“A simple vote, without food, shelter and health care is to use first generation rights as a smokescreen to obscure the deep underlying forces which dehumanise people. It is to create an appearance of equality and justice, while by implication socio-economic inequality is entrenched. We do not want freedom without bread, nor do we want bread without freedom. We must provide for all the fundamental rights and freedoms associated with a democratic society.” ~Nelson Mandela (1991)
Recently, Congress leader and India’s main opposition leader Rahul Gandhi visited to ‘Shakur Basti’ of Delhi. He interacted with the people of basti and asked about their conditions. Basti’s people told him that the main problem was of living.
Rahul Gandhi also visited to Shakur Basti in 2015, when railway was going to bulldoze the house of people. The congress party had filed a writ petition in the Delhi High Court in the name of Delhi congress leader Ajay Makan. The Delhi High court decided that writ petition in 2019 which would become a landmark judgement affirming that the residents would not be removed unless they are provided an alternative place to stay.
The decision of Ajay Makan case is important and it comes again and again in limelight whenever we see any demolition drive in Delhi to raze the houses of poor People.
What was the case?
- The petition was filed on 13th December 2015, by Ajay Makan, to seek reliefs in relation to the forced eviction of around 5000 dwellers of a jhuggi jhopri basti (JJ basti) at Shakur Basti (West) near the Madipur Metro Station in Delhi.
- Several officials of the Northern Railway which admittedly was the agency of the government holding the land in question on which the JJ basti was located, with a large contingent of the Delhi Police reached the JJ basti at around 10am on 12th December 2015 to commence the demolition. Thousands of children, women and men were rendered homeless. The 1200 jhuggis in the basti were providing shelter to nearly 5000 people.
- When the petition was first heard on 14th December 2015, the Petitioners contended that the demolition had taken place in violation of the law explained in various judgments of the Supreme Court and Delhi High Court. It was submitted that the displaced persons were ―completely helpless and exposed to the extreme cold weather.
It was argued that the Delhi Urban Shelter Improvement Board (DUSIB) as well as the Government of the National Capital Territory of Delhi (GNCTD), had been unable to provide the displaced persons with adequate relief and rehabilitation and that without any alternative arrangements, a large number of the displaced persons were being forced to live in the open at the site of the demolition. It was also pointed out that the demolition took place in complete violation of the Master Plan for Delhi (MPD) 2021, notified on 7th February, 2007.
- In its order dated 16th December 2015, the Court concluded, upon perusing the affidavit of the Railways-
“The unilateral action of forced eviction of the jhuggi dwellers of Shakur Basti on 12th December 2015 by the Railways, with the assistance of the Delhi police, resulted in a grave violation of the rights of life and liberty of the jhuggi dwellers, comprising children and adults, including the loss of shelter and personal belongings and being subjected to grave risk to their life and liberty in peak winter.
The demolition exercise undertaken by the Railways on 12th December 2015 was contrary to the requirements of the law and the Constitution.”
- The Court conveyed to the Railways that the Railways should by way of apologising to the jhuggi dwellers make immediate amends by offering relief measures on its own, independent of the relief measures being undertaken by other agencies.
- Counsel appearing for Delhi Police and the Additional Solicitor General of India (ASG) conveyed the apology of the Delhi Police for the demolition action and stated that they would hereafter draw up a detailed protocol to be followed whenever asked by State agencies to be associated in any demolition drive keeping in view legal, and constitutional and international human rights obligations of the State.
- The Court in its order dated 16th December 2015 noted that under Section 9 of the DUSIB Act, DUSIB had to mandatorily undertake a survey of the concerned jhuggi cluster. It was clear that till then no survey had been formally undertaken by the DUSIB.
- DUSIB undertook a joint survey with the Railways and placed a report before the Court. A total of 1362 families were surveyed of which 237 could not give any documentary evidence of having stayed at the JJ cluster. As regards the actual number of persons affected, the break-up of the total of 4968 was given as children (below 18 years)-1890, men-2147, women-885 and (men and women) older than 60 years-46.
The Delhi Slum & JJ Rehabilitation and Relocation Policy, 2015 (the 2015 Policy) was also enclosed with the survey report. It was noticed by the Court in its order dated 22nd December 2015 in para 12 that under the caption, “Who is eligible for rehabilitation and relocation”, the 2015 Policy stated as under:
“JJ Clusters which have come up before 01.01.2006 shall not be removed (as per NCT of Delhi laws (Special Provisions) Second Act, 2011) without providing them alternate housing. Jhuggis which have come up in such JJ Clusters before 14.2.2015 shall not be demolished without providing alternate housing.”
- No new jhuggis were to be allowed in Delhi after 14th February 2015. As regards in-situ rehabilitation, it was stated that DUSIB would provide alternate accommodation to those living in JJ Clusters, either on the same land or in the vicinity. It was further stated that subject to DUSIB receiving cooperation from all the land owning agencies, the task of rehabilitation of all the JJ Clusters in Delhi was expected to be completed in the next 5 years.
- The issue of providing toilet facilities and electricity engaged the attention of the Court at the hearing on 12th May 2017. The court passed the following order-
“The provision of a toilet is a very basic human need which ought not to be denied. Considering the impending summer followed by the monsoon, this is an issue on which there should be no reservation expressed by the Railways as it concerns sanitation of the area and health of the dwellers.
In that view of the matter, the Court directs that DUSIB will be permitted by the Railways to install the prefab cubical toilet seats.”
The Delhi High Court delivered its judgment in this case on 18th March 2019. In its judgment, the court recognised the ‘Right to city’ of People living there.
The RTTC acknowledges that those living in JJ clusters in jhuggis/slums continue to contribute to the social and economic life of a city. These could include those catering to the basic amenities of an urban population, and in the context of Delhi, it would include sanitation workers, garbage collectors, domestic help, rickshaw pullers, labourers and a wide range of service providers indispensable to a healthy urban life.
Many of them travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life.
Prioritising the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR (International Convention on Economic, Social and Cultural Rights, 1966) and the Indian Constitution. The RTTC is an extension and an elaboration of the core elements of the right to shelter and helps understand the broad contours of that right.
Court’s concluding observations
In its judgment the court concluded that, 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.
The law explained by the Supreme Court in several of its decisions 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 acknowledged 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 recognised such persons as rights bearers whose full panoply of constitutional guarantees require recognition, protection and enforcement.
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 Delhi 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.
The court decided that,
“In view of the positive stand of the Respondents, including the Railways, that in terms of the DUSIB Act, the 2015 Policy and the decision in Sudama Singh it is essential to first complete a survey and consult the JJ dwellers, there is, as of now, no imminent possibility of eviction of the JJ dwellers of the Shakur Basti.
If no in situ rehabilitation is feasible, then as and when the Respondents are in a position to rehabilitate the eligible dwellers of the JJ basti and jhuggis in Shakur Basti elsewhere, adequate time will be given to such dwellers to make arrangements to move to the relocation site. The right of the JJ dwellers to raise objections to the 2015 Policy and the Protocol and to seek legal redress at the appropriate stage, if the occasion so arises, is reserved.”
Ajay Makan v. Union of India (2019)