Act against Female Foeticide, etc. - Supreme Court issues directions

Noting the importance of related issues i.e. "increase of female foeticide, resultant imbalance of sex ratio and the indifference in the implementation of the stringent law" [Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994], in its recent decision [Voluntary Health Association of Punjab v. Union of India - Writ Petition (Civil) No. 349/2016 - decision dated 08.11.2016] the Supreme Court has passed a number of directions to the various Government agencies to work towards the cause.

The Supreme Court was categorical to opine "that a female child is entitled to enjoy equal right that a male child is allowed to have" and the "constitutional identity of a female child cannot be mortgaged to any kind of social or other concept that has developed or is thought of". Therefore, "when a female foetus is destroyed through artificial means which is legally impermissible, the dignity of life of a woman to be born is extinguished"; it "corrodes the human values" and therefore "let it be stated with certitude and without allowing any room for any kind of equivocation or ambiguity, the perception of any individual or group or organization or system treating a woman with inequity, indignity, inequality or any kind of discrimination is constitutionally impermissible." Unequivocally expressing its view-point, the Supreme Court further expressed the following;

"34. ... The historical perception has to be given a prompt burial. Female foeticide is conceived by the society that definitely includes the parents because of unethical perception of life and nonchalant attitude towards law. The society that treats man and woman with equal dignity shows the reflections of a progressive and civilized society. To think that a woman should think what a man or a society wants her to think is tantamounts to slaughtering her choice, and definitely a humiliating act. When freedom of free choice is allowed within constitutional and statutory parameters, others cannot determine the norms as that would amount to acting in derogation of law. Decrease in the sex ratio is a sign of colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilize the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates."

In this background, the Supreme Court issued a number of directions in the following terms;

32. Having stated about the scheme of the Act and the purpose of the various provisions and also the Rules framed under the Act, the dropping of sex ratio still remains a social affliction and a disease.

33. Keeping in view the deliberations made from time to time and regard being had to the purpose of the Act and the far reaching impact of the problem, we think it appropriate to issue the following directions in addition to the directions issued in the earlier order:-

(a) All the States and the Union Territories in India shall maintain a centralized database of civil registration records from all registration units so that information can be made available from the website regarding the number of boys and girls being born.

(b) The information that shall be displayed on the website shall contain the birth information for each District, Municipality, Corporation or Gram Panchayat so that a visual comparison of boys and girls born can be immediately seen.

(c) The statutory authorities if not constituted as envisaged under the Act shall be constituted forthwith and the competent authorities shall take steps for the reconstitution of the statutory bodies so that they can become immediately functional after expiry of the term. That apart, they shall meet regularly so that the provisions of the Act can be implemented in reality and the effectiveness of the legislation is felt and realized in the society.

(d) The provisions contained in Sections 22 and 23 shall be strictly adhered to. Section 23(2) shall be duly complied with and it shall be reported by the authorities so that the State Medical Council takes necessary action after the intimation is given under the said provision. The Appropriate Authorities who have been appointed under Sections 17(1) and 17(2) shall be imparted periodical training to carry out the functions as required under various provisions of the Act.

(e) If there has been violation of any of the provisions of the Act or the Rules, proper action has to be taken by the authorities under the Act so that the legally inapposite acts are immediately curbed.

(f) The Courts which deal with the complaints under the Act shall be fast tracked and the concerned High Courts shall issue appropriate directions in that regard.

(g) The judicial officers who are to deal with these cases under the Act shall be periodically imparted training in the Judicial Academies or Training Institutes, as the case may be, so that they can be sensitive and develop the requisite sensitivity as projected in the objects and reasons of the Act and its various provisions and in view of the need of the society.

(h) The Director of Prosecution or, if the said post is not there, the Legal Remembrancer or the Law Secretary shall take stock of things with regard to the lodging of prosecution so that the purpose of the Act is subserved.

(i) The Courts that deal with the complaints under the Act shall deal with the matters in promptitude and submit the quarterly report to the High Courts through the concerned Sessions and District Judge.

(j) The learned Chief Justices of each of the High Courts in the country are requested to constitute a Committee of three Judges that can periodically oversee the progress of the cases.

(k) The awareness campaigns with regard to the provisions of the Act as well as the social awareness shall be undertaken as per the direction No 9.8 in the order dated March 4, 2013 passed in Voluntary Health Association of Punjab (supra).

(l) The State Legal Services Authorities of the States shall give emphasis on this campaign during the spread of legal aid and involve the para-legal volunteers.

(m) The Union of India and the States shall see to it that appropriate directions are issued to the authorities of All India Radio and Doordarshan functioning in various States to give wide publicity pertaining to the saving of the girl child and the grave dangers the society shall face because of female foeticide.

(n) All the appropriate authorities including the States and districts notified under the Act shall submit quarterly progress report to the Government of India through the State Government and maintain Form H for keeping the information of all registrations readily available as per sub- rule 6 of Rule 18A of the Rules.

(o) The States and Union Territories shall implement the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 forthwith considering that the training provided therein is imperative for realising the objects and purpose of this Act.

(p) As the Union of India and some States framed incentive schemes for the girl child, the States that have not framed such schemes, may introduce such schemes."

Assimilate disabled in the mainstream of the nation's life: Supreme Court

Noting its disdain over the neglect of the disabled, the Supreme Court in its recent decision in a public interest litigation has implored one and all to create awareness and set an environment where even the disabled can enjoy their human rights. Reflecting its views in Jeeja Ghosh v. Union of India [Writ Petition (Civil) No. 98/2012] [decision dated 12.05.2016] the Court was concerned with the petition filed by noted disabled activity Jeeja Ghosh challenging the alarmingly unacceptable behaviour of an airlines which deboarded her from the aircraft on account of her disability. Imposing a fine of 10 lakhs in Spicejet airlines for their perceived inhuman treatment, the Supreme Court expressed its anguish at the ill-treatment and called upon one and all to ensure that even the disabled are brought within the mainstream of society. 

