The Dwellers, the Jhuggies and The Right to Shelter: An overview of MC Mehta Case

BY: Areeb Uddin Ahmed

Recently, the Hon’ble Supreme Court passed an order in M.C. Mehta v. Union of India ( Writ Petition(s)(Civil) No(s). 13029/19) in which an eviction of around 48,000 people who are residing in slums/jhuggies has been been directed. This order came in pursuance of the construction of the Smog towers. An affidavit was filed before the court and it pointed out that there are some ‘Jhuggies’ in New Delhi along with 140 km route length of the tracks. The court observed that - “It is also pointed out in the affidavit filed on behalf of the Railways that there are predominant presence of jhuggies in Delhi along with 140 km route length of track in the region of NCT of Delhi where the railway tracks take off in different directions and also include a ring connecting the takeoff of all these routes. Out of this, about 70 km route length of track is affected by large jhuggie jhopri clusters existing in close vicinity of the tracks.These clusters sum up to a total of about 48000 nos of Jhuggies in the region adjacent to Railway tracks.”

The most problematic observation which the court made was in the concluding paragraph, the court stated that there would be no stay granted in the directive and the jhuggies were to be evicted within three months. “We also direct all the stakeholders that a comprehensive plan for removal of jhuggies be made and executed in a phased manner. The encroachments which are there in the safety zones should be removed within a period of three months and no interference, political or otherwise, should be there and no Court shall grant any stay with respect to removal of the encroachments in the area in question. In case any interim order is granted with respect to encroachments, which have been made along with railway tracks, that shall not be effective.”

This order was a blatant attack on Right to shelter and livelihood which is guaranteed under Article 21 itself. If we fly back to the cases like Olga Tellis and others v. Bombay Municipal Corporation (1985) 3 SCC 545, Jiyoti Pershad case and Ajay Maken then this order clearly violates the prescribed position of rules which have been recognized in the cases mentioned above. Justice Muralidhar, while delivering the judgment in Ajay Maken case, referred to this famous speech of Nelson Mandela (1991):

“A simple vote, without food, shelter and health care is to use first generation rights as a smokescreen to obscure the deep underlying forces which dehumanize people. It is to create an appearance of equality and justice, while by implication socio-economic inequality is entrenched. We do not want freedom without bread, nor do we want bread without freedom. We must provide for all the fundamental rights and freedoms associated with a democratic society.”

Right to shelter and Article 21

In our Constitution, there are provisions which talk about equality, freedom and conscience. Simultaneously it also mentions that Right to shelter is also an important facet of Article 21, which covers individual dignity, livelihood and shelter. The court has directed the order without even hearing the other party -- the dwellers of these jhuggies. The pandemic has been a pain for everyone equally, but for the marginalized ones, it is a disaster which took away their daily bread and livelihood, and now what is next, taking away their shelter in these tough times? It was rightly observed by this court in Francis Coralie Mullin v. The Administrator (1981) 6 SCC 608 that -- the right to life includes the right to live with human dignity and all that goes along with it, including adequate nutrition, clothing and shelter. In PG Gupta v. State of Gujarat and Ors, 1995 Supp. (2) SCC 182, in 1994, the Court went further holding that the Right to shelter in Article 19(1) (g) read with Articles 19(1) (e) and 21 included the right to residence and settlement. Also it was observed by the court - It is, therefore, imperative of the State to provide permanent housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities within their economic means so that they could make the payment of the price in easy installments and have permanent settlement and residence assured under Article 19(1)(e) and 21 of the Constitution. Thus for there is no problem but the crucial question is whether that right is still available to the appellants in category. ( Para 11)

The Delhi High Court dealt with the issue of demolition of Jhuggies in Udal & Ors vs Delhi Urban Shelter Improvement Board and it was the Delhi Slum and JJ Rehabilitation and Relocation Policy, 2015 which was taken into consideration. The rule laid was that if one has been registered under this policy then they would be eligible for rehabilitation or relocation. But in this case, the person whose slum was demolished that too with a two days prior notice which directed the family to vacate the jhuggis between 18th to 20th January, 2017 failing which it was informed that jhuggi jhopri would be demolished on 21st January, 2017 and ownership of the land would be handed over to the respondent no.4 NHAI. The court rightly observed that right to housing was facet of Article 21 and in positive directions were issued accordingly with appropriate compensation.

