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JUSTICIABILITY OF RIGHT TO SHELTER AND HOUSING IN INDIA VIS-À-VIS ILLEGAL EVICTIONS - By Aishwarya Karan
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JUSTICIABILITY
OF RIGHT TO SHELTER AND HOUSING IN INDIA VIS-À-VIS ILLEGAL EVICTIONS
AUTHORED BY –
AISHWARYA
KARAN
Abstract
Though the right to
shelter in Indian jurisprudence was brought by the Supreme Court through an
expansive interpretation of the right to life under Article 21 following a
dignity-based approach, its treatment has been that of a conditional right contingent
on state action for its enforceability. Tracing
the judicial discourse in Delhi High Court in the past two decades, the
research underscores the systemic destruction of the substantive meaning
of the social right in violation
of principles of natural justice and procedural fairness accompanied by a
consistent denial of the equal treatment principle. Through a kind of
nuisance-making of slums for passing demolition orders based on complaints by
private parties, the court expanded the juridical interpretation of public nuisance shifting the illegality
from encroachment to the encroacher - an entire class of people and their
personhood, thereby, assuming a neoliberal governmentality which views
evictions as public interest. Drawing
inferences from Delhi High Court’s judgments in Ajay Maken and Sudama
Singh case reflecting upon South
African Constitutional Court’s treatment
of the right to resettlement guided by a ‘meaningful engagement’ approach in
consonance with international safeguards, the research implores the necessity
for a move towards a systemic and substantive review of the social right.
I
Introduction
II Access to material resources for a dignified life as access to
justice
III Indian jurisprudential development of
the right to shelter
IV Conditional approach: jurisprudential
treatment of the right to shelter in Olga Telis case
V Systemic approach to social rights
adjudication versus the conditional model
VI Absence of procedural fairness and unjust analytical
reasoning in the judicial discourse
VII Brief analysis of Indian and South
African Constitutional approach to the right to resettlement and ‘meaningful
engagement’ model
VIII Conclusion
INTRODUCTION
The discourse on the right to shelter has
become a vigourous source of debate in Indian jurisprudence and across the
globe with cities impinging upon the rights of marginalized persons through an
eviction-based urban transformation aimed at making cities world-class. For a
long time, the right has remained ill-defined and under-researched with regard
to its meaning, content, and scope raising
complex questions about its existence; the larger question of the debate
centered on whether or not socio-economic rights ought to be constitutionally
entrenched and carrying judicial enforceability has given way to the emergence
of a broad consensus that socio-economic rights are ‘real rights’ coming out of
the shadow of their more justiciable human rights dimension and thus, are no
more secondary to but equally justiciable as human rights and civil and
political rights.[1]
Various instruments document that informal settlements of the poor emerge due to displacement, disasters, migration, conflicts, poverty, development projects, etc. ICESCR identifies some principal issues on the right to adequate housing and declares that the right to shelter must not be seen as a commodity but as the right to live somewhere in security, peace, and dignity.[2] The use of the term ‘forced evictions’ has itself been problematized as the phrase aims to convey a sense of illegality and arbitrariness to eviction whereas any reference to the term ‘forced evictions’ should be seen as a tautology, evictions intrinsically characterizing a form of coercion and use of force. Likewise, the term ‘illegal evictions’ is criticized given that it assumes that the law in question spelling out the procedure automatically provides adequate protection to the right or conforms with the Covenant,[3] which is not the legislative reality in most jurisdictions.
Various instruments document that informal settlements of the poor emerge due to displacement, disasters, migration, conflicts, poverty, development projects, etc. ICESCR identifies some principal issues on the right to adequate housing and declares that the right to shelter must not be seen as a commodity but as the right to live somewhere in security, peace, and dignity.[2] The use of the term ‘forced evictions’ has itself been problematized as the phrase aims to convey a sense of illegality and arbitrariness to eviction whereas any reference to the term ‘forced evictions’ should be seen as a tautology, evictions intrinsically characterizing a form of coercion and use of force. Likewise, the term ‘illegal evictions’ is criticized given that it assumes that the law in question spelling out the procedure automatically provides adequate protection to the right or conforms with the Covenant,[3] which is not the legislative reality in most jurisdictions.
With
increasing urbanization, a wide demographic in India remains without access to
adequate housing and basic amenities. As per the 2011 census, more than
sixty-five lakh or twenty-two
% of the urban
demographic is compelled to reside in slums.[4] Insecurity of tenure forces slum residents to
live in constant fear of eviction and demolition. Homelessness
has been addressed in the first, third and eleventh Sustainable Development
Goals aiming at ‘eradicating poverty in all its form’, ensuring ‘healthy lives
and promoting well-being for all at all ages’, and ‘making cities and human
settlements inclusive, safe, resilient and sustainable,[5]
respectively. Notably, there exists a general recognition[6] that
enforceability of conventions
is hindered as domestic laws continue to neglect ratified treaties and like
international norms, even as international legal scholarship calls for greater
binding ‘soft law’ to make states accountable for their international legal
obligations. This includes the highly relevant but
not legally binding instruments like the General Comments to the CESCR serving
as a crucial interpretive tool providing expert pronouncements on the Covenant.
Right
to adequate housing is accepted as part of basic human rights in various
instruments including the Universal Declaration of Human Right, 1948 recognizing the right of shelter as part of a
holistic well-being and necessary social services in Article 25,[7] the International Covenant
on Economic and Social and Cultural Rights which guarantees under Article 11
(1) right to adequate housing and General Comment No. 4, 7 and 20 provide
substantive guidance for interpreting the Article[8], the
International Covenant on Civil and Political Rights guarantees protection against unlawful
interference or attacks to the right to privacy and family
under Article 17,[9] the
Convention on Elimination of All Forms Of Discrimination Against Women wherein
Article 14.2(h) deals with women’s
right to adequate living conditions, housing, and sanitation,[10] the Convention on The Rights
Of The Child, 1989 wherein under Article 16.1 and Article 27.3 signatory nation-states are obliged to
guarantee minor’s right to privacy, and to provide material support to guardians
for the housing of the child to the extent possible,[11]
Convention on The Elimination of All Forms of Racial Discrimination, 1965 obliges parties to guarantee the right to
equality of law for the enjoyment of the right to housing under Article 5 (e) (iii),[12] and
the International Convention on The Protection of the Rights of All Migrant
Workers and Members of Their Families, 1990 protects the migrant worker’s right of housing under Article
43(d) that ensures access to housing, including social housing schemes, and
protection against exploitation in respect of rents.[13] Barring the last one, India is a signatory to
the above-mentioned instruments.
