The Surat Displacement Verdict: Workers’ Right to the City Under Attack

 

In an unfortunate development, the Supreme Court of India has refused to entertain the right to housing for city’s working class in a matter related to impending displacement of around 10,000 people in Surat, Gujarat who live on a land, for over 60 years, belonging to the railways.  These are the people who run the city by their labour. They are mainly unorganised workers and several of them are also engaged in railway related activities.

A Public Interest Litigation was filed before the Gujarat High Court for the protection of their right to shelter. A Division Bench of the Gujarat High Court passed an order dated 19.08.2021 rejecting this petition. While rejecting the Public Interest Litigation, the Court held that “since the people belonging to this class do not have any proprietary rights over the said land in question, they cannot be granted any injunction against the Railways, so as to delay or stall such project of larger public interest”. While refusing to even acknowledge the rights of those residing herein, the Court even placed a pre-condition for them for making a representation stating that the same could be done only on the condition that “this will not entitle them in any manner to stay back at the site in question so as to thwart, hinder, stall or stop Surat- Udhna upto Jalgaon Third Railway Line Project, in which a larger public interest is obviously involved, in the timely and expeditious completion of the said Project.”

This order was challenged before the Supreme Court in Utran Se Besthan Railway Jhopadpatti Vikas Mandal Vs. Government Of India & Ors. [SLP (CIVIL) Diary No(s). 19714/2021]. The SC disposed the challenge through an order dated 16.12.2021. The Supreme Court in its order refused to interfere in the order of the Gujarat High Court rejecting the Public Interest Litigation, and directed the Western Railway to immediately issue notice and vacate not only those who are residing in the belt required for immediately commencing the project, but also to vacate those who were residing in land not immediately required for the project. The court even directed the Railways to forcibly dispossess the residents and to demolish their homes if they do not move after issuance of vacation notice. The only respite provided was that the details of the persons must be collected for considering their eligibility for being provided residential accommodations and to pay them an amount of Rs. 2,000/- per month for 6 months. If they fulfilled the eligibility for rehabilitation, they would be considered and if there was no scheme, they could apply to be considered under the Pradhan Mantri Awas Yojna Scheme, and could not claim any right over housing in the same area. The Court further directed the Railways to initiate civil/criminal action against those on the Railway property and to initiate action against persons who failed to remove such encroachments.

It is important to state here that the Supreme Court in Sant Ram v. Rajinder Lal And Ors.  stressed on the need for “poverty jurisprudence” and states that “none but those who live in ivory towers can refuse to look at the raw realities of life while administering justice”. And yet in the latest verdict, the SC itself refuses to see the realities of the social and economic injustice being faced by the majority in the country.

The urban poor are reduced to “encroachers” without rights. There is a refusal to recognize them as rights-bearers whose constitutional rights are to be protected and enforced. The Supreme Court in this order does not even mention the word “right”, except while critiquing the railway officials for failing to remove the encroachments in “right earnest”. Further, the continuous reference of the homes of the persons as “unauthorized structures” is another refusal to acknowledge them as human beings and equal citizens. In Almitra H. Patel And Anr. v. Union Of India the Supreme Court held that “Rewarding an encroacher on public land with free alternate site is like giving a reward to a pickpocket”

The above mentioned orders by the Gujarat HC and the SC that pit those residing in slums against ‘development’ fail to recognize that it is those residing in slums, who are literally building and running the city itself. All markers of ‘development’ are the result of the hard labour of various sections of city’s workers- be it the construction workers, domestic workers, sanitation workers, daily wage workers or workers in the gig economy. It is no coincidence that the majority of this urban poor in the country belong to historically deprived sections of the society.

The Court also fails to recognize that the poor are pushed into poverty by the conscious policy of the Government, a policy that is justified by the Courts. These policies that allow for skewed development, push people into distress migration and enforces poverty on them by denying secure working conditions and minimum wages.

Those who build and contribute to the social and economic life of the city are themselves denied the right to the city. In Ajay Maken and Ors. v. Union of India and Ors.[ 260 (2019) DLT 581], the Delhi High Court held that:

“83. The RTTC acknowledges that those living in JJ clusters in jhuggis/slums continue to contribute to the social and economic life of a city. These could include those catering to the basic amenities of an urban population, and in the context of Delhi, it would include sanitation workers, garbage collectors, domestic help, rickshaw pullers, labourers and a wide range of service providers indispensable to a healthy urban life. Many of them travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life. Prioritising the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution. The RTTC is an extension and an elaboration of the core elements of the right to shelter and helps understand the broad contours of that right.”

Living in a slum is a life of grave precarity and insecurity, with the threat of eviction constantly looming. The Constitution through Article 21 imposes a positive obligation on the State to ensure the provision of housing to all to protect their right to live with dignity. However, the state has not only failed to take positive measures to protect their rights, but has actively and decisively violated the very rights it is bound to protect. The Courts which are meant to step in to protect these rights, effectively are also becoming protectors of violators.

The effects of forcible eviction on a family are devastating. It severely hinders the quality of a person’s right to equality, livelihood, and to live with dignity. When a family is forcibly evicted, each member of that family loses a “bundle' of rights”   - the right to shelter, to livelihood, to health, to education, to access civic amenities and public transport and the right to live with dignity.

The Constitution avows to its people equality - social, economic and political. The fundamental right to life guarantees under Article 21 encompasses within it the right to live with dignity, which includes the right to shelter. The State has the duty not only to protect these rights, but the positive obligation to ensure the provision of housing. Article 243W read with the 12th Schedule of the constitution makes it a constitutional obligation of the Municipality to ensure slum improvement and upgradation and urban poverty alleviation. When the State fails to ensure that this obligation is met, and instead undertakes forcible eviction, it violates these core Constitutional values. And when the court targets the slum dwellers rather than holding the government responsible for ensuring right to house, the injustice becomes paramount.

In Harjinder Singh vs. Punjab State Warehousing Corporation [AIR 2010 SC 6111], the Supreme Court held that it is the duty of judges “to uphold the constitutional focus on social justice without being in any way misled by the glitz and glare of globalization”. It is necessary that the Courts view issues of social injustice in this light, and ensure that they don’t become perpetrators in the same.