Proportionality review and economic and social rights in India

ABSTRACT

This article sheds light on three questions: (1) must we apply proportionality review in cases involving economic and social rights recognized under Article 21 of the Constitution of India 1950? (2) If so, how do we apply proportionality review in these cases? And (3) how will this impact the content of these rights and the corresponding obligations placed on the state? The article focuses on the right to housing in India. It argues that courts must apply the proportionality standard of review to check limitations on the right to housing. Applying this standard of review will change the all-things-considered content of the right to housing as beyond conditional, requiring provision of alternate accommodation in all eviction cases that result in homelessness. This article fills a gap in legal doctrine and research with regards to the possibilities for economic and social rights jurisprudence in the age of proportionality.

KEYWORDS:

• Right to housing
• eviction
• socio-economic rights
• standard of review
• constitutions and human rights

1. Introduction

It has been argued that Puttaswamy v Union of India (“Puttaswamy I”)¹ ushered in a culture of justification in India.² Among other things, the majority of judges adopted a proportionality standard of review to adjudicate violations of privacy. Post Puttaswamy I, an exciting task awaits lawyers, judges, and scholars, in unravelling the possibilities for fundamental rights jurisprudence that have opened-up through the judgement. There is a gap in legal doctrine and research with regards to the impact of Puttaswamy I on social and economic rights, and this article aims to fill that gap, focusing on the right to housing.

I revisit Olga Tellis v Bombay Municipal Corporation (“Olga Tellis”),³ the first and only case on the fundamental rights to livelihood and housing decided by a Constitution Bench of the Supreme Court of India (“the Supreme Court” or “Court”). I argue that the post-Puttaswamy I landscape carries exciting possibilities for the development of the fundamental right to housing in India. I further argue that courts examining cases on the right to housing are obliged to apply the proportionality standard of review, and that this has important implications for the development of the content of the right to housing and the corresponding obligations placed on the state as beyond “conditional”.⁴ Particularly, I argue that the requirement to provide alternate accommodation or rehabilitation in eviction cases is no longer dependent on pre-existing schemes; rather rehabilitation must be provided in all eviction cases that result in homelessness.

I adopt a doctrinal approach to the right to housing in this article. Recent literature on the rights to livelihood and housing has focused on the institutional role played by courts,⁵ particularly in the context of public interest litigation.⁶ At the same time, doctrinal work on the right to housing remains valuable. At a time when the Supreme Court itself disregards doctrine in eviction cases,⁷ it should be the task of legal scholars to hold it accountable.⁸ It is also valuable for legal scholars to imagine possibilities for doctrinal development, to help shape the future of the law.

I develop the arguments in this article as follows: in section 2, I briefly examine the doctrinal developments made in Olga Tellis. In section 3, I examine the application of reasonableness review to the impugned legislation in the case, and argue that, even on application of the reasonableness standard, the case should have been decided differently. I argue that the remedy of alternate accommodation or rehabilitation ought to have formed part of reasonableness review, and that the Supreme Court should have required provision of rehabilitation to all those facing homelessness as a result of the eviction. In section 4, I argue that post Puttaswamy I, proportionality is the correct standard of review not only for civil and political rights such as privacy, but also for social and economic rights, such as the right to housing. In other words, proportionality review applies to testing violations of all rights located within Article 21 of the Constitution of India 1950 (“the Constitution”) – India has arrived in the “age of proportionality”.⁹ I briefly explore what the proportionality standard requires, and thereafter apply proportionality review to the right to housing. I examine how a case with the same facts as Olga Tellis should be decided if brought before the courts today. Through this, I indicate how the application of proportionality review can enable the development of the content of the right to housing in India. I argue that the proportionality review would impose a higher burden on the state in case it fails to fulfil the requirements of notice, hearing, and rehabilitation through meaningful engagement prior to evictions. It will also mean recognizing stronger rehabilitation requirements. Post Puttaswamy I, an eviction that results in homelessness cannot be permissible without providing alternate accommodation. Rehabilitation is no longer dependent on pre-existing schemes, but an obligation flowing from the fundamental right to housing. Finally, in section 5, I engage with recent eviction cases, to argue that courts must consider not only previous doctrine on the rights to livelihood and housing, but also the developments in fundamental rights jurisprudence post Puttaswamy I.

2. Setting the stage: Olga Tellis

Olga Tellis involved the eviction of residents of “slums” or informal settlements, and those residing on pavements in Mumbai, then officially known as Bombay. The evictions took place in exercise of the powers of the Municipal Commissioner under the Bombay Municipal Corporation Act 1888. Provisions of the Act empowered the Municipal Commissioner to remove “encroachments”, including houses built on footpaths or pavements accessible to the public, without providing notice.¹⁰ Petitioners argued that these provisions of the Bombay Municipal Corporation Act were unconstitutional, and that the Constitution required that residents be provided with rehabilitation or alternate accommodation in case of eviction.

While deciding the case, a Constitution Bench of the Supreme Court made the following doctrinal developments:

1. it recognized the rights to livelihood and housing as part of the right to life guaranteed under Article 21 of the Constitution¹¹;

2. it gave some content to the rights to livelihood and housing, by recognizing the necessity for notice and hearing prior to evictions¹²;

3. it recognized “reasonableness” as the appropriate standard of review to check restrictions on the rights to livelihood and housing under Article 21.¹³ I argue in section 3 that it misapplied the just, fair and reasonableness standard; and

4. it offered important but inadequate remedies in terms of access to rehabilitation or alternate accommodation.¹⁴

Although the expansion of the right to life guaranteed under Article 21 to include the rights to livelihood and housing has sometimes been criticized as being unprincipled,¹⁵ it is largely accepted that such an interpretation of the right to life is normatively significant in that it acknowledges the importance of the material foundations of a life of dignity.¹⁶ This aspect of Olga Tellis (the recognition of housing as a fundamental right) is firmly entrenched in fundamental rights jurisprudence in India.¹⁷

Beyond that, the content of the rights to livelihood and housing has been criticized as being conditional, dependent on pre-existing legislation or state policy for its content.¹⁸ The recognition of the notice and hearing requirement meant that the content of the rights to livelihood and housing was not entirely conditional. Even when provisions enabled the Municipal Commissioner to dispense with notice and hearing, the Supreme Court read those provisions of the Bombay Municipal Act narrowly; and required that notice and hearing must ordinarily be provided,¹⁹ and may be dispensed with only under “extraordinary circumstances” involving “urgency”. The Supreme Court also held that the state carries the burden to indicate urgency where it uses its powers to dispense with notice and hearing.²⁰ In this way these requirements were not conditional either on statute or on state policy.

It should be noted that these requirements of notice and hearing have been substantially taken forward through two decisions of the Delhi High Court—Sudama Singh v Government of Delhi (“Sudama Singh”)²¹ and Ajay Maken v Union of India (“Ajay Maken”).²² In Sudama Singh,²³ the Delhi High Court held that prior to carrying out any eviction, it is the duty of the state to (1) conduct a survey of all persons facing evictions to check their eligibility under existing schemes for rehabilitation, and (2) to carry out a rehabilitation exercise “in consultation with each one of them [persons at risk of an eviction] in a meaningful manner”.²⁴ This position was reiterated in Ajay Maken.²⁵ I argue in section 4.3 below that these requirements are further strengthened once we apply the proportionality standard of review to the procedural elements of the right to housing.