II ACCESS TO MATERIAL RESOURCES FOR A DIGNIFIED LIFE AS ACCESS TO
JUSTICE
Access to adequate housing under CESCR
invokes the states to make their law and policy accountable for ensuring
accessibility to disadvantaged groups with special needs such as the elderly,
children, the physically disabled or mentally ill, HIV-positive persons, or
persons with persistent medical problems, the terminally ill, victims of
natural disasters, those living in disaster-prone areas, other groups requiring
some degree of priority consideration and entitles them to sustainable access
to adequate housing resources. States parties are engendered with the task of
advancing access to land rights to landless or impoverished sections of society
by constituting a central policy. Clear obligations on part of government
require them to evolve and substantiate the ‘right of all to a secure place to
live in peace and dignity, including access to land as an entitlement’.[14] On part of the civil society, as asserted by Gautam Bhan in his extensive research on the
‘right to the city’ of the urban poor taking into account their social
location, structural inequality in housing market and policy and social
protection, there is a pressing necessity to reassert the rights of the poor as
tax-payers, voters, and workers within the imagination of the city,[15]
thereby, demanding the Indian state to assume its role as an equalizing force
in order to meet its constitutional obligations.
As per the mandates of Directive Principles
in Part IV of the Constitution of India, the Constitution makers enshrined the
state as a trustee of the country’s common resources and wealth to bridge the
vast disparity and mitigate the material and social conflict between the haves
and have-nots. Article 37 casts upon the Indian state a moral obligation as it
holds the courts as not responsible or even competent for enforceability of the
principles in Part IV declaring that it “it shall be the duty of the state” to
legislate and breathe life into these principles fundamental in the governance
of the nation while Article 38 and 38(2) promote the “welfare of the people,
socially and economically, for the preservation of social order” and direct the
state to “minimize the inequities in income, to eliminate inequalities in
status, facilities, and opportunities among not just individuals but groups of
people residing in different regions or engaged in different vocations”.[16] Article 39 envisages equitable access to
material resources of the national community. Article 39(a), (b), (c), (e), (f)
gives guidelines to the state “to secure through legislative policies to all
its citizens the right to an adequate means of livelihood; to ensure
distribution, ownership and control of the material resources of the nation in
such manner that common good is subserved”; that “economic operation does not
lead to ‘concentration of wealth and means of production to the common
detriment”; and that children be given
“equal opportunities and facilities to healthy development securing conditions
of freedom, dignity, and protection against exploitation, moral and material
abandonment”.[17]
Article 41, and 43 of the Constitution protect the “right to work, provide just
and humane conditions of work, and ensuring a decent standard of life,”
respectively.[18] The
state has a duty under Article 47 to “improve the standard of living and public
health”. Furthermore, Article
51A(e) and (h) place a duty on citizens “to promote harmony and the spirit of common
brotherhood; humanism and the spirit of inquiry and
reform”, respectively. Directive principles form the fundamental laws
underpinning any interpretation of socio-economic rights by the judiciary to
make justiciable their enforceability by the executive,[19]
thereby, putting the onus on state, including its three organs, to ensure
equity in distribution as a trustee of the country’s wealth and material
resources. Likewise, there is a necessity to comprehend the indeterminable and abstract
social rights in the context of the directive principles and ideals
enshrined in the Preamble in harmony with Article 14 to ensure equality before
law,[20]
equal access to the right, and a just negotiation with the right-holders.
However, a multitude of research suggests
that the policy framework suffers from many ills and remains on paper. Policy
expert Renita D’Souza argues that the wide gap in policy and enforcement remains
unaddressed due to an ineffective comprehension of policymakers on the issue of
housing poverty. Housing programmes have been consistently myopic indicating a
failure to plan and design housing schemes with a broader vision to mitigate
poverty and homelessness.[21] For
instance, the goal of Pradhan Mantri Awas Yojna to deliver 20 million
homes by the year 2022 is an object which implicitly assumes that if this goal
is achieved, the crisis of urban housing would be mitigated, and the affordable
housing markets cease to have major distortions and slum creation would stop.
It is argued that rather than such impractical assumptions, the need is for
housing schemes to synchronize with urbanization and affordability.
Additionally, to make growth and development inclusive, policies must not
neglect adequate accommodation to the interests of seasonal migrant workers and
job seekers. The majority of policies since 1951 have failed due to either lack
of community engagement and empathy that results in a tokenism providing only
ill-facilitated sites without basic amenities like electricity, sanitation,
water, food, etc in remote relocation sites, thus, in most cases found
unlivable by evictees, issues of affordability, loan-averse banking systems
discouraging low-income unorganized workers considered as high risk or
low-credit assets, or when temporary migrants resort to living in slums.
III INDIAN JURISPRUDENTIAL DEVELOPMENT OF THE RIGHT TO SHELTER
Recently, Allahabad
High Court in Rajesh Yadav[22]
case held that the ‘right to shelter is a fundamental right and the State has a
constitutional duty to provide housing sites to the poor’. The PIL sought to
evict some persons who had allegedly encroached upon public land. Justice
Kesarwani dismissed the PIL observing that these were poor and landless
agricultural labourers who depended on and resided at the residential lease of
very small plots granted to them in 1995 by the competent authority where they
raised their houses and are still residing therein’. The court relying on Justice Y. V.
Chandrachud’s statement in Olga Tellis held that ‘slums that are in existence
from a long time, say over twenty years, and which have been developed and
improved, shall not be removed unless the land on which they stand, is needed
for any public purpose, and in that event, alternative habitation will be
provided to them’. The Court while holding the petitioner’s PIL as an attempt to
abrogate fundamental rights of the landless persons dismissed the petition
imposing costs. In consonance with
Directive Principles of State Policy, the court observed that the State is
under an obligation to construct houses at a reasonable cost and make them
easily accessible to the poor. Prof. Upendra Baxi commended the High Court of Allahabad for reiterating
the ‘expansion of new horizons for the right to shelter for the realization of
the fullest human flourishing’[23] under the wide mandate of Articles 19 and 21
of the Indian Constitution.
Quoting Justice Field from Munn v Illinois[24],
right to life was interpreted as ‘something more than mere animal existence’ in
Kharak Singh[25] in
1964 and in Olga Telis[26] in
1985. In Chameli Singh v
State of UP [27], the
Supreme Court held that for a human
being, shelter not only includes the ‘protection of life and limb’ but also
provides a home, a space providing a person with access to opportunities to
grow physically, intellectually, mentally, and spiritually; that in order to bring migrants, dalits and tribes into the mainstream of national
life, providing these facilities and opportunities fundamental to their basic
human and constitutional rights is the duty of the State, and that there could
be no individual liberty without a minimum of property. In a similar line of
reasoning as seen in Olga Telis and Ahmedabad Municipal Corporation
case, the court further held that:
“The right to shelter is an essential
requisite to the right to live and should be deemed to have been guaranteed as
a fundamental right, as enshrined in the directive principles which the State
must secure for its citizens, subject to its economic budget.”