Some of the notable observations of the Supreme Court are as under;

36) The rights that are guaranteed to differently abled persons under the Act, 1995 are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as human right of the persons who are disabled, has it roots in Article 21 of the Constitution. Jurisprudentially, three types of models for determining the content of the constitutional value of human dignity are recognised. These are: (i) Theological Models, (ii) Philosophical Models, and (iii) Constitutional Models. Legal scholars were called upon to determine the theological basis of human dignity as a constitutional value and as a constitutional right. Philosophers also came out with their views justifying human dignity as core human value. Legal understanding is influenced by theological and philosophical views, though these two are not identical. Aquinas and Kant discussed the jurisprudential aspects of human dignity based on the aforesaid philosophies. Over a period of time, human dignity has found its way through constitutionalism, whether written or unwritten. Even right to equality is interpreted based on the value of human dignity. Insofar as India is concerned, we are not even required to take shelter under theological or philosophical theories. We have a written Constitution which guarantees human rights that are contained in Part III with the caption “Fundamental Rights”. One such right enshrined in Article 21 is right to life and liberty. Right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the right to human dignity as the fulfillment of the constitutional value enshrined in Article 21. Thus, human dignity is a constitutional value and a constitutional goal.

...

38) We should, therefore, keep in mind that CAR instructions have also been issued keeping in view the spirit of human dignity enshrined in Article 21 and the right that are to be ensured to such persons. The underlying message in all these provisions is the acknowledgment that human rights are individual and have a definite linkage to human development, both sharing common vision and with a common purpose. Respect for human rights is the root for human development and realisation of full potential of each individual, which in turn leads to the augmentation of human resources with progress of the nation. Empowerment of the people through human development is the aim of human rights.

39) In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing anti-discrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. {See – Report of United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability 10-2-2001}.

40) Earlier the traditional approaches to disability have depicted it as health and welfare issue, to be addressed through care provided to persons with disabilities, from a charitable point of view. The disabled persons are viewed as abnormal, deserving of pity and are, and not as individuals who are entitled to enjoy the same opportunities to live a full and satisfying life as other members of society. This resulted in marginalising the disabled persons and their exclusion both from the mainstream of the society and enjoyment of their fundamental rights and freedoms. Disability tends to be couched within a medical and welfare framework, identifying people with disabilities as ill, different from their non-disabled peers, and in need of care. Because the emphasis is on the medical needs of people with disabilities, there is a corresponding neglect of their wider social needs, which has resulted in severe isolation for people with disabilities and their families.

...

42) All these rights conferred upon such persons send an eloquent message that there is no question of sympathising with such persons and extending them medical or other help. What is to be borne in mind is that they are also human beings and they have to grow as normal persons and are to be extended all facilities in this behalf. The subject of the rights of persons with disabilities should be approached from human rights perspective, which recognised that persons with disabilities were entitled to enjoy the full range of internationally guaranteed rights and freedoms without discrimination on the ground of disability. This creates an obligation on the part of the State to take positive measures to ensure that in reality persons with disabilities get enabled to exercise those rights. There should be insistence on the full measure of general human rights guarantees in the case of persons with disabilities, as well as developing specific instruments that refine and given detailed contextual content of those general guarantees. There should be a full recognition of the fact that persons with disability were integral part of the community, equal in dignity and entitled to enjoy the same human rights and freedoms as others. It is a sad commentary that this perceptions has not sunk in the mind and souls of those who are not concerned with the enforcement of these rights. The persons suffering from mental or physical disability experience and encounter nonpareil form of discrimination.They are not looked down by people. However, they are not accepted in the main stream either even when people sympathies with them. Most common, their lives are handicapped by social, cultural and attitudinal barriers which hamper their full participation and enjoyment of equal rights and opportunities. This is the worst form of discrimination which disabled feel as their grievance  is that others do not understand them.

...

45) It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected lot not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream of the nation's life. The apathy towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.

...

47) On our finding that respondent No.3 acted in a callous manner, and in the process violated Rules, 1937 and CAR, 2008 guidelines resulting in mental and physical suffering experienced by Jeeja Ghosh and also unreasonable discrimination against her, we award a sum of 10,00,000 as ₹ damages to be payable to her by respondent No.3 within a period of two months from today. This petition stands allowed and disposed of in the aforesaid terms.

48) We would like to conclude this judgment by observing that to most disabled persons, the society they live in is a closed door which has been locked and the key to which has been thrown away by the others. Helen Keller has described this phenomena in the following words:

“Some people see a closed door and turn away. Others see a closed door, try the knob and if it doesn't open, they turn away. Still others see a closed door, try the knob and if it doesn't work, they find a key and if the key doesn't fit, they turn way. A rare few see a closed door, try the knob, if it doesn't open and they find a key and if it doesn't fit, they make one!”

These rare persons we have to find out.

Detenues in Europe entitled to Human Rights Protection: ECHR Grand Chamber

In its judgment rendered on 21.01.2011 in the case of M.S.S. v. Belgium and Greece (Application No. 30696/2009), the Grand Chamber of the European Court of Human Rights, comprising of its Seventeen Judges, had declared by sixteen to one majority that Greece was in violation of the Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms in as much as the condition of the detenues in the detention centres of Greece was below the standards set in the Convention.

In reaching this conclusion, the Grand Chamber inter alia observed as under;

251.  The Court attaches considerable importance to the applicant's status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection (see, mutatis mutandis, Oršuš and Others v. Croatia [GC],  no. 15766/03, § 147, ECHR 2010-...). It notes the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the European Union Reception Directive.

252.  That said, the Court must determine whether a situation of extreme material poverty can raise an issue under Article 3.

253.  The Court reiterates that it has not excluded “the possibility that the responsibility of the State may be engaged [under Article 3] in respect of treatment where an applicant, who was wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity” (see Budina v. Russia, dec., no. 45603/05, ECHR 2009...).

254.  It observes that the situation in which the applicant has found himself is particularly serious. He allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that was the ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving. It was to escape from that situation of insecurity and of material and psychological want that he tried several times to leave Greece.