On the other hand, the rehabilitation requirements recognized in the case were entirely conditional. The Supreme Court required the state to provide alternate land under existing schemes to people being evicted, if they were found to be eligible under those schemes.²⁶ The Supreme Court thereby permitted the state discretion in determining who was eligible for alternate accommodation upon eviction,²⁷ even when residents evicted from pavements indicated to the Supreme Court that they would be rendered homeless under the state’s policy for rehabilitation.²⁸ Hohmann suggests that some of those who did not qualify for rehabilitation under existing schemes were nevertheless able to gain de facto protection against evictions, or rehabilitation, at the discretion of the state.²⁹

In evictions carried out since Olga Tellis, a large number of people have been rendered homeless when they did not qualify for alternate accommodation under existing schemes, and the state, in exercise of its discretion, chose not to provide rehabilitation. For instance, conservative estimates suggest that at least half of the total number of families evicted from informal settlements in the period 1990 to 2007 in Delhi, were not given access to alternate accommodation.³⁰ In the sections below, I indicate that the correct application of the just, fair and reasonable standard of review, as well as the more recent requirement of the proportionality standard of review, requires the recognition of unconditional rehabilitation requirements in eviction cases.

3. Just, fair and reasonable standard of review

In Olga Tellis, the Supreme Court recognized that the right to life under Article 21 of the Constitution includes the rights to livelihood and housing, and also recognized that evictions involve the deprivation of these rights.³¹ Hence, it ought to have decided whether restrictions on or deprivations of the rights to livelihood and housing of pavement dwellers were just, fair and reasonable. Instead, the Supreme Court focused on the procedure for removal of “encroachments”, and interpreted the procedure laid down under sections 312–314 of the Bombay Municipal Corporation Act 1888 in a manner that rendered it just, fair and reasonable, by ordinarily requiring a notice and hearing prior to evictions.³²

This “proceduralization” of the right to housing has been criticized.³³ Yet, these procedural requirements, at the very least, carry much potential for enabling residents to retain access to their housing until they obtain conditional entitlements to rehabilitation under existing schemes, if found to be eligible under those schemes.³⁴ A more rigorous procedure that enables residents to deliberate with the state about their contextual requirements regarding their housing, will enable residents to define the substantive aspects of their right to housing in terms that are relevant to their circumstances.³⁵

Olga Tellis did not, however, consider whether the substance of the law – removal of homes of pavement dwellers for the sake of ease of movement of pedestrians without provision of alternate accommodation – was just, fair, and reasonable. Hence, it applied the just, fair and reasonable standard of review incorrectly in Olga Tellis, by not properly applying the standard to the substance of the law.

At this point, it is useful to briefly discuss how courts test limitations of the rights to life and personal liberty under Article 21 of the Constitution. The text of Article 21 states, “no person shall be deprived of his life or personal liberty except according to procedure established by law”. In AK Gopalan v State of Madras (“AK Gopalan”),³⁶ the Supreme Court interpreted Article 21 literally, to hold that those deprivations of life and personal liberty were constitutionally permissible for which there was a procedure prescribed by a validly enacted law.³⁷ This position changed in Maneka Gandhi v Union of India (“Maneka Gandhi”),³⁸ wherein the Supreme Court held that “procedure established by law” must be interpreted to mean a procedure that is “just, fair and reasonable” and not “fanciful, oppressive, or arbitrary”.³⁹ In subsequent cases, prior in time to Olga Tellis, the Supreme Court examined not only the procedure prescribed, but also the substance of the law, to determine whether it was just, fair and reasonable.⁴⁰ For example, in Sunil Batra v Delhi Administration (“Sunil Batra”)⁴¹ Krishna Iyer J held that post Maneka Gandhi, punishment that was cruel, inhumane and amounted to torture, would be unreasonable and arbitrary, and violate Articles 14, 19 and 21 of the Constitution.⁴² He held that solitary confinement was cruel, inhumane and amounted to torture and therefore unconstitutional.⁴³

The Supreme Court has been criticized for its failure to articulate a consistent principle or method to determine what amounts to just, fair and reasonable.⁴⁴ The Court held in Olga Tellis that “[t]here is no static measure of reasonableness which can be applied to all situations alike”.⁴⁵ While applying the just, fair and reasonableness test, the Supreme Court has generally pursued three lines of enquiry: the Court has reviewed rights infringing measures to examine whether these (1) follow a legitimate aim, (2) through means that are rationally connected to that aim, and (3) that on a “general balance” between the right and the public interest sought to be pursued, the measure is a justified infringement of that right.⁴⁶ The Court has not explained the principles on the basis of which it will conduct a “general balancing”, and this is not the same as proportionality. Moreover, the Court has not pursued all three lines of enquiry in a consistent manner and has more often limited itself to the first two lines of enquiry, checking whether rights infringing measures follow a legitimate aim through means that are rationally connected to the aim.⁴⁷ In Olga Tellis, the Supreme Court failed to pursue any of these lines of enquiry with regards to the substance of the law.

In Olga Tellis, the Supreme Court should have pursued all three lines of enquiry while checking whether the substance of the law was just, fair and reasonable. The Supreme Court recognized that the rights to livelihood and housing were being restricted (or deprived) for the sake of the interest of pedestrians to use footpaths. While this may be a reasonable purpose for restricting the rights to livelihood and housing of pavement dwellers, this should have been acknowledged explicitly. Thereafter, the Supreme Court should have considered whether the restriction was rationally connected to the aim. Again, the Court may have found that there was a rational connection, but this ought to have been stated explicitly. Lastly, the Court ought to have conducted a general balancing between the rights to livelihood and housing, and the interest of pedestrians over pavements. The Court refused to characterize the rights to livelihood and housing of residents of pavements as a “competing claim” to that of pedestrians. The Supreme Court held:

There is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that, the former should be preferred to the latter.⁴⁸

In other words, the Supreme Court refused to explicitly conduct a general balancing between the rights to livelihood and housing of residents and the interest of pedestrians. Of course, implicitly the Court did conduct this balancing, by representing the issue in the case as a contest between pedestrians and pavement dwellers, in which the pavement dwellers lost.⁴⁹ The Supreme Court drew on the common law of tort, and characterized pavement dwellings as “an act of trespass”, “unquestionably a source of nuisance”, and recognized the statutory duty of the Municipal Corporation to abate nuisances.⁵⁰ It did not interpret the common law or statutory law in light of the Constitution, and more specifically, the fundamental rights to livelihood and housing.⁵¹ The Court should have conducted the general balancing, to find that even if eviction of residents for the sake of pedestrians was just, fair and reasonable, it could be so only if residents were provided alternate accommodation.

