Heed the advice of justices on evictions - Hindustan Times

Heed the advice of justices on evictions

Jan 31, 2024 10:00 PM IST

Allahabad HC order on resettlement and rehabilitation can help in crafting a meaningful, humane jurisprudence on evictions and constitutional rights

In a society as riven with inequalities as ours, access to land and housing has always been a major social problem. Because of widespread landlessness, people at the margins of society often find themselves forced to reside on land that they do not have legal title to and build their homes (and lives) on such land. Among these people, the unlucky ones are those who, from time to time, catch the attention of the State: That is when the bulldozers arrive, homes are torn down, and swathes of people are evicted.

A recent order of the Allahabad high court (HC) is important in its reaffirmation of the progressive ethos of the Constitution.. (HT Archive)
A recent order of the Allahabad high court (HC) is important in its reaffirmation of the progressive ethos of the Constitution.. (HT Archive)

In 1985, in a famous judgment since called Olga Tellis, (named after the journalist who took on the Bombay Municipal Corporation over the rights of pavement dwellers) the Supreme Court recognised for the first time the social and structural issues around landlessness, poverty, and informal settlements and slums in our urban landscape. The Court held that even people who were residing “irregularly” on public land were owed certain constitutional protections before they could be forcibly removed.

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The Court’s actual protection — a right to adequate notice and (if required) a hearing before eviction — was disappointingly meagre, but subsequent judgments have built upon the insights of Olga Tellis. Courts have held that before eviction, a survey must be carried out to determine if the residents are eligible for existing rehabilitation schemes; and removal and rehabilitation must be done in accordance with such schemes. The judgments, however, remain patchy, with other courts offering no relief to the evicted and the landless. The recent advent of home demolitions as a form of “bulldozer justice” has added to the problems.

In this context, a recent order of the Allahabad high court (HC) is important in its reaffirmation of the progressive ethos of the Constitution. The case concerned a locality called Akbar Nagar, where a set of people had been residing for 40 to 50 years. In October 2023, an eviction order was passed, on the basis that this was a green belt, and that, therefore, the residents’ occupation was illegal. The residents approached the Allahabad HC, which passed interim orders staying the demolition and eviction. In his order, justice Pankaj Bhatia noted that not only had the petitioners been in possession of the locality for a very long time, but in the intervening period, the government had itself built a road there, in addition to setting up a school. There was also an existing relocation scheme. In this light, the court wondered what the tearing hurry was to evict landless and poor individuals, especially in the middle of a harsh winter.

The court also went on to note that under the Constitution, it was the duty of the State to ensure adequate resettlement before it carried out evictions. The court, therefore, stayed the demolition and evictions, and noted specifically that any demolitions could be undertaken only after resettlement or rehabilitation was done in accordance with the law; in other words, resettlement and rehabilitation were conditions precedent to evictions and demolitions, including for occupants and residents without formal title to land.

In its order, the court also prevented precipitate and violent State action by stipulating that four weeks would have to be given to the inhabitants to apply for the resettlement scheme, and have their claims processed; it was only after these procedures were carried out could the municipality obtain vacant physical possession of the premises.

The court’s order was timely. As far too often in such cases, courts only take cognisance after the demolitions and evictions have been conducted, thus making the case infructuous (this was what happened, to a large extent, in the notorious Jahangirpuri demolitions in 2023). By ensuring that relevant orders were passed while the petitioners’ homes were still standing, the court ensured that its invocation of the Constitution had genuine meaning for the residents whose rights were at stake.

The court’s order is also important because — as noted here — it is consistent with the progressive ethos of the Constitution. In many other post-colonial countries — such as South Africa and Kenya — courts have recognised that landlessness and housing are social problems, which cannot be resolved by violently evicting people on the basis that they are “illegally” present on the land.

Courts in these countries have developed a detailed jurisprudence, requiring resettlement and rehabilitation, and for the municipality to engage meaningfully with the residents, before punitively evicting them. The Allahabad HC’s order thus represents the best practices in global constitutional law as well as the best impulses of the Indian Constitution.

At present, the case has been shifted to a division bench of the HC, which will hear it in early February. Hopefully, the remarkable and progressive order of justice Pankaj Bhatia will be sustained, and taken forward, with the HC at the forefront of crafting a meaningful and humane jurisprudence on evictions and constitutional rights.

Gautam Bhatia is a Delhi-based advocate. The views expressed are personal

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