FORCED EVICTION: AN ILLEGITIMATE USE OF POWER BY STATE
The term “forced eviction” refers to “the removal against the will of people, families, and/or communities from the homes and/or land which they inhabit, without the provision of, and access to, adequate forms of legal or other protection.” This removal might be permanent or temporary.
Even though it is unlawful behavior, the authorities continue to engage in it because of the unchecked authority they possess. When authorities determine that a structure that has been built on land that is owned by the government is occupied in an unauthorized or unlawful manner, they either destroy the structure or force the occupants to vacate the premises. Evictions may take place on either privately owned or publicly owned property. On the other hand, the primary emphasis of this article is on evictions carried out by the state from public property or to convert land for use by the public or the state. The state has forced several people who are already disadvantaged to become homeless by claiming that their homes were illegally built or occupied without their permission.
According to the Public Premises (Eviction of Unauthorised Occupants) Act of 1971, “Unauthorised Occupation” refers to any person occupying public property without having been granted permission to do so, as well as any person continuing to occupy the public property after the authority (whether granted or transferred in another manner) he was granted, has expired or been determined for any reason.
Additionally, “Unauthorised Occupation” refers to any person continuing to occupy public property after the authority (Recent occurrences, such as the 2022 demolitions in Delhi, Madhya Pradesh, Gujarat, and Uttar Pradesh, as well as other recent happenings, have unprecedentedly exceeded all bounds. These incidents owe their unprecedented frequency to the arbitrary grounds that were employed by the authorities, as well as how they evaded the law to carry out evictions in a seamless manner.
The state fails to take into account the fact that they are destroying not just a house but also a source of safety and income for the family that will be impacted by this decision. Since we continue to see severe violations of the right to shelter and sufficient housing, it is becoming more urgent that legislation against forced evictions be put into place. The court is obligated to make full use of its authority to not only halt the execution of the order to evict but also to grant remedy to the party that has been wronged.
INSTANCES WHERE FORCED EVICTIONS WERE PERFORMED
The highest court in India issued an order in February 2019 mandating the forcible removal of one million tribal people from the territories they traditionally inhabited.[i] The order was halted after receiving feedback from members of the public, and its implementation is temporarily on hold. If the order had been carried out, not only would lakhs of Adivasis have been uprooted, but they also would have been prevented from earning a living on their traditional lands. In their results published in 2020, the Home and Land Rights Network revealed that more than 36812 households had been threatened with destruction, which had resulted in the forced displacement of a minimum of 173333 individuals.
When it comes to eviction, no individual of any background has ever been discriminated against, regardless of whether they live in an urban or rural area. Nonetheless, the people who have been denied their right to housing are always those who are low-income or otherwise disadvantaged. The state has provided several subjective justifications for its decision to carry out the destruction of property and evict the occupants of the buildings.
‘Environmental’ reasons such as disaster management and the conservation of flora and fauna have been reported the most, contributing to the eviction of 49% of the total population removed in 2020 according to the record. These reasons have been listed as the most common cause of eviction. Additional justifications include programs referred to as “smart cities” and “development,” as well as “beautification” initiatives and the elimination of “encroachers.”[ii]
Daily wage laborers in Khori-Gaon faced the possibility of being evicted in July 2021 due to the demolition of around 12,000 homes by the Faridabad Municipal Council. They were living without access to any source of water or power for many months before being evicted. There were perhaps 10,000 to 15,000 households who lost their homes. Infants, children, women who were pregnant or nursing, senior citizens, and those with impairments were among those who were upset. The highest court in the land gave the order for the eviction campaign, much to the dismay of everyone involved.
In all of India, there are around 15.5 million individuals who are terrified that the state would destroy their houses and other assets. Since the courts are giving legal support for the operations of the state, it seems unlikely that there will be any relief very soon. Listen to what a lady has to say after she has been kicked out of her home:
“We have been living in Krishnappa Garden for more than 30 years. On January 21, 2021, our houses were razed without any previous warning or warning at all. We have not gotten any help from the state even though the administration has been repeating the same thing over and over again for the last two years: corona, the corona. We are called by officials to get vaccinations, but they do not provide us with food to satisfy our rumbling bellies. We often have the urge to take our own life; what should we do?”
