Friday, Jun 09, 2023

Courts Backing The Executive On Demolitions Is More Painful


Courts Backing The Executive On Demolitions Is More Painful

Judges calling slum dwellers ‘encroachers’ goes against constitutional human rights and indicates the sorry state of the poor

Sea of tarpaulin­: Aerial view of a densely populated slum colony in India Photograph: Getty Images

Watching slums getting demolished during the Covid period and in extreme heat conditions and seeing the State use bulldozers as a weapon to punish those who criticise governments and their leaders, one would not imagine that the poor are completely protected by constitutional law and the various judgments of the Supreme Court. These lay down that all persons including the poor are protected by Article 21 of the Constitution—right to life—and that there can be no ‘life’ without the right to housing. Politicians, particularly from the central government, often say that since slum dwellers have no title to the land on which they are staying, they are ‘rank encroachers’, and their dwellings can be demolished any time without prior notice. But when even judges call slum dwellers ‘encroachers’ despite the judgments of the Supreme Court, it is particularly painful, and shows how low we have fallen in our understanding of human rights and role of the courts in protecting the poor.

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Why have we fallen so low? Why is the legal system so willing to follow the executive? We have been told by judges that the highest duty of the judge is “to speak truth to power”. But as we look around for judges willing to stand up to the executive, why are there so few who can be found? The fact is that in every court there are fine judges who are silently determined to uphold their oath and the Constitution. They do their duty of protecting the weak without fanfare. In the case of slum dwellers, they stay evictions and order rehabilitation. For every judge who mercilessly orders demolition even without rehabilitation, there are judges who understand the issue with their heart and head. More importantly, they understand that demolitions are unconstitutional.

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These apex court judgments laying down that slum dwellers have a right to housing go back several decades. These are, to name a few, S.P. Gupta’s case, Shantistar Builders case, Chameli Singh’s case, Nawab Khan’s case, Ajay Maken’s case and more recently, Sudama Singh’s case in the Delhi high court, which were upheld by the Supreme Court. The law laid down is this. Article 21 includes the right to housing. The right to life does not mean mere animal existence, but a meaningful life with dignity. Secondly, it is the State’s duty to use the land and resources under its jurisdiction to create houses for the poor, with special emphasis on Dalits and tribals. No government after independence has ever used its resources to build housing for the poor, which is why the poor who migrate to the cities stay in slums. It is the policy of the governments that results in the spread of slums. It is the government’s wilful default that causes the growth of slums.

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One may well ask, if one is blissfully unaware of the conditions of India, as to why the poor come to the cities in the first place. Why don’t they stay in their villages? We could ask this question to the rich and the upper middle classes as well, but if we ignore this provocation for the moment and answer the question, we will find that out-migration to the cities is also the result of perverse policies and practices of the State. Agricultural failures, shortage of water, riots, “development projects” and compulsory acquisition of farmers’ land are only some of the many reasons behind forced migration.

The situation in democratic India today is the same as it was in apartheid South Africa, where the government wreaked havoc in the black settlements

Continuing with the statement of law as laid down by the courts, in situations where governments do not construct housing at reasonable rates for the poor, the courts have declared that the slums on public land are not to be demolished, particularly when they have existed for years, unless there is a pressing public purpose or public project. On such land, the government is required by law to regularise slum dwellers ‘in-situ’ i.e. in the same place, and to improve amenities in the slum. Where there exists an urgent public project in the same area as the slum, such as the laying of pipelines, slum dwellers must be taken into confidence and a transparent plan of action for rehabilitation must be drawn up and executed jointly. This requires adequate notice, the rehabilitation must be done as close as possible to the existing slum, and slum dwellers must be compensated for the relocation.

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Instead, what do we see? Bulldozers appearing out of nowhere because some politician has his eyes on that land. Merciless demolitions follow with a large police force that will unleash extreme cruelty on the poor. And the next day the newspapers will have pitiable photographs of the victims, particularly the elderly and children sitting on mounds of bricks clutching at the remnants of their possessions. The situation in democratic India today is the same as it was in apartheid South Africa, where the racist government wreaked havoc in Black settlements. Have we sunk so low? Is democracy in India real or fake? What joy does it give judges to allow such demolitions to continue? What faith can be retained in such a judiciary where instances of such cruelty are allowed to pass? Have we come to a situation where the treatment of the working class by Indians is far more brutal than how the British once treated us?

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And on the use of the derogatory word ‘encroachers’, we are reminded of what the UN said when it formulated the ‘Guidelines against Forced Evictions’. The poor who suffer ‘forced’ migrations settle on government land because they have no other places to go. They are not to be equated with propertied persons who settle on another’s land. The poor are best described as coming under the ‘doctrine of necessity’, where if they do not settle on government land they will surely die. This Committee of the UN was chaired by Justice Rajinder Sachar, former Chief Justice of the Delhi high court. It formulated the principles for the treatment of slum dwellers to include regularisation in-situ, adequate notice, rehabilitation with the consent of the slum dwellers and compensation.

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However, we are living in brutal times. The courts are our only resort, but with each passing day they appear as an extension of the executive. There are judges who fight back, but face the ire of the executive and punitive supersessions/transfers. The time has come for them not to care a fig about becoming Chief Justice, or reach the Supreme Court, or get post-retirement assignments, but just do their duty following their conscience and the Constitution. This is a political battle within the judiciary: to speak the truth. Only time will tell if they do.

(This appeared in the print edition as "Court Martial!")

(Views expressed are personal)


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Colin Gonsalves is a senior advocate at the supreme court