Global Report on Human Settlements 2007 - PoA-ISS

158
Security of tenure
Housing rights in
India are an extraordinary
example of
practice departing
sharply from the law
Box 6.28 Security of tenure case law: India’s Supreme Court
In 1978, the Supreme Court first found in the case of Maneka
Gandhi versus Union of India that the right to life provisions in the
Indian Constitution (Article 21) must be taken to mean ‘the right
to live with dignity’.
Building on this conclusion, in the 1981 case of Francis
Coralie Mullin versus Union Territory of Delhi, the Supreme Court
asserted that:‘We think that the right to life includes the right to
live with human dignity and all that goes along with it, namely the
bare necessities of life such as adequate nutrition, clothing, and
shelter over the head.’
In what has become clearly the most celebrated Indian case
in this regard, known colloquially as the Bombay Pavement
Dwellers Case, the Supreme Court expanded further on the right
to life provisions in the constitution, even while the decision
ultimately allowed the eventual eviction of the pavement dwellers
concerned. In the 1985 case of Olga Tellis versus Bombay Municipal
Corporation, a constitutional bench of the Supreme Court declared
that ‘Eviction of petitioners from their dwellings would result in the
deprivation of their livelihood… The right under Article 21 is the
right to livelihood because no person can live without the means of
living’.
Reaching a similar conclusion, in the case of Ram Prasad
versus Chairman, Bombay Port Trust, the Supreme Court directed the
relevant public authorities not to evict 50 slum dweller families
unless alternative sites were provided for them.
In the case of Ahmedabad Municipal Corporation versus
Nawab Khan Gulab Khan and Ors, in 1997, the Supreme Court
stated that it:
is the duty of the State to construct houses at reasonable
rates and make them easily accessible to the poor.
The State has the constitutional duty to provide shelter
to make the right to life meaningful … the mere fact
that encroachers have approached this court would be
no ground to dismiss their cases.Where the poor have
resided in an area for a long time, the State ought to
frame schemes and allocate land and resources for
rehabilitating the urban poor.
For decades, the
quest for security of
tenure has … been
an illusive one
the clearance of sites which take priority in terms of public
interest’. Work has been ongoing for the development of a
national slum policy. 61 Added to these favourable policies, a
series of judicial decisions in India has also been supportive
of housing rights and tenure claims. For more than two
decades, the Indian Supreme Court has issued a range of farreaching
decisions relying both on the right to life provisions
found in the constitution, as well as other norms to protect
the housing rights of dwellers (see Box 6.28). 62
Law, policy and jurisprudence do not always mesh
with reality. One third of Mumbai’s slum dwellers are
evictees, 63 and, clearly India’s recent economic boom has
not distributed the benefits equally. Housing rights in India
are an extraordinary example of practice departing sharply
from the law. India has ratified the ICESCR without any
reservation, and the ICESCR has been referred to in scores
of judgements of India’s Supreme Court. Furthermore, there
is no doubt whatsoever that it is enforceable in Indian
courts. Nevertheless, wave after wave of brutal demolitions
have taken place, without notice or justifiable reason, in
inclement weather, and without compensation or rehabilitation.
The Commonwealth Games proposed to be held at
Delhi in 2010 initiated the largest ever displacement from
Delhi in the year 2000. There are no records available of the
number of homes demolished; but NGOs estimate that over
200,000 people have been evicted. From the Yamuna Pushta
area alone, 150,000 people were brutally evicted in order to
create parks and fountains. 64
With a population of about 15 million people,
Mumbai has half of its population living in slums. They
occupy only 8 per cent of the city’s land. Formally, those
who were listed in the 1976 census of slums were eligible to
be covered by slum improvement schemes and also eligible
for an alternative plot in case of evictions. This introduced
the concept of a cut-off date. Later, the electoral rolls of
1980 were adopted as the cut-off. This was then shifted to
1985, to 1990 and later to 1995. In 2003, 86,000 families
in and around the Sanjay Gandhi National Park were evicted
despite being covered by the cut-off dates under the orders
of the High Court, which took the extreme step of using
helicopters and deploying retired military officers to evict
the poor inhabitants. 65 Along these lines several massive
demolitions took place in Mumbai. Between November
2004 and February 2005 alone, more than 300,000 people
were rendered homeless when over 80,000 homes were
smashed.
CONCLUDING REMARKS
This chapter has provided a brief overview of some of the
most prevalent types of policy responses that have been
employed towards the objective of enhancing security of
tenure. The overview yields a range of conclusions. One is
perhaps more notable than the others: in spite of all the
various approaches taken over the past decades, there can
be no doubt that failure, rather than success, has been the
norm with respect to addressing the goal of security of
tenure for all. Were it otherwise, the world would not face a
security of tenure crisis where hundreds of millions of
people live without any form of officially recognized or
legally secure tenure.
For decades, the quest for security of tenure has, in
many respects, been an illusive one. Though all political
creeds adhere to views supporting the opinion that security
of tenure must lie at the centre of any realistic efforts to
improve the lives of the world’s 1 billion slum dwellers, the
policies that intend to achieve this aim vary widely. Views
focusing on titling propose that formalizing slums through
the provision of individual land titles will be the most effective
way of raising standards of living, of creating assets and
of improving housing conditions. Another view is that title-