'India’s Poor Failed by Judiciary & Middle-Class': SC Advocate on Demolitions

This government is targeting the Muslim community, no doubt, says advocate Colin Gonsalves

From hawkers at Delhi’s Jahangirpuri to shopkeepers of Shaheen Bagh, from the demolished Banjara market in Gurugram to an eviction drive in Chennai – what is the protocol being followed or not by the local civic bodies during anti-encroachment drives?

How has the judiciary failed the poor, despite landmark judgements that talk of right to housing? Is rehabilitation not the first step in this process?

Supreme Court advocate and founder of Human Rights Law Network (HRLN) Colin Gonsalves explains. Excerpts from an interview:

A few weeks ago, we saw an anti-encroachment drive in Delhi's Jahangirpuri where communal violence had broken out just days before that. Yesterday, a bulldozer was brought to Shaheen Bagh.

First, it is pertinent to note that all encroachments in Delhi are not encroachments by hawkers; they are encroachments by shopkeepers who grab land in the middle of the road. This is happening in front of the authorities.

But when it comes to shopkeepers who are Muslims in poorer colonies, and if there is even a slight transgression, their entire shop is broken by the local civic body. Instead of stopping encroachment when it begins or giving them a proper notice, their shops are smashed and broken.

This kind of operation targets a minority community. This government is targeting Muslims, no doubt.

You say that encroachments come up in front of the authorities.

Yes, it’s a circle of bribery. A person in the civic body takes bribe to let you encroach. A few years later, he himself will demolish that structure entirely. The person will then again take bribe to let you encroach. It's a cycle of bribery. When will this city see sanity in this regard?

What happened in Jahangirpuri last month?

In Jahangirpuri – where demolitions took place last month – all the hawkers were licensed hawkers. The (authorities) didn’t even look at their licence. They (authorities) broke their carts.

What joy does it give them to make the lives of the poor so miserable at a time like this? There’s COVID, malnutrition, and unemployment. Why are we stigmatising people who are already struggling to make ends meet?

Isn’t rehabilitation the first step?

In Delhi, there’s a very nice rehabilitation policy called the Delhi Urban Shelter Improvement Board (DUSIB) policy. The DUSIB policy says that before you demolish any place, you have to the 'first' survey of the area. After the 'first' survey, you do a 'second' survey because some people might have missed the 'first' survey because they might have been at work or were unavailable.

After the 'second' survey is done, then you work out details of all those who are eligible for rehabilitation. People who are eligible for it are those who have been residents of the area from 2015 and earlier. The person will have to show proof that he or she was there at least before 2015.

After the two surveys are done, the authorities have to figure out if that land is needed for public purpose? In most cases, no. Like in Jahangirpuri, it’s not like they needed the land for public purpose. So, if they don’t need it for a public purpose, you do rehabilitation in situ. You reorganise the place, you clean the place, you broaden the roads.

If the land is needed for a public purpose, then you first relocate those you want to evict. The relocation should happen close by, and to be paid for by the government. Then you give the people you want to evict due notice, you tell them they are being relocated. It has to be close by, not 30-40 km away. So, that’s the DUSIB policy. Did they follow the DUSIB policy while doing all this? The rehabilitation plan is to be made by DUSIB.

The Supreme Court in four judgements said that these arbitrary demolitions must stop, and that there is a right to housing. These four judgements are Shantistar, SP Gupta, Chameli Singh, and Nawab Khan.

The latest judgement is Sudama Singh in 2021, and Ajay Maken in 2021 – both in the Delhi High Court. Sudama Singh was even confirmed by the Supreme Court when the SLP was withdrawn.

Can you explain the protocol when it comes to demolishing illegal colonies or slums, and removing encroachment both by hawkers and shopkeepers?

In the case of slums, although there are brilliant judgments, the judiciary is not interested in implementing these human right judgements because they are judgment for the poor. When there are judgements for the poor, the judiciary itself takes it lightly.

In the case of hawkers, the Hawkers’ Act came in 2014 and that act is now eight years old, and it has not been implemented one percent. In Delhi, the survey has not even been completed, which is the first step. They have to do a survey of all hawkers. This is the best law in the country for the rights of the hawkers. The High Court said that hawkers cannot be evicted until the licensing procedure is completed.

Is that being implemented?

There are seven recent judgments of the High Court that ignore this statute completely. The question is that why is it that an act meant to protect hawkers is hardly implanted in Delhi? The answer is that the judiciary is not concerned.

In most markets, encroachments are by the shopkeepers. Hawkers are beaten black and blue by the police and shooed away, while the shopkeepers do as they please. In Jahangirpuri, there were hawkers who lost their carts, and in turn, livelihood.

In case of encroachments by shopkeepers, there is nothing if the whole thing is not illegal, and they have encroached on the road. How did they manage to do it for so many years? The answer is that the corporation took bribes. Now, they have to break the encroachment.

In this case too, they should give a notice and a week’s time. Ask the shopkeepers to remove the encroachment, otherwise it will be demolished. If they remove it themselves, their losses will be less because they can quietly dismantle it.

The authorities should give notice. That’s the perfectly legal and peaceful way of doing it but they don’t do this. Why? Because this is a cycle of corruption – first they take bribes, then they break it, then they let you set it up again. It’s a never-ending greed of the corporation.

The judiciary is seen as the last resort…

The judiciary plays a huge role in the violation of these human rights. Nobody cares, nobody feels the pain of having your home shattered or your child unable to go to school or the elderly without a roof. We are a middle-class that is the most backward and regressive middle-class in the world. As long as we are okay, it doesn’t matter to us what happens to the poor.

Two days ago, in Chennai, a person died by suicide because his home was being destroyed, and his daughter couldn’t study for her exams. They relocated them in a place 22 km away and when they went there, there was no water or electricity.

The judiciary is always seen as last resort for the poor but nobody cares anymore for the poor, whether they are slum dwellers or hawkers. There is absolutely no guarantee that if we go to Court, we will get a single day’s stay.

COVID, lockdown years, heat waves should be considered, and exceptions ought to be made. To bulldoze a home is akin to murder but it’s murder of the poor so nobody cares. It is a cold-blooded murder of the poor.