255.  The Court notes in the observations of the Council of Europe Commissioner for Human Rights and the UNHCR, as well as in the reports of non-governmental organisations (see paragraph 160 above) that the situation described by the applicant exists on a large scale and is the everyday lot of a large number of asylum seekers with the same profile as that of the applicant. For this reason the Court sees no reason to question the truth of the applicant's allegations.

256.  The Greek Government argue that the applicant is responsible for his situation, that the authorities acted with all due diligence and that he should have done more to improve his situation.

257.  The parties disagree as to whether the applicant was issued with the information brochure for asylum seekers. The Court fails to see the relevance of this, however, as the brochure does not state that asylum seekers can tell the police they are homeless, nor does it contain any information about accommodation. As to the notification the applicant received informing him of the obligation to go to the Attica police headquarters to register his address (see paragraph 35 above), in the Court's opinion its wording is ambiguous and cannot reasonably be considered as sufficient information. It concludes that the applicant was not duly informed at any time of the possibilities of accommodation that were available to him, assuming that there were any.

258.  In any event the Court does not see how the authorities could have failed to notice or to assume that the applicant was homeless in Greece. The Government themselves acknowledge that there are fewer than 1,000 places in reception centres to accommodate tens of thousands of asylum seekers. The Court also notes that, according to the UNHCR, it is a well-known fact that at the present time an adult male asylum seeker has virtually no chance of getting a place in a reception centre and that according to a survey carried out from February to April 2010, all the Dublin asylum seekers questioned by the UNHCR were homeless. Like the applicant, a large number of them live in parks or disused buildings (see paragraphs 169, 244 and 242 above).

259.  Although the Court cannot verify the accuracy of the applicant's claim that he informed the Greek authorities of his homelessness several times prior to December 2009, the above data concerning the capacity of Greece's reception centres considerably reduce the weight of the Government's argument that the applicant's inaction was the cause of his situation. In any event, given the particular state of insecurity and vulnerability in which asylum seekers are known to live in Greece, the Court considers that the Greek authorities should not simply have waited for the applicant to take the initiative of turning to the police headquarters to provide for his essential needs.

260.  The fact that a place in a reception centre has apparently been found in the meantime does not change the applicant's situation since the authorities have not found any way of informing him of this fact. The situation is all the more disturbing in that this information was already referred to in the Government's observations submitted to the Court   on 1 February 2010, and the Government informed the Grand Chamber that the authorities had seen the applicant on 21 June 2010 and handed him a summons without, however, informing him that accommodation had been found.

261.  The Court also fails to see how having a pink card could have been of any practical use whatsoever to the applicant. The law does provide for asylum seekers who have been issued with pink cards to have access to the job market, which would have enabled the applicant to try to solve his problems and provide for his basic needs. Here again, however, the reports consulted reveal that in practice access to the job market is so riddled with administrative obstacles that this cannot be considered a realistic alternative (see paragraphs 160 and 172 above). In addition the applicant had personal difficulties due to his lack of command of the Greek language, the lack of any support network and the generally unfavourable economic climate.

262.  Lastly, the Court notes that the situation the applicant complains of has lasted since his transfer to Greece in June 2009. It is linked to his status as an asylum seeker and to the fact that his asylum application has not yet been examined by the Greek authorities. In other words, the Court is of the opinion that, had they examined the applicant's asylum request promptly, the Greek authorities could have substantially alleviated his suffering.

263.  In the light of the above and in view of the obligations incumbent on the Greek authorities under the European Reception Directive (see paragraph 84 above), the Court considers that the Greek authorities have not had due regard to the applicant's vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.

264.  It follows that, through the fault of the authorities, the applicant has found himself in a situation incompatible with Article 3 of the Convention. Accordingly, there has been a violation of that provision.

Have a look at the decision of the Chamber.

National Human Rights Commission: The role revisited

In a recently delivered decision, the Supreme Court in Remdeo Chauhan @ Rajnath Chauhan v. Bani Kant Das [later reported as AIR 2011 SC 615] revisited the role and jurisdiction of the National Human Rights Commission  (NHRC) in the area of human rights. The Court was called upon to examine the legality of actions of NHRC by recommending to the Governor to commute the death sentence of a convict to life imprisonment despite the Supreme Court having turned down his review petition. 

Having analyzed the provisions of law and the role played by NHRC, the Supreme Court held that the ambit of human rights being wide the NHRC could validly make recommendations to such end. In this context the Supreme Court examined the role of NHRC in the following terms;

44. The NHRC was constituted under Section 3 of the 1993 Act for better protection of human rights. The term ‘human rights’ as defined in Section 2(d) of the 1993 Act, reads as follows:

“2. (d) "Human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.”

45. The functions of NHRC have been set out in Section 12 of the 1993 Act. Section 12 reads as follows:

“12. Functions of the Commission- The Commission shall perform all or any of the following functions namely: 

a. inquire, suo motu or on a petition presented to it by a victim or any person on his behalf or on a direction or order of any court, into complaint of (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation, by a public servant; 

b.intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;

c. visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;

d.review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;

e. review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;

f.study treaties and other international instruments on human rights and make recommendations for their effective implementation;

g.undertake and promote research in the field of human rights;

h.spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;

i.encourage the efforts of nongovernmental organization and institutions working in the field of human rights;

j. such other functions as it may consider necessary for the promotion of human rights.”

46. The NHRC has been constituted to inquire into cases of violation of and for protection and promotion of human rights. This power is an extensive one, which should not be narrowly viewed.

47. It must be jurisprudentially accepted that human right is a broad concept and cannot be straitjacketed within narrow confines. Any attempt to do so would truncate its all-embracing scope and reach, and denude it of its vigour and vitality. That is why, in seeking to define human rights, the Legislature has used such a wide expression in section 2(d) of the Act. It is also significant to note that while defining the powers and functions of NHRC under section 12 of the Act, the said broad vision has been envisioned in the residuary clause in Section 12(j).

48. Therefore, it is imperative that while interpreting the powers and jurisdiction of NHRC, the Court construes section 2(d) of the 1993 Act along with its long title and also the Statement of Objects and Reasons of the said Act. The relevant portion of the statement of objects and reasons are excerpted below: 

“2. However, there has been growing concern in the country and abroad about issues relating to human rights. Having regard to this, changing social realities and the emerging trends in the nature of crime and violence, Government has been reviewing the existing laws, procedures, and system of administration of justice; with a view to bringing about greater accountability and transparency in them, and devising efficient and effective methods of dealing with the situation.”

