HOW ARE EVICTIONS FRAMED THROUGH LEGAL SYSTEMS IN URBAN INDIA? A CASE STUDY OF NEW DELHI

India’s housing crisis was aggravated during the covid crisis last year as many marginalized, low-income families were forcefully evicted and their homes were demolished without any recourse to resettlement. Many low-income groups have been evicted for  reasons such as widening of roads, infrastructure projects, conservation programs and disaster management. There are different settings in which evictions take place such as when the government acquires land for development purposes. For example: the construction of tehri dam in Uttarakhand, unauthorized colonies & regularized -Unauthorized colonies of elite class or those individuals that have been charged under prevention of money laundering Act (PMLA). Over 5.68 lakh people were forcibly evicted from their homes in India from 2017 to 2019, and from March to July 2020 approximately 20,000 people were evicted (HRLN, 2020). These forced evictions are a gross violation of human rights. Between 2000 and 2010, bastis like Pustha, Nangla Maachi, Himmatpuri, Trilokpuri, Banuwal Nagar, Sanjaycamp, Sanjay Basti and Ambedkar Colony were demolished which scarred the landscape of millennial Delhi. The removal of these bastis was the primary reason for the 25% fall in the population in the two central districts of New Delhi (Census 2011). 

 Evictions of varying degree and kind continue to progress at low-income settlements such as JJ (Jugi Jhopris) clusters which have been considered illegal, informal, unplanned and illegitimate by various master plans & municipal laws which implies that they possess no legal claim to tenure. There exist other forms of settlements also known as bastis – Slum designated Areas (notified slums) and resettlement colonies. Both of these have some degree of legality and legitimacy when faced with the threat of eviction. The fear of eviction and the trauma of resettlement curtails the choices for the poor. The areas being evicted and the people residing in them are just mere data points. Seeing basti as a type of auto constructed urban form changes its significance in comparison to elite settlements. 

A mere glance at this table above indicates a very interesting fact, – only 23.7% of the city lives in Planned Colonies. Then what about the rest of the residents? What does it indicate about the unplanned, informal, or illegal settlements? I would like to state that ‘unplanned’ is not the domain of the poor or the slum. The dysfunctional landscapes of the city should take into account the illegal housing of both the middle and upper middle classes as well. It is the planning of the city so far which has determined which settlement will be legal or illegal. 

EVICTIONS AND THE POLITICS OF GOVERNANCE IN CONTEMPORARY DELHI

What is alarming is the fact that these contemporary evictions have happened in democratic times through democratic processes. These evictions are not coming from the ‘Sarkar’ (executive), they are coming from the court orders. Each of these cases have one thing in common: Public Interest Litigation (PIL). The evictions were carried out in public interest which raises a series of questions such as what does it mean for a city, housing of the poor, equitable access to residential land, tenure rights, demoratic ideals, notions of citizenship or that an eviction could be framed as an act of public interest? 

Yamuna Pustha, 2004

Yamuna Pustha, 2014

In this section I will trace the case laws related to slums, urban poverty & evictions- identifying a clear shift within the case laws from before and after the late 1990s. This shift marked the rise in evictions defined by entrenched inequalities- the PIL. Its precedent case laws which are considered the landmark judgements in eviction & resettlements Olga Tellis vs Bombay Municipal Corporation (1985) &K Chandru vs State of Tamil Nadu (1985) echoed empathy and ruled that ‘right to livelihood is an important facet of right to life’. 

  • Industries Case 1996 marked the beginning of the new phase of PILs (a paradigm shift). The court had ordered the hazardous industries to relocate to the outskirts of the city. The drive against ‘polluting industries,’ and the drive against the poor had become synonymous. This judgement furthered the journey of evictions in the city. 
  • In Almitra Patel vs the Union of India (2002), the court remarked that Delhi should be the ‘showpiece of the country’. The slum dweller was named an ‘encroacher’ ‘rewarding an encroacher on public land with an alternative free site is like giving a reward to a pickpocket for stealing’.
  • Hemraj vs the Commissioner of Police &Ors: Nangla Maachi housed 15000 people, its residents were mainly service providers such as domestic workers, recyclers, ragpickers, trade owners, construction workers etc. The Delhi High Court was furious that ‘illegal encroachment (unauthorized occupants) was being allowed for commercial benefits’ which had led to some sort of anarchy and therefore the court ordered its demolition in 2006. 
  • In Okhla Factory Owners vs Government of the NCT of Delhi, the court said that the state was obliged to provide shelter to the poor but in case of failing to do so it was not its duty to provide alternative sites to encroachers on public land. Here, the court didn’t acknowledge the state failure. Beginning in the 2000s the court refused to hold the executive accountable for its failure to provide low-income housing, eroding the right to settlement. 

