Demolitions in Muslim neighborhood in Delhi are unconstitutional

by | May 18, 2022

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About Rishika Sahgal

Rishika Sahgal is a University Teacher in International Human Rights Law at the University of Sheffield. She completed her DPhil in Law at the University of Oxford in 2022 as a Rhodes Scholar, where she explored the role of rights holders in defining the content of their right to housing in the face of evictions, thereby envisaging rights holders playing a protagonist role in rights interpretation. Her research and teaching interests span human rights, equality law, constitutional law and criminal justice issues.

Image description: Bulldozers demolishing buildings in Kolkata, India in January 2020.

On 20 April 2022, the homes and shops of people in a predominantly Muslim neighborhood in Delhi began to be demolished by the North Delhi Municipal Corporation (‘Corporation’). This took place after a letter was written to the Corporation by the BJP (political party), requesting it to bulldoze the ‘illegal construction’ of ‘rioters’. The demolitions were halted by the Supreme Court the same day, and the case is currently pending before the Court.

Evictions and demolitions are a common occurrence in India, and this continued unabated even during the pandemic. Evictions in settlements where overwhelmingly Muslims work and reside, have also taken place on multiple occasions (Bangalore 2020; Dhalpur 2021). More recently, those Muslims accused of ‘riots’ are facing demolitions (Gujarat 2022; Madhya Pradesh 2022). The injustice of these demolitions aside, these violate the right to housing and statutory rights.

The right to housing: notice, hearing, meaningful engagement and alternate accommodation

In Olga Tellis (1985), a 5-judge bench of the Supreme Court established that the right to life under Article 21 of the Indian Constitution includes the rights to livelihood and housing. It recognised 2 sets of entitlements as part of the rights to livelihood and housing – a right to notice and hearing prior to evictions, and access to rehabilitation under existing schemes for the same.

The requirements of notice, hearing and rehabilitation have been further refined and strengthened by the Delhi High Court. In Sudama Singh (2010) and Ajay Maken (2019), the Delhi High Court held that prior to carrying out any eviction, it was the duty of the state to conduct a survey of all persons facing evictions to check their eligibility under existing schemes for alternate accommodation, and relocate to alternate accommodation ‘in consultation with each one of them [persons at risk of an eviction] in a meaningful manner.’

Statutory rights: notice, hearing and protection from demolition

Notice and hearing are also relevant statutory requirements under the Delhi Municipal Corporation Act 1957. S 343, which provides for the demolition of unauthorised buildings, is clear regarding the need for notice and hearing prior to demolition. S 368, which provides for the demolition of buildings that are ‘unfit for human habitation’, also requires notice and hearing prior to demolition. The hearing is not envisaged as mere formality, but the statutory scheme requires the Corporation to change its mind regarding the need for demolition if an undertaking is provided during the hearing that the building will be made fit for human habitation.

Moreover, ‘unauthorised colonies’ in Delhi that existed prior to 31 March 2002, and buildings constructed in these colonies prior to 1 June 2014, are protected from demolition until 31 December 2023 under the Delhi (Special Provisions) Act, as amended in 2021.

The result is that in case of homes in Delhi, even ‘unauthorised’ or ‘unfit’ homes, no demolition exercise can take place without provision of notice and hearing prior to eviction, the carrying out of a survey to ascertain eligibility for alternate accommodation, and the provision of alternate accommodation through meaningful engagement with residents. In any case, the Special Provisions Act grants protection from eviction and demolition of homes constructed prior to 2014, and demolition of homes in contravention of this legislation is beyond the authority of the Corporation. The demolition of homes in Delhi, then, violates these constitutional and statutory requirements.

The importance of notice, hearing and meaningful engagement

Notice, hearing, meaningful engagement, and other such ‘procedural’ requirements ought not to be dismissed as mere formality. Rather, these further substantive values. In my PhD, I argue that providing an opportunity for rights holders to participate in decisions that impact their rights respects their freedom, dignity and substantive equality. These requirements also form an important means for rights holders to define the content of their right to housing. It enables residents to directly engage with the state to explain what they require from their housing. These entitlement may also be pragmatically important for rightsholders to retain access to housing in the face of evictions.

Overall, there is much scope to imagine these entitlements in a powerful and substantive sense, so that residents, as well as other rights holders in other contexts, are able to decide the shape and content of their own rights through processes of hearings and meaningful engagement.

(Note: a longer version of this blog was published here).

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