Her complaints are illustrative of the farce of justice that currently exists in our nation.
RIGHTS OF INDIVIDUALS WHO ARE REMOVED FROM THEIR HOMES BY THE GOVERNMENT
In the case Olga Tellis vs. Bombay Municipal Corporation, a seven-judge bench of the Supreme Court held that the right to life guaranteed by Article 21 of the Constitution included the right to livelihood. The court then ordered that alternative land be provided to the illegal squatters (also known as JJ dwellers) in Bombay. This case involved the Bombay JJ dwellers.[iii]
In most cases, these unauthorized encroachments or structures may be made legal with the payment of a nominal charge by wealthy individuals. When low-income individuals encroach on property owned by the government, they are regularly evicted and have their homes and communities destroyed as if they are not even human.
These people, for the most part, come from more impoverished socioeconomic backgrounds. They are mostly impoverished peasants from rural areas who went to cities to earn a living working as manual laborers, hawkers, and street peddlers, and many of them remained there to have easy access to their places of employment. People from impoverished rural areas who migrate to India’s major cities in the hope of bettering their economic situations end up in appalling living conditions in Delhi, Mumbai, Kolkata, and other cities throughout the country. It is accurate to say that the vast majority of them are occupants of public property.
Even if they don’t have a legal claim to it, where are they going to go? Hundreds of thousands of people are now living in poor conditions. That is a problem that goes beyond the realm of the law. If the local authorities, after compiling the directives of the Supreme court, did the planning and organized the spaces for people who are poor as a preventative step, then there will be no violation of the right to housing that takes place. The court is the sole institution that can safeguard people’s right to the city.[iv]
RIGHTS OF THE PERSONS WHOSE HOUSES WERE DEMOLISHED
The term ‘life’ in Article 21 refers to a life with dignity, and not only ‘animal life,’ as the Supreme Court has recognized in several prior instances, such as Francis Coralie Mullin vs. Administrator of the Union Territory of Delhi. In the case of Uttar Pradesh Avas Evam Vikas Parishad vs. Friends Co-operative Housing Society Ltd., it was decided that the “right to shelter” is a basic right that is protected by the Constitution under Articles 19(1)(e) and 21.[v]
It was decided by the apex court in the case Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan that, in light of the continuous migration of the rural populace into urban areas and the expansion of encroachments that this migration causes, the municipalities and panchayats are required to produce plans for the resettlement of these people following “Articles 243G and 243W of the Constitution.
This decision was made in response to the fact that encroach The right to a place of abode is recognized by the court as one of the basic human rights and a minimum human right. The right to residency and settlement is an illusion for those who live in rural and urban poverty because they lack the facilities and opportunities necessary.
It is the responsibility of the state, as mandated by Articles 38, 39, and 46, to reduce disparities in terms of income, opportunity, and status. To make socioeconomic justice a reality that is meaningful and productive to make life worth living with dignity, it positively charges the State to distribute its largess to the poorer portions of the community envisioned in Article 46.
Within the context of any society that can be considered civilized, the phrase “right to life” refers to the entitlement to “food, a decent environment, medical treatment, water, shelter, and education.
In the case of Chameli Singh vs. the State of Uttar Pradesh, the Supreme Court made this observation and added, These are fundamental human rights recognized to every civilized community. Without these fundamental civil, political, social, and cultural rights, it is impossible to enjoy the rights guaranteed by the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Racial Discrimination or by the Constitution of India. As a result, sheltering a human person is about more than just protecting his life and limbs. It is a place where he may nurture all aspects of his development—physically, cognitively, intellectually, and spiritually—making it a home.
