Upholding the Right to Shelter: The Need for a Rehabilitation and Resettlement Policy in Eviction and Demolition Drives in India

by | Apr 5, 2023

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About Yamika Khanna

Yamika Khanna is a student, pursuing B.B.A  LL.B(Hons.) from Symbiosis Law School, Pune. Her research interests include human rights discourse and constitutional law. She can be reached at yamika24khanna@gmail.com

The Supreme Court of India stayed the Order of the Uttarakhand High Court directing removal of occupants from lands claimed by the Railways in Haldwani, noting “…there cannot be uprooting of 50,000 people in 7 days”.

The challenged Order of the Uttrakhand High Court High, permitted the Railway and local authorities to demolish and evict more than 5,000 families living in an area called Gaffur Basti. The Court Stated that as the land belonged to the Railways, the residents had no legal rights. The High Court then issued an order mandating the removal of all occupants from the property within one week, “by force if necessary.”

The Supreme Court while staying the decision of the High Court, highlighted the need of devising a rehabilitation and resettlement policy and stated, “We do believe that a workable arrangement is necessary to segregate people who may have no rights in the land and those who have but to be removed but coupled with schemes of rehabilitation which may already exist while recognizing the need of the Railways.”

Eviction can be justified by pressing necessity, but the nature of the land should also be considered. In this case, for example, the land has been occupied by people for decades, and a fair rehabilitation process must be followed.

In terms of rehabilitation and the right to shelter, there are numerous judgements by the Indian Courts that state unequivocally that the right to life includes the right to shelter. While upholding the importance of the right to a decent environment and a reasonable accommodation, the Supreme Court held in Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520, that the right to life includes the right to food, clothing, a decent environment, and a reasonable place to live. Further, in Chameli Singh v. State of Uttar Pradesh (1996) 2 SCC 549, the Supreme Court held that the right to shelter is a fundamental right available to all citizens, and it was read into Article 21 of the Indian Constitution as encompassing the right to shelter in order to make the right to life more meaningful. Further, the Delhi High Court in Ajay Maken and Ors v. Union of India held that the right to housing is a bundle of rights not limited to a bare shelter over one’s head and includes the right to livelihood, right to health, right to education and right to food.

Additionally, the International Covenant on Economic, Social, and Cultural Rights, to which India is a signatory, provides that everyone has the right to adequate housing, which prohibits forced evictions. In cases where eviction is deemed justifiable, it must be carried out in strict accordance with the pertinent provisions of international human rights law and in accordance with the general principles of reasonableness and proportionality. Further, international human rights law strongly supports the right of all individuals to participate in human rights decisions. Anyone affected by a proposed eviction must be given enough time to consider, discuss, raise concerns, and submit comments about the eviction and any related plans, including compensation and resettlement along with being allowed to propose eviction alternatives.

To fulfil their obligation under both national and international law India must formulate a Rehabilitation and Resettlement Policy for Displaced People during eviction or demolition drives. The policy must be constructed upon the principles and guidelines framed by the Courts through the years in passing.

The Supreme Court in the Olga Tellis case made it clear that before an eviction can be conducted, the eligibility of residents are eligible for resettlement and rehabilitation under existing state or central government policies must be ascertained. Additionally, the guidelines laid by the Court in Sudama Singh v, Government of Delhi that the State must conduct a survey of the affected people in order to confirm their eligibility under existing policies and that the failure to do so is a breach of the residents’ statutory and constitutional rights.

The Haldwani Demolition Case presents an opportunity for the Indian judiciary to take the lead in setting legal principles and guidelines for such cases or directing the state to do so. This moment is essential to ensure that the human rights of displaced citizens are upheld and protected.

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