Saturday, February 13, 2010

Right to Shelter vis-à-vis the Latest Delhi High Court judgment

Ghar Bachao Ghar Banao Andolan, Narmada Bachao Andolan and National Alliance of People's Movements welcome the judgment delivered by the Chief Justice of Delhi High Court, Justice Ajit Prakash Shah on February 12, 2010 on the eve of his retirement. This decision will go a long way in the struggle of the poor dwellers and their multiple displacements which started a few decades ago. The Court observed that “jhuggi dwellers are not to be treated as secondary citizens and are entitled to no less an access to basic survival needs as any other citizen".

A Division Bench of the Court comprising Justice A. P. Shah and Justice S. Muralidhr delivered the judgment on a bunch of petitions seeking proper relocation of jhuggi dwellers whose slums set up at various places across the Capital were demolished without relocating them at alternative sites. Dismissing the argument of the Delhi Government and the Municipal Corporation of Delhi that these jhuggi dwellers did not deserve to be relocated as they had set up their jhuggis on public roads and thus violated the "right of way", the Bench said: "This Court would like to emphasise that in the context of the Master Plan for Delhi-2021, jhuggi dwellers are not to be treated as secondary citizens. They are entitled to no less an access to basic survival needs as any other citizen" and observed that "It cannot be expected that human beings in a jhuggi cluster will simply vanish if their homes are uprooted and their names effaced from government records. They are the citizens who help rest of the city to live a decent life they deserve protection and the respect of the rights to life and dignity which the Constitution guarantees them".

Directive Principles of the Constitution mandates the state to provide socio economic justice which needs to be reflected in the form of guarantees. The right to shelter, which forms the part of the right to an adequate standard of living under Article 11 of the International Covenant on Economic Social and Cultural Rights, finds no corresponding expression in the Directive Principles of State Policy. Although right to shelter has been included in the unenumerated rights under Article 21 of the constitution in the case of Unni Krishnan v. State of A.P.[1], right to rehabilitation of the displaced, which has been held in this latest judgment of the Delhi High Court sets it apart from the previous decisions. Meanwhile the Government of India has declared the National Housing & Habitat Policy 2007 following which many of the states like Maharashtra, Karnataka, Kerela have too brought in respective state housing policies but urban development has become synonymous with demolitions anf forcible evictions all over the country, hopefully this judgment would come as a respite for the millions of slum dwellers all over the country.

The background can be seen in the judgment of Olga Tellis v. Bombay Municipal Corporation[2]. In 1981, the State of Maharashtra and the Bombay Municipal Council decided to evict all pavement and slum dwellers from the city of Bombay. The petitioners contended that since they would be deprived of their livelihood if they were evicted from their slum and pavement dwellings, their eviction would tantamount to deprivation of their life. The Court held that the right to life, in Article 21 of the Constitution, includes the right to livelihood since, “if there is an obligation upon the State to secure to citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to lie.” However, this right was held to be not absolute. The Court declined to hold that evicted dwellers had a right to an alternative site but instead made orders that: (i) sites should be provided to residents presented with census cards in 1976; (ii) slums in existence for 20 years or more were not to be removed unless land was required for public purposes and, in that case, alternative sites must be provided; (iii) high priority should be given to resettlement.

In this case, the court was not prepared to go that far. It denied the contention of the petitioners, saying: No one has the right to make use of a public property for a private purpose without requisite authorization and, therefore, it is erroneous to contend that pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon . . . If a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his use of the pavement would become unauthorized."

Later benches of the Supreme Court have followed the ratio of Olga Tellis with approval. In Municipal Corporation of Delhi v. Gurnam Kaur[3], the court held that the Municipal Corporation of Delhi had no legal obligation to provide pavement squatters alternative shops for rehabilitation as the squatters had no legal enforceable right.

Articles 38, 39 and 46 mandate the State to provide socio-economic justice to minimize inequalities in income, opportunities and status. It also includes within its ambit the responsibility to provide adequate shelter and rehabilitation of the displaced community to an alternate site. This latest judgment of the Delhi High Court, delivered by Chief Justice Ajit Prakash Shah on 12 February, 2010, is indeed, path breaking. It is a step ahead of the earlier judgments as it lays down that the government has to rehabilitate the slum-dwellers even if they were encroaching upon the public land. The case has been argued by Mr. Prashant Bhushan to move the court to take a decision like this. The judgment is commendable from the human rights angle and shows the humanistic approach of the court in the dispensation of justice.

[1] AIR 1993 SC 2178.
[2] (1985) 3 SCC 545.
[3] (1989) 1 SCC 10.

Ghar Bachao Ghar Banao Andolan,

Narmada Bachao Andolan and

National Alliance of People's Movements

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