Hence, it was rightly concluded in Ajay Maken case that -- right to housing is a bundle of rights not limited to a bare shelter over one’s head. It includes the right to livelihood, right to health, right to education and right to food, including right to clean drinking water, sewage and transport facilities. The running theme behind the observations made was DUSIB Act and the 2015 Policy which was discussed by the court. It is also noteworthy to refer what the court observed in Para 144:

“ It is essential to first complete a survey and consult the JJ dwellers, there is, as of now, no imminent possibility of eviction of the JJ dwellers of the Shakur Basti. If no in situ rehabilitation is feasible, then as and when the Respondents are in a position to rehabilitate the eligible dwellers of the JJ basti and jhuggis in Shakur Basti elsewhere, adequate time will be given to such dwellers to make arrangements to move to the relocation site. The right of the JJ dwellers to raise objections to the 2015 Policy and the Protocol and to seek legal redress at the appropriate stage, if the occasion so arises, is reserved.”

Hence, it is a well settled principle that even if the land has been possessed in a wrongly manner, then such dwellers are to be communicated, heard and rehabilitated in a decent manner. Furthermore, this principle was settled in the Olga Tellis case, where the court rightly opined that -the intention of the dweller were to not commit any offence, it was only confined up to a decent shelter -  “There is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose. But, their intention or object in doing so is not to "commit an offence or intimidate, insult or annoy any person", which is the gist of the offence of 'Criminal trespass' under section 441 of the Penal Code. They manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where. The encroachments committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice.”

With these guiding principles, one thing is clear, that before an eviction orders, there should be an alternative land provided to these dwellers. In some of the cases, if the dwellers were in possession with the land since 10-15 years then the court has taken the view that resettlement should be seriously implemented by the State authorities. Also, keeping in mind the current situation of the pandemic, this order of eviction by the SC is not morally correct, because in Madras when the Monsoon season was at peak, the Supreme Court had observed in K. Chandru Etc.Etc vs State Of Tamil Nadu & Ors ( 1986 AIR 204 ) -- “Since Madras has a late monsoon, we direct that the pavement dwellers in the city will not be evicted before December 31, 1985. The State Government will do its best to provide alternative accommodation to those amongst them who are able to show that they were living on pavements before June 30, 1977. Insofar as the slum dwellers are concerned, the counter-affidavits filed on behalf of the respondents contain an assurance that it is the policy of the State Government not to evict such of them as were living in the slums prior to June 30, 1977, without providing alternate accommodation to them. That assurance will bind the Government. Insofar as the other slum dwellers are concerned, they too will not be evicted before December 31, 1985 unless the land on which any slum stands is required by the State Government for an urgent public purpose.”

India, being a country where most of people are coming direct from the Rural areas, there should be a well planned policy for such marginalized people who are deprived of their basic needs. The court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and ors. rightly observed that -- It would, therefore, be of necessity that the policy of the Government in executing the policies of providing housing accommodation either to the rural poor or the urban poor, should be such that the lands allotted or houses constructed/plots allotted be in such a manner that all the sections of the society, Schedules Castes, Scheduled Tribes, Backward Classes and other poor are integrated as cohesive social structure. The expenditure should be met from the respective budgetary provisions allotted to their housing schemes in the respective proportion be utilised. All of them would, therefore, live in one locality in an integrated social group so that social harmony, integrity, fraternity and amity would be fostered, religious and caste distinction would no longer remain a barrier for harmonised social intercourse and integration. 

Parting note

At this juncture, when the Pandemic is at its peak, the court should reconsider the decision made in M.C. Mehta case because without hearing the other party, it blatantly violates the norms of Natural justice. Right to appropriate shelter, right to livelihood and right to live with dignity has been already recognized by the court in the different decisions which are discussed above. It is noteworthy to refer to what Susan George has written in his book -  'How the other Half Dies The Real Reasons for World Hunger’ --

"Malnourished babies, wasted mothers, emaciated corpses in the streets of Asia have definite and definable reasons for existing. Hunger may have been the human race's constant companion, and 'the poor may always be with us', but in the twentieth century, one cannot take this fatalistic view of the destiny of millions of fellow creatures. Their condition is not inevitable but is caused by identifiable forces within the province of rational, human control". (Pg. VX)

About the author: Areeb Uddin Ahmed is law graduate from Faculty of law, Aligarh Muslim University and can be reached out at - (Twitter - @Areebuddin14) (LinkedIn - Areeb Uddin)

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