.

Right to housing in South African Constitution

The judgment made extensive reference to the right to housing recognized in South African Constitutional jurisprudence.

South African Constitutional Court refused to rigidly separate civil and political rights from socio-economic rights. It observed that the mere fact that socioeconomic rights have budgetary implications "is not an automatic bar to the justiciability".

It explained that the model of judicial enforcement of socio-economic rights was premised on "negative constitutionalism" i.e. ensuring that the actions of the State do not interfere with people's liberties. It held that effective protection of socioeconomic rights entails imposing a duty on the State to refrain from interfering with people's existing access to socio-economic resources.

The South African Constitutional Court held that Court should become a democratic space for 'meaningful engagement' with affected parties.

"The State is obliged to take into confidence the affected groups about the schemes for rehabilitation it proposes for them and is prepared to review and re-shape them based on their inputs", it held.

Taking a cue from this, the Delhi High Court held that the affected parties must be engaged in respect of decisions regarding resettlement of slum-dwellers.

The court said before carrying out an eviction drive, the authorities will have to conduct detailed survey, draw up a rehabilitation plan in consultation with the dwellers in the jhuggi- jhopri- bastis and ensure that after eviction they are immediately rehabilitated.

"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...," said the bench.

(Image sourced from here)

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