In the past few months, the plight of the slum-dwellers has been brought to the fore-front of the public forum, as nearly lakhs of slum-dwellers are being evicted from their houses, without due cause or reasonable notice and in the absence of proper rehabilitation efforts, specifically in the context of the wide-spread pandemic induced by the COVID-19 virus.
BACKGROUND & SIGNIFICANCE
The Supreme Court of India had ordered, in the first week of September of 2020, the removal of nearly 48,000 slums in the safety zone of the railway tracks, which spanned around 140 kilometres.[i] The political activists, acting on behalf of the slum-dwellers, made the following demands:
a) Proper rehabilitation prior to demolition of slums
b) A fresh survey of the number of families situated near the railway tracks
c) Intervention of the Delhi Government
Thereafter, the Congress leader, Mr. Ajay Maken, along with a slum-dwellers, sought to intervene in the MC Mehta case. The intervenors sought the relocation of the two lakh slum-dwellers prior to their eviction.[ii] The intervenor application states that the order of the Apex Court on 31.08.2020 was “inhuman and against public policy” as lakhs of children, women, and elderly individuals will be evicted out of their houses without an alternate accommodation to move into.[iii] The applicants have also written a letter to the CJI informing him of the alarming situation, wherein the railway authorities have already begun identification and issuing of ‘demolition notices’ to various slums in Delhi.[iv] It is also alleged that the authorities did not apprise the Court of the protocol for the removal of ‘jhuggis’ formulated by the Delhi High Court.[v]
Furthermore, 16 slum-dwellers have approached the Apex Court, requesting to be impleaded in the matter, praying that the Delhi Urban Shelter Improvement Trust be directed to conduct a survey of the JJ clusters and the rehabilitation process. The applicants, represented by Mr. Salman Khurshid, have also submitted that the United Nations Human Rights Special Procedures categorically state that the States must “Declare an end to all evictions of anyone, anywhere for any reason until the end of the pandemic and for a reasonable period of time thereafter…in conformity with their obligations under human rights law”.[vi]
Similarly, in close proximity of time, another incident has arisen, putting burden upon the slum-dwellers of Delhi, where the Central Government has been posting ‘Notices’ in front of the houses within the slum dwellings, that their houses will be demolished.[vii] This issue was raised by the Aam Aadmi Party (AAP) on 10th September 2020, and it is pertinent to note here that the ‘Notice’ gave less than a week’s notice to the inhabitants of the slums for evacuation. The inhabitants of the Tughlakabad area slums were instructed to evacuate their dwellings by 11th September 2020, while similar notices at other slums provided the evacuation period till 14th September.[viii]
CONSTITUTIONAL COMMITMENTS OF THE STATE
The ‘Right to Housing’ is provided under the umbrella protection of Article 21[ix] of the Constitution of India which provides for the right to life and personal liberty, and Article 19(1)(e)[x] which provides the freedom to reside and settle in any part of the territory of India. The conjoint reading of the two provisions provides an individual with the right to housing and shelter, and if the government cannot positively provide this right, then it cannot, unless in contravention to the Constitution, abrogate this right of an individual through a negative action.
The Allahabad High Court, in a 2019 judgment, has examined the concept of ‘shelter’ from the constitutional perspective, while dealing with a matter pertaining to the demolition of slums and eviction of slum-dwellers, in the matter of Rajesh Yadav v. State of U.P. and Ors.,[xi] wherein the Court observed that:
“Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India.”
The Delhi High Court also has adjudicated on such a matter before, in 2010, in the matter of P.K. Koul v. Estate Officer and Ors.,[xii] wherein it held that the right to shelter is an intrinsic element of Article 21 of the Constitution, and therefore, an inalienable component of the fundamental rights. This decision was in consonance with the established view of the Supreme Court of India, where the Apex Court has stated in a catena of cases[xiii] that the right to shelter is an inalienable right available to every citizen of India and it forms an intrinsic element of the right to life, and this was deliberately done in order to breathe more meaning into Article 21 rather than have it narrowly defined as mere ‘animal existence’.
The ‘Right to Shelter’ has long been decided, in Oliga Tellis v. Bombay Municipal Corporation,[xiv] wherein the Court held that the loss of shelter would result in the deprivation of their livelihood and the same would amount to be violative of Article 21. In PG Gupta v. State of Gujrat & Ors.,[xv] the Court held that the ‘Right to Shelter’ is a fundamental right provided by Article 19(1)(e) read with Article 21, and the ‘right to shelter’ would be included within the meaning of ‘right to residence’ and ‘settlement’. It was further held in this case that the State should provide “permanent housing schemes” to the poor.
In Ajay Maken v. Union of India,[xvi] it was observed that there should be “efficient arrangements” made before eviction proceedings occur. Even the Delhi High Court, in the matter of Sudama Singh & Ors. v. Government of Delhi & Anr.,[xvii] which has been upheld twice by the Apex Court, had held that it is the duty of the State, prior to carrying out any eviction, to ensure the following:
i. Conduct a survey of all persons facing eviction and check their eligibility under existing schemes for rehabilitation; and
ii. Carry out the rehabilitation exercise in consultation with each one of them (persons at risk of eviction) in a meaningful manner.
ADHERENCE TO INTERNATIONAL OBLIGATIONS
The ‘Right to Housing and Shelter’ is part of the second-generation human rights, which are fundamentally economic, social, and cultural in nature and guarantee different members of the citizenry equal conditions and treatment. It is a widely recognised human right, that is provided in several international instruments including the Universal Declaration of Human Rights (‘UDHR’) and International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Article 25[xviii] of the UDHR specifically provides for the right to housing. Furthermore, Article 3[xix] of the UDHR provides for the ‘Right to Life’ stating that, “everyone has the right to life and to live in freedom and safety i.e. right to life, liberty and security of person”, which would also entail, inter alia, the right to housing.
In Ajay Maken v. Union of India,[xx] the Delhi High Court observed that Article 11(1)[xxi] of the ICESCR provides everyone the right of adequate standard of living for himself and his family which also includes adequate food, clothing and housing, and to the continuous improvement of the living conditions. The Court also held that the ICESCR is one of the human rights covenants recognised by the Indian Parliament to be enforceable. Therefore, consequently, the obligations under the said covenant are also enforceable in India. A similar view was also taken by the Bombay High Court in State of Maharashtra v. Charudutta Padurang Koli,[xxii] wherein the Court held that it is a settled law that the ICESCR is binding upon the Government of India, as it is a multi-party treaty, ratified by India in 1976. With the enactment of the Protection of Human Rights, 1993, and Section 2(f)[xxiii] thereof, which provides that the ICESCR is one of the human rights covenants recognised by the Indian Parliament to be enforceable.
CONCLUSION
Therefore, it is clear from the above discussion that the present incidents under consideration involve lakhs of citizens being displaced from their slum-dwellings and the lack of rehabilitation efforts by the competent authorities ensures that the poor aggrieved slum-dweller is left no choice but to surrender to the circumstances, of being forced into a state of homelessness, especially during the time of a pandemic, when the slum-dweller is more susceptible to contracting COVID-19, and the consequent apprehensions regarding the same results in a reduced mental health state leading to an overall degradation of the quality of standard of living. Thus, the directive of the Apex Court and the actions of the Central Government are violative of the fundamental right to life of a slum-dweller, as they are being displaced in a manner which is contrary to the principles of natural justice and due process.
ENDNOTES [i] Ensure rehabilitation of railway slums before demolition, The Hindu, https://www.thehindu.com/news/cities/Delhi/ensure-rehabilitation-of-railway-slums-before-demolition/article32538259.ece. [ii] Debayan Roy, Dwellers of 48,000 jhuggis were never heard by SC: Ajay Maken files application in SC seeking rehabilitation of slum dwellers before eviction, Bar and Bench, https://www.barandbench.com/news/litigation/ajay-maken-file-intervention-plea-in-sc-seeking-rehabilitation-of-jhuggi-dwellers. [iii] Id. [iv] Id. [v] Id. [vi] 16 slum dwellers want to be impleaded in jhuggis removal case, India Legal, https://www.indialegallive.com/top-news-of-the-day/news/16-slum-dwellers-want-to-be-impleaded-in-jhuggis-removal-case/. [vii] Will approach Supreme Court against slum demolition: AAP, The Hindu, https://www.thehindu.com/news/cities/Delhi/will-approach-supreme-court-against-demolition-aap/article32569730.ece. [viii] BJP is sending notices for demolition of slums, says AAP, The Hindu, https://www.thehindu.com/news/cities/Delhi/bjp-is-sending-notices-for-demolition-of-slums-aap/article32575765.ece. [ix] INDIA CONST. art. 21. [x] INDIA CONST. art. 19(1)(e). [xi] Rajesh Yadav v. State of U.P. and Ors., (2019) 145 RD 209 (India). [xii] P.K. Koul v. Estate Officer and Ors., ILR (2010) Supp. (1) Delhi 657 (India). [xiii] U.P. Avas Evam Vikas Parishad v. Friends Cooperative Housing Society Ltd., 1995 Supp (3) SCC 456 (India); State of Karnataka v. Narasimhamurthy, (1995) 5 SCC 524 (India); Chameli Singh v. State of U.P., (1996) 2 SCC 549 (India); Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, (1997) 11 SCC 121 (India). [xiv] Oliga Tellis v. Bombay Municipal Corporation, [1985] 2 Supp SCR 51 (India). [xv] P.G. Gupta v. State of Gujrat and Ors., 1995 Supp. (2) SCC 182 (India). [xvi] Ajay Maken v. Union of India, (2015) 7 SCC 1 (India). [xvii] Sudama Singh and Ors. v. Government of Delhi and Anr., (2010) 168 DLT 218 (DB) (India). [xviii] Universal Declaration of Human Rights, art. 25. [xix] Universal Declaration of Human Rights, art. 3. [xx] Ajay Maken v. Union of India, 2019 SCC Online Del 7618 (India). [xxi] International Covenant on Economic, Social and Cultural Rights, art. 11(1). [xxii] State of Maharashtra v. Charudutta Pandurang Koli, 2019 SCC Online Bom 1993 (India). [xxiii] Protection of Human Rights, 1993, Act No. 10, Acts of Parliament, 1994, § 2(f) (India).
ABOUT THE AUTHOR
This blog has been authored by Jaiyesh Bhoosreddy, who is a 4th Year B.A., LL.B. (Hons.) student at University School of Law & Legal Studies, New Delhi.
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