On January 4, the Supreme Court (SC) heard an important case regarding the imminent eviction of 4,000 families from a place called Gaffur Basti, in Uttarakhand’s Haldwani town. Relying upon a government memorandum from 1907, the Uttarakhand high court (HC) had held that the families in Haldwani had no legal right to the land on which they were residing, notwithstanding the fact that many of these families had been living there for decades, and had title and transfer deeds, and other documentation issued by the government authorities. The HC’s order said that these families were “encroachers” on land owned by the Indian Railways, and ordered their eviction within a week, with the use of paramilitary forces, if necessary.
The families affected appealed to the SC. After the hearing, the SC bench of justices Sanjay Kishan Kaul and Abhay Shreenivas Oka stayed the HC’s order, and listed the case for further arguments in February. The families, therefore, have a temporary reprieve from the immediate eviction, and demolition of their homes.
During the hearing, and in its order, the SC made two crucial observations: First, that an eviction — that would effectively render people homeless — could not be carried out without first determining an adequate scheme for rehabilitation; and second, the time period of one week was far too draconian, given that these people had lived there for many years.
Both of these observations stem from a fundamental realisation, which the HC missed: What we callously refer to as “encroachments” are the outcome of the State’s failure to discharge its core constitutional obligation of providing adequate shelter to all its citizens, especially the poorest and most marginalised. Encroachers, who often belong to vulnerable sections of society, are almost never motivated by greed or because they think they can get away by cocking a snook at the law: Rather, in most cases, they live a precarious existence and have nowhere else to go. Their plight, thus, is an indictment of both an unequal society, and the State.
For this reason, as a part of its long-standing jurisprudence, the SC has repeatedly held that even though individuals may not have legal right to the land where they reside, evictions nonetheless impact their constitutional rights to shelter, housing, and livelihood. While, therefore, the top court doesn’t necessarily bar the State from carrying out evictions, it has consistently held that evictions must be consistent with the basic constitutional right that every individual enjoys.
What does this mean in practice? Two things. The first is that before carrying out an eviction, the administration must do a detailed survey to check which of the residents are eligible for specific rehabilitation schemes under existing state law (even if there is no state policy on rehabilitation, a constitutional right still exists). And second, the administration must engage meaningfully with the residents with respect to the alternative accommodation that it is providing them. Meaningful engagement means an effective consultation, where the residents are heard, and their concerns are taken on board. It must, by necessity, be a deliberative process where the outcome is not predetermined, either due to procedure or a paucity of time, both of which were factors in the Haldwani case .
The top court’s observations in the Haldwani case, therefore, are extremely important, as they reiterate these basic constitutional and humanitarian standards. The court specifically highlights the need for rehabilitation before carrying out an eviction, and notes that a week is — in effect — far too short a time within which procedures (such as, for example, meaningful engagement) can be carried out. It is for these reasons that the high court’s precipitous order of eviction was stayed.
The SC’s jurisprudence stands at the head of a global judicial understanding of how the rights to housing and shelter interact with the issue of evictions. Courts in countries such as Kenya and South Africa have recently passed landmark judgments noting that the rights of vulnerable and marginalised groups — who are forced to reside on public land because they have no viable alternative — should not be erased by referring to them as “encroachers” and summarily evicting them. If the State is unable to provide one of the most basic human rights — the right to shelter — to its citizens, then it is not the citizens who should be forced to pay for State failure by being made homeless. The Kenyan and South African courts, therefore, have emphasised the need for rehabilitation and meaningful engagement before evictions.
In that context, the SC’s order in the Haldwani case is welcome and highly laudable. And, it is these same standards that ought to continue to apply, as the court considers the merits of the case in subsequent hearings.
Gautam Bhatia is a Delhi-based advocate
The views expressed are personal