The right to shelter consequently comprises appropriate living space, a safe and decent building, clean and decent surroundings, sufficient light, clean air and water, power, sanitation, and other municipal utilities such as roads, etc. to have easy access to his daily avocation. If the right to shelter is exercised in the context of being an indispensable precondition for the right to life, then it should be considered to have been guaranteed as a basic right. [vi]
In the case of Shantistar Builders v. Narayan Khimalal Totame, a three-judge panel opined that historically, there are three necessities of a man, and those are food, clothes, and shelter. In other words, a man must have these things to survive. It is essential to be aware of the differences in the need for shelter that an animal and a person have. For animals, it is just the most fundamental kind of protection; but, for a human, it is required to be an appropriate shelter that assists in the development of all aspects of his person, including “physical, mental, and intellectual.”
In a nutshell, the Supreme Court has decided that Article 21 of the Constitution protects an individual’s right to life, which in turn protects an individual’s right to maintain their standard of living. And if a person is forced out of his house, regardless of whether or not legal action is taken or his jhuggi is destroyed, he would be unable to maintain his standard of living since he would be unable to find a new location to work.
As a consequence of this, in the case of Olga Tellis, the court ruled that slum residents should be provided with alternative land sites that are placed within a reasonable distance of their places of work. The land that they are now occupying shouldn’t be taken until other housing options have been provided for them.
According to the United Nations Committee on Economic, Social, and Cultural Rights, poor urban settlements occur as a result of migration, hardship, tragedies, and hopeful projects in cities. This information comes from the committee. It was declared by the United Nations in General Comment 4 of the Resolution against Forced Evictions that “Shelter should be recognized as the right to live anywhere in security, peace, and dignity.“
Everyone, regardless of their financial standing, ought to be able to have access to suitable housing. For the “United Nations International Covenant of Economic, Social, and Cultural Rights” to be enforced in Indian courts, it must be interpreted in conjunction with Article 21. This is because India has accepted the treaty. Recently, the Supreme Court and other courts issued orders calling for the demolition of illegal constructions. These constructions include large buildings, hotels, and other structures; as a result of their existence, the environment is polluted, and the money that was spent on those structures was wasted.
In our nation, no regulation can be considered to be as strict as one that would forbid these illegal constructions by either the rich or the poor. Despite however, there is no mention of sanctions or preventative actions that may be taken by the local authorities to put a stop to unlawful evictions (which mostly affect the poor). The “Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 ,” which provided for the prohibition of unlawful eviction and procedures for the eviction of unlawful occupiers, is an exemplary law for India to follow up and enact a law against forced eviction. The “Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 of India,” provided for the prohibition of unlawful eviction and procedures for the Before an eviction may take place, the legislation needs to include provisions for conducting an effect assessment following the UN Guidelines.
This would provide a better understanding of the actual condition of the circumstances. A statute will be a preventative measure to defend the right to shelter and decent housing, as well as a triumph for all of those disgruntled individuals who have lost their rights.
This article has been written by Jay Kumar Gupta, a second year BBA LL.B.(Hons.) student from School of Law, Narsee Monsee Institute of Management Studies, Bengaluru
[i] Radhika Chitkara & Khushboo Pareek, The Right to Land: A Study on Legality of Forced Evictions, 2 NLUD J. LEGAL Stud. 69 (2020).
[ii] SHIVANI CHAUDHARY ET AL., FORCED EVICTIONS IN INDIA IN 2020: A GRAVE HUMAN RIGHTS CRISIS DURING THE PANDEMIC, 15 (Housing and Land Rights Network 2021)
[iii] Olga Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545
[iv] Mathew Idiculla, A Right to the Indian City? Legal and Political Claims over Housing and Urban Space in India, 16 Socio-LEGAL REV. 1,5 (2020).
[v] Vineet Bhalla, Why the trend of summarily demolishing properties of alleged criminals is patently illegal Whither due process? The Leaflet(Apr. 23, 2022) https://theleaflet.in/why-the-trend-of-summarily-demolishingproperties-of-alleged-criminals-is-patently-illegal-an-explainer/.
[vi] Chameli Singh vs. State of U.P., Appeal (civil) 12122 of 1995.