49. In his Tagore Law Lecture (The Dialectics and Dynamics of Human Rights in India), Justice V.R. Krishna Iyer describes the width and sweep of human rights in his matchless words and which are worth quoting:

“Human rights are writ on a large canvas, as large as the sky. The law makers, lawyers and particularly, the judges, must make the printed text vibrant with human values, not be scared of consequences on the status quo order. The militant challenges of today need a mobilization of revolutionary consciousness sans which civilized systems cease to exist. Remember, we are all active navigators, not idle passengers, on spaceship earth as it ascends to celestial levels of the glorious human future.”

50. We share the same view.

51. What was said by Alexander Hamilton, the great constitutional expert and political philosopher, way back in 1775, is poignant still today for having a clear perception of what human rights are. The words of Hamilton still resonate with a strange relevance and immediacy, and are quoted below:

“The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of divinity itself; and can never be erased or obscured by mortal power.”

52. Keeping those broad principles in our mind if we look at Section 12(j) of the 1993 Act, we mind that it confers on NHRC “such other functions as it may consider necessary for the promotion of human rights.” It is not necessary that each and every case relating to the violation of human rights will fit squarely within the four corners of section 12 of the 1993 Act, for invoking the jurisdiction of the NHRC. One must accept that human rights are not like edicts inscribed on a rock. They are made and unmade on the crucible of experience and through irreversible process of human struggle for freedom. They admit of a certain degree of fluidity. Categories of human rights, being of infinite variety, are never really closed. That is why the residuary clause in sub-section (j) has been so widely worded to take care of situations not covered by subsections (a) to (i) of Section 12 of the 1993 Act. The jurisdiction of NHRC thus stands enlarged by section 12(j) of the 1993 Act, to take necessary action for the protection of human rights. Such action would include inquiring into cases where a party has been denied the protection of any law to which he is entitled, whether by a private party, a public institution, the government or even the Courts of law. We are of the opinion that if a person is entitled to benefit under a particular law, and benefits under that law have been denied to him, it will amount to a violation of his human rights.

53. Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. Constitution and Legislations of civilized country recognise them since they are so quintessentially part of every human being. That is why every democratic country committed to rule of Law put into force mechanisms for their enforcement and protection. Human rights are universal in nature. The Universal Declaration of Human Rights (hereinafter referred to as UDHR) adopted by the General Assembly of the United Nations on 10th December 1948 recognizes and requires the observance of certain universal rights, articulated therein, to be human rights, and these are acknowledged and accepted as equal and inalienable and necessary for the inherent dignity and development of an individual. Consequently, though the term ‘human rights’ itself has not been defined in UDHR, the nature and content of human rights can be understood from the rights enunciated therein.

54. Possibly considering the wide sweep of such basic rights, the definition of ‘human rights’ in the 1993 Act has been designedly kept very broad to encompass within it all the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India.

55. Thus, if a person has been guaranteed certain rights either under the Constitution or under an International Covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human right and NHRC has the jurisdiction to intervene for protecting it.

56. The contrary finding in the judgment under review about the absence of jurisdiction of NHRC to make some recommendations to the Governor is thus vitiated by errors apparent on the face of the record. Of course NHRC cannot intervene in proceeding pending in Court without its approval [Section 12(6)] as it is assumed that Court will remedy any case of violation of human rights. 

57. The assumption in the judgment under review that there can be no violation of a person’s human right by a judgment of this Court is possibly not correct. This Court in exercise of its appellate jurisdiction has to deal with many judgments of High Courts and Tribunals in which the High Courts or the Tribunals, on an erroneous perception of facts and law, have rendered decisions in breach of human rights of the parties and this Court corrects such errors in those judgments.

58. The instances of this Court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.

59. We can remind ourselves of the majority decision of the Constitution Bench of this court in Additional District Magistrate Jabalpur v. Shivakant Shukla reported in (1976) 2 SCC 521.

60. The majority opinion was that in view of the Presidential order dated 27.6.1975 under Article 359(1) of the Constitution, no person has the locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention{ Maintenance of Internal Security Act of 1971}, on the ground that the order is illegal or malafide or not in compliance with the Act.(See paras 78 and 136 of the report)

61. The lone dissenting voice of Justice Khanna interpreted the legal position differently by inter alia holding: 

“(8) Article 226 under which the High Courts can issue writs of Habeas Corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. Such a result cannot be brought about by putting some particular construction on the Presidential order in question.”(Point 8 at page 777 of the report)

62. There is no doubt that the majority judgment of this court in the ADM Jabalpur case (supra) violated the fundamental rights of a large number of people in this country. Commenting on the majority judgment, Chief Justice Venkatachalliah in the Khanna Memorial Lecture delivered on 25.2.2009, observed that the same be ‘confined to the dustbin of history.’ The learned Chief Justice equated Justice Khanna’s dissent with the celebrated dissent of Lord Atkins in Liversidge v. Sir John Anderson reported in (1942) AC 206. 

63. In fact the dissent of Justice Khanna became the law of the land when, by virtue of the Forty Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during emergency.

64. But we hasten to add that NHRC cannot function as a parallel seat of justice to rectify or correct or comment upon orders passed by this Court or any other Courts of competent jurisdiction. For correcting an order in a judicial proceeding, the aggrieved party has to avail of the well established gamut of the corrective machinery of appeal, revision, review, curative petition and so on. 

65. In fact in this case the NHRC did not send any recommendation as long as the first review proceedings were pending in this court. The NHRC was keeping a track of the proceeding in the Court. From its order dated 16.10.09, it is revealed that NHRC was aware that a review petition was filed against the judgment of this Court in Criminal Appeal No. 4/2000, in addition to a mercy petition filed before the Governor of Assam. The NHRC closely followed the proceedings of the review petition.

66. The NHRC made its recommendations on 21.5.2001 only after the judgment in first review (No.1105/2000) was passed on 10.5.2001 by this Court.