The city is created by the courts as the scale at which the public’s urgent & pressing concerns are addressed & defined. At the same time the scale of interventions, judgements & solutions must be devised and put into action.  In all these cases the Delhi High court and The Supreme Court employed techniques of Rescaling & Reframing for this production. Let us look at the case law of Hemraj to understand the technique of Rescaling. In this particular case the court stepped far beyond the focus of the original petition which was confined to the issue of traffic of a single road and generalized the problem to the whole city of Delhi and argued that the matter of traffic was not a local problem but a genuine affair of public interest. The committee appointed by the court brought the basti of Nangla within the purview of Hemraj’s Judgement. This case is just an example of how the court defines the city as the scale of its scrutiny, prognosis & intervention. Eventually the court ordered eviction of large-scale encroachments from Nangloi to Mundka Village. 

In the reframing technique, the court clustered a set of different PILs together into a single case. They tend to erase the specificity of each petition – details about claims, petitions, circumstances, the petitioner’s own understanding of the public interest concern she is addressing, or even how they argue that they represent the public at all. For example, in Pitampura Sudhar Samiti vs Government of NCT of Delhi case, the High Court had combined 63 different petitions for the removal of JJ clusters. The court justified by saying that these PILs more or less raised the same substantive question. Through these judgements the court has considered its interventions to be legitimate via a narrative of government failure to manage and control the city & protect against the threat & reality of encroachment.   The basic housing claims of the Bastis residents have been wiped out by the courts, who saw them as a burden to the planned city’s structure.

JUDICIALISATION OF RESISTANCE

Activists self-identified as Karyakartas have led urban social movements by opposing & resisting the whole eviction process directed towards the disadvantaged communities. Since the 1990s for which they have created organized associations (institutionalized activism) (Bhan, 2016) such as Delhi Shramik Sangathan (Delhi Residents Coalition) a federation of basti based groups which has a presence in over a 100 bastis in Delhi. DSS has employed the strategy which seeks to legitimize the settlements through maximizing public investments for example, establishment of primary schools, installation of water hydrants. Other platforms are National Alliance of People’s Movements (NAPM), Sanjha Manch. They had a significant presence in Pushta at the time of evictions. Jagori, a feminist NGO is personally involved with Sanjha Manch. These individual member organizations continue to work on emergency petitions in the apex court for a ‘stay’– a temporary injunction on the eviction orders which are pending for further deliberations and hearings. Sanjha Manch has released and authored numerous single page pamphlets ‘Parchas’ for mass distribution at protest sites. Lawyers such as Prashant Bhushan and Colin Gonsalves have been involved in filing legal petitions on behalf of basti residents. Mumbai based Alliance – the network of SPARC, the National Slum Dwellers Federation and Mahila Milan have received recognition for their role in community resettlement and self-provision of services like toilets & sanitation. These organizations have deliberately chosen the path of negotiation and not confrontation with the judiciary as their strategy for political engagement. The strategy is to remind the courts that you cannot throw them out without due process of law. 

These movements have their own set of challenges such as the lack of consensus within these movements on how to respond to the threat of eviction. In the case of Pushta evictions, on one extreme were the institutional groups and on the other were the residents, workers & community groups which harmed the struggle-based route. Activists’ narratives have highlighted a sense of distance from the courts while resisting the courts. The distance is in both literal expression of barrier to access to the legal process (lawyers) as well as the metaphor for the relationship that activists feel they share with the court as a site of protest. The affiliations believe there is no direct way to communicate with the courts. (Bhan, 2016) To file the petitions, the expertise of lawyers is needed and they have to be legally sound (‘victim figure’) and sensible (the claims of bastis are based on indigence and poverty which justifies their occupation on the public land). The alliances have never challenged the cut off dates in their petitions while representing the JJ clusters despite the fact that these were central to the movement. Taken together, the presence of the court has restricted the choice of strategies employed by the karyakartas – judicialisation of resistance.

CONCLUSION

Experience shows that forced evictions have never achieved any purpose. These evictions remind us that balance is critical and through these reflections I hope this will encourage us to think more deeply about the necessity for fresh & innovative approaches and claims under the changing governmental landscape. We need to plan a “pro poor city”. We have to work with the city the way our city is, not the way we wish it was. The courts need to broaden their social understanding, realising that the workers who have built the city have a right to the city and that this right has to be protected and strengthened. ‘Yeh toh abhi angdai hai, aage aur ladai hai’.

Sushmita Solanki is a second-year Masters Student at the Jindal School of Government and Public Policy. Her research interest areas are Urban housing, Health system financing, and Sustainable Development.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s