Although the Supreme Court recognized the obligation to provide alternate accommodation, it did so to the extent that the state had already undertaken to provide alternate accommodation to those facing evictions.⁵² Khosla has rightly characterized this approach to the rights to livelihood and housing in Olga Tellis as “conditional”, because the content of the right is dependent on pre-existing statutory rights or policies.⁵³ The Court could have avoided this characterization, if it had made the rehabilitation requirement as part of its reasoning, while checking whether the restriction on the rights to livelihood and housing were just, fair and reasonable. This would have allowed the Supreme Court to recognize stronger rehabilitation requirements. In the case, the Court did not require the provision of alternate accommodation or rehabilitation “as condition precedent” to the eviction of pavement dwellers.⁵⁴ In other words, pavement dwellers could be evicted without first being provided alternate accommodation, even if this would render them homeless.

The Court also did not require alternate accommodation to be provided to those who did not fulfil the state’s criteria, predicated on residents being able to prove their residence in Mumbai prior to 1976 through inclusion in the 1976 census.⁵⁵ Instead, the Court ought to have required the provision of alternate accommodation to all those who would be rendered homeless as a result of the eviction, because eviction of pavement dwellers for the sake of pedestrians could be just, fair and reasonable only if they were not rendered homeless. Thus, an application of the just, fair and reasonable standard of review to the substance of the law may have helped the Court to arrive at stronger, non-conditional alternate accommodation requirements.

The state may raise arguments regarding its financial incapacity in making budgetary provisions for alternate accommodation in eviction cases, to argue that it could not provide alternate accommodation to those rendered homeless as a result of an eviction. In the subsequent section, I engage with these arguments while discussing the proportionality standard of review.

4. Proportionality standard of review

More recently, the Supreme Court has adopted the proportionality test to check limitations on fundamental rights. In Modern Dental College and Research Centre v State of Madhya Pradesh (“Modern Dental”)⁵⁶ and Akshay N Patel v Reserve Bank of India,⁵⁷ the Supreme Court adopted the proportionality test to check limitations on the right to freedom of occupation under Article 19(1)(g) of the Constitution. In three interconnected judgements arising out of a challenge to the constitutionality of Aadhaar⁵⁸ – Binoy Viswam v Union of India⁵⁹; Puttaswamy I⁶⁰; and Justice KS Puttaswamy v Union of India (“Puttaswamy II”)⁶¹—the Supreme Court adopted the structured four-part proportionality test to check violations of the right to privacy guaranteed under Article 21 of the Constitution. The Court has applied the proportionality test to check limitations on both substantive and procedural rights.⁶²

In this section, I argue that the proportionality standard ought to apply to cases involving the right to housing. I thereafter explore how a case like Olga Tellis should be decided on adopting a four-step proportionality test to check restrictions on the rights to livelihood and housing in the context of evictions.

4.1. The proportionality standard ought to apply

In several fundamental rights cases decided post Puttaswamy I, the Supreme Court did not adopt the proportionality test, even when finding a violation of the right to privacy under Article 21 of the Constitution. In Joseph Shine v Union of India (“Joseph Shine”)⁶³ all five judges of a constitutional bench of the Supreme Court found that Section 497 of the Indian Penal Code 1860 which criminalized the offence of adultery, violated inter alia the rights to dignity and privacy under Article 21 of the Indian Constitution.⁶⁴ Only Justice Malhotra used a version of the proportionality test to reach this conclusion, finding that although the provision fulfilled a legitimate aim – to preserve the institution of marriage – its adopted means were neither rationally connected to, nor necessary to fulfil that aim.⁶⁵ In Navtej Singh Johar v Union of India (“Navtej”),⁶⁶ a bench comprising the same five judges read down section 377 of the Indian Penal Code, which criminalized “carnal intercourse against the order of nature”, to exclude consensual same-sex relationships between adults. They found that criminalizing consensual same-sex relations between adults violated inter alia the right to privacy under Article 21 of the Constitution.⁶⁷ None of the judges, including Justice Malhotra, used the proportionality test to arrive at this conclusion. This should be a point of criticism of these decisions. The judges in Joseph Shine and Navtej, as part of five-judge benches, were bound by the Puttaswamy I decision, decided by a larger nine-judge bench of the Supreme Court.⁶⁸ It is well established that decisions of a larger bench of the Supreme Court, are binding on benches with the same or lesser bench strength.⁶⁹ In Puttaswamy I, the majority held that limitations on the right to privacy under Article 21 should be checked using the proportionality test, and hence the Supreme Court ought to have used the proportionality test in Joseph Shine and Navtej. While the outcome of these cases would remain unchanged, these decisions would be doctrinally consistent were they to use the proportionality test. Other decisions explicitly employed the proportionality test, although not uniformly.⁷⁰

Post Puttaswamy I, the proportionality test should be used to check limitations on both rights such as privacy, and rights such as housing. Although Puttaswamy I was about the right to privacy under Article 21 of the Constitution, there is no sound reason to treat privacy differently from the right to housing in terms of applying the proportionality standard of review.

At this point, it is apt to engage with the sheer breadth of Article 21. Given the wide and ever-expanding range of rights recognized within the provision, Surendranath has argued that there should be an internal hierarchy within Article 21, and that differing standards of review should be employed to test limitations on rights falling at different levels in the hierarchy.⁷¹ He says, “[a]t the risk of simplifying the issues, the question is whether the ‘right to sleep’ deserves the same level of protection as the right against torture”.⁷² He does not suggest a principle for differentiating between different rights falling within the scope of Article 21, but recognizes that because Article 21 has been “expanded in such numerous directions in so many different ways’,⁷³ that it is reasonable to treat the variety of rights falling within Article 21 differently. It must be seriously acknowledged that Article 21 enshrines rights recognized as absolute and permitting no limitations whatsoever, such as the right against torture.⁷⁴ Other rights falling within the scope of Article 21 May be limited, and the question then becomes, do we apply the same standard of review to check limitations of these rights? Or should there be a hierarchy of rights, and differing standards of review, applicable within Article 21?

Surendranath’s proposal for a hierarchy of rights within Article 21, is motivated by the concern that a just, fair and reasonable standard of review to test limitations (the standard applicable at the time he was writing his chapter) was a weak and deferential standard. He was concerned that this left rights, such as the right against torture, insufficiently protected against executive and legislative action.⁷⁵ To overcome this problem, he suggested that a more rigorous standard of review be used when testing limitations on rights falling higher in the hierarchy of rights within Article 21.

There is another way of engaging with Surendranath’s concerns – to apply the proportionality test, understood to be more rigorous than the reasonableness test,⁷⁶ to all non-absolute rights recognized under Article 21. This would ensure that all rights within Article 21 are better protected. Moreover, proportionality itself can be applied with varying intensities of review.⁷⁷ Hence, if there is to be a hierarchy of rights within Article 21, where the right to torture is treated differently from the right to reputation or sleep, that hierarchy can be respected even when adopting a proportionality standard of review for all rights guaranteed under Article 21. Applying the proportionality test to all rights encompassed within Article 21 would ensure that limitations on all rights are subject to a baseline intensity of review, but a varying intensity beyond that baseline.⁷⁸ Hence, the adoption of the proportionality test for all rights under Article 21 should meet Surendranath’s concerns.

