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SC upheld ‘pavement dwellers’ right

  • Category
    Polity & Governance
  • Published
    4th May, 2022

Context

The North Delhi Municipal Corporation's bulldozers' show of strength against roadside stalls, and push carts in Delhi's Jahangirpuri have faced resistance from a Constitution Bench judgment of the Supreme Court which had upheld the right to livelihood of pavement dwellers 

Background

  • In North Delhi area, several concrete and temporary structures were demolished in the violence-hit Jahangirpuri during an anti-encroachment drive carried out by the North Delhi Municipal Corporation.
  • However, the action has faced resistance from a Constitution Bench judgment of the Supreme Court which had upheld the right to livelihood of pavement dwellers who ply their trade on the footpaths out of sheer economic compulsions.
  • Bench: a five-judge Bench led by then Chief Justice of India Y.V. Chandrachud.

Issues concerned with pavement dwellers

 

The order for the eviction of the pavement is the infringement of their right to livelihood and in turn the encroachment over their right guaranteed under article 21 of the Constitution.

The impugned action of the State Government is violative of the provisions contained in Article 19(1) (3), 19(1) (g) and 21 of the Constitution.

 

Key-points made by the apex court

The SC Bench made the following points:

  • The pavement dwellers cannot be treated as trespassers, their eviction should not lead to deprivation of their livelihoods.
  • Right to Life: They should not be subject to harassment adding that their right to livelihood was an integral part of the right to life under Article 21 of the Constitution.
  • Right to Shelter: Right to shelter was a fundamental right under Article 21. It was a right recognised by international conventions and an integral part of the principles of natural justice.
  • Fair procedure: Though the right to reside and settle in any part of India under Article 19 (1) (e) cannot be read to confer the licence to encroach and trespass upon public property, the eviction of pavement dwellers and traders should be in accordance with the procedure established by law.
    • This “procedure” should be “fair, just and reasonable”.

Right to Property

  • The ‘right to property’ is a fundamental human right in a welfare state.
  • It cannot be taken over by the State without following the proper procedure and seeking legal permission.
  • Also, a welfare state cannot accept the plea of adverse possession, which permits a trespasser, i.e. someone who has committed a tort or felony, to obtain legal title to someone else’s property for more than 12 years.
  • With the 44th Constitution Amendment in 1978, property ceased to be a fundamental right.
  • Nonetheless, Article 300 A has allowed the State to deprive a person of his or her private property in accordance with legal procedure and authority.
  • But there are strict laws around the issue.
  • The State cannot be allowed to perfect its claim to the land by invoking the theory of adverse possession to seize the property of its inhabitants.
  • As stated in Article 31 of the Constitution, the right to the private property remains a basic right.

The right to life includes the protection of one’s means of subsistence; obligations to provide natural justice prior to eviction, but no automatic right to resettlement under Indian law.

Olga Tellis case

  • The Olga Tellis vs Bombay Municipal Corporation judgment in 1985 ruled that eviction of pavement dwellers using unreasonable force, without giving them a chance to explain is
  • It is a violation of their right to livelihood.
  • The case started in 1981 when the State of Maharashtra and the Bombay Municipal Corporation decided that pavement and slum dwellers in Bombay city should be evicted and “deported to their respective places of origin or places outside the city of Bombay.”
  • The court had emphatically objected to authorities treating pavement dwellers as mere trespassers.
  • They (pavement dwellers) manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness.
  • It is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where.

What were the questions discussed before the Supreme Court?

  • Right to livelihood: Whether eviction of a pavement dweller would amount to depriving him/her of their livelihood guaranteed under Article 21 of the Constitution.
    • The Article mandates that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”
  • To label ‘trespassers’ or not: The Supreme Court also decided to examine the question whether it was constitutionally impermissible to characterise pavement dwellers as trespassers.

Understanding the broader concept

Pavement dwellers include people living on the pavement, under the bridge, flyover, bus stop, near the railway station, in parks or under the open sky in any public place in the metros and urban areas where public facilities like public toilet are provided.

  • In search for better economic opportunities: The people migrate from small villages looking for employment opportunities as there are not enough employment opportunities in their village or small towns.
  • People are homeless due to financial problem, natural calamities, lack of employment opportunities.
  • Secondly, Social reason. The pavement dwellers are considered to be the poorest of the poor. They live in kucha house made of plastic, polythene, cardboard, straws, bamboos etc. They try to settle themselves near the place they work.
  • Pradhan Mantri Awas Yojana (Urban)(PMAY-U)– It was launched in June 2015 with the objective of providing affordable housing to all the urban poor.

Important Constitutional Provisions

Fundamental Rights under the Constitution of India which guarantees the protection of the right to adequate housing

  • Article 21: Right to protection of life and personal liberty.
  • Article 14 and Article 19: The apex court has included Article 14, 19 and 21 and recognized them as a deciding factor for a dignity of an individual.
    • o   The states are under an obligation to protect the dignity of an individual by securing a household for the homeless.

Along with the above provisions, Constitution also provides for the following safeguards to homeless people

  • Article 39 (1): State policy to be directed in order to secure for both men and women, equal right to an adequate means of livelihood.
  • Article 42: Provisions to be made by the State for securing just and humane conditions of work and for maternity relief.
  • Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve public health.

 

Practice Questions

Q1. Even after 75 years of independence and plethora of schemes, poverty alleviation remains a major challenge in India. Discuss.

Q2. Empowering women can contribute immensely to poverty alleviation. Elucidate.

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