How to challenge eviction orders from the highest court?

This post features highlights from a conversation between Gautam Bhan and Arkaja Singh at the 128th CPR-CSH monthly talk series, on September 29th, 2020. The discussion was held in the backdrop of a Supreme Court order directing the eviction of bastis adjoining railway tracks in Delhi. The discussion centred around how government policy around ‘slums,’ both at central and Delhi state level was changed, and how these changes came about, considering local and national, bureaucratic and political dimensions of these changes.

On 31 Aug 2020, the Supreme Court of India ordered the demolition of ‘encroachments’ on railway land in the national capital, primarily consisting of low-income housing settlements, thus placing nearly 50,000 households at risk of eviction. IHR has covered the main legal questions in-depth here and featured an opinion piece on alternatives here.

This post features highlights from a conversation between Gautam Bhan and Arkaja Singh at the 128th CPR-CSH monthly talk series, on September 29th, 2020. The discussion was held in the backdrop of the aforementioned Supreme Court order, which marked a stark replay of previous PIL jurisprudence that has led to evictions in Delhi and elsewhere, where residents had not been granted hearing in the case even though it affected their vital interests. In the decades since the previous cases however, rights to housing as well as those for relief, rehabilitation and procedural safeguards have also shifted.

The discussion centred around how government policy around ‘slums,’ both at central and Delhi state level was changed, and how these changes came about, considering local and national, bureaucratic and political dimensions of these changes. The conversation covered a range of issues, broadly revolving around three themes: (a) the form of the PIL and its evolution; (b) the law on evictions and R&R – evolution of the understanding of bastis and people who live in them; (c) strategies and mobilisation to counter the narrative; (d) implications for larger questions of housing and its links to social development.

The present case evokes flashbacks to a series of PILs in the mid 1990s and early 2000s that resulted in large scale evictions and ruptures in communities. This also marked a change in the State’s approach to slums: an earlier settled logic of tacit recognition or ‘looking the other way’ was shattered by the PIL’s ‘judicial governance’. It also marked a stark contrast to ‘golden age of PILs’ and a substantive reframing of the ‘public interest’, without any explanation of logic in its determination.

The evolution of law also involved a close discussion of the role of procedural safeguards and whether they are adequate in the absence of a substantive Constitutional right to housing. In recent times, good administrative policy has facilitated good law incrementally, through various slum rehabilitation policies which then formed the basis for strong judgments, such as in the Shakurbasti case. For instance, the 2015 Delhi slum rehabilitation policy acknowledges the failure of the state in providing adequate affordable housing, and provides procedural safeguards, which have been furthered by the Delhi High Court’s 2019 judgment in the Shakurbasti case that is premised on both strong moral principles as well as procedural fairness. However, while incremental progress is important for procedural safeguards, they are incomplete without thinking of other options substantively – it is not sustainable to invoke them only at the moment of eviction. Further, procedural safeguards cannot guide the model to be followed, or how the policy question should be addressed: for instance, there is no policy imagination that recognises the damage that resettlement can cause and look at it as a last resort, or that sees housing as a question of social protection. The developmental gaze of the state post the 2000s has led to an increased focus on redevelopment, and needs to move beyond just that.

In terms of strategies and mobilisation, much of it has been informed by the particularities of Delhi’s administrative structure and the tension between elected and non elected bodies. The multiplicity of these (along with other jurisdictions such as the NGT) complicates resistance and makes it difficult to know who one is fighting: in earlier evictions, it was hard to even know where eviction orders were coming from. Ordinarily these fights in other cities would be much more local (at the municipal level), which is missing in Delhi, where negotiations happen directly with the Central government, and it is much more unrepresentative that way. However, because of its history of experiencing evictions, Delhi has a strong history of mobilisation against them. Housing rights movements in Delhi have learnt the law very well, which has made activism technically much stronger. In this case, for instance, the Railway Basti Jan Sangharsh Morcha, a collective spearheading resistance against the evictions, released a document with 12 technical points to counter the government narrative.

The principle of the mobilisation around the current eviction threat has been that fighting only on process will mean conceding to resettlement, which is not an acceptable constitutional position. Hence the campaign has articulated its demands around people’s right to stay in-situ, a burden on the state to show otherwise, exploring risk mitigation, etc. Resettlement is framed as a last resort – and only with community consent, no transit camps, completion of infrastructure at the site beforehand – because experience has taught us that civic and social infrastructure is largely absent at these sites.
The focus is on ensuring consultation with affected residents and pushing for public decision-making, neither retreating to the legal arena nor highlighting the political.

Mobilising the state in this manner also helps engage the court in the type of law we would like it to engage in – for instance, the Shakurbasti judgment would not have been possible without the Delhi Government’s 2015 policy, and even the Delhi Government would have limited negotiating power in the current railway eviction case. In that sense it is necessary to push the judiciary to move further than just procedural safeguards, and into engagement with the constitutional jurisprudence around the right to housing. Residents are aware that the terrain of politics as well as the nature and strategies of claim-making is also shifting; there is a decreased expectation from the court now although they continue to approach it for relief. There is thus a need of simultaneous strategies, requiring different kinds of work – depending on political conjunctures, success is possible with one or the other, and sometimes those converge, as with the 2015 policy and the Shakurbasti judgment.

The present case arose out of questions related to pollution and waste management – and the Railways’ instant invocation of basti residents as responsible for dirt and waste reflects inherent biases of caste and religion, besides socio-economic prejudices that have also informed earlier instances of mass evictions. That claims like these which end up furthering inequality can be made in courts without evidence is a statement of how larger social inequalities are structured in our city. An alternative approach, for instance, could have harnessed the expertise of these communities in managing waste. That said, there are advantages for evidence in both courts and policy spaces and we have to use both ends and know how to use different regimes of rules and evidence.

The conversation also discussed incentives for state to prioritise in-situ upgradation, including speed, cost and ease of implementation, universal service delivery, etc. Given state inadequacy at providing housing and market failure, in-situ upgradation is probably the best option in the current economic structure of land market and wage distribution – and precedents at regularisation of other forms of informal settlements are available even in Delhi, where over 1700 unauthorised colonies are in the process of being regularised. Odisha and Punjab have passed laws on urban slum land tenure – these are a return to earlier models of land reform. Informal rental is another possibility that gets out of binaries of affordable housing ownership in cities, and could be a mobility bridge to creating a different alternative housing market.

Finally, measuring the development outcomes of housing would enable us to see it as more than just land, but something that has a multi dimension effect on social outcomes. Housing has the potential to be a developmental foundation: in-situ upgradation can facilitate intergenerational social mobility in just one generation. The process of upgrading buys time for a generation to find its feet so that they can enter the formal housing market, and improve their lot economically. Housing (and economic) mobility from bastis is welcome and desirable – but it should be on account of increased capacity, not forced eviction.

A full video of the discussion is available below:

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