67. About NHRC, this Court in Paramjit Kaur v. State of Punjab and Ors. – (1999) 2 SCC 131 held: 

“10. The Commission headed by a former Chief Justice of India is a unique expert body in itself. The Fundamental Rights, contained in Part III of the Constitution of India, represent the basic human rights possessed by every human being in this world inhabited by people of different continents, countries, castes, colours and religions. The country, the colour and the religion may have divided them into different groups but as human beings, they are all one and possess the same rights.”

11. The Chairman of the Commission, in his capacity as a Judge of the High Court and then as a Judge of this Court and also as the Chief Justice of India, and so also two other members who have held high judicial offices as Chief Justices of the High Courts, have throughout their tenure, considered, expounded and enforced the Fundamental Rights and are, in their own way, experts in the field. The Commission, therefore, is truly an expert body to which a reference has been made by this Court in the instant case.”

68. After the aforesaid observations this court decided that when in exercise of its power under Article 32, this Court gives any directions to NHRC, then like all other authorities in this country, NHRC is bound by such directions. In such situations, NHRC acts ‘sui-generis’. The statutory bar of limitation under Section 36(2) of the 1993 Act will not stand in the way (paras 12 and 15, pages 137-138 of the report). 

69. Therefore, NHRC, a statutory body, in a given situation, may have to act under the order or direction given by this Court in exercise of its constitutional power of judicial review.

Have a look at the decision.

No human right violation for non-allotment of land: High Court

In a recently reported decision [Maharashtra Housing & Area Development Authority v. Maharashtra State Human Rights Commission, AIR 2010 Bom 104], the Bombay High Court has declared that no human rights of a citizen can be said to be violated for not having been allotted land by the Government even after having applied for the same. The High Court thus ruled that the Human Rights Commission had no jurisdiction to pass an order in such a matter.

Allowing the petition of the land alloting authority and setting aside the order of the Human Rights Commission, the High Court observed inter alia as under;

12. The Respondent No.2 though claiming rights under that contract did not sue in a Civil Court for enforcement of her right. She instead filed the Petition before the Human Rights Commission. She claims that her human rights are effected.

13. Human Rights as defined in Section 2(d) of the Protection of Human Rights Act, 1993 (the Act) means: 

The rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India .

The Universal Declaration of Human Rights set out the rights of all humans qua their residence and property thus:

Article 3: Everyone has the right to life, liberty and security of a person. Article 13(1): Everyone has the right to freedom of movement and residence within the borders of each state.

Article 17(1): Everyone has the right to own property alone as well as an in association with others.

Article 17(2): No one shall be arbitrarily deprived of his property.

14. The Respondent No.2 eloquently argued in person and urged that the right to obtain a residence by a women such as her, who is a spinster, upon performance of her part of the contract by payment of the consideration required for the allotment, is a human right because if the tenement is not allotted to her she would be shelterless and her right to life as well as dignity as a human being would be adversely effected. It is on this premise that the order impugned by MHADA as being without jurisdiction has been passed by the State Human Rights Commission under the Protection of Human Rights Act, 1993 directing MHADA to give her one tenement as aforesaid.

xxx

17. It may at once be mentioned that the right to the property which was earlier a Fundamental Right under Article 31 to the Constitution, was omitted therefrom by the 44th amendment to the Constitution (w.e.f.20th June 1979). 

18. The term Human rights itself denotes rights relating to the aspects enunciated in the definition. Hence it would be rights of humans relating to their life, liberty, equality and dignity as against the rights with regard to their properties. 

19. Such Human Rights relating to life, liberty, dignity and equality effectively come into play when the act of State by virtue of any legislation or delegated legislation is considered: to cite it was considered by the Supreme Court in the case of M/s. Shantistar Builders Vs. Narayan Khimalal Totame & Ors. (1990) 1 SCC 520 whilst upholding the Urban Land (Ceiling and Regulation) Act, 1976 as a Social legislation thus: 

The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body, for a human being it has to be a suitable accommodation which would allow him to grow in every aspect physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud-built fireproof accommodation. The growing realisation of the disparity between the increase in the home-less urban population and lack of corresponding rise in accommodation led to the passing of the Urban Land (Ceiling and Regulation) Act and acquisition of vacant sites for purposes of housing.

20. This would not apply to individual rights of parties even against the State which require to be effectuated upon contracts entered into between parties. 

21. Following the case of Shantistar Builders the Supreme Court upheld the notification of the Government under Section 17(1A) of the Land Acquisition Act upholding the urgency for grant of residential accommodation to persons from Scheduled Caste and Scheduled Tribes.In the case of Chameli Singh Vs. State of U.P. AIR 1996 SC1051 the Supreme Court observed that the right to life included the right to food, clothing and housing. Therefore State was enjoined to promote with special care the interest of weaker sections of the society. It was held that the right to residence and settlement was a Fundamental Right under Article 19(1)(c) of the Constitution and a facet of the right to life. Consequently,the planned development by way of massive housing scheme undertaken by the State as its economic policy was considered. The opportunity and facility to be provided by the State to build the houses was appraised. The infrastructure necessary to enable weaker sections to live and develop as a human being was cogitated. The requirement of having a property and capacity for acquiring property was essentially considered. The squalid residential environment which is a constant threat to health and life was required to be removed as provided in the UN Centre for human settlement by way of a global strategy. Judicial notice was taken of the condition in which weaker sections lived. Following the case of Pahwa Vs. Lt. Governor of Delhi (1985) 1 SCR 588 it was held that the notification issued under Section 17(4) of the Land Acquisition Act would be valid and could not interfered with because the urgency for providing houses to weaker sections was always urgent. It being a national problem and a constitutional obligation, it was observed that the provision for compensation to the persons whose land was acquired for being provided to weaker sections under Section 23(1) of the Land Acquisition Act was a factor which obligated urgent acquisition.

