05, Oct 2021 | CJP Team
While the law and jurisprudence have created obstructions, there are instances where the Courts have stepped in to protect and emphasise the right to live without forced evictions and the right to housing. In wake of the forced evictions and killings in Assam, perhaps it is time to take a closer look at these rights.
Rights against Eviction, Right to Housing
- Way back in 1981, in Francis Coralie vs. Union Territory of Delhi, the Supreme Court had stated: We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow beings…Every act which offends against or impairs human dignity would constitute deprivation protanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.
- The 1985 Olga Tellis vs. Bombay municipal Corporation created seminal jurisprudence on the issue. The court had stalled the eviction of pavement dwellers in Mumbai during monsoons.
“We are of the opinion that the petitioners should not be evicted from the pavements, footpaths or accessory roads until one month after the conclusion of the current monsoon season, that is to say, until October 31, 1985. In the meanwhile, as explained later, steps may be taken to offer alternative pitches to the pavement dwellers who were or who happened to be censused in 1976. The offer of alternative pitches to such pavement dwellers should be made good in the spirit in which it was made, though we do not propose to make it a condition precedent to the removal of the encroachments committed by them.”
“The forcible eviction of squatters, even if they are resettled in other sites, totally disrupts the economic life of the household. It has been a common experience of the administrators and planners that when resettlement is forcibly done, squatters eventually sell their new plots and return to their original sites near their place of employment. Therefore, what is of crucial importance to the question of thinning out the squatters’ colonies in metropolitan cities is to create new opportunities for employment in the rural sector and to spread the existing job opportunities evenly in urban areas. Apart from the further misery and degradation which it involves, eviction of slum and pavement dwellers is an ineffective remedy for decongesting the cities.”
The court, while recognising the illegal nature of the encroachments observed that the encroachments committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. “Trespass is a tort. But, even the law of Torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate to the occasion and, what is even more important, the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him.”
- In 1995,P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, the Supreme Court held that the right to shelter has been held to be a fundamental right which springs from the right to residence secured in article 19(1)(e) and the right to life guaranteed by article 21 to make this right meaningful to the poor, the state has to provide facilities and opportunities to build houses.
- Again, in 1995, in G. Gupta v. State of Gujarat and others, the Supreme Court ruled that the right to shelter in Article 19(1)(g) read with Articles 19(1) (e) and 21 included the right to residence and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life.
- Chameli Singh And Others Etc. vs State Of U.P., 1996
“8…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 to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be 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.”
“10. At the close of the international year the General Assembly received and noted in Resolution No. 42/191 the reports of the Executive Director of the U.N. center for Human Settlement entitled “Shelter and services for the poor – a call to action”. It recognised that adequate and secure shelter is a basic human right and is vital for the fulfilment of human aspirations and that a squalid residential environment is a constant threat to health and to life itself, thereby constituting a drain on human resources, a nation’s most valuable asset.”
“17. Providing house sites to the Dalits, Tribes and the poor itself is a national problem, and a constitutional obligation. So long as the problem is not solved and the need is not fulfilled, the urgency continues to subsist. The State is expending money to relieve the deplorable housing condition in which they live by providing decent housing accommodation with better sanitary conditions. The lethargy on the part of the officers for pre and post-notification delay would not render the exercise of the power to invoke urgency clause invalid on that account.”
- Here too the Court had recognised the right to receive notice and ruled against forcible evictions. 1997, Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan & Ors:
“The Constitution does not put an absolute embargo on the deprivation of life or personal liberty but such a deprivation must be according to the procedure, in the given circumstances, fair and reasonable. To become fair, just and reasonable, it would not be enough that the procedure prescribed in law is a formality. It must be a pragmatic and realistic one to meet the given fact-situation. No inflexible rule of hearing and due application of mind can be insisted upon in every or all cases. Each case depends upon its own backdrop. The removal of encroachment needs urgent action. But in this behalf what requires to be done by the competent authority is to ensure constant vigil on encroachment of the public places.”