Justice Das in his concurring opinion in AK Gopalan adopted a similar view to Surendranath, wherein he argued that there are certain primary rights, and then auxiliary rights, protected under Articles 19 and 21 of the Constitution.⁷⁹ He identified the right to life as the “first and foremost right”, and after it, the right to “freedom of the person”. Within “freedom of the person”, Justice Das included only the right “not be touched, violated, arrested or imprisoned and one’s limbs shall not be injured or maimed”.⁸⁰ Justice Das considered all other rights falling within the scope of Article 21 as auxiliary rights, and the rights protected under Article 19 as auxiliary rights that were “so important and fundamental that they are regarded and valued as separate and independent rights”.⁸¹

It is difficult to understand why certain rights within Article 21 should be treated as “primary” and others as “auxiliary”, and what principle can be used to identify which rights would fall within each category. In any case, for Justice Das, the standard of review applicable for primary versus auxiliary rights did not change. Both kinds of rights could be restricted or deprived through a procedure established by a validly enacted law. In that case, what difference does it make to characterize some rights within Article 21 as primary, and others as auxiliary? Moreover, if we were to adopt the categorization of Justice Das, privacy and housing both would be considered auxiliary rather than primary rights. Therefore, the standard of review applicable for both should be the same. Since the Supreme Court held in Puttaswamy I that limitations on privacy ought to be checked using the proportionality test, it should follow that limitations on housing, too, ought to be checked using the proportionality test.

In Resham v State of Karnataka,⁸² the Karnataka High Court echoed Justice Das’ views with regards to a hierarchy of rights encompassed within Article 21. The High Court held that some rights within Articles 19 and 21 are “substantive rights” and others are “derivative rights”; and that “derivative rights do not go to the core of substantive rights as such but lie in the penumbra thereof”.⁸³ It went further to recognize a core and a penumbra within substantive rights. So, for the High Court, school dress codes fall within the penumbra of the right to privacy and freedom of expression, and not the core of the right. And it held that the proportionality standard of review applies only when the core of the “substantive right” is involved.⁸⁴ The Supreme Court has never before recognized such a hierarchy within rights such as freedom of expression and privacy, and has held that limitations on the right to privacy are to be tested using the proportionality standard of review⁸⁵; and so the Karnataka High Court is bound by the Supreme Court’s views on the matter.⁸⁶

For the purposes of this article, it is sufficient to argue that regardless of whether there is a hierarchy of rights within Article 21, and a further hierarchy within each of those rights, the right to housing must be treated similarly to the right to privacy with regards to the standard of review applied to check limitations on these rights. There really is no way to argue that privacy is any less or more important than the right to housing. Moreover, there is a close connection between the two. The right to housing has been interpreted through the right to privacy, particularly in its spatial dimension. The spatial dimension of privacy requires a space where persons may enjoy their privacy, and that space is ordinarily understood to be the home. For example, Article 8(1) of the European Convention on Human Rights provides that “[e]veryone has the right to respect for his private and family life, his home and his correspondence”. In several cases, the European Court of Human Rights has found that being evicted from one’s home interferes with Article 8 rights.⁸⁷ Of course, it must be acknowledged that the right to privacy as interpreted in Puttaswamy I, Navtej Johar, and Joseph Shine, goes beyond spatial privacy and encompasses decisional autonomy.⁸⁸ Privacy attaches to people not spaces.⁸⁹ Moreover, feminist scholars have long indicated the trouble with a spatial understanding of privacy as non-interference of the state into the home, given that the home may be a place for much oppression and domination.⁹⁰ The limited argument being made here is that there is a connection between the rights to privacy and housing, such that both must be treated similarly with regards to the standard of review applied to check limitations on these rights.

Sindhu and Narayan have argued that a historical, textual and structural reading of the Constitution necessitates the proportionality test to check limitations on rights.⁹¹ Through the recognition of fundamental rights and judicial review, the framers of the Constitution intended to usher in a culture of justification, and the proportionality test best serves this purpose.⁹² If we are to adopt that line of reasoning, then again limitations on the right to housing must be checked using the proportionality test.

Before expanding proportionality to the right to housing, do we need to be concerned that proportionality might apply differently in the case of the right to housing as opposed to the right to privacy? Often, housing is characterized as a social and economic right, and privacy as a civil and political right. In line with Fredman, this article eschews a strict division between social and economic rights on one hand, and civil and political rights on the other hand for two reasons.⁹³ Firstly, it is difficult to characterize a right as “civil and political” or “social and economic” because there may be substantial overlap between the two sets of rights. For instance, if the right to life were to be characterized as a civil and political right, perhaps Indian courts would not be able to interpret it to include rights such as housing, as has been done in cases including Olga Tellis.⁹⁴ Secondly, it is understood that all rights imply a range of duties, including duties to respect, protect, promote and fulfil.⁹⁵ It is often difficult to create bright lines between positive and negative duties.⁹⁶ For example, in the eviction context, the state’s duty may be characterized in negative terms, to refrain from depriving someone of their right to housing. Yet, if an eviction is to be carried out, the state may need to provide alternate accommodation to those who are rendered homeless, turning the negative duty to refrain from depriving people of their housing into a positive one to provide housing.⁹⁷ Moreover, the negative duty to refrain from depriving the right to housing may itself involve a positive duty to continue to provide access to the land on which residents have built their houses.

We can reframe this using the respect, protect, promote, and fulfil framework – the obligation to respect people’s access to housing requires that the state refrain from evicting people from their homes. The state’s duty to protect is relevant for protecting residents from third parties seeking to evict them from their homes. And if an eviction is to take place, the state’s obligation to fulfil access to housing becomes involved, by facilitating access to rehabilitation or alternate accommodation. Thus, in the eviction context, all three kinds of duties – to respect, protect and promote and fulfil – are entangled.

Others have indicated, albeit in the context of different jurisdictions, that proportionality analysis ought to be applied to test whether both positive and negative duties comply with human rights,⁹⁸ and to test the limitation of both social and economic and civil and political rights.⁹⁹ This literature buttresses the arguments in this section – that proportionality analysis ought to be applied to test limitations on all rights forming a part of Article 21 of the Constitution, including the right to housing. The issue we need to engage with is how proportionality should apply in housing cases.

