Getting 'Housing Rights' Right: SC's Timely Intervention in Haldwani Evictions

Supreme Court’s stay of Uttarakhand High Court’s eviction order is welcome and in sync with existing jurisprudence.

(Photo: The Quint)

“...there cannot be uprooting of 50,000 people in seven days," the Supreme Court had said on Thursday, 5 January, as it stayed the directions of the Uttarakhand High Court to remove encroachments on land owned by the Indian railways in Haldwani, Uttarakhand.

The High Court order had, essentially, sanctioned the possible eviction of around 4,000 families residing on such land.

The apex court's stay, however, shall only operate on the eviction order and proceedings in the case shall continue. Notice has been issued to the State of Uttarakhand and the matter will be next heard on 7 February 2023.  

“...there cannot be uprooting of 50,000 people in seven days," the Supreme Court had said on Thursday, 5 January, as it stayed the directions of the Uttarakhand High Court to remove encroachments on land owned by the Indian railways in Haldwani, Uttarakhand.

(Image courtesy: The Quint)

Even so, the Supreme Court’s order is in sync with the existing jurisprudence on eviction processes in India. And it is welcome.

This is not only because the High Court order would have impacted thousands of residents of the area but also because the court's findings were erroneous in law on many counts. But how?

Gaps in the High Court's Reasoning

 A universal right to housing and protection of family life   

Housing rights are guaranteed not only on the basis of formal legal title emanating out of a statute but are also rooted in the Constitution, and form an integral part of right to life and livelihood under Article 21.

Even in the absence of title, the constitutional prescription to not render an individual homeless will come to the fore and protect such individual from being rendered homeless at a short notice.

This aspect was blatantly ignored in the High Court order, and the Supreme Court has rightly filled the gap by characterising the eviction as not merely a legal, but also a ‘human issue’.  

Right to housing further encompasses a universally recognised penumbral right, which is the right to protection of family life. Simply put, it translates to a place to live in, and becomes a necessary corollary of shelter for the most natural and fundamental unit of society: a family.

Right to be free from any kind of arbitrary interference in one’s private space and family is a key aspect of right to adequate housing, and cannot be disturbed without following the due process of law.  

Effective hearing before eviction  

Additionally, one of the most amusing yet strange parts of the High Court’s eviction order, is its bizarre conflation of a right to hearing before State instrumentalities, with legal recourse before a court of law. In para 88 of the verdict, the High Court reassures itself that since a notice to file intervention in the PIL concerning encroachment of railway lands was published by the registry of the court, occupants of such lands had adequate knowledge and opportunity to file intervention applications and avail a right to hearing before the High Court.

The High Court failed to appreciate that an effective right to hearing means an opportunity to engage on equal terms with the administrative authority which threatens to take away a right, statutory or otherwise, of an individual.

Objections against State action are to be made before such authority so as to allow the State functionary to correct an anomaly, if he were to agree with the objecting party post due deliberation on the basis of materials placed before him. 

An opportunity to file an application before a court of law does not satisfy one of the basic tenets of the principle of natural justice, which mandates effective hearing before the relevant State agency, especially where fundamental rights are put in jeopardy.  

Rehabilitation and Resettlement 

However, the most shocking part of the High Court order lies in its remarkable departure from the tenets of rehabilitation now unquestionably ingrained in our jurisprudence.

From holding that the occupants do not enjoy formal title to ordering eviction within a week, the High Court skipped an important step in between - it forgot to deal with the question of rehabilitation and resettlement of the families which would face displacement on account of the eviction.

While the law of the land does not ensure rehabilitation to everyone who faces homelessness or displacement due to State action, a list of cases starting from Olga Tellis to the landmark pronouncement of the Delhi High Court in Sudama Singh, make it abundantly clear that an inquiry into whether persons at risk of eviction are eligible under existing rehabilitation schemes of the Government is a sine qua non (an essential condition) of eviction proceedings.

Wherever eligibility is established, it is a positive obligation of the State to carry out meaningful rehabilitation based on consultation with the affected parties. The High Court’s lack of interest in dealing with the resettlement question, to put it simply, has the effect of taking away legal legitimacy from the eviction order.  

Right to the City 

It must also be borne in mind that Indian Courts have gone a step ahead to recognise not only constitutionally protected housing rights, but also a peripheral ‘right to the city’ in India, under which all citizens are guaranteed access to public spaces, irrespective of social status and affluence.

Right to housing does not restrict itself to the simplistic aspect of residing within the four corners of a house, but also acts as a gateway to other economic, social and cultural rights which follow once residential security is assured.

A Court of law has to be mindful of the fact that when it allows the State to take away shelter, it also clamps down on the citizen’s right to participate in city life, thereby robbing them off their agency as a citizen.  

But Now the SC Has an Opportunity to Set the Record Straight

The Supreme Court on Thursday, 5 January, stayed the Uttarakhand High Court oder which directed eviction of structures on railway land in Haldwani.

(Image courtesy: PTI)

In today’s order, the apex court has acknowledged that most of the petitioners are long-term occupants of the land. In light of this undisputed fact, an implicit recognition of their right to such property is not undue.

The case is also an opportune moment to clarify the law relating to forced evictions, and the ensuing protections which are available to individuals in the throes of such an event. 

One expects the Supreme Court to conduct future hearings in the matter on the same premise, and in line with long-standing judicial precedents which state that even ‘encroachments’ and lack of standardised housing only reflect the State’s failure to discharge its duty to provide housing to all.

For the failings of the State, the poor and the marginalized should not be penalised.  

(The author practises at the Delhi High Court. He tweets at @7h_anand. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses, nor is responsible for them.)