“…On the other hand, if the Corporation allows settlement of encroachers for a long time fore reasons best known to them, and reasons are not far to see, then necessarily a modicum of reasonable notice for removal, say two weeks or 10 days, and personal service on the encroachers or substituted service by fixing notice on the property is necessary.”
The SC had directed the state to construct affordable houses for the poor: “The State has the constitutional duty to provide shelter to make the right to life meaningful”.
- In 2005, in Mala Pentamma v. Nizamabad Municipality [W.P. 15581/2005], the High Court of Hyderabad had held that: “It is a settled position of law that even for removal of encroachment, the encroachers are entitled to notice and without following due process of law, as contemplated under the provisions of A.P. Land Encroachment Act, they cannot be evicted. Therefore, the contention of the respondent Corporation that they are not duty bound to issue notice to the petitioner, does not hold water and shows their high handed behaviour.”
- In 2010, in Sudama Singh & Others vs Government Of Delhi discussing the Master Plan for Delhi (MPD) – 2021 envisages rehabilitation or relocation of the existing squatter settlement/jhuggi dwellers. It provides for relocation of the jhuggi dwellers if the land on which their jhuggies exist is required for public purpose, in which case, the jhuggi dwellers should be relocated/resettled and provided alternative accommodation. It also provides that resettlement whether in the form of in-situ upgradation or relocation should be based mainly on built-up accommodation of around 25 sq.mtrs. with common facilities.
“52…When the petitioners set up their jhuggies several decades ago there was no road. It may be that in some layout plan the land was meant for a road but when they started living there, they could not anticipate that the land will be required in future for a road or for the expansion of an existing road. As long as they were not on an existing road, they cannot be denied the benefit of rehabilitation/relocation. The denial of the benefit of the rehabilitation to the petitioners violates their right to shelter guaranteed under Article 21 of the Constitution. In these circumstances, removal of their jhuggies without ensuring their relocation would amount to gross violation of their Fundamental Rights.”
“57. This Court would like to emphasise that the context of the MPD, jhuggi dwellers are not to be treated as „secondary‟ citizens. They are entitled to no less an access to basic survival needs as any other citizen. It is 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. The relocation has to be a meaningful exercise consistent with the rights to life, livelihood and dignity of such jhuggi dweller.”
“60. The further concern is the lack of basic amenities at the relocated site. It is not uncommon that in the garb of evicting slums and „beautifying‟ the city, the State agencies in fact end up creating more slums the only difference is that this time it is away from the gaze of the city dwellers. The relocated sites are invariably 30-40 kilometers away from a city centre. The situation in these relocated sites, for instance in Narela and Bhawana, are deplorable. The lack of basic amenities like drinking water, water for bathing and washing, sanitation, lack of access to affordable public transport, lack of schools and health care sectors, compound the problem for a jhuggi dweller at the relocated site. The places of their livelihood invariably continue to be located within the city. Naturally, therefore, their lives are worse off after forced eviction.”
- Again in 2015, in Ajay Maken v. Union of India , the Delhi High Court emphasised that evictions conducted without adhering to due process would be considered illegal. The Court held that: … conducting a detailed survey prior to the eviction; drawing up a rehabilitation plan in consultation with the dwellers in the JJ bastis and jhuggis; ensuring that upon eviction the dwellers are immediately rehabilitated – will all have to be adhered to prior to an eviction drive. Forced eviction of jhuggi dwellers, unannounced, in coordination with the other agencies, and without compliance with the above steps, would be contrary to the law [emphasis added].”
The court also held, “141. 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.
“142. 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. That is the running theme of the DUSIB Act and the 2015 Policy.
“143. 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 this Court in Sudama Singh 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.”
India’s National Urban Housing and Habitat Policy 2007: This policy talks about affordable housing for all with special emphasis on vulnerable sections of society such as Scheduled Castes / Scheduled Tribes, Backward Classes, Minorities and the urban poor. The Policy also seeks to ensure equitable supply of land, shelter and services at affordable prices. It gives preference to provision of shelter to the urban poor at their present location or near their workplace, and also adopts an approach of in situ (on site) rehabilitation.