The Karnataka hijab ban case presented an opportunity for courts in India to apply proportionality analysis to check limitations on the right to education, given that the case touched on the right to education of Muslim women students prohibited from wearing the hijab when seeking education, in addition to their rights to freedom of religion, freedom of expression, equality and non-discrimination, decisional autonomy, dignity and privacy.¹⁰⁰ Unfortunately, the Karnataka High Court failed to acknowledge this issue.¹⁰¹ While both judges of the division bench of the Supreme Court engaged with this issue, neither applied the proportionality standard of review.¹⁰² Justice Hemant Gupta found that there was no interference with the right to education because, “the right to education is available but only condition is that the students should attend the classes in prescribed uniform”.¹⁰³ Justice Sudhanshu Dhulia held that “asking the girls to take off their hijab before they enter the school gates, is first an invasion on their privacy, then it is an attack on their dignity, and then ultimately it is a denial to them of secular education”,¹⁰⁴ but did not conduct a structured limitations analysis to see whether the interference with the right to education can be justified.¹⁰⁵ It is possible to interpret Justice Dhulia’s opinion in another manner – that he found that there was no proper purpose for limiting the right to education. See this paragraph in particular:

All the Petitioners want is to wear a hijab! Is it too much to ask in a democracy? How is it against public order, morality or health? or even decency or against any other provision of Part III of the Constitution. These questions have not been sufficiently answered in the Karnataka High Court Judgement. The State has not given any plausible reasons either in the Government Order dated 5 February 2022, or in the counter affidavit before the High Court. It does not appeal to my logic or reason as to how a girl child who is wearing a hijab in a classroom is a public order problem or even a law-and-order problem.¹⁰⁶

Yet, he did not explicitly refer to or apply the proportionality test. The Court therefore missed an opportunity to hold that the proportionality standard applies to economic and social rights, and to explain how proportionality might apply in these cases. We await the decision of a larger bench of the Supreme Court that may ultimately resolve these issues.

In Gujarat Mazdoor Sabha v State of Gujarat,¹⁰⁷ the Supreme Court indicated the possibility of applying the proportionality standard of review in a case involving labour rights, but ultimately decided the case on different grounds – that the exercise of powers by the Government of Gujarat was ultra vires the relevant statutory provision (i.e. section 5 of the Factories Act 1962).¹⁰⁸

In the sections below, I explore what the proportionality standard of review is, and thereafter how this should be applied to check limitations on the rights to livelihood and housing under Article 21 of the Constitution.

4.2. What is the proportionality standard?

Above I have argued that the proportionality standard of review ought to apply to check limitations on the right to housing. Yet which formulation of the test should apply? It is crucial to answer this question before I explore how the test is to be applied.

In Modern Dental, a five-judge bench of the Supreme Court adopted the following four-step test to check measures limiting rights¹⁰⁹

1. it is designated for a proper purpose;

2. the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;

3. the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation;

4. there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.

These four steps have broadly been adopted in subsequent cases by the Supreme Court.¹¹⁰ It must be acknowledged that the Supreme Court has not uniformly adopted this formulation of the test, nor uniformly applied all parts of the test even in cases where it purports to use the four-step test.^{111 112} For example, in Puttaswamy I, the formulation of the proportionality test by the plurality of judges eschewed the necessity requirement.¹¹³ Given this inconsistency in legal doctrine, it becomes necessary to look to normative theory and comparative law, to find which formulation of proportionality ought to be applied.

The test adopted in Modern Dental incorporates the steps largely accepted as forming part of a proportionality analysis: (1) proper purpose, (2) suitability, (3) necessity, and (4) balancing/strict proportionality.¹¹⁴ Each of these steps serves a distinct purpose, which I explore below. Going through each step of the proportionality test brings analytical clarity and transparency in judicial reasoning, because it enables us to see how judges address specific issues covered within each step.¹¹⁵ It also promotes a culture of justification, by requiring the state to publicly state the reasoning behind rights-restricting measures and enables scrutiny of those justifications by the judiciary to prevent unnecessary and unjustified rights limitations.¹¹⁶

The first step requires judges to determine whether the limitation in question fulfils a proper purpose. This stage requires defining concrete purposes for the impugned measure, which enables the analysis in the remaining steps of the test.¹¹⁷ It also weeds out measures that follow improper purposes. For example, when applying the proportionality standard to check limitations on Article 19 rights, any limitation for purposes other than those specified under Article 19(2) to 19(6) would fail the first step of the Modern Dental test, for failing to fulfil a “proper purpose”.¹¹⁸ The suitability step requires that the rights infringing measure be suitable for achieving the purposes identified in the previous stage. In India, a “rational nexus” threshold must be met to indicate suitability. This means that there must be clear connection between the aims identified, and the measure used to fulfil those aims.¹¹⁹ The necessity step of the proportionality analysis requires that the measure be the least restrictive means of fulfilling the identified aim. This requires comparing the effectiveness and rights-restrictiveness of alternative measures. Alternatives that fulfil the purpose equally well, or as well in a real and substantial sense,¹²⁰ yet restrict rights to a lesser degree, ought to be preferred. The balancing step requires courts to weigh the importance of the goals being pursued by the impugned measures against the importance and degree of restriction of the rights in question.

It must be acknowledged that there are various formulations of each of the steps of the four-part proportionality test, and “[w]here the court locates itself on the spectrum of choices under each test determines the ease with which the State can infringe rights in the pursuit of other public interests”.¹²¹ For example, within the necessity step, only those alternatives may be considered that fulfil the aim exactly to the same extent as the impugned measure. Otherwise, all alternatives that fulfil the aim in a real and substantial way, but not precisely to the same extent as the impugned measure may be considered.¹²² The formulation of the test that the Supreme Court accepts will determine what alternatives are considered while deciding whether the impugned measure is least restrictive, and thereby the extent to which the state will be expected to justify its choice of measure.

In theory, the proportionality standard is often conceived of sequentially – the steps are to be applied one at a time. An impugned measure may be deemed unconstitutional if it fails a single step of the test, and such failure terminates the analysis without the need for applying the remaining stages of the test.¹²³ Empirical research on proportionality finds that in practice, courts around the world do not apply the test in this sequential manner.¹²⁴ Courts often conduct the analysis within one stage without reaching a conclusion and proceed to the remaining stages. Otherwise, courts conclude that an impugned measure fails at one step, yet continue to the subsequent steps, to find that the measure fails at multiple steps.¹²⁵ Such an “integrative proportionality analysis” enables courts to present the most persuasive and legitimate reasoning for their decisions.¹²⁶ There are, therefore, good reasons to apply this integrative approach, while ensuring that the reasoning within each step is clearly presented to ensure analytical clarity and transparency in judicial reasoning, and to hold the state accountable for providing justifications for rights limitation within each stage. I will apply this integrative proportionality analysis in the next section.

There are additional issues around the proportionality standard, including the appropriate burden of proof (who carries the burden – the state or the claimant?), the standard of proof (beyond reasonable doubt or a balance of probabilities), and evidentiary standard (through provision of first order cogent evidence, or through second order reasoning by claiming expertise).¹²⁷ The Supreme Court has applied differing evidentiary standards in different instances, and has placed the burden of proof sometimes on the state, and sometimes on those arguing that the state’s measures violate fundamental rights.¹²⁸ In the section below, while applying proportionality, I will argue in favour of the burdens and standards that I think ought to apply in housing cases.

4.3. Applying the proportionality standard

Here, I will apply the proportionality standard to both the procedural and substantive components of the right to housing.