22. It can be seen that the enforcement of the right of residence as a part of the Fundamental or Human Rights can be enforced against the State under legislation or delegated legislation of the scheme. Though such a right exists the entire populace cannot claim to be given a flat or such other residence from the government under any contract sought to be entered into by them. A right under a contract is a civil right. It can be enforced against the other contracting party whose obligation is set out under the contract. Those rights are enforceable in civil Courts. Consequently for all those rights which arise under any contract or a specific statutory provision can be enforced thereunder in the appropriate forum only. It is for any aberration under State policy, government inaction or as a residuary provision where no statutory rights can be enforced though Civil Courts that the jurisdiction of the Human Rights Commission would come into play. On individual basis for contractual right such jurisdiction is not conferred upon Human Rights Commission.

Have a look at the decision.

Non-registration of same-sex marriage no violation of human rights: ECHR

In a recent decision in the matter of Schalk and Kope v. Austria, the European Court of Human Rights (ECHR) has held that there is no requirement under the European Human Rights law to allow same-sex couples to marry. In this case, "the applicants alleged in particular, that they were discriminated against as, being a same-sex couple, they were denied the possibility to marry or to have their relationship otherwise recognised by law" and that "the applicants argued that in today’s society civil marriage was a union of two persons which encompassed all aspects of their lives, while the procreation and education of children was no longer a decisive element. As the institution of marriage had undergone considerable changes there was no longer any reason to refuse same-sex couples access to marriage". 

The Court was, however, not impressed. The provisions of the European Convention of Human Rights were examined to hold that the bar to registration of same-sex marriage did not constitute a violation thereof. As a reminder, the ECHR also noted "that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society". Have a look at the decision.

No failure till age of 14: High Court

In a recent decision the Madras High Court has declared that no school is entitled to fail a student uptil the age of 14 years. Referring to the recently enacted Right of Children to Free and Compulsory Education Act, 2009 and holding that it created a statutory bar on the school from failing a child till the age of 14 years, the promotion of a student during those years was automatic. Allowing a writ petition filed by a student who had been withheld in class VI by the school administration for having failed in the examination, the High Court declared that in view of the change in law, such a restriction could not be imposed by the school.

The Madras High Court in Kalaikottuthayam v. State of Tamil Nadu observed inter alia as under;

21. Insofar as the higher education is concerned, the State can prescribe higher marks than the one prescribed by the Central agency namely NCTE, AICTE and MCI and the same is settled as per the judgment of the Supreme Court reported in (2004) 4 SCC 513 (State of Tamil Nadu v. S.V.Bratheep).  Insofar as the elementary education is concerned, the same having been declared as a fundamental right upto the age of 14 by insertion of Article 21A of the Constitution of India in the year 2002 and the statutory protection given under Act 35 of 2009, which came into force from 1.4.2010, the students upto the age of 14 are entitled to exercise the said fundamental right as well as the statutory rights conferred on them by the Constitution of India as well as the Right of Children to Free and Compulsory Education Act, 2009.  It is also settled proposition of law that even a candidate who has successfully completed 10th standard Board examinations cannot be denied admission for a particular group in the same school in XI standard on the ground that he has not scored the cut-off marks for admission to the particular group.  The said issue was considered by the Supreme Court in the decision reported in (1995) 5 SCC 512 (Principal Cambridge School v. Payal Gupta) and the supreme Court in paragraphs 5 to 10 held that prescription of certain percentage of marks for admission to a particular group in XI standard of the students, who passed out in 10th standard in the same school is unsustainable and no one can be denied of admission in the XI standard on the ground that he has not secured the cut-off marks for admission to a particular group in XI standard.  The said Judgment was followed by the Division Bench of this Court in the decision reported in (2007) 4 MLJ 400 (D. Aravinth v. State of Tamil Nadu) which is also approved by the Supreme Court in the decision reported in (2009) 1 SCC 794 (Principal Kendriya Vidyalaya v. Saurabh Chaudhary).

22. Section 30 of Act 35 of 2009 is also taken note of by the Division Bench of this Court in the decision reported in 2010 WLR 401 (Krishnagiri District Private Schools Association v. The State of Tamil Nadu & Another) while considering the validity of Uniform System of School Education Act, 2010 (Tamil Nadu Act 8 of 2010).  In the said judgment the Division Bench of this Court in paragraph 55(iv) struck down Section 3(2)(b) of the State Act as the same is in contravention of Section 30(1) of the Central Act.  Section 3(2)(b) of the State Act enables the authorities to follow the norms for conducting examinations.  The said Act of the State is made applicable from the academic year 2010-2011 in the light of the implementation of Act 35 of 2009 with effect from 1.4.2010.

23. Thus, there is a statutory prohibition for failing a student and retaining in the same standard for any reason, including the reason that the student has scored very low marks in the examinations conducted, either in the class examinations or in Term examinations including final examinations. When the Central Act prohibits holding back of any child in any class in the age group of 6 to 14, who will normally be undergoing classes in standards 1 to 8 as per the definition mentioned above, I am of the view that the first respondent Department or any other officer is not competent to issue any norms for giving promotion to students of standards 1 to 8, as the promotion to higher class is automatic.  Even though the conduct of examination is not prohibited under Section 16, getting pass marks in number of subjects is not required for giving promotion to higher class.  The object behind the said provisions is that no student should leave the school within the age group of 6 to 14 for any reason, i.e., due to non-payment of fee, not passing the examination, etc.  When right to education upto the age of 14 is guaranteed as a fundamental right under Article 21A of the Constitution of India, and right to free and compulsory education also has now been declared as a statutory right apart from fundamental right as per Act 35 of 2009 with effect from 1.4.2010, as rightly contended by the learned counsel for the petitioner the department cannot issue any circular giving direction to the third respondent or any other school authority to give promotion by fixing any norms to students of standards 1 to 8.  

24. In fine, it is ordered that the action of the department in issuing circular dated 5.4.2010 which is admittedly after coming into force of the Central Act 35 of 2009 with effect from 1.4.2010 is clearly illegal and the same is declared as invalid.  The third respondent following the circular only took the impugned decision of holding back the son of the petitioner in 6th standard due to scoring of low marks in the annual examination.  When the circular dated 5.4.2010 is declared as invalid and the petitioner's son having established his right to get admission in 7th standard in terms of sections 4, 16 and 30 of the Act, which prohibits holding back of any student in the same class, the action of the third respondent in holding back the petitioner's son in 6th standard without promoting him to the 7th standard is also illegal.

