Housing Rights from a Litigators Perspective
Written by Doug Wyatt
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I am an American attorney who lived in New Delhi for over 7 years, working for an NGO where I was involved with Housing Rights Litigation for most of that time. The Human Rights Law Network is a collection of lawyers and activists that work to address the spectrum of rights abuses in India, but my Housing Rights work focused on Delhi. As a foreign-trained non-Indian lawyer, I am not licensed to practice in India. As a result, I did not solely represent clients or make formal appearances in Court. But I worked with my Indian colleagues to interview clients, draft petitions, formulate litigation strategies, and manage the cases as they meandered through the Courts. This piece attempts to summarize my experiences with the various housing rights cases that I was involved with.
At a very high level, litigation has been quite limited in its ability to address the overall problem of housing rights violations and lack of affordable housing in urban India, but it has been effective in stopping illegal/improper evictions when lawyers are able to get to court before the bulldozers demolish the houses. If you divide the problem in to two – poor or insufficient laws and policies, and the failure to implement for follow these laws and policies – litigation has been more effective at addressing the later than the former.
Sadly, Delhi’s weak housing rights protections are generally better than those in place in much of the rest of India. But they provide relatively little in terms of the overall protection of housing rights. The main protection is that, if the government decides it wants to evict a slum/JJ Basti, then it must rehabilitate those who meet certain eligibility requirements. But it does nothing to try to keep communities in place in the face of weak justifications for their eviction. Nor does it require that they be rehabilitated in communities close to where they are being evicted from, or in communities that have all the necessary facilities and amenities. And it does nothing to require in-situ development of these communities or transfer of secure tenure to these residents, so no matter how long their families have been there, they remain at permanent risk of eviction.
The one bright spot that we have seen is that the Delhi High Court has generally been willing to grant protective stay orders against improper evictions if lawyers are able to get a properly drafted petition before the Court before the eviction has actually occurred. This is not easy, as the petitions take time to draft, and a significant amount of documentation must be collected and organized along with the petition itself. But we have gotten good results when we have been able to show the Court that the government is about to evict a community that has not yet been rehabilitated. However, when an eviction has already occurred, the Court has consistently been unwilling to issue orders allowing the residents to move back to their old homes or orders directing the offending officials or offices to compensate the residents for their losses resulting from these illegal actions. This produces a perverse incentive for the government – if they can get their illegal eviction done quickly, then there is little to no cost to it.
One challenge that lawyers face is that these at-risk communities often face false threats of evictions, or threats that are not followed through. As a result, when a real threat is made, they may not take it seriously, or may not know to bring it to a lawyer until it is too late. Additionally, occasionally lawyers or other groups will offer to represent these communities for a significant fee, and not end up providing any service to them. So even lawyers with pro bono organizations like ours sometimes face skepticism as a result of these past bad experiences. As a result, we’ve found that it is critical that reputable activists and NGOs work with these communities on an ongoing basis, and provide the connections between them and lawyers to improve the communication and awareness of the risks, as well as to ensure that the communities feel comfortable working with the lawyers.
One particularly frustrating part of the process is the failure of government respondents to follow court orders in good faith. Often, we received orders for surveys to be completed as the first step in the rehabilitation process, only to have the respondents fail to complete the surveys by the prescribed dates. This leaves the community in limbo, as the stay order might expire at the same time, so they do not know if the government has lost interest in the eviction or is just delaying. This problem is compounded with the Court issues vague or only partial relief as interim relief and then disposes of the matter, assuming that the government respondents will then follow the rules moving forward. In one particular instance, we had to return to court multiple times, in the face of failure to implement court orders and failure to take the mandated next steps that were assumed, but not stated, in these orders.
Evictions and demolitions of slums in Delhi should be a clear and straight-forward process. The existing policies set out rules for surveys, eligibility and decision making. But the fact that these rules are often not followed, or not followed properly, unnecessarily adds another layer of confusion and vulnerability to at-risk communities that are already grappling with many other challenges. Lawyers and litigation had help mitigate this, but are by no means a solution to the larger problems of housing rights violations and inadequate housing in urban India.