Conclusion

CONCLUSION

Slums are as much a result of the flawed economic policies of the State as it is of the social structure of Indian society as it is also of the inequitable distribution of urban lands. The policy of slum evictions needs to be stopped and more viable and constitution-friendly solutions need to be envisaged.

While the common notion that is held is that the slum dwellers are “illegal encroachers”, there needs to be a change in this perception is there is to be any policy in favour of slum dwellers. There needs to be a recognition of the fact that no slum dweller chooses to live in squalor and in unhygienic conditions but is doing so out of compulsion and due to the lack of decent affordable housing options. It also needs to be understood that in evicting slum dwellers and in denying them decent shelter, living conditions, options for economic mobility, food security, access to basic civic amenities, voting rights, education, health services, etc. the government is violating their fundamental rights.   

In conclusion there are two questions that need to be answered.

First, one important question that needs to be raised is that of the status of fundamental rights of the slum dwellers with regard to shelter, access to basic services, health, food security, etc in the event of evictions. While their settling pattern may be illegal does this imply that every other fundamental right of theirs gets suspended and violated by the state under the pretext of remedying the illegality? Further what about the rights of the children that are guaranteed by the Constitution as also the Convention on Child Rights and the Juvenile Justice Act.

Secondly, what are the possible ways ahead from here? To answer this question we could look at the judgement of the South African Supreme Court in the matter of Government of the Republic of South Africa and others v Grootboom and others[2001 (4) SA 46 (CC)].

The 1996 "post-apartheid" constitution of South Africa enumerates a variety of specific rights-among them a guarantee of access to housing and a right to shelter for children. Yet many millions of South Africans continued to live in shanty towns or worse, even after passage of the new Constitution. The case of Government of the Republic of South Africa and others v Grootboom and others tells the story of one instance in which South African aspirations and realities collide. It focuses on a lawsuit filed by the resident of a shantytown known as Wallacedene, not far from Cape Town. Irene Grootboom cites the provisions of the South Africa Constitution's Bill of Rights in calling on the nation's Constitutional Court, its highest, to mandate that the government provide improved housing for herself and some 900 other residents of Wallacedene. In looking at the Grootboom lawsuit, the case provides a vehicle for consideration of the question of the meaning of positive rights in a developing country such as South Africa and also India.

The facts of the case are as follows: About 900 people (adults and children) lived in appalling conditions. They decided to move out, and occupied vacant privately owned land across the road. The owner, supported by the local council, obtained a magistrate’s court order for their eviction. Their homes were demolished. They were now truly homeless: they could not go back to where they had come from, because other people had occupied that land. They had literally nowhere they could live. While there is a very large government programme for housing, the waiting list is such that they would have to wait for many years, perhaps as many as twenty, for proper housing to be made available to them. Meanwhile they would have simply nowhere they could lawfully live. The government said that it could and would do nothing to assist them. They applied to court for an order on the government to provide them with housing or shelter, and basic services.

At the outset of the hearing in the Constitutional Court, counsel for the government made an offer of access to a piece of land, some building materials, and access to basic services to ameliorate their situation. The community accepted the offer. However, the government failed to honour the undertaking. While the case was still pending, the community brought an urgent interlocutory application to compel the government to honour its undertaking. The Court made an order accordingly, by consent. Two weeks later, the Court gave its judgment in the main case.

The Court noted that the state is under a constitutional duty to take ‘reasonable legislative and other measures, within its available resources, to achieve the progressive realisation’ of the right of access to adequate housing. The Court noted that,

“A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.”

However,

“The programme must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium and long term needs. A programme that excludes a significant segment of society cannot be said to be reasonable.

A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realization of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right.... If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.

... the question is whether a housing programme that leaves out of account the immediate amelioration of the circumstances of those in crisis can meet the test of reasonableness established by the section

The absence of this component may have been acceptable if the nationwide housing programme would result in affordable houses for most people within a reasonably short time. However the scale of the problem is such that this simply cannot happen. Each individual housing project could be expected to take years and the provision of houses for all in the area of the municipality and in the Cape Metro is likely to take a long time indeed. The desperate will be consigned to their fate for the foreseeable future unless some temporary measures exist as an integral part of the nationwide housing programme. Housing authorities are understandably unable to say when housing will become available to these desperate people. The result is that people in desperate need are left without any form of assistance with no end in sight.

The nationwide housing programme falls short of obligations imposed upon national government to the extent that it fails to recognise that the state must provide for relief for those in desperate need. They are not to be ignored in the interests of an overall programme focussed on medium and long-term objectives. It is essential that a reasonable part of the national housing budget be devoted to this, but the precise allocation is for national government to decide in the first instance.”

So the government was in breach of its duties: it had focussed on its medium- to long-term housing programme, which aims to deliver adequate housing to all of those who are inadequately housed, to the exclusion of any immediate relief for those in a situation of crisis. This was not ‘reasonable’, as required by the Constitution.

The government had made an offer of relief, which the Court had since made an order of Court. There was therefore no need for any specific relief to be ordered for the Grootboom community. So the Court made a declaratory order:

(a) Section 26(2) of the Constitution requires the State to devise and implement within its available resources a comprehensive and co-ordinated program progressively to realise the right of access to adequate housing
(b) The program must include reasonable measures ... to provide\ relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations.
(3) As at the date of the launch of this application, the State housing program in the [relevant] area ... fell short of compliance with the requirements in paragraph (b), in that it failed to make reasonable provision within its available resources for people ... with no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations.’

The impact of the judgment has been varied. Government has started shifting its housing programme to have regard to the needs of people in intolerable conditions, or threatened with eviction.

The affected slum dwellers and their representative organisations have filed a Writ Petition in the Mumbai High Court demanding justice. Will the Indian judiciary respond similarly?