25. On the basis of the above finding and in the light of Article 21A of the Constitution of India as well as the provisions contained in Act 35 of 2009, the impugned order is set aside and the respondents are directed to promote/admit the son of the petitioner in 7th standard in the third respondent school forthwith.  As the learned counsel for the petitioner during the course of the arguments submitted that the petitioner is willing to apply for Transfer Certificate and the learned counsel for the third respondent school also expressed her willingness to issue Transfer Certificate, it is open to the petitioner to apply for the Transfer Certificate and get admitted his son in 7th standard in any other school of his choice.  It is made clear that as Section 15 of the Act prohibits expulsion of a child from the School, the third respondent cannot issue Transfer Certificate compulsorily, without any request made by the petitioner.  If Transfer Certificate is to be issued to the petitioner's son by the third respondent on the voluntary request made by the petitioner, the third respondent is directed to issue Transfer Certificate stating that the son of the petitioner, namely Tamil Prabhakara Udayam is promoted to 7th standard.

Have a look at the decision.

See Also

1. No right to study in a particular class: High Court

ECHR on Human Rights of terminally ill non-citizens

The decision of the 'Grand Chamber' of the European Court of Human Rights in N v. United Kingdom has considered in extensio the fate and limitations on the rights of terminally ill non-citizens seeking asylum in member nations of the European Community on human rights grounds. 

The background facts in Case Number 26565/2005 were that "N, a Ugandan national, had entered the United Kingdom in 1998 under an assumed name and applied for asylum. In the ensuing months she was diagnosed as having two AIDS defining illnesses and a high level of immunosuppression. She was treated with antiretroviral drugs and her condition began to stabilise. In 2001 the Secretary of State refused her asylum claim on credibility grounds and also rejected a claim that her expulsion would constitute inhuman treatment. ... At the date of the Grand Chamber’s judgment, the applicant’s condition was stable, she was fit to travel and was expected to remain fit as long as she continued to receive the basic treatment she needed. The evidence before the national courts indicated, however, that if she were to be deprived of the medication she had been receiving in the United Kingdom her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years. According to information collated by the World Health Organisation, antiretroviral medication was available in Uganda, although, through a lack of resources, it was received by only half of those in need. The applicant claimed that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she came."

Stating the law, the Grand Chamber declared that "aliens subject to expulsion could not in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided there. The fact that the applicant’s circumstances, including her or his life expectancy, would be significantly reduced if he or she were to be removed was not sufficient in itself to give rise to a breach of Article 3" of the European Convention on Human Rights. Further, the provision "did not place an obligation on Contracting States to alleviate disparities between the levels of treatment available in different countries through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdiction. Finally, these principles had to apply to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which might cause suffering, pain and reduced life expectancy and require specialised medical treatment which might not be so readily available in the applicant’s country of origin or which might be available only at substantial cost."

In a split vote (14-3), the Grand Chamber declared against the rights of N the dismissal of whose claims for asylum were confirmed by the Chamber. 

Have a look at the decision and also an interesting critique of the same on the ramifications of this decision in the field of human rights. 

[Please note that the quoted text in the above paragraphs  is as per the summary of the case released in the Information document released by the ECHR.]

Rights of slum dwellers: The law revisited

More than two decades back the then Chief Justice of India Y.V. Chandrachud passed the famous decision which is known in law circles as the 'Pavement Dwellers Case' vindicating the rights of those who have no choice but to live on footpaths and pavements and are constantly perturbed by the civic authorities according to whom they are an encroachment on public pathways. The recently retired Chief Justice of Delhi High Court, Justice A.P. Shah passed a judgment in similar lines enunciating the rights of slum-dwellers. On behalf of these slum-dwellers it was submitted before the High Court that the applicants were "mainly from the low income groups engaged in peripheral activities in the neighbourhood of their clusters. They are characterized by the term “city service personnel” whose daily chores ensure the health and cleanliness of the households in the neighbourhood where they are employed. There is an element of indispensability of their services for the resident population in the upper-class apartments and households.". 

In this background it was argued before the High Court that the "action of the government authorities in demolishing the slum clusters without ensuring relocation of its poor residents (“Urban Poor”) in total violation of their fundamental right to shelter enshrined in right to life under Article 21 of the Constitution." The Civic Authorities, called upon to justify their actions, contended that such "petitioners were occupying land which comes under the category of „Right of Way‟ and, therefore are not entitled for any compensation or alternative land under any policy or scheme of the rehabilitation and relocation."

The High Court took stock of the important decisions of the Supreme Court on the issue and Reports of various national and international agencies dealing with the practical problem of urban housing and noted the acute problem in Delhi as under;

44. In the last four decades, on account of pressure on agricultural land and lack of employment opportunities in the rural areas, a large number of people were forced to migrate to large cities like Delhi. However, in cities, their slender means as well as lack of access to legitimate housing, compelled them to live in existing jhuggi clusters or even to create a new one. They turned to big cities like Delhi only because of the huge employment opportunities here but then they are forced to live in jhuggies because there is no place other than that within their means. These jhuggi clusters constitute a major chunk of the total population of the city. Most of these persons living in the slums earn their livelihood as daily wage labourers, selling vegetables and other household items, some of them are rickshaw pullers and only few of them are employed as regular workers in industrial units in the vicinity while women work as domestic maid-servants in nearby houses. Their children also are either employed as child labour in the city; a few fortunate among them go to the municipal schools in the vicinity. The support service provided by these persons (whom the Master Plan describes as „city service personnel‟) are indispensable to any affluent or even middle class household. The city would simply come to halt without the labour provided by these people. Considerations of fairness require special concern where these settled slum dwellers face threat of being uprooted. Even though their jhuggi clusters may be required to be legally removed for public projects, but the consequences can be just as devastating when they are uprooted from their decades long settled position. What very often is overlooked is that when a family living in a Jhuggi is forcibly evicted, each member loses a „bundle‟ of rights – the right to livelihood, to shelter, to health, to education, to access to civic amenities and public transport and above all, the right to live with dignity.