Notably, post Olga Telis case, the
jurisprudence around the right to shelter did develop in the context of the
invoking the land acquisition acts to provide alternative accommodation to the
displaced weaker sections of the society but still was not much concerned on
the right to adequate housing in situ where the slum dwellers
already reside or even in the context of right against ‘forced eviction’.[28]
IV CONDITIONAL APPROACH: JURISPRUDENTIAL TREATMENT OF
RIGHT TO SHELTER IN OLGA TELIS CASE
In Olga Telis case, the
petitioners resided on pavement and slums in deplorable conditions in the city
of Bombay. Attempts by the municipal corporation to remove the petitioners were
unsuccessful as they returned and rebuilt their homes needing to be close to
their places of work.[29]
Supreme Court held the right to shelter as integral to the right to life under
Article-21 having a direct bearing on the right to livelihood read along with
Article 19(e) protecting the right to reside and settle in any parts of the
Indian territory. The case despite being a torchbearer for jurisprudential
development on the right to shelter and housing in India, could not afford
large protection to the pavement dwellers’ right to
shelter and resettlement. Though it is regarded as a groundbreaking judicial
recognition,[30] the court’s remedy was far more constrained
by procedural formalism and the brutality of forced eviction was sought to be
pacified by requiring the authorities’ compliance with the principles of
natural justice before the eviction drive. The right discussed was specific
only to the case of multi-generational slum settlements possessing a
long-standing right or those who were provided census cards and whose dwellings
were numbered during the 1976 census whereas those who were unfortunate as to
not possess the same faced eviction order without remedial resettlement.[31] Hence, the forcible eviction was carried on
despite a discussion on right to shelter in consonance with the right to
livelihood based on the procedure established by law.
This
approach by Supreme Court may be considered a conditional approach as it upheld
eviction if it is within ‘procedure established by law’ and is ‘just, fair and
reasonable’ making the right contingent upon the procedure even when such an
approach came through an arbitrary rationale; an unlawful intelligible
differentia was ascertained founded on the fallible idea of the right dependent
upon social location and access to property of the inhabitants. The case enjoys both the status of a magnum
opus on the right to rehabilitation of slum residents offering a sense of
promise and engendering a long-awaited socio-political discourse on the right
and at once, becomes perilous in its approach to the treatment of the right to
shelter and right-holders as it bestows vast powers to the municipal agencies
across the country. Though Justice Chandrachud observed in the judgment that
‘the rough edges of justice ought to be softened by human compassion’[32]
ordering that eviction be only started a month past monsoon to minimize
hardship in eviction, it is the mechanical view of the rule of law and
procedural formalism that is seen to be impeding justice making the case
testimony to the tussle between the have-nots’ right to a minimum dignity
contested on the ground of right to life and livelihood and the right of haves’
and their collective social interest contested on grounds of sanitation, right
of way, right against nuisance, etc.[33]
V SYSTEMIC APPROACH TO SOCIAL
RIGHTS ADJUDICATION VERSUS THE CONDITIONAL APPROACH
The Conditional approach entails that the
adjudication of the right to shelter is constrained by its contingency upon
state action such that if there exists a housing policy promulgated by
parliament that is not being implemented, the court shall enforce it. However,
it excludes the existence of any systemic right to shelter and housing,[34] as
exemplified in Olga Telis, the court through its eviction order was
satisfied to give effect to government's undertakings for eviction with no
discussion of the content and scope of the right.[35]
The court's ‘ad-hoc approach’ to economic and
social rights adjudication or the ‘conditional approach’ as elucidated by
Madhav Khosla suggests that such a model of adjudication of the right is
conditional upon whether the state has taken action to implement the rights,
similar to adjudication of contract or tort cases in private law, thereby,
limiting the scope of review and remedy of the substantive right. It is seen as
a unique approach evolved by the Supreme Court wherein the court will deliver a
remedy when the state has breached an undertaking to take certain action (to
provide shelter to slum dwellers, for instance) or when the state has been
negligent, for instance, if it is not maintaining a hospital it chose to build.[36] The
systemic rights adjudicatory model includes the minimum core and the
reasonableness standard. A court’s review in minimum core approach would be
geared towards ascertaining an ‘individualized’ remedy,[37] the
inquiry would be to ascertain if every person has access to adequate housing
and to what extent whereas in the reasonableness test, a court would attempt to
determine the inherent nature of measures already taken by the state to make a
right justiciable. The ‘minimum core’ also called the general limitation
clause or proportionality principle approach ensures delivery of at
least a ‘minimum essential level of rights’ the state is mandated to
ensure and to
establish a minimum legal content for the famously inconclusive claims of
socio-economic rights whereas the ‘reasonableness’ standard allows for an assessment of the
reasonableness of the measures taken by the government to realize social and
economic rights within its available resource.[38] The reasonableness approach comes with an
inherent limitation clause within the constitutional text for deciding upon the
reasonableness of policy measures taken by the government to realize
socio-economic rights within the resources available. Varun Gauri
empirically assesses Indian Supreme Court cases, noting that the judicial trend
is to “look less favourably on claims contested on behalf of the poor and
marginalized persons of society” and a corresponding rise in successful
judgments for more advantaged members indicates that the court is usually less
disposed to come to the assistance of people living in poverty. Additionally,
judicial deference is witnessed in cases requiring interpretation and
adjudication of social rights by Supreme Court judges who often increasingly
cite “policy considerations as justification for minimal or no scrutiny of
government action”.[39]
VI
ABSENCE OF PROCEDURAL FAIRNESS AND UNJUST ANALYTICAL REASONING IN
THE JUDICIAL DISCOURSE
The Delhi High Court using illegality and
social location of the slum residents in public interest litigation cases
successfully ran a parallel administration on the excuse of government failure,
at the same time, shifted the judicial concern from systemic issues faced in
the justiciability of the right to the encroachment and finally, the encroacher
who was to be seen as a criminal. Thus, it unapologetically and consistently
put on a pedestal the middle-class neighbourhoods’ collective right to
sanitation and aesthetics vis-à-vis slum residents’ right to shelter and
livelihood; this has been chronicled by sociologist Asher Ghertner’s
anthropological survey of informal settlements in Delhi. He exposes the deep
prejudice insidiously manifesting itself in the judicial interpretations of a
kind of rule of law that criminalizes both slums and its inhabitants. This
peculiar violence dormant in the legal language came alive in two significant
changes in the early phase of slum demolition cases in the 1990s - the language
in petitions and judgments marking a shift in the understanding of nuisance law
as applied by judges and the basing of decisions on aesthetics i.e. the
‘unsightly conditions of a slum making them appear illegal’ with judgments
being passed with photographs as the sole evidence for ordering demolition.