4.3.1. Procedural entitlements

Through Media One, the Supreme Court has established that the proportionality standard of review applies in determining the validity of limitations on procedural rights.¹²⁹ On applying the proportionality standard to the procedural component of the right to housing, we will buttress requirements recognized in Olga Tellis, as well as the requirements recognized by the Delhi High Court in Sudama Singh and Ajay Maken. Recall that through these cases, it has been held that prior to carrying out any eviction, the state must provide (1) notice and (2) a hearing to those facing evictions; (3) conduct a survey of all persons facing evictions to check their eligibility under existing schemes for rehabilitation; and (4) carry out rehabilitation in meaningful consultation with each of them.

If these four requirements are limited by the state, it must first indicate that the limitation was for a proper purpose. In Olga Tellis, the Supreme Court permitted the requirements of notice and hearing to be dispensed with only under “extraordinary circumstances” involving “urgency” and held that the state carries the burden to show urgency where it uses its powers to dispense with the notice and hearing.¹³⁰ So a “proper purpose” for limiting the four procedural requirements must mean an “extraordinary circumstance” involving “urgency”. The state carries the burden to indicate the existence of such a circumstance. It must, thereafter, show that the limitation of the four procedural requirements was rationally connected to this proper purpose. It must also indicate that the limitation is necessary or the least restrictive means to fulfil that proper purpose, and lastly that there is a proper balance between the importance of that urgent, extraordinary circumstance and the importance of fulfilling the four procedural requirements recognized through Olga Tellis, Sudama Singh, and Ajay Maken.

In the abstract (without a concrete fact situation before us), it is difficult to conceive of a circumstance that would fulfil the proper purpose step, let alone the necessity and balancing steps of the proportionality analysis, to justify limitations on the four procedural requirements recognized as obligatory on the state prior to evictions. As I discuss in section 5 of this article, this has important implications for eviction cases being decided today. Today, if the state fails to fulfil these four procedural requirements, it carries an onerous obligation to justify such limitations.

4.3.2. Rehabilitation requirements

On applying the proportionality test to the substantive component of the right to housing in a case like Olga Tellis, the impugned measures would fail at the necessity stage of the Modern Dental test.

It may be legitimate for the state to ensure that pavements can be used by pedestrians for walking, and eviction of homes may be rationally connected to the fulfilment of that legitimate aim. Yet the measures adopted to fulfil the legitimate aim must be “least restrictive’. Thus, the state would have to establish before the court that it was not possible for the specific pavements to be used both for walking and for residence. Even if both uses of the pavements were not possible, the state would need to show that a less restrictive measure was not possible – eviction with the provision of alternate accommodation to those residents who would otherwise be rendered homeless, with the alternate accommodation meeting their needs, such as the need to be close to their place of work.

Here, a negative obligation (not to deprive residents of their homes) is being turned into a positive obligation (to provide alternate accommodation to those that will become homeless as a result of the eviction). We can phrase this differently, using the respect, protect and promote, and fulfil framework of obligations arising out of all rights.¹³¹ The inability to respect people’s housing, produces the duty to fulfil people’s access to housing. The eviction context is such that these two obligations are intrinsically connected. If an eviction fulfils a legitimate aim through means rationally connected to that aim, the means must nevertheless be least restrictive of the right to housing. Provision of alternate accommodation is one such alternate means.

At that stage, the state may argue that it is unable to provide alternate accommodation to all residents, citing resource constraints. In India, the Supreme Court has repeatedly held that resource constraints cannot be used as a justification for the inability of the state to fulfil positive obligations. In Paschim Banga Khet Mazdoor Samity v State of West Bengal,¹³² the Supreme Court recognized a positive obligation to provide emergency medical treatment and held that resource constraints were not a valid justification for the state to fail to fulfil its obligation. In Khatri (II) v State of Bihar,¹³³ the Supreme Court held that in criminal cases, the poor and indigent accused have a right to free legal aid, and that financial constraints and administrative inability cannot be a justification for the failure to fulfil the state’s positive obligation. In these cases, the Supreme Court did not provide a detailed explanation for why this is the case. We can, however, with the help of proportionality analysis, construct an argument for why resource constraints should not matter in the eviction context.

The lack of resources argument must itself be subjected to proportionality analysis. The state may raise two kinds of arguments regarding resource constraints. Firstly, factual inability to provide alternate accommodation due to lack of resources. Secondly, its institutional competence in deciding how state resources are to be used.

Let’s first consider factual inability. Factual inability must be proved, and not simply stated. Moreover, factual inability may arise due to lack of budgetary provision, and not because of the lack of financial capacity. There may have been no budget set aside to provide alternate accommodation to those the state seeks to evict, even though it may have been within the financial capacity of the state to provide alternate accommodation. The lack of budgetary provision may be a result of the state’s failure to acknowledge its positive obligation to provide housing to those it seeks to evict.¹³⁴ In these circumstances, the financial inability argument would fail at the necessity stage of a proportionality analysis because the state did not consider any means, let alone less restrictive means, to fulfil its obligations.

Proving financial inability raises questions around evidentiary standards and burden of proof. I argue that the state must bear the burden to prove financial inability; it must be subjected to a “balance of probabilities” standard of proof; and it must provide cogent evidence to prove this claim. An extensive justification of these evidentiary standards and burden of proof requirements is beyond the scope of this article.

Within the proportionality analysis, the state may be able to show that it was fulfilling a number of other legitimate interests through allocating a budget to those interests, such as health, education, public housing, etcetera. This will enable the state to fulfil the first two stages of the proportionality test. Thereafter, it must indicate that it considered a less restrictive means to pursue the other legitimate interests. If the state manages to pass the third stage of the proportionality test, its failure to fulfil its positive obligations due to lack of budgetary provision will fail at the final balancing stage.

At this stage, we will need to examine the intensity of state interference with the right and the importance of the right, against the importance of the legitimate interest and the degree of inference with that interest to realize the right.¹³⁵ Here we are considering interference with the right to housing when the state does not provide alternate accommodation to those rendered homeless as a result of an eviction. The right to housing is important at least in the minimal sense of having any accommodation. An eviction that renders people entirely homeless interferes with the right to housing to a great degree. Although it is important for the state to fulfil other legitimate interests, the degree of interference with those interests pales in comparison with the importance and degree of interference with the right to housing when people are rendered homeless through an eviction. Moreover, this is not an instance when residents are asking the state to proactively plan and budget for the provision of housing. The eviction context involves the state depriving residents of housing they have found for themselves. In that context, residents demand alternate accommodation to prevent homelessness.

Subjecting the state’s failure to allocate a budget to fulfil its positive obligation, to scrutiny through a proportionality analysis, does not question the state’s competence to decide budgetary matters. Instead, it asks the state to provide reasons and justifications for these decisions. In doing so, courts enhance, rather than impede a deliberative version of democracy, without impeding on the fiscal discretion of the state.¹³⁶

In the analysis above, I have characterized the use of pavements as a “legitimate interest” rather than a “right”. I want to flag here that the application of the proportionality test in cases in which competing rights are involved, such as the right to pavements and the right to housing, may be “much less straightforward”.¹³⁷ It has been suggested, that proportionality analysis must be conducted twice in such cases.¹³⁸ First, by treating the right to pavements as an interest restricting the right to housing. This analysis would proceed in the way I have indicated above. Second, by treating the right to housing as an “interest” restricting the right to pavements. This analysis would also fail at the necessity stage. It can be shown that pavements cannot be used because of the homes built on them, and that there is another means by which the interest in housing could be fulfilled that restricts the right to pavements to a lesser degree – eviction with the provision of alternate accommodation.