In this factual backdrop, the High Court brushed aside the submissions of the civic authorities seeking refuge under the right to way of other citizens 

50. In our opinion, the stand of the respondents that alternative land is not required to be allotted to the inhabitants of such land which comes under the “Right of Way” is completely contrary to the State‟s policy which governs relocation and rehabilitation of slum dwellers. State‟s policy for resettlement nowhere exempts persons, who are otherwise eligible for benefit of the said policy, merely on the ground that the land on which they are settled is required for “Right of Way”. The respondents‟ have failed to produce any such policy which provides for exclusion of the slum dwellers on the ground that they are living on “Right of Way”. We find force in the submission of the petitioners that even if there is any such policy, it may be for those jhuggi dwellers, who deliberately set up their jhuggies on some existing road, footpath etc, but surely this policy cannot be applied to jhuggi dwellers who have been living on open land for several decades and it is only now discovered that they are settled on a land marked for a road under the Master Plan though when they started living on the said land there was no existing road. ...

52. We fail to appreciate how the above letter of the Principal Secretary spells out any policy decision on 'Right of Way'. The letter merely records oral instructions of the Lt. Governor that the jhuggi dwellers on the „Right of Way‟ will not be entitled to relocation. It is also not clear from the letter as to what constitutes 'Right of Way'. When the petitioners set up their jhuggies several decades ago there was no road. It may be that in some layout plan the land was meant for a road but when they started living there, they could not anticipate that the land will be required in future for a road or for the expansion of an existing road. As long as they were not on an existing road, they cannot be denied the benefit of rehabilitation/relocation. The denial of the benefit of the rehabilitation to the petitioners violates their right to shelter guaranteed under Article 21 of the Constitution. In these circumstances, removal of their jhuggies without ensuring their relocation would amount to gross violation of their Fundamental Rights. ...

55. We find no difficulty in the context of the present case, and in the light of the jurisprudence developed by our Supreme Court and the High Court in the cases referred to earlier, to require the respondents to engage meaningfully with those who are sought to be evicted. It must be remembered that the MPD-2021 clearly identifies the relocation of slum dwellers as one of the priorities for the government. Spaces have been earmarked for housing of the economically weaker sections. The government will be failing in its statutory and constitutional obligation if it fails to identify spaces equipped infrastructurally with the civic amenities that can ensure a decent living to those being relocated prior to initiating the moves for eviction.

56. The respondents in these cases were unable to place records to show that any systematic survey had been undertaken of the jhuggi clusters where the petitioners and others resided. There appears to be no protocol developed which will indicate the manner in which the surveys should be conducted, the kind of relevant documentation that each resident has to produce to justify entitlement to relocation, including information relating to present means of livelihood, earning, access to education for the children, access to health facilities, access to public transportation etc.

57. This Court would like to emphasise that the context of the MPD, jhuggi dwellers are not to be treated as 'secondary' citizens. They are entitled to no less an access to basic survival needs as any other citizen. It is the State‟s constitutional and statutory obligation to ensure that if the jhuggi dweller is forcibly evicted and relocated, such jhuggi dweller is not worse off. The relocation has to be a meaningful exercise consistent with the rights to life, livelihood and dignity of such jhuggi dweller.

58. It is not uncommon to find a jhuggi dweller, with the bulldozer at the doorstep, desperately trying to save whatever precious little belongings and documents they have, which could perhaps testify to the fact that the jhuggi dweller resided at that place. These documents are literally a matter of life for a jhuggi dweller, since most relocation schemes require proof of residence before a 'cut-off date'. If these documents are either forcefully snatched away or destroyed (and very often they are) then the jhuggi dweller is unable to establish entitlement to resettlement. Therefore, the exercise of conducting a survey has to be very carefully undertaken and with great deal of responsibility keeping in view the desperate need of the jhuggi dweller for an alternative accommodation. A separate folder must be preserved by the agency or the agencies that are involved in the survey for each jhuggi dweller with all relevant documents of that jhuggi dweller in one place. Ideally if these documents can be digitalized then there will be no need for repeated production of these documents time and again whenever the jhuggi dweller has in fact to be assigned a place at the relocated site.

59. Each member of the family of the jhuggi dweller is invariably engaged in some livelihood from morning to night. It is, therefore, not uncommon that when a survey team arrives at a jhuggi camp, some or the other member may not be found there. By merely stopping with that single visit, and not finding a particular member of that family, it may not be concluded that no such member resides in that jhuggi. Such an exercise, if it has to be meaningful, has to be undertaken either at the time when all the members of the family are likely to be found. Alternatively there should be repeated visits by the survey team over a period of time with proper prior announcement. If jhuggi dwellers are kept at the centre of this exercise and it is understood that the State has to work to ensure protection of their rights, then the procedure adopted will automatically change, consistent with that requirement.

60. The further concern is the lack of basic amenities at the relocated site. It is not uncommon that in the garb of evicting slums and 'beautifying' the city, the State agencies in fact end up creating more slums the only difference is that this time it is away from the gaze of the city dwellers. The relocated sites are invariably 30-40 kilometers away from a city centre. The situation in these relocated sites, for instance in Narela and Bhawana, are deplorable. The lack of basic amenities like drinking water, water for bathing and washing, sanitation, lack of access to affordable public transport, lack of schools and health care sectors, compound the problem for a jhuggi dweller at the relocated site. The places of their livelihood invariably continue to be located within the city. Naturally, therefore, their lives are worse off after forced eviction.

61. Each of the above factors will have to be borne in mind before any task for forceful eviction of a jhuggi cluster is undertaken by the State agencies. It cannot be expected that human beings in a jhuggi cluster will simply vanish if their homes are uprooted and their names effaced from government records. They are the citizens who help rest of the city to live a decent life they deserve protection and the respect of the rights to life and dignity which the Constitution guarantees them.

Being of this view, the High Court also gave directions to the Municipal Corporation of Delhi to provide for alternate sites for the slum-dwellers according to the Master Plan of 2021. 

Have a look at the decision.