Nuisances
can be either private or public. A public nuisance is an ‘unreasonable conduct’
offensive to the public when it causes discomfort, hurt or inconvenience,
annoying or endangering the security of the general public. The reasonableness
of the conduct is determined by the courts through interpretation of municipal
statutes or by the nature of the act itself. In contrast, a private nuisance is
a violation of an individual’s peaceful enjoyment of land. To be adjudicated as
a nuisance, the interference needs to ‘rise above the aesthetic’ if it is part
of everyday life or activities.[40]
However, in the application of nuisance law in slum demolition cases in India, nuisance is generally considered as ‘an offense
to the senses of sight, smell, or hearing’ outrightly linked with aesthetical
norms even as a term of juridical category.[41]
A.
Legal Scrutiny of Shift in the Application Of
Nuisance Law and Deviations to order Slum Demolition
Identifying two kinds
of nuisance in the Indian law i.e. private nuisance as the “substantial and
unreasonable interference with the use or enjoyment of land” and public
nuisance as an “unreasonable interference with a right common to the general
public”, Ghertner argues that slums being settlements on public land,
slum-related nuisances have been dealt by public nuisance procedures. In
contrast, the definition of public nuisance earlier used to include particular
‘objects possessed or actions performed’ by individuals or groups that
interfered with a public right, however, now it has been expanded to refer to
specific groups of people. Likewise, the betterment of municipal services or
penalizing individuals for non-performance or breach of duties is not seen as
the answer to annoying, aesthetically displeasing, or dangerous acts or objects
but the clearance of slums is. Before 2000, nuisance-causing activities such as
unhygienic living conditions and open defecation were not cited as sufficient
evidence for ordering slum demolitions. From 1980 to 2000, public nuisances
were seen as faults of municipal authorities, and slums were considered dirty
due to the inability of the state in providing basic services as witnessed in
decisions such as Ratlam Municipal Council[42] and K.
C. Malhotra.[43] Ghertner identifies two shifts witnessed in court’s interpretation of
public nuisance beginning from the 2000s:
(i)
the first shift transpired when courts started ‘accepting petitions under public interest litigation
from private parties’ such as RWAs, hotels, and commercial enterprises with claims of interference
with their quality of life and security by neighboring slums;
(ii)
a second shift is
seen in the interpretation of public nuisance when the basis of demolitions
became the visual appearance of filth which became synonymous with slums
and slum residents, per se.
1. Absence of a legal basis in analytical reasoning by the court
In 2002 before the Delhi High Court in Okhla Factory Owners’ Association[44] case which distinguished between
“those who have scant respect for law and unauthorizedly squat on public land”
and “citizens who have paid for the land”, the Court explicitly elevated concerns of the ‘haves’- the propertied
residents by blurring the line between public and private nuisance. Such rationale in adjudication by the
court established ‘land-ownership
as the basis of citizenship’ while making the sanctity of private property a
public priority by remoulding the nuisance law. This was done by simplifying
the ‘legal and calculative basis’ required for ordering slum demolition such as
taking evidence through site maps, ownership records, master plans, etc. Hence, procedures required for removing nuisance were no more penalties
and fines on the municipality and civic bodies in charge of sanitation rather
horrifically the displacement of entire groups of people. Bhuwania analyses
the analytical reasoning followed by the court problematizing the use of public
interest litigation as a judicial apparatus to deal with the ‘illegality’ of
slums and turned itself into a kind of leviathan providing for a slum
clearance. He explicates the abuse of PIL, which was originally intended to
protect the fundamental rights of the marginalized living in acute deprivation,
due to the power it gave the judges to act on their biases often based on
aesthetics, anti-poor sentiments, etc. As witnessed in the infamous case of Almitra
Patel,[45] such
was the level of prejudice that a specific unaesthetic slum settlement might
not even appear in any case before the court, it was still suo moto
invoked in a PIL making it an object of judicial concern.
A further novel innovation was
that the
executive’s failure in providing minimum facilities like public toilets in
slums and the consequential nuisance caused by public defecation was being
solved by clearance of the slum itself[46], and not by making the executive provide the facilities which they
were obligated to. In the late 1990s, courts started taking cognisance
of the “dismal and gloomy picture of such jhuggi-jhopries coming up
regularly”.[47]
In 1993, in the case of Lawyers’ Cooperative Group Housing Society,[48]
Justice B.N. Kirpal presiding as a judge in Delhi High Court deplored the
existence of relocation policy in Delhi in the form of the Slum Clearance Act
which also has rehabilitation and redevelopment as its integral part[49]
in consonance with the state’s commitment to Directive Principles and
international safeguards ratified by India. It was remarked that provisions for
alternate accommodation are an “unnecessary burden on the public exchequer” as
the “jhuggi dwellers are trespassers on public land”, thereby,
discounting the state from its constitutional duty to secure shelter and
affordable housing for all citizens alike. Additionally, the court directed that
the rehabilitated persons should not be given the land on a lease-hold basis as
per common practice but on the basis of license so that they do not acquire a
right to part with possession of the land and to prohibit resettled slum
dwellers any property rights.[50]
In 2000, Justice Kirpal presided as a judge in the highly criticized
three-judge bench case Almitra Patel,[51] having no
direct connection to slums at all. It was a PIL filed by an engineer against
the problem of municipal agency’s garbage disposal practices in 300 of India’s
largest cities, acting on which the court appointed a committee to formulate
Municipal Solid Waste (Management and Handling) Rules, which were then notified
but once this apparatus was put into motion, the petitioner was found “unable
to steer the course of the petition” and the presiding judge made it about the
unrelated issue of slums in Delhi. Not only did the Court turn the case
originally against the poor solid waste management by MCD as against the slum
dwellers through an incongruent jump in logic blaming them for solid waste
issue but also the treated slums as a problem created by vested interests and
not as a consequence of the scarcity of housing for a class of citizens. In
addition, Justice Kirpal lamented “rewarding those who encroach on public land
with a free alternate site” comparing it with “rewarding a pickpocket”.[52]
Almitra Patel case, therefore, marks the inception of an approach in
which the Courts took to a kind of nuisance-making treating right
to shelter as a commodity, and not as a ‘right to live in security, peace, and
dignity’ while pronouncing slum residents as ‘trespassers’, ‘pick-pockets’
encroaching on public land and right to resettle as a ‘burden on the public
exchequer’ resulting in contravention to 1979 ratification of CESCR[53]
by Indian parliament . The implication of this ‘rewarding the pickpocket’ analogy, as discussed by Bhuwani exposed the
“contempt for any humane attempt towards resettlement by the Supreme Court” and
the court’s complaint remained limited to the issue of encroachment of public
land. These comments laid the “groundwork for a brutal campaign slum clearance
or demolition of jhuggies/informal settlements on pavements in the early
2000s by the Delhi High Court” indicating dangerous connotations being
delivered under the sanctity of democratic processes than it was during the
emergency characteristic of a dystopian phase scarred with wide-scale misuse of
law and forcible demolitions of slums.