Most recently in Association for Democratic Norms v Union of India, a five-judge bench of the Supreme Court adopted a three-part test based on the proportionality test to balance the conflict between two fundamental rights¹³⁹

1. Whether the measure is a suitable means for furthering right A and right B (in other words, bears a rational nexus to both rights).

2. Whether the measure is the least restrictive and equally effective to realize right A and right B.

3. Whether the measure has a disproportionate impact on right A and right B.

This analysis is also likely to fail at the necessity stage. It must be shown that eviction of residents without alternate accommodation to enable pedestrians to use pavements is the least restrictive means to give effect to both the right to housing and the right to pavements. An eviction may be necessary in a given case based on the facts that must be proved on a balance of probabilities, and not just asserted. Yet to give real and substantial effect to both the right to housing and the right to pavements, alternate accommodation must be provided, as a less restrictive means to limit the right to housing while realizing the right to pavements.

5. Deciding eviction cases in the post-Puttaswamy landscape

Thus far I have argued that a correct application of the just, fair and reasonableness standard of review would change the outcome in Olga Tellis. In Olga Tellis, the just, fair and reasonableness standard was applied only to the procedure for evictions, and not to the substance of the law. An application of the standard to the substance of the law would enable the recognition of stronger rehabilitation requirements. An eviction for the sake of pedestrians ought to be possible only if residents are unconditionally provided with alternate accommodation.

In any case, the landscape changes entirely post Puttaswamy I with the adoption of the proportionality standard of review, in terms of which limitations on all rights under Article 21 of the Constitution ought to be tested using the proportionality standard, and this standard applies to both substantive and procedural rights. On application of this standard, it becomes much more difficult for the state to justify doing away with notice, hearing, survey, and rehabilitation requirements prior to evictions. And an eviction that results in homelessness must be considered disproportionate and unconstitutional.

In the age of proportionality, eviction cases, then, must be decided differently. Evictions and demolitions are frequently carried out in India. For example, during the COVID-19 pandemic (March 2020-July 2021), the Indian government forcibly evicted 257,700 people.¹⁴⁰ In 2021, over 36,486 homes were demolished, and 207,106 people forcibly evicted.¹⁴¹ In April 2022, evictions were carried out in Muslim dominated neighbourhoods in Delhi,¹⁴² Madhya Pradesh¹⁴³ and Gujarat.¹⁴⁴ The Supreme Court halted the Jahangirpuri, Delhi evictions, and a case is currently pending before it, challenging the legality and constitutionality of the evictions. Evictions have also been carried out at the behest of courts post Puttaswamy I. For example, in September 2020, the Supreme Court ordered the eviction of residents living on land belonging to the Indian Railways in Delhi, without requiring the fulfilment of constitutional requirements laid down in Olga Tellis, Sudama Singh¹⁴⁵ and Ajay Maken,¹⁴⁶ including requirements for the provision of notice, hearing, a survey to check eligibility of residents under existing schemes for rehabilitation, and the carrying out of rehabilitation through meaningful engagement with the residents prior to evictions.¹⁴⁷ Similarly, in December 2022, the Uttarakhand High Court ordered the removal of 5,000 individuals residing on land belonging to Indian Railways, within one week, “by use of force” if required.¹⁴⁸ Again, it did not require the fulfilment of constitutional requirements laid down in Olga Tellis, Sudama Singh, and Ajay Maken, including provision of notice, hearing, a survey to check eligibility of residents under existing schemes for rehabilitation, and the carrying out of rehabilitation through meaningful engagement with the residents as per those schemes.¹⁴⁹ The past few years have seen thousands of evictions in Muslim-dominated neighbourhoods post communal riots, as a method of “bulldozer illaj” or treatment through the bulldozer.¹⁵⁰ And as I submit this article for review in 2023, thousands of homes have been demolished in Delhi for the G20 summit.¹⁵¹

While we await final judgement in many of these cases, it is important to highlight the changed constitutional landscape in which these cases are being decided. Courts hearing eviction cases today must check whether the following procedural requirements have been fulfilled: notice, hearing, the carrying out of a survey to check eligibility of residents under existing schemes for rehabilitation, and the carrying out of conditional rehabilitation under existing schemes. Any limitations on these requirements must meet the proportionality standard of review. Courts must thereafter go further, to check whether eviction of residents will result in homelessness, and to conduct a proportionality analysis to see if such evictions are valid under the Constitution. I have argued above that evictions that result in homelessness cannot be valid on application of the proportionality standard of review. This should mean that courts today must halt evictions that result in homelessness unless unconditional alternate accommodation is provided to residents. Only such evictions can fulfil the constitutional requirements that are now in place post Puttaswamy I. Courts are yet to appreciate the implications of Puttaswamy I on cases engaging the right to housing, and I write this article with a view to urge courts to consider these ramifications as they decide eviction cases.

6. Conclusion

Globally, the application of the structured proportionality analysis to test limitations on social and economic rights remains a “less discussed issue”, as compared to its application in civil and political rights cases.¹⁵² This trend has been repeated in India, where courts have not yet applied the proportionality test in social and economic rights cases, and nor have academics explored whether the test ought to apply in such cases, and if so, how it might be applied. This article fills this gap in research and doctrine, in exploring the applicability of a structured proportionality analysis to test limitations on social and economic rights under the Constitution.

It focuses on the right to housing, and particularly the context of evictions, and indicates how the structured four-part proportionality test ought to apply to check limitations on the right to housing. Application of the test has important implications for the all-things-considered content of the right to housing. Now, it becomes much more difficult for the state to justify limitations on procedural requirements prior to evictions, including notice, hearing and provision of rehabilitation under existing schemes. Moreover, evictions that result in homelessness violate the necessity step of a proportionality analysis, given that a less restrictive means may be employed that achieves legitimate purposes while infringing rights to a lesser degree. This means that rehabilitation ought to be provided in all eviction cases that result in homelessness, enabling the recognition of an unconditional right to rehabilitation, rather than a conditional one. Applying the proportionality test thereby helps us solve the problem of “conditional social rights” identified by Khosla.¹⁵³ And this has the potential to make a significant difference to the lives of thousands of individuals who face evictions every single year.¹⁵⁴

Acknowledgments

A sincere thank you to Sandra Fredman, Kate O’Regan, Tarunabh Khaitan, Gautam Bhatia, Hasan Dindjer, participants of the Workshop on Public Law in South Asia, Bonavero Institute of Human Rights (June 2022) and two anonymous reviewers for their critical insights on drafts of this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

¹ Justice (Retd) KS Puttaswamy v Union of India, (2017) 10 SCC 1.

² Shreya Atrey and Gautam Bhatia, ‘New Beginnings: Indian Rights Jurisprudence After Puttaswamy’ (2020) 3 University of Oxford Human Rights Hub Journal 1.

