Indian Supreme Court rules in favour of mass slum community evictions

Laura Gooding, Content Officer for Human Rights

Photo source @Media India Group

What is happening in India?

Up to 250,000 families residing in shanty towns stationed on a 140km Delhi railway line are to be met with eviction orders to be fulfilled within 3 months, following a controversial decision by the Indian Supreme Court in August 2020.

Slum residences and shanty towns are defined by UN Habitat as a group living together suffering from 'household deprivations' such as: lack of adequate hygiene facilities, clean & safe running water, financial stability and sufficient housing safety.

The percentage of India's population residing in such areas has indeed lowered significantly from 55% in 1990 to 24% as of 2014. However, the 2011 census' accounting for 65 million living in such a situation evidences shanty towns remain common and a pressing issue in the largely populated country. (1.3 billion)

Forced evictions: a human rights analysis

Despite the Supreme Court's decision being the largest collective eviction order this year, the state has witnessed an incremental growth in evictions since 2019. In a report released by the Housing and Land Rights Network on the 18th of August, approximately 20,000 people have already been forcibly evicted during the pandemic. Notably, these evictions were carried out unlawfully from March to July by ignoring court orders banning such action during the country's national lockdown.

"Forced evictions" are considered by Amnesty International and the United Nations as the umbrella term encompassing failure to notify, consult, compensate, challenge and provide legal protection for occupied property or areas of land by communities and families.

UN Special rapporteur for adequate housing, Balakrishnan Rajagopal first shed light on the tragic circumstances. The independent human rights expert concluded the decision "amounts to a full-fledged denial of justice for the low income people living in the railway tracks... if this is maintained, India will squarely violate article 2.3 of the International Covenant on Economic, Social and Cultural Rights."

The Indian Supreme Court's ruling runs contrary to India's international obligations for providing an adequate standard of living, routinely condemned by the UN Commission of Human Rights, and enshrined under the Universal Declaration of Human Rights alongside the legally binding International Covenant on Economic, Social and Cultural Rights.

Furthermore, the decision additionally sets India significantly back in the country's commitment to securing housing for all Indian citizens by 2022, consistently promised by the government throughout history. as a UN State party to the United Nations Sustainable Goals to be achieved by 2030

Similarly to other countries, India has justified these forced evictions on the basis of developing its infrastructure by removing less desirable areas to make room for new, as a means to generate economic growth in the developing market state.

Whilst it could be argued the slum residents on the aforementioned railway line are in the process of being notified pursuant to the Indian Supreme Court's official ruling, its decision fell far short of being just and equitable. Although the above rationale for slum clearance is not in itself inconsistent with human rights, the inhabitants were not consulted, challenge to the decision was prohibited and the Court failed to request any form or rehabilitation schemes for the to-be evicted families social reintegration.

A large proportion of the Delhi railway slum inhabitants were only informed of the Indian Supreme Court's decision once word got out in the press. "I first came to know of this case only when we saw the newspaper reports after the order was passed and we were wondering about how such an order could be passed by the Supreme Court," said Ali Zia Kabir Choudhary, a New Delhi land rights advocate.

Fighting back

Despite the Supreme Court's explicit prohibition to challenge the decision, the slum inhabitants have since risen in applying to the court with demands for a constructed plan of rehabilitation prior to the conclusion of evictions in 3 months time.

In support of their case, the challenging application submits the court's decision to evict violates various Indian housing regulations under national law. Namely, that slum dwellers may not be evicted save for when land is utilised for public purpose and have the right to rehabilitation in instances of eviction.

Violating the right to housing: a catalyst for further disaster

In addition to blatantly violating this basic human right to adequate housing, in facilitating destitution, forced evictions create a domino effect and intrude upon a range of further international human rights obligations imposed on states.

Families subject to forced evictions are subsequently forced to relocate. In light of the ongoing Coronavirus global pandemic, such a move is undoubtedly catastrophic in being more dangerous than ever, bringing an increased likelihood of developing health complications as displaced families search for a new life.

Forced evictions increase the probability of economic inequality, discrimination, and social ostracization, as outlined under Annex 1 of the UN's Basic Principles and guidelines on Developmental- based Evictions and Displacement (2007)

Key legal notes under International law

(i) Right to life

• Article 6.1, International Covenant on Civil and Political Rights

"Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."

(ii) Right to adequate living

• Article 25.1, Universal Declaration of Human Rights

"Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

• Article 11.1, International Covenant on Economic, Social and Cultural Rights

“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.”

(iii) Right to security of the person

• Article 9.1 , International Covenant on Civil and Political Rights

"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

(iv) Freedom of movement and to choose one's residence

• Article 12.1 International Covenant on Civil and Political Rights

"Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."

(v) Right to an effective remedy

• Articles 2.3, International Covenant on Civil and Political Rights

"Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

(vi) Necessary obligations prior to evictions

• UN Annex 1, Basic principles and guidelines on development-based evictions and displacement

"Even if there are exceptional circumstances and no feasible alternatives to meet them other than eviction, human rights and the right to due process in particular are to be respected at all stages. Due process protections include:

(a) an opportunity for genuine consultation with those affected;

(b) adequate and reasonable notice to all affected persons before the scheduled date of eviction;

(c) information on the proposed evictions and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected;

(d) especially where groups of people are involved, government officials or their representatives to be present during an eviction;

(e) all persons carrying out the eviction to be properly identified;

(f) evictions not to take place in particularly bad weather or at night unless the affected persons consent;

(g) provision of legal remedies; and

(h) provision, where possible, of legal aid to persons who need it to seek redress from the courts.

Tying it all together:

Forced evictions are an inappropriate route for addressing the issue of slum housing in India. Instead, governments similar to India must abide by their international obligations, working to eradicate the risk of destitution through adopting a comprehensive welfare and human rights prioritising approach to ensure a fair outcome, ensuring families are not wrongly deprived of their entitled basic human rights.