Subsequently, by 2002 cases filed by
Resident Welfare Associations across Delhi had reached such an extent that a High Court bench had to be
constituted to hear 63 combined petitions under the leading petition
of Pitampura Sudhar Samiti[54]. The judgment
summarized similar positions in petitions received, as ‘RWA allegations of encroachment on public land’ against jhuggi-jhopri
clusters “that have been illegally erected and are causing nuisance of various
kinds for the residents of areas nearby”.[55]
Court observed that “a welfare state is expected to care for its citizens from
cradle to grave but this concept has to change”, and stated that in current
times, “State’s function is one of a regulator to foster an environment of
growth and equal opportunity” and thereafter, it is “for each to prosper or
perish”. This kind of judicial reasoning is barbarous for a Court to uphold in
a democratic polity and must be condemned in clear terms for what it is - an
inhumane attempt at stomping fundamental rights, equity and inclusion of the
marginalized to the leviathan of social Darwinism. Kalpana Sharma challenges
this view as it is always “the poor who perish in such a vision” and implores
as to “where does this welfare state even exist where it caters to citizens
from cradle to grave”; she describes this trend of making cities ‘garib-mukt
as those who plan, govern, and judge intend’ as practically welcoming a
demolition of democratic principles.[56]
The two judgments of Delhi High
Court i.e. Pitampura Sudhar Samiti and Okhla Factory Owner were the last cases to even partly reflect
constitutional questions concerning slum demolitions for the next
seven years, as in ensuing years courts delivered orders and not judgments
such that they did not carry any reasoned justifications rather were
passed ‘pure assertions of power’. Such orders carried the force of law but
lacked legitimacy as orders without proper reasoning have been time and again
held unconstitutional by the Supreme Court. These instances demonstrate how
procedural violations were utilized by the court evolving a mechanism that
eventually erected a ‘slum demolition machinery’.[57]
In a similar fashion as Justice Kirpal, in
2002 case of Okhla Factory Owners’ Association,[58]
Justice S.K. Kaul complained about the right to resettlement, stating stated
that “272 years would be needed to resettle the slum dwellers with existing
procedures and that the acquisition cost of land and development would be Rs.
420 crores or US $ 100 million”, that slum residents squat on areas near propertied
residents causing them inconvenience by creating “unhygienic conditions,
pollution, and ecological problems” resulting in “almost a collapse of
Municipal services”.[59] Similarly,
in the case of Kalyan Sansthan[60], the
Delhi High Court ordered the clearance of slums without any
legal basis of slums’ contribution to pollution in the nallah complained
of or any records of settlement’s size, location, history merely on the basis
of photographs in an annexure depicting filth at the drain’s site with a
caption underneath disclosing that there existed a slum nearby wherein jhuggi
dwellers defecated. As discussed before, the problem of defecation was earlier
seen as a cause for nuisance on account of municipal authorities’
non-compliance with their duties to provide basic amenities. While a majority of slums have access to
necessities like water and electricity in some form, thirty-three % of the
households in India lack a toilet within their premises.[61]
The procedural departures made by Delhi High
Court exercising PIL jurisdiction in these RWA petitions were also seen in a
similar petition filed in Ahmedabad[62]
complaining of nuisance to a neighbourhood due to “smoke, urine passing on a
public lane by hutment dwellers residing the area”, the Gujarat High Court
dismissed the petition not on grounds of poverty of slum residents or
inconvenience of affluent propertied owners nearby but on two basic procedural
grounds. One, the court held that whether there is encroachment or not is a
question of fact and is difficult to determine under Article 226 as to who
caused it without allowing parties to adduce evidence, a course the High Court
usually does not adopt under Art 226; two, the persons who are alleged as
encroachers and alleged to be residing in hutments were not made a party to the
case, and therefore, no order was passed by the court that could adversely
affect the slum residents in violation of audi alteram partem.
In
yet another case of large scale evictions in Yamuna Pushta (embankments)
transpired as a consequence of Delhi High Court’s March 2003 order passed by
Justice Vijendar Jain in two petitions specific only to Wazirpur and Okhla but
as seen earlier, the court again deviated its concern to an altogether new site
in old Delhi- Yamuna riverbank or the Yamuna Pushta which housed around
1,50,000 people in 30, 000 households in all the colonies; the order which gave
no reasoning for such bizarre move was carried on as if resettlement policy was
no longer needed. Remarkably, High Court went beyond the ambit of the petitions
in Okhla Factory Owners, Pitampura Sudhar Samiti and Wazirpur Bartan Nirmata
Sangh case and held in November 2002 that all those who had settled
in slums anywhere in the city of Delhi after 1990 should be evicted and not
given any free land for resettlement. Furthermore, the object of the court’s
intervention - the demolition of Delhi’s largest slum in Yamuna Pushta
was not even referred to by its name in the demolition order.[63] The subsequent
demolitions were reported to have been carried out employing brutal use of
force accompanied by arrests, detentions, and maltreatment of the slum
residents with two children getting trapped under debris in the Kanchanpuri
demolition on 23 March, a child and a forty-year-old burnt to death due to a
fire that started during the demolition in Indira Basti on March 13, 2003.[64] These
petitions mainly filed by private parties like factory owners and RWAs adjacent
to slums demanding clearance of slums overlooked that the slums were erected to
house those labourers who worked in nearby industrial areas without making any
provision of housing facilities by employing industries.