³ Olga Tellis and Others v Bombay Municipal Corporation and Others, AIR 1986 SC 180.

⁴ Madhav Khosla, ‘Making Social Rights Conditional: Lessons from India’ [2010] 8 International Journal of Constitutional Law 739.

⁵ Gaurav Mukherjee, ‘The Supreme Court of India and the Inter-Institutional Dynamics of Legislated Social Rights’ [2020] 4 VRÜ 411; Karthik Rao-Cavale, ‘The Art of Buying Time: Street Vendor Politics and Legal Mobilization in Metropolitan India’ in Gerald N Rosenberg, Shishir Bail and Sudhir Krishnaswamy (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (CUP 2019). For exceptions, see Anindita Mukherjee, The Legal Right to Housing in India (CUP 2019); Jessie Hohmann, The Right to Housing: Law, Concepts, Possibilities (Hart 2013).

⁶ Anuj Bhuwania, Courting the People: Public Interest Litigation Post-Emergency India (CUP 2017); Gautam Bhan, In the Public’s Interest: Evictions, Citizenship, and Inequality in Contemporary Delhi (UGA Press 2016).

⁷ For example, see MC Mehta v Union of India, WP(C) 13029/1985 (Order dated 31 December 2020); Rishika Sahgal, ‘The Supreme Court’s Eviction Order Ignores the Rights of Jhuggi Dwellers’ (Indian Constitutional Law and Philosophy, 5 September 2020) <https://indconlawphil.wordpress.com/2020/09/05/guest-post-the-supreme-courts-eviction-order-ignores-the-rights-of-jhuggi-dwellers/> accessed 30 May 2024; Gautam Bhatia, ‘Evictions and the Right to Housing: The Uttarakhand High Court’s Haldwani Judgement’ (Indian Constitutional Law and Philosophy, 4 January 2023) <https://indconlawphil.wordpress.com/2023/01/04/evictions-and-the-right-to-housing-the-uttarakhand-high-courts-haldwani-changejudgmentchangechangejudgementchange/> accessed 30 May 2024.

⁸ Liora Lazarus, ‘Constitutional Scholars as Constitutional Actors’ [2020] 48 Federal Law Review 483; Tarunabh Khaitan, ‘Koushal v Naz: Judges Vote to Recriminalise Homosexuality’ [2015] 78 The Modern Law Review 672, 678.

⁹ Vicki C Jackson, ‘Constitutional Law in an Age of Proportionality’ [2015] 124 Yale Law Journal 3094; Aparna Chandra, ‘Proportionality in India: A Bridge to Nowhere?’ [2020] 3 U OxHRH J 55.

¹⁰ Olga Tellis (n 3) [37].

¹¹ ibid.

¹² ibid [45].

¹³ ibid [40].

¹⁴ ibid [57].

¹⁵ Anup Surendranath, ‘The Right to Life and Personal Liberty’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016).

¹⁶ Mukherjee, The Legal Right to Housing in India (n 5); Hohmann (n 5) 111; Sandra Fredman, Comparative Human Rights Law (OUP 2018) 270.

¹⁷ Shantistar Builders v Narayan Khimalal Totame, (1990) 1 SCC 520; PG Gupta v State of Gujarat, 1995 Supp (2) SCC 182; Chameli Singh and Others v State of Uttar Pradesh, (1996) 2 SCC 549; Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan, (1997) 11 SCC 121.

¹⁸ Khosla (n 4).

¹⁹ Olga Tellis (n 3) [45]-[46].

²⁰ ibid [45].

²¹ Sudama Singh and Ors v Government of Delhi and Ors, 168 (2010) DLT 218 (Delhi High Court) [54]-[55].

²² Ajay Maken v Union of India, WP(C) 11616/2015 (Delhi High Court).

²³ Sudama Singh (n 21).

²⁴ ibid [62].

²⁵ Ajay Maken (n 22).

²⁶ Olga Tellis (n 3) [51], [57].

²⁷ Olga Tellis (n 3).

²⁸ PK Das and Colin Gonsalves, ‘The Struggle for Housing: A People’s Manifesto’ (Nivara Hakk Suraksha Samiti1987) <http://www.nivarahakk.com/publications/Struggle%20for%20Housing%20%20A%20People%27s%20Manifesto.pdf> accessed 30 November 2021.

²⁹ Hohmann (n 5) 131.

³⁰ Gautam Bhan and Swathi Shivanand, ‘(Un)Settling the City: Analysing Displacement in Delhi from 1990 to 2007’ [2013] 48(13) Economic and Political Weekly 54, 57; Véronique Dupont, ‘Which Place for the Homeless in Delhi? Scrutiny of a Mobilisation Campaign in the 2010 Commonwealth Games Context’ [2013] 8 South Asia Multidisciplinary Academic Journal <https://journals.openedition.org/samaj/3662> accessed 1 June 2020; Véronique Dupont, ‘Slum Demolitions in Delhi since the 1990s: An Appraisal’ [2008] Economic and Political Weekly 79; People’s Union for Democratic Rights, India Shining: A Report on Demolition and Resettlement of Yamuna Pushta Bastis (May 2004).

³¹ Olga Tellis (n 3) [37].

³² Usha Ramanathan, ‘Demolition Drive’ [2005] 40 Economic and Political Weekly 2908, 2909.

³³ Hohmann (n 5) 131.

³⁴ Hohmann (n 5); Rishika Sahgal, ‘Evictions and Participation Rights in India and South Africa’ (DPhil thesis, University of Oxford 2022).

³⁵ Sahgal, ‘Evictions and Participation Rights in India and South Africa’ (n 34).

³⁶ AK Gopalan v State of Madras, AIR 1950 SC 27.

³⁷ ibid [21] (Kania CJ), [155] (Mahajan J), [194] (Mukherjea J) and [284] (Das J).

³⁸ Maneka Gandhi v Union of India (1978) 1 SCC 248.

³⁹ ibid [5] (Bhagwati J); VN Shukla, VN Shukla’s Constitution of India (MP Singh ed, 13th edn, Eastern Book Company 2017).

⁴⁰ Sunil Batra v Delhi Administration, (1978) 4 SCC 494; Prem Shankar Shukla v Delhi Administration, (1980) 3 SCC 526; Bachan Singh v State of Punjab, (1980) 2 SCC 684; Mithu v State of Punjab, (1983) 2 SCC 277.

⁴¹ Sunil Batra (n 40).

⁴² ibid [52], [56], [197-A] (Krishna Iyer J).

⁴³ ibid.

⁴⁴ Aparna Chandra, ‘Limitation Analysis by the Indian Supreme Court’ in Andrej Lang, Mordechai Kremnitzer and Talya Steiner (eds), Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice (CUP 2020) 479.

⁴⁵ Olga Tellis (n 3).

⁴⁶ Chandra (n 44) 461.

⁴⁷ ibid.

⁴⁸ Olga Tellis (n 3) [43].

⁴⁹ Ramanathan (n 32) 2910.

⁵⁰ Olga Tellis (n 3) [43].

⁵¹ Mukherjee, The