The unfairness of the Supreme Court order on slum evictions along railway tracks in Delhi: an explainer


The Supreme Court of India on 31.08.2020 passed an order, in a Public Interest Litigation (PIL) relating to pollution and waste management in Delhi, directing the eviction of “encroachments” – primarily jhuggi-jhopri (JJ) bastis, or slums – on Railway land in the capital. Coming in the middle of the COVID-19 pandemic, the order has been subject to legal criticism and has received wide coverage in the media. In this series of Q&A, we deconstruct what exactly the order says, the extent of the displacement it is likely to cause, the legally prescribed procedure for eviction and relocation, and what would be a fair approach going forward.
By  |  September 9, 2020

 

The Supreme Court of India on 31.08.2020 passed an order, in a Public Interest Litigation (PIL) relating to pollution and waste management in Delhi, directing the eviction of “encroachments” – primarily jhuggi-jhopri (JJ) bastis, or slums – on Railway land in the capital. Coming in the middle of the COVID-19 pandemic, the order has been subject to legal criticism and has received wide coverage in the media. In this series of Q&A, we deconstruct what exactly the order says, the extent of the displacement it is likely to cause, the legally prescribed procedure for eviction and relocation, and what would be a fair approach going forward.

What does the Supreme Court’s order say and why is it unfair?

The order states that (i) all government agencies concerned have to formulate a “comprehensive plan” for removal of jhuggis on Railway land in a “phased manner”; (ii) jhuggis in the safety zone – a distance of 15 metres from the tracks – should be cleared within three months. It also vacates all existing stay orders on demolitions that jhuggi residents had earlier obtained from the Delhi High Court.

The order is unconscionable on multiple counts. Displacement of a large number of people in the middle of the COVID-19 pandemic, particularly when Delhi is going through in a spike in cases, will pose a major health hazard. The order has also not considered the economic difficulties that will be caused by an eviction at this time, when a large number of poor households are already struggling to retain livelihoods and incomes due to the pandemic and national lockdown. None of the affected households – some of whom are parties to the stay orders which have been vacated – was heard by the court before passing this order. The time frame of 90 days provided by the Court is also likely to be inadequate for any meaningful rehabilitation process, given the number of households involved.

How many people are likely to be affected?

The order mentions the number of households at 48,000, based on the Railways’ submissions. A perusal of lists notified by the Delhi Urban Shelter Improvement Board (DUSIB), the nodal agency for slum rehabilitation in Delhi, reveals that the number is slightly higher: 50,914 households spread across 76 notified JJ bastis partly or fully on Railway land. Taking the average slum household size of 4.7 as calculated in the 2011 Census, this amounts to about 2.4 lakh people.

How did the eviction of jhuggis become part of a PIL around pollution and waste management?

In this case, the Environmental Pollution (Prevention & Control) Authority (EPCA) submitted a report to the Court regarding waste and pollution around railway tracks in Delhi. The report notes that waste on railway tracks comes from two sources: (i) waste generated by Railways and its passengers; (ii) waste dumped on Railway land by others. In response to the second point, Railways stated in court that that about 70 km route length of track in Delhi is affected by large JJ clusters existing in close vicinity of the tracks,  and suggested that the waste dumped along the tracks comes from these jhuggis. The Court then passed the present order for the eviction of these jhuggis.

The statement and suggestion of the Railways, and the Court’s order, are not based on any survey or empirical assessment (the EPCA report itself made no reference to jhuggis by the tracks). Unfortunately, this is not an uncommon practice in “omnibus PILs” like the present one – Anuj Bhuwania’s book, Courting the People, explains how the Court has on several occasions used PILs regarding one issue in the city as a means for dealing with other issues. The normal rules of procedure and hearing of affected parties are also dispensed with, and substituted with the wisdom of the Court, the Government, or “experts”. In the past, this has been used to order large-scale slum demolitions in the guise of solving civic problems in the city, thus resulting in the impact being felt by the city’s poor: some of these are chronicled in Gautam Bhan’s book, In the Public’s Interest.

What is the applicable policy and procedure for eviction and resettlement?

The applicable law in Delhi is the DUSIB Act, 2010, specifically section 10 thereof which deals with “removal and resettlement of JJ bastis”. It empowers DUSIB, an agency of the Delhi Government, to prepare a scheme for the resettlement of dwellers in case of removal of a JJ Basti. The scheme has to specify the cost to be paid by the land owner as well as the residents to be resettled. In furtherance of this provision, the Delhi Government drafted the Slum & JJ Rehabilitation & Relocation Policy, 2015 which was notified by the Lieutenant Governor, with the approval of the Central Government, in December 2017.

The 2015 Policy states that JJ bastis which have come up before 2006 and individual jhuggis which have come up before 2015 will not be demolished without providing alternate housing. Such alternative housing should be either in-situ or within a radius of five kilometres from the eviction site. The Policy envisages that DUSIB will carry out relocation within six months, and specifies charges to be paid by the land owning agency as well as the residents for the alternate housing. The policy also refers to guidelines and standards of the Central Government’s flagship scheme, the Pradan Mantri Awas Yojana (PMAY). The process of relocation includes putting up notices, carrying out a survey of the JJ bastis, collection of documents, preparing a list of residents eligible for relocation, allocation of alternate housing, and shifting of the residents.

Does this Policy apply even to Central Government land?

This question has been settled by a decision of the Delhi High Court in Ajay Maken v. Union of India, a case that was filed seeking rehabilitation for the affected residents after the Railways’ demolition of a JJ basti in Delhi. In this case, the Central Government made a submission before the High Court accepting that the 2015 Policy applied to JJ bastis on its land. In view of this submission, as well as the fact that the Central Government itself had approved the 2015 Policy, the High Court concluded that the Policy would apply across all JJ bastis in Delhi, including those on land owned by the Central Government.

What is a fair way of moving forward?

At the outset, given the multiple levels of governance in Delhi, the Central Government (through the Railways) and the Delhi Government (through DUSIB) will need to coordinate with each other to ensure that the process specified in the 2015 Policy is followed. Reports indicate that a meeting has already been held at the Ministerial level, and this coordination will be required at lower levels as well. Neither agency should take unilateral action without informing the other.

In the circumstances, it would be advisable for the relocation process to be put on hold until the ongoing pandemic has subsided, and the stipulation of the 90 day time period must be withdrawn. The Delhi Government, which is a respondent in the PIL, must place submissions before the court in this regard. Meanwhile, surveys must be initiated in all the affected JJ bastis to identify eligible residents, and effective consultations held with the affected communities regarding alternate housing, and to ensure that no household is left out. The alternative housing must also be prepared in advance, along with social amenities, so that when the relocation is carried out, there are no glitches and people are able to make the transition smoothly.

There has been much scholarship around how Delhi’s slums are but a symptom of larger inequalities in urban planning and development in the capital, in particular the shortage of affordable housing produced by the Government. The present case is yet another manifestation of this, and the “problem” of JJ bastis will not be solved through ad-hoc measures such as demolition, without addressing the larger issues at hand.

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