In 2019 in Ajay Maken, a case concerning the legality of the
demolition of Shakur Basti in western Delhi wherein the court held that
no demolition should be ordered unannounced and carried out with the brute
force of the authorities and police without consultation with those subject to
eviction, it came to the notice of the court that Commissioner,
Delhi Police filed an affidavit stating that the Railways had sent them a
request for providing sufficient police force to keep law and order in control
during the encroachment clearance drive, affidavit being silent on whether any
advance intimation was given to the jhuggi dwellers. According to the
Delhi Police, two troops of male and female forces each along with anti-riot
equipment were ensured. Further, Court noted the disclosure by Delhi Police in
its order contains the information that though the demolition was
planned to be carried out at 11 a.m. under the supervision of the Station House
Officer, Punjabi
Bagh, a call was received at 10.30 am from West District Control Room that the jhuggis
were being demolished during
which one infant of six months had died and help was required. It also refers to the post-mortem
report indicating the cause
of death as “shock as a
result of the chest and head injury due to blunt force impact”.[65]
VII BRIEF ANALYSIS OF INDIAN
AND SOUTH AFRICAN CONSTITUTIONAL APPROACH TO THE RIGHT TO RESETTLEMENT AND
‘MEANINGFUL ENGAGEMENT’ MODEL
Research indicates that resettlement policies
that reduce poverty possess three characteristics: (a) preparation of site
before relocation; (b) proximity to employment opportunities; and (c) voluntary
participation of people involved.[66] The
Indian jurisprudence on right to rehabilitation of the evictees evolved
first in 2010 in the case of Sudama Singh[67],
a decision that came as a result of the city beautification programmes in
preparation for the Commonwealth Games, Delhi High Court clarified
the position of law on the question of resettlement of slum residents in case
of demolition as the Delhi government had decided in 1990 to resettle the
inhabitants of jhuggies wherein the state’s policy provided that
slums would be relocated only from project sites where specific requests
had been received from the land?owning agencies and no largescale removal
should be resorted to without any specific use in terms of the master
plan for Delhi. The Court held the Delhi government’s view that the inhabitants
‘were on the right of way and not entitled to relocation’ as unconstitutional.
In response to the question that arose if existing schemes for rehabilitation
and resettlement excluded persons living on the right of way and whether such a
policy would be unconstitutional, Court found that there is no such policy and
if such a policy existed, it would in contempt of right to shelter under
Article 21. Sudama Singh’s case referred to Ahmedabad Municipal
Corporation[68] case,
in which court held that those pavement dwellers who had resided there for a
long time qualified for land allocation for resettling, and the state agencies
must ensure basic civic amenities consistent with the right to life and dignity
at the relocation site in line with Shantistar Builders[69]
verdict upholding reasonable accommodation. Further, Court while
holding that where the occupants of the jhuggies were evicted and
relocated, such an occupant was not worse off and cited the South African
Constitutional Court’s decision in Occupiers of 51 Olivia Road in
support and Residents of Joe Slovo Community, Western Cape[70]
to conclude that the state should ‘engage meaningfully with those sought to be
evicted’.
Post Sudama Singh,
the ‘meaningful engagement’ approach again found recognition in 2019 in Ajay
Maken[71] case
before the Delhi
High Court. Relief
was sought concerning the forced eviction of around 5000 dwellers at Shakur
Basti; authored
by Justice Murlidhar and Justice Bakhru, the judgment held that as per the
DUSIB (Delhi Urban Shelter Improvement Board) Act, 2015 and the ruling in Sudama
Singh, it is necessary to first finish a survey and engage with the basti
residents, and that there is no imminent possibility of eviction of the
dwellers of the Shakur Basti again in 2019. The court also employed
continuing mandamus for three years to ensure the administration of surveys,
development of Draft Protocols, and administration of relief and rehabilitation
wherein the court acted in a supervisory and monitoring capacity. The verdict also
cited the relevant Note 13 to General Comment No 7 to reason that if no in
situ relocation is possible, in that case, whenever respondents will be
eligible, only then slum dwellers will be rehabilitated after adequate time to
make arrangements to move to the relocation site. Notably, measures to
ensure due process before eviction as pronounced in General Comment No. 7 of
CESCR [72]
were elaborated at length in the progressive adjudication in Ajay Maken[73]
case to hold unconstitutional demolitions in contravention of principles of
natural justice:
“States parties shall ensure, before
carrying out an eviction, and especially clearance of large groups that all
possible alternatives are examined by consulting the aggrieved persons to avoid
or at the least minimize the requirement of using force.
(i)
Those affected by
the eviction order must be provided legal remedies or procedures for their aid.
(ii)
States Parties
should also ensure that all the persons affected possess a right to adequate
compensation for personal and real property that is affected.”
General Comment No. 4 underscores
the need to take appropriate procedural safeguards, ensuring due process as an
essential aspect of all human rights[74]
, and outlines procedural protections to be applied in case of an eviction:
“(a)
an occasion to consult genuinely those affected;
(b) reasonable and adequate
notice before the scheduled date of eviction for all affected persons;
(c) make available information within
reasonable time on evictions proposed and the alternative purpose for which the
land or housing is to be used;
(d) presence of government officials or
representatives during eviction if large groups are involved,
(e) proper identification of all persons
carrying out the eviction;
(f)
to not undertake evictions in bad weather or at night unless with the
consent of the affected;
(g) make available legal remedies; and
(h) provision of legal aid to persons in
need to seek redressal from courts
Stressing that evictions must not result
in rendering homeless or vulnerable the affected persons, State parties are
urged to undertake appropriate steps as far as possible, to the maximum extent
of available resources.”[75]
The 1996 South African Constitution
is considered a successful example of a transformative constitution
particularly due to the inclusion of justiciable socio-economic rights which
have enabled the Constitutional Court to expand the enforceability of these
rights. In 2000, in an eviction proceeding in the Grootboom[76]
case,
the magistrate while ordering evictions ordered the authorities to
look for alternate rehabilitation for
the squatters. They were forcibly evicted by the
municipality; their homes were bulldozed and possessions destroyed. Respondent squatters
then erected temporary shelters on an athletic field in the original
settlement. In the South African
Constitutional Court’s hearing, the
appellants including the national, provincial, and
municipal governments assured to ameliorate the crisis
the respondents were living in. The offer was accepted
but after four months appellants did not comply with their offer. Finally, Court found
that the eviction was carried out in a manner that breached the
obligation under Section 26(1) and ordered that the state should
meet its obligations under Section 26(2) by devising, funding, implementing,
and supervising measures to provide relief for the squatters. Constitutional
Court observed that Section 26(1) confers a general right of
access to adequate housing; Section 26 (2) has three elements:
(a) the state is obligated to take reasonable and other measures, (b)
within its available resources, (c) for achieving the progressive realization
of the right, and Section 26 (3) prohibits arbitrary
evictions. Considering the minimum core obligation for the
“progressive realization of the right to housing to be too
complex and time-consuming for which it lacked adequate
data”, the Court identified “the real question” as “whether
the measures taken by the state to realize the right given under Section
26 are reasonable”. Therefore, constraining its adjudicatory approach
to the reasonableness standard of social rights, the South African
Constitutional Court limited the remedy it could offer given the strong
foundation of the right to adequate housing under Section 26 afforded by the
adoption of a ‘transformational constitution’ as a result of the post-apartheid
struggle of the nation.
Significantly in 2004 in the
Port Elizabeth Municipality[77]
case, Justice Sachs stated that the Prevention of Illegal Eviction and
Unlawful Occupation of Land Act is an instance of a “new legislation that
synergized elements of grace and compassion into the formal structures of the
law by upholding the spirit of ubuntu” combining “individual rights
with a communitarian philosophy as a feature of the new society.”[78]
In this case, Municipality sought to evict 68 people including 23
children who erected 29 shacks on private land under it in response to a
petition signed by the owners of the property and 1600 people in the
neighbourhood. When they were offered alternative land, they refused it as they
were apprehensive that they would lose the security of occupation if relocated.
In a remarkable decision, South African Constitutional Court dismissed the
appeal as it was not just and equitable to evict the occupiers in a unanimous
decision considering that they had been living on the land for long, that no
mediation took place before the eviction was attempted, and the land in question
was not being utilized for any productive use by Municipality or the owners. The principle of
negotiation among parties in good faith as well as treating each other on equal
terms that were earlier developed in Grootboom and later in Occupiers
of 51 Olivia Road decisions, was not followed in Port Elizabeth
case, and hence, on this ground alone eviction was prohibited in appeal.[79]
In Occupiers of 51 Olivia Road[80]
in 2008, around 400 petitioners of purportedly unsafe buildings
prayed that they not be evicted, an interim order passed by Justice Yacoob
ordered the authorities to enter meaningful negotiations with the evictees “who
landed in such position as a consequence of city regeneration scheme
such that the city may be allowed to complete their scheduled work”.
Upon consultation, it was agreed that the buildings would only be refurbished
and not demolished and the Court referred to the Grootboom case
underpinning the ‘constitutional value of human dignity in judicial practice’.
Thus, the
Constitutional court, through a reasonableness approach was successful in
providing limited substantiveness to the remedy by prescribing to the executive
the responsibility of holding a meaningful consultative process thereby
mitigating the severe power imbalance between both parties and mandating the
municipal authorities to ensure the suitability of the proposed relocation site
in order to be eligible for carrying out evictions, yet the review of the court
nonetheless, remained constrained in its potential to view the right as a
systemic right.
VIII
CONCLUSION
With Olga Tellis case, the Indian jurisprudence
evolved a unique interpretation of the right to shelter and the accompanying
right to resettlement as a protection against forced evictions by reading the right in
consonance with the right to dignified life and livelihood by relying on
Articles 21, 39(a), and 42. However, it is accompanied by a caveat which substantially
erodes the justiciability of the right by making the right contingent upon procedure
established by law if it is ‘just, fair and reasonable’. The journey of judicial discourse on the right
to shelter and resettlement, from ‘eviction’ to ‘resettlement’ partially succeeds in its attempt to
humanize and dignify the lives of slum residents but in praxis fails to curtail
the inherent brutality in eviction procedures. This is because despite
borrowing from international safeguards and South African jurisprudence as
witnessed in Sudama Singh and Ajay Maken, the discourse remains exposed
to judicial inconsistencies and arbitrariness as a consequence of the
conditional approach adopted by the Supreme Court, thereby, doing little to
afford a substantial meaningful protection. A posteriori, justice
remains contingent upon state’s action of offering crumbs through far flung
relocation sites from the city and opportunities of livelihood with little to
no access to basic amenities for human sustenance like sanitation, electricity,
potable water, etc. In contrast to an individualized remedy as a mandate under
a minimum core approach, it is seen that state action under conditional
approach is withdrawn prematurely as partially restorative justice. There is
enough evidence to show that the executive can go on sublimating procedural
safeguards as pleased by acting in contravention to the settled principles of
law, mandates of the Constitution, norms under international Conventions that
India is party to because it does not perceive the sanction of law until
challenged before the court and even then, the court may shy away from holding
it accountable neglecting its own jurisdiction as the ultimate custodian and
interpreter of the constitution and the Directive Principles of State Policy
enshrined. This complex predicament, when on one hand courts lean towards judicial
deference due to policy implications and on the other state’s inaction and
arbitrariness predestines the justiciability of the social right suspended
between the two pillars of democracy – the judiciary and the executive, renders
the substantial and meaningful realization of the right to the marginalized
infructuous and impracticable.
Research reveals the need to engender a robust
political dialogue on the right to shelter and presents a promising area
employing the sociological methodology to further investigate the power abused
by those exploiting their social location while enjoying higher degrees of
judicial concern, by litigants and courts that label the marginalized as
nuisance and criminals. A revamping of policy framework in sync with and not in
ignorance of rapid urbanization and the reality of seasonal migrants besides a
shift in perception of residents in informal settlements as right holders in
the resources of the nation and not beneficiaries becomes a necessity in order
to give any real meaning to their claims of the right to the city;
simultaneously, an assertion on part civil society organizations keeping in
check their own privileged social status, socially conscious researchers and social
right litigants also further the reimagination of informal inhabitants as
rightfully belonging to the city by not just acknowledging their huge
contribution that keeps the city functioning but also through assertion of
their rights in protests defending their rights in the face of illegal
evictions. Though extensive literature exists on the right’s interpretations
and adjudicatory approach followed by courts, it demonstrates acute limitations
of the conditional approach in justiciability of the right unearthing the need
for a starting point in exploring a systemic rights approach both in research
and praxis for a larger protection. Meanwhile, a constructive use of continuing
mandamus or structural interdicts as seen in Ajay Maken case relying on
supervisory jurisdiction of court characterized by close engagement and timely
dialogue with the evictee community, litigants, and the executive must be put
to aid and supplement the conditional model tying up the government with courts
requiring the preparation of a priority-based timeline to report back with
suggestions and surveys constantly evolving or rectifying plans to meet its constitutional responsibilities.[1] Jessie
Hohmann, The Right to Housing: Law, Concepts, Possibilities 1 (Hart
Publishing, London, 2013); Malcolm Langford, Social Rights Jurisprudence:
Emerging Trends in International and Comparative Law 1-2 (Cambridge
University Press, 2009).
[2] UN Office of the High Commissioner for
Human Rights, CESCR General Comment No. 4: The Right to Adequate Housing
Note 7 (Art.11.1), E/1992/23, (13 December, 1997).
[3] UN
Office of the High
Commissioner of Human Rights, CESCR General Comment No. 7: The Right to
Adequate Housing Art. 11, UN Doc E/1992/23, (December 13, 1991).
[4]
Census 2011, India, available at: https://www.censusindia.gov.in/2011-Documents/Slum-26-09-13.pdf
(last visited on April 11, 2022).
[5] UN
High Commissioner for Refugees, The Sustainable Development Goals and
Addressing Statelessness, March 2017.
[6] “The
Justiciability of Economic and Social Rights in South Africa, India and the
United States | IHEID,” available at:
https://www.graduateinstitute.ch/communications/news/justiciability-economic-and-social-rights-south-africa-india-and-united-states
(last visited April 17, 2022).
[8] The
International Covenant on Economic, Social and Cultural Rights, 1966, art. 11.
[9] The
International Covenant on Civil and Political Rights, 1966, art. 17.
[10]
The Convention on Elimination of All Forms Of Discrimination Against Women,
art. 14.2(h).
[11]
The Convention on The Rights Of The Child, 1989 arts 16.1, 27.3.
[12]
The Convention on The Elimination of All Forms of Racial Discrimination, 1965,
art.5 (e) (iii).
[13] The
Protection of the Rights of All Migrant Workers and Members of their Families,
1990, art 43(d).
[14] Supra 3, Note 8(e).
[15] Kalpana Sharma, “Evictions of Urban Poor”
29 Economic and Political Weekly, Issue No. 32, Vol. 51 (2016).
[16] The
Constitution of India, art. 37, 38.
[17] The
Constitution of India, art 39.
[18] The
Constitution of India, arts. 41, 43.
[19] The
Constitution of India, arts. 47, 51A.
[20] The
Constitution of India, art. 14.
[21] Renita
D’souza, “Housing poverty in urban India: The failures of past and current
strategies and the need for a new blueprint” ORFavailable at:
https://www.orfonline.org/research/housing-poverty-in-urban-india-the-failures-of-past-and-current-strategies-and-the-need-for-a-new-blueprint-48665/
(last visited April 8, 2022).
[22] Rajesh
Yadav v. State of U.P., (2019) 6 All LJ 644.
[23] Upendra Baxi, “Housing for the
Impoverished: A Basic Human Right”, India Legal, (July 28, 2019).
[24] Munn v Illinois, (1876) 94 U.S.
113.
[25] Kharak Singh v State of U.P.,
(1964) 1 SCR 332.
[26] Olga Tellis v. Bombay Municipal
Corporation, (1985) 3 SCC 545.
[27] Chameli
Singh v State of UP, (1996) 2 SCC 549.
[28] Ajay
Maken v Union of India, Writ Petition Civil, 11616 of 2015, para 12.
[29] Anashri Pillay,
“Revisiting the Indian Experience of Economic and Social Rights Adjudication:
The Need for a Principled Approach to Judicial Activism and Restraint,” 63 The
International and Comparative Law Quarterly 389 (2014).
[30] Id., at 390.
[31]
Supra 26, para 57.
[32] Id., at para 46.
[33] Id., at para 14.
[34] Madhav
Khosla, “Making social rights conditional: Lessons from India,” 8 International
Journal of Constitutional Law 739–765 (2010).
[35] Supra 29, at 401.
[36] Id.
[37] Id.
[38] Katharine
G. Young. "The Minimum Core of Economic and Social Rights: A Concept in
Search of Content" 33 Yale International Law Journal 131 (2008)
[39] Supra 29, at 400.
[40] William Blakeney & Dan Hartrell,
“What is a Nuisance, Municipal Liability for Sewer Backup” 3 Institute for
Catastrophic Loss Reduction (2012).
[41]
David Asher Ghertner, Rule by Aesthetics: World-Class City Making in Delhi
287 (University of California,
Berkeley, 2010).
[42] Ratlam
Municipal Council v Vardichand, AIR 1980 SCC 1622.
[43] K.
C. Malhotra v State of M.P., CA 1019 of 1992, M.P. High Court.
[44] Okhla
Factory Owners’ Association v GNCTD, 108 (2002) DLT
517 at para 22.
[45] Anuj Bhuwania, Courting the
People: Public Interest Litigation in Post-Emergency India 83 (Cambridge
University Press, United Kingdom, 2017).
[46] Id.,
at para 87.
[47] Supra
45, note 9 at 283.
[48] Lawyers’
Cooperative Group Housing Society v Union of India, CWP 267 of 1993 and CM
464 of 1993 Delhi High Court, para 13 and 14.
[49] Supra
45, note 8 at 84.
[50] Supra
45, at 107.
[51] Almitra
H. Patel v Union of India, (2000) SCC 2 679.
[52] Id.,
at para 14.
[54] Supra
45, note 14.
[55] Pitampura
Sudhar Samiti v Government of India, Civil Writ Petition, 4215 of 1995 at para
1.
[56]
Supra 41.
[57] Supra 45, at 82.
[58] Okhla
Factory Owners’ Association v GNCTD, (2003) 8 DLT 517, para 44.
[59] Id.
at para 22.
[60] Kalyan
Sansthan v GNCTD, CWP 4582 of 2003.
[61] Mathew
Idiculla, “A Right to the Indian City? Legal and Political Claims over Housing
and Urban Space in India” 16 Socio-Legal Review 1 (2020).
[63] Id,
at 90.
[64] Habitat International
Coalition, “Over 300,000 people to be forcefully evicted from Yamuna Pushta”, (10 May, 2004).
[65] Supra
28 at para 17.
[66] UN-Habitat,
“Participatory monitoring and evaluation of the impacts of project CMB/00/003:
Phnom Penh urban poverty reduction project”.
[67] Sudama
Singh v Government of Delhi, MANU/DE/0353/2010.
[69] Shantistar
Builders v. Narayan K Totame, (1990) 1 SCC 520.
[70] Joe
Slovo Community, Western Cape v Thubelisha Home, (2008) ZACC 1.
[71] Supra
28 at para 144.
[73] Supra
27 at para 66 and 67.
[76] Republic
of South Africa v Grootboom, 2000 11 BCLR 1169.
[77] Port
Elizabeth Municipality v Various Occupier, 2004 (12)
BCLR 1268 (CC).
[78] Id.
at para 3.
[79] Oscar Vilhena, Upendra
Baxi, et al. (eds), Transformative Constitutionalism: Comparing the
Apex Courts Of Brazil, India And South Africa 451 (Pretoria University Law Press, 2013).
[80] Occupiers
of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg, 2008
(3) SA 208 (CC).
Article Information
JUSTICIABILITY OF RIGHT TO SHELTER AND HOUSING IN INDIA VIS-À-VIS ILLEGAL EVICTIONS - By Aishwarya Karan
Authors: Aishwarya Karan
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/07
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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