The Supreme Court last month decided an important case having direct implications for squatters in Calcutta. The Calcutta High Court had in 1999 ordered the eviction of illegal squatters on railway property, but significantly as an interim measure, the Court also directed the administration to provide sanitary facilities to the squatters. That order was challenged in the Supreme Court. The Apex Court has now categorically ruled that since the High Court itself directed eviction of the squatters, we find no reason why the railways, or for that matter the State of West Bengal, should be directed to provide sanitary facilities even as an interim measure. Therefore, the SC has provided specific direction to the High Court to effect its eviction order at the earliest.
I do not find fault lines in the logic of the Supreme Court on the specific facts of the above case. But the stance taken in this case deserves to be seen in a larger context. It is time to concede upfront a fact: the image of the urban poor before the Supreme Court has definitely taken a beating over the years. This is clearly seen in how the language of the Court has changed vis-à-vis them over the last two decades.
First, we must appreciate what the Apex Court said in the mid eighties in
a well known case dealing with the pavement dwellers of Bombay declaring
the Right to livelihood as part of the fundamental right to life.[Olga
Tellis V. Bombay Municipal Corporation]. In terms of constitutional
phraseology the point was simple: The eviction of slum dwellers and
unauthorized occupants will lead to deprivation of their livelihood and
consequently to the deprivation of life. Recognizing slums as a reflection
of structural social inequality in the country and seeing them as the
'hell on earth', the Court added 'Human compassion must soften the rough
edges of justice in all situations' and this on the principle that
'Humbler the dwelling, greater the suffering and more intense the loss'.
Around the same time in another case the Supreme court directed the authorities to provide alternative accommodation to the slum dwellers in Madras adding that the Government should continue evincing dynamic interest in improving slums, and where not possible providing alternative accommodation [1985 (2) SCALE 3(31)] Some other Supreme Court judgments followed the spirit of the words used in Olga Tellis in subsequent years. However fifteen years following Olga Tellis the Supreme Court in early 2000 had a completely different view on encroachment by slum dwellers. Bemoaning the fact that instead of slum clearance there is slum creation in Delhi and simplistically dubbing slum dwellers as encroachers it said that 'Rewarding an encroacher on Public land with free alternate sites is like giving a reward to a pickpocket'. [Almitra Patel V. Union of India].
This observation made in the Almitra case was in the nature of what is technically called obiter i.e observations not material in deciding the case. However, ever since that ruling those observations have become decisive in subsequent judgments on slums particularly in the High Courts of the country.
For example, the High Court of Delhi late last year - while quoting the Almitra observation and reminding us that slum dwellers encroaching public lands are like pickpockets - directed that because of this they cannot have any right to alternative accommodation. [Okhla Factory Owners Association V. Govt. of NCT of Delhi]. On this basis the Court went on to quash the State Governments policy that required alternative sites to be provided to slum-dwellers occupying public land before they can be removed from such public land. Also note that invariably in all such cases the Court finds - and concludes - that that governments total inaction has rooted the problem and exacerbated it, yet these has been no effective direction that questions Governments accountability in this regard. Thus in the Okhla matter too the court records that the administration itself admitted its failure to devise housing schemes for persons in the economically weaker sections of society. But as the Court added 'This lack of planning and initiative on the part of respondents cannot be replaced by an arbitrary system of providing alternative sites and land to encroachers on public land'.
This last case, like the others, must be seen within a larger context. All the major cases with implications for urban governance decided and pending in the Supreme Court and the Delhi High Court - for a clean Yamuna, for removal of slums and unauthorized colonies, and even for providing basic amenities to slum dwellers had only one overall effect: pushing the urban poor further to the margins. The recent judgement from Calcutta is part of this dominant legal tradition today. It is a tradition characterized by an unmistakable judicial aggression, undeterred by its continuing consequences for the urban poor.
