RIGHT TO THE CITY: TRACING THE INDIAN JURISPRUDENCE
Updated: Oct 19, 2019
Article by Afzal Mohhamad and Jahnvi Singh.
According to the 2011 Population Census, the Indian population living in slums is close to 65 million. These slum dwellers have been subjected to unannounced evictions and denial of basic human rights under the garb of urbanization.
In a 2015 petition, before the Delhi HC with respect to the forced eviction of Jhuggi Jhopri Basti (“JJ slums”) dwellers, the Court has ordered that forced and unannounced eviction of pavement dwellers without conducting a detailed survey and drawing up a rehabilitation plan in consultation of the dwellers and ensuring immediate rehabilitation, shall be contrary to the law, thus recognizing Right to the City (RTTC) in International Law as an integral part of right to adequate housing.
In the said judgment, the court has recognized the RTTC and its increasing recognition in the international sphere. The court opined that it is an individual as well as a collective common right to call for changes in ourselves by changing our living spaces. “It is a right to struggle for maintaining critical solidarities.”
The RTTC finds its roots in the Istanbul Declaration on Human Settlements, 1996 (“Habitat II”) which endorsed “the universal goal ensuring adequate shelter for all and making human settlements safer, healthier and more reliable, equitable, sustainable and productive” and recognized, with urgency, the deteriorating conditions of human settlements. With its major themes “Adequate Shelter For All” and “sustainable human settlement development in an urbanising unit”, the declaration committed to working towards the betterment of the standards of living and right to adequate housing.
Furthermore, the policy paper of the New Urban Agenda, a Habitat III Policy Unit ‘Right to the City, and Cities for All’ has defined the right as’ “the right of all inhabitants present and future, to occupy, use and produce just, inclusive and sustainable cities, defined as a common good essential to the quality of life. The right to the city further implies responsibilities on governments and people to claim, defend, and promote this right.”
As per RTTC, the contributions of JJ dwellers to the social and economic life must be acknowledged and for a state committed to social welfare, it shall be imperative to prioritise the housing needs of these dwellers.
According to the Committee on Economic Social and Cultural Rights, a national housing strategy should be adopted after ensuring consultation with and participation by all the homeless, inadequately housed and others affected and their representatives. It also emphasizes on the coordination between various ministries and authorities to reconcile the remedies including legal remedies preventing illegal eviction and procedure seeking compensation.
In line with the above, in the case of Sudama Singh v. Government of Delhi, the court held that a mandatory survey has to be conducted, ensuring its productivity by repeated visits with prior notice. Crucial document, like the proof of residence, must be preserved by the involved agency. In addition, the basic civic amenities consistent with the right to life and dignity shall also be made available.
Even though the right to housing hasn’t been specifically spelt out, it has been recognized in several provisions. The Preamble to the Constitution of India, for instance, guarantees to all its citizens the right to social justice and individual dignity. The Right to Life read with Right to Equality, Right to Freedom of Movement, Right to reside and settle in any part of India, freedom to carry on trade and profession ensures that the State takes up measures to grant these basic survival rights to its underprivileged citizens. Although, the Directive Principles of State Policy, while talking of the right to work, education, just and humane conditions of work etc., do not expressly provide the right to shelter.
Francis Coralie Mullin v The Administrator has broadened the ambit of right to life to include the basic necessities of life such as adequate nutrition, clothing and shelter and all that goes along with the right to live with dignity.
In the case of K. Chandru v. State of Tamil Nadu, it was held that “the right to life under 21 indicates the right to livelihood and since the right to life and the right to work being integrated and interdependent, the eviction of a person from a slum or a pavement puts his very right to life in jeopardy and is thus violative of Article 21 and 19(1)(e) of the constitution.”
In a PIL filed by pavement and basti dwellers in Olga Tellis v Bombay Municipal Corporation, it was further observed that the right to life is inclusive of the right to livelihood, and other integral components like everything which makes life livable. The court also observed that since the rural population migrates to the city in search of livelihood, the means of livelihood and life have nexus between them. Further, since these workers have small jobs they have nowhere else to live other than the slums in the vicinity of their workplaces and thus if these dwellers lose the slum it will lead to them losing their jobs. In this way, deprivation of livelihood will then lead to deprivation of life. The two conclusions which arose were that the right to life includes right to livelihood and eviction of slum and pavement dwellers will cost them their livelihood. In observing that the right to shelter and livelihood is inextricably interlinked to the right to life in the present case, the court acknowledged that poverty can become a barrier to the realization of fundamental rights and it is necessarily required that the dignity of these people who migrate to cities and live in squalor just to earn livelihood is protected.
This issue was discussed again in Chameli Singh v State of UP where the apex court discussed the United Nations General Assembly Resolution “Adoption of the International Year of Shelter for the Homeless”, Universal Declaration of Human Rights and ICESR.
Universal Declaration of Human Rights under Article 25 recognises the right to housing as part of the right to an adequate standard of living and states:
“Everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family, including food, clothing, housing and medical care and necessary social services”
Also, the International Covenant on Economic, Social and Cultural Rights (ICESCR) under Article 11(1) guarantees the right to housing as part of the right to an adequate standard of living as well.
With the notion that the right to housing of the inhabitants of the slums is not limited to a bare shelter, but extends to livelihood, health, clean drinking water, sewerage, education, food and transport facilities were strongly affirmed by the Court, the major challenge which now stands is its practical application. The agencies view the inhabitants as illegal encroachers and thus there exists an underlying prejudice while determining if they are eligible for rehabilitation. There needs to be an overhaul of the decision-making framework to include the interests and visions of different stakeholders. Further, projects need to be continuously monitored to ameliorate existing programmes and innovate new projects.