Rajiv Awas Yojana (announced in 2009) (today PM Awas Yojana)
Rajiv Awas Yojana (RAY) is a national scheme of the Ministry of Housing and Urban Poverty Alleviation that intends to build a slum free country while providing shelter and basic services to the urban poor. The scheme is being implemented in 20 states across the country, in different ways. The Rajiv Awas Yojana Guidelines 2013-2022 list the major components and operationalisation elements of the scheme. While RAY has the potential to improve housing conditions for the urban poor through in situ (on site) upgrading and the provision of legal security of tenure, it is important that state governments work to ensure that RAY does not, in any way, facilitate evictions and the takeover of public land for private profit.
Finally, we have Protection of Human Rights Act (PHRA), 1993: The Act marked the Indian state’s readiness to assume responsibility for realizing human rights of all its citizens in accordance with the Vienna Declaration, where it is stated (Part I, Paragraph 1) that, “human rights and fundamental rights are the birthright of all human beings; their protection and promotion is the first responsibility of Governments”. In Section 2 (d) the Act provides a definition for human rights: human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.
Evictions avoided by courts during the pandemic
After the brutal destruction of homes of migrant labourers in Bengaluru during the lockdown, the High Court of Karnataka took suo moto cognizance of the matter. The Court held that the demolitions directly violated ‘the right to shelter’ of affected persons, guaranteed by Article 21 of the Constitution of India. It held that, “the State Government was duty bound to protect the right to shelter available to the affected families which was guaranteed under Article 21 of the Constitution.” In a welcome precedent, the Court awarded compensation to the affected families and directed the state authorities to construct the demolished houses at the same site.
The High Court of Delhi [W.P. (C) 5999/2020] directed the Municipal Corporation of Delhi to exercise prudence and not demolish houses in Pant Nagar, Delhi without providing alternative accommodation to the affected persons. The Court remarked that “it would be unthinkable that the jhuggi dwellers be removed from their present tenements, especially with the onset of winter without being provided an alternate accommodation.”
The High Court of Rajasthan [Writ 233/2020] passed an interim order directing the state government not to dispossess landless persons without providing alternative accommodation. It held that when landless persons encroach public lands, “such persons may be allotted land and a building that may be available. But till such time that alternative is not made available, they shall not be dispossessed.”
In March 2020, Bombay High Court had directed all Municipal Commissioners in the state to consider issuing a general directive not to demolish, evict and/or hold auctions of attached properties for a specified period. (WP(L) No. 900/2020)
According to the Housing and Land Rights Network (HLRN) Report titled Forced Evictions 2020, over 20 lakh families, and over and above that, over 1.8 lakh people face the threat of eviction in Assam owing to several reasons, including development projects, removal of encroachments and so on. The report also makes an analysis of the consequences of some judicial diktats. It states that the following orders of the Guwahati HC orders pose a threat of eviction to large numbers of people:
- Order of the Gauhati High Court [PIL 78/2012] for removal of ‘encroachments’ in tribal belts (threat to over 1 lakh families)
- Order of the Gauhati High Court [PIL 67/2012] to clear land within the Kaziranga National Park (threat to over 600 families)
Rendering people homeless in the middle of the monsoon season, when Assam receives heavy rainfall and flooding is common is not just arbitrary. It is leaving these homeless people more vulnerable amidst a raging Covid-19 pandemic, affecting their righto life with dignity and without discrimination.
International laws that protect against eviction
International Covenant on Economic, Social and Cultural Rights
Article 11.1: 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 cooperation based on free consent.
Convention on the Elimination of All Forms of Discrimination against Women
(1979) Article 14.2: States Parties shall undertake all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right … (h) to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.
The Universal Declaration of Human Rights (UDHR)
Article 25 of UDHR states that every individual has a right to a satisfactory standard of living, along with the enjoyment of clothing, food, and medical care. Special care is to be taken of women and children. It also covers the right to security in the event of unemployment.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
Article 43 in the convention discusses the right to access housing of migrant workers and their families. It also provides them protection against rent exploitation.
Extracts from UN Habitat Right to Adequate Housing Fact Sheet No. 21
United Nations Committee on Economic, Social and Cultural Rights general comments No. 4 (1991) on the right to adequate housing and No. 7 (1997) on forced evictions:
The right to adequate housing contains freedoms
These freedoms include:Protection against forced evictions and the arbitrary destruction; and demolition of one’s home; The right to be free from arbitrary interference with one’s home, privacy and family; and The right to choose one’s residence, to determine where to live and to freedom of movement.
The right to adequate housing contains entitlements
These entitlements include: Security of tenure; Housing, land and property restitution; Equal and non-discriminatory access to adequate housing; Participation in housing-related decision-making at the national and community levels.
The right to adequate housing is NOT the same as the right to land. It is sometimes argued that the right to adequate housing equates to a right to land. Access to land can constitute a fundamental element of the realization of the right to adequate housing, notably in rural areas or for indigenous peoples. Inadequate housing or the practice of forced evictions can be the consequence of being denied access to land and common property resources.
In housing, discrimination can take the form of discriminatory laws, policies or measures; zoning regulations; exclusionary policy development; exclusion from housing benefits; denial of security of tenure; lack of access to credit; limited participation in decision-making; or lack of protection against discriminatory practices carried out by private actors. Non-discrimination and equality are fundamental human rights principles and critical components of the right to adequate housing.
The right to adequate housing is a human right recognised in international human rights law as part of the right to an adequate standard of living. One of the first references to it is in article 25 (1) of the Universal Declaration of Human Rights.
Other international human rights treaties that recognise the right to adequate housing
- The 1951 Convention Relating to the Status of Refugees (art. 21)
- The International Labour Organization’s 1962 Convention No. 117 concerning
Basic Aims and Standards of Social Policy (art. 5 (2))
- The 1965 International Convention on the Elimination of All Forms of
Racial Discrimination (art. 5 (e)(iii))
- The 1966 International Covenant on Civil and Political Rights (art. 17)
- The 1979 Convention on the Elimination of All Forms of Discrimination
against Women (arts. 14 (2) and 15 (2))
- The 1989 Convention on the Rights of the Child (arts. 16 (1) and
- The International Labour Organization’s 1989 Convention No. 169 concerning
Indigenous and Tribal Peoples in Independent Countries (arts.
14, 16 and 17)
- The 1990 International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families (art. 43 (1)(d))
- The 2006 Convention on the Rights of Persons with Disabilities (arts. 9
Through their ratification of human rights treaties, States are required to give effect to these rights within their jurisdictions. Some obligations are of immediate effect, including the fundamental undertaking to guarantee that the right to adequate housing is exercised on the basis of non-discrimination. Under the International Covenant on Economic, Social and Cultural Rights, States have the obligation to progressively achieve the full realization of the right to adequate housing. In other words, the Covenant acknowledges that States have resource constraints and that it may take time to ensure the right to adequate housing to everyone
The UN even issued an advisory against the mass eviction in Khori Gaon (Faridabad), especially in the backdrop of the pandemic. UN human rights experts on July 16, 2021, called on India to halt evictions of some 100,000 people – including 20,000 children – that began On July 14, in the midst of monsoon rains, in a village in Haryana built on protected forest land, even though the forest was actually destroyed decades ago by heavy mining.
The UN is clear on forced evictions: “Regardless of their cause, forced evictions may be considered a gross violation of human rights and a prima facie violation of the right to adequate housing. Large-scale evictions can in general be justified only in the most exceptional circumstances and only if they take place in accordance with the relevant principles of international law.”
“Effective legal resources and remedies should be available to those who are evicted, including adequate compensation for any real or personal property affected by the eviction. Evictions should not result in individuals becoming homeless or vulnerable to further human rights violations.”