Soumya Ghosal

The article attempts to look at the judiciary’s temperament with respect to Basti evictions. To that effect, the article highlights the callous approach taken by the Courts to understand the rights of the slumdwellers and further looks into how intersectionality of the residents differently affects their right to housing in such cases. 

Introduction

Since the 1970s, Constitutional Courts in India have been famously slipping into paternalistic roles with regards to welfare and “public interest”. Through PILs, the Supreme Court aimed to become, as one of its judges argued, ‘the last recourse for the oppressed and the bewildered’ who could approach the Court to protect against the infringement of their fundamental rights. However, beyond their originally intended roles as guardians and interpreter of the Constitution and their newfound role as creators of public policy, it is important to ask – who do the Courts protect? Is it just the most visible of the population or do the most impoverished get the Courts’ grace too? And what happens when it is the Court that disenfranchises the oppressed?

In this paper, I attempt to look at the Higher Judiciary’s temperament with regards to the eviction of bastis, with a particular focus on Justice Arun Mishra’s Order in MC Mehta v Union of India (2020), requiring the removal of 48,000 jhuggi-jhopdis in Delhi. This paper firstly looks at the Court’s callous approach to the rights of so-called ‘encroachers’, and secondly explores how the evicted residents are affected differently based on the intersectionalities of their identity.

Courts and Evictions

An archetypical basti is a settlement that houses residents who are often income-poor in a built environment that reflects some measure of their impoverishment. The settlers here do not “own” the land, nor have any legal claim to it. Income-poor urban residents occupy land both out of need and right, implicitly and explicitly pointing out the state’s failure to provide, or ensure, the provision of adequate and affordable low-income housing.

The Courts’ outlook towards these bastis has been quite erroneous, mostly looking at them as “encroachments” rather than settlements. In 1985, the Supreme Court in the case of Olga Tellis had held that the right to life under Article 21 includes the right to livelihood and housing. However, the Bench recognised the most minimal entitlements as a part of the right to housing – a right to notice and hearing prior to evictions, and access to rehabilitation under the existing schemes for the same. The judgement has been often criticised for reducing the Right to livelihood to a “minimum procedure of notice and hearing”.

Perhaps, a better sense of the Courts’ approach to slum-dwellers and their eviction can be seen in Okhla Factory and Almitra Patel.  In Okhla Factory, the Delhi High Court ordered the removal of 30,000 households in the colony of Pushta, housing nearly 1.5lakh people, along the river Yamuna. The Bench did little for the so-called ‘right to housing’, denying the residents a guarantee of resettlement. The judges went on to comment that “under the garb of resettlement, the encroachers are paid a premium for further encroachment”.

In Almitra Patel, it was the Apex Court that treated bastis with disgust and vileness. Labeling them as ‘producers of garbage’ that needed to be cleared away, the Bench chose to ignore their rights as citizens – the right to life and housing. On the matter of resettling the resident of bastis, the Court remarked “the promise of free land, at the taxpayers’ cost, in place of a jhuggi, is a proposal which attracts more land grabbers. Rewarding an encroacher on public land with the free alternate site is like giving a reward to a pickpocket.”

Arun Mishra J’s Order

Almitra Patel’s legacy looms over the judiciary and its members. In one of his final orders before retirement, a bench led by Arun Mishra J passed an order requiring the removal of 48,000 jhuggi jhopdis built along Railway tracks in Delhi, within 3 months. The Order prima facie appears to be out of concern for the environment, shifting the blame for all waste produced onto the residents of the bastis. The order makes no mention of the right to housing of the thousands of residents of this jhuggi jhopdi. The promise of the right to housing offered by Courts in Sudama Singh and Ajay Maken was undone by this legally dubious order that pre-empts other courts from giving orders to stop the eviction. The Court disdainfully refers to how “political interference” does not allow “encroachments” to be evicted, ignoring how political negotiations enable residents of informal settlements to incrementally make claims on housing and exercise their “Right to the City”.  It is also of significance that the Order was passed during the First wave of the COVID-19 pandemic. In doing so, the Court endangered the lives of these slum-dwellers and failed to uphold the Article 21 rights of jhuggi jhopdi dwellers in a much more immediate sense than just the Olga Tellis way.

Both in Almitra Patel and the aforementioned Order, we see the Court engage in something that, to borrow a phrase from Amita Baviskar, can be described as bourgeois environmentalism. Under the garb of concern for the environment, the court ordered the removal of the bastis, trampling the housing and other rights of the urban impoverished. The Courts do not even contemplate other solutions to the problems at hand – such as ordering the provision of waste disposal and sanitation facilities to the bastis– instead of choosing to shift the blame for the pollution completely on the residents.

It is proposed that it is not mere oversight or short-sightedness that makes the Court comes to this conclusion. The residents of these bastis often belong to the less-privileged castes. The association of the word “polluted” with members of the less-privileged castes in our society has a long history. Hence, it is not only easier to blame them for the pollution, but it also seems “reasonable”.  Furthermore, the Courts play into the savarna myth of laziness that is often attributed to the less-privileged castes. If they are provided with resettlement, which the Court sees more as a favour than a right, then they would never ‘learn’ or ‘work’. This line of thinking is evident in Almitra when the Court equates them to “pickpockets”, opining that the increase in the number of slums in Delhi is because, for slum-dwellers, it “appears to be a good business”, like an evil scheme of acquiring public land, instead of acknowledging that this rise is due to the increase in forced evictions and an unaffordable housing market.

The politics of language in these judgments and policy cannot be ignored either. Words like “encroachment” and “land grab” have significant power in the image they create. In all of these Orders, judges refer to the settlements as jhuggi-jhopdi clusters, even if they are settled colonies. When you think of a cluster, it seems incidental and haphazard, something that can be easily removed, easily evicted. Similarly in all the judicial orders that carry out these evictions, they never name the colonies, preferring to address them by their geographical location instead, because that is what an “illegal encroachment” deserves.

How does eviction affect the slum-dwellers?

Often the Courts (and policy-makers) assume that the evictions would affect all the residents in a monolithic manner. However, depending on various factors and intersectional dimensions of their identities, the slum-dwellers are affected differently.

The most immediate divide that happens in the face of eviction is the one between people who have papers, and identity proof, and the ones who do not. In the instance that the Court does allow for the resettlement of the slum-dwellers, this becomes the difference between homelessness and housing. Sometimes the Court sets an arbitrary cut-off date – if you can prove that you were in occupation of the “encroachment” before so-and-so date, you are eligible for rehabilitation. In his book, Bhan records that of the nearly 1.5lakh people who were evicted from Pushta, only 30% were “eligible” for rehabilitation under government order.

The cost of confrontation is deeply gendered and ableist too. Cisgendered-heterosexual, abled men are better-placed to rehabilitate themselves. It is much easier for cis-people to provide documentation, especially proof of occupancy over a certain period than it would be for transgender people. There is a stark divide based on one’s occupation – the daily wage worker is not equally placed as the man who owns the shop at the corner of the street. The class division, even within the impoverished, becomes essential to consider how they would restart their lives post-eviction.

In cases like Navtej Singh Johar and Lt. Col. Nitisha, Justice Chandrachud recognizes the “Indirect Discrimination” that marginalised identities face in a society that is structured against them. These judgments not only recognise such discrimination but actively strike down laws and practices that enforce these norms. Applying the same constitutional morality to cases against demolishing of slums would highlight the structural inequalities which have forced people to live in these slums in the first place, that it is not a scheme to dupe the State for illegitimate benefits. Maybe the Court then treats these unequal unequally and at least offers them the rehabilitation they need and deserve.

In this matter, it would be interesting to consider alternative urban policies with regards to “encroached land”. In Bangkok, Thailand, the Baan Mankong Programme was launched in 2003 which aims to subsidize housing and offer cheap loans to build or upgrade their houses. Till 2021, it has benefitted more than 1,30,000 people. In Egypt, the Government is removing all the unsafe slum areas in Cairo, with a promise of rehabilitating over 2000 families back into developed flats within three years. Another alternative is considering Self Developed slums. Slums denote the State’s failure to keep its promise of universal housing. However, if instead of looking at slums not as “encroached” land but as an island of self-development, where a community against all odds survive and live, and they are assisted in their endeavour, then it isn’t far-fetched to envision a quickly developing neighborhood instead of a bunch of people occupying undeserved land.

Conclusion

In November 2020, the Government assured the Supreme Court that no coercive steps will be taken immediately to demolish 48,000 slum clusters, in pursuance of the now-retired Arun Mishra J’s order till the Urban Affairs Ministry assessed the situation in consultation with the Railway Ministry. They were supposed to propose solutions for the slum dwellers within 4 weeks, stopping any demolition work till then. However, almost a year later, there has been no update from the Ministry on the matter, leaving the lives of thousands of slum dwellers in limbo.

J Mishra may have left the Bench, but the Apex Court’s approach has not changed. In June 2021, the Supreme Court ordered the removal of slums from the Aravalli forest land in Haryana within six weeks, uprooting 10,000 families and endangering the lives of over a lakh people, with no promise of resettlement, while the second wave of the pandemic raged on.

The Courts erroneously, and perhaps intentionally, continue to see bastis as sights of ‘grabbing’ the public land, instead of what it truly is – evidence of resilience in the face of State failure to provide the welfare that is promised to its citizens. The Courts do not see the dwellers of these bastis as part of the city; hence their welfare does not become central to the great theme (or myth) of Public Interest. They are imagined, then, as encroachers of public land, instead of being a part of the public that the land rightfully belongs to. Bastis and its dwellers, members of the less-privileged castes and classes, are seen thus as ‘scars’ on the face of a beautiful city that need to be hidden or removed because it betrays the failed promise of the State. Scholars have suggested model systems of Affordable and Universal Housing to help deal with the eviction crisis, but as long as Courts fail to include the most impoverished among the urban within their imagination of development and fail to recognize their Right to the City, the ends of justice cannot be met.

Soumya Ghosal is a third-year student at the West Bengal National University of Juridical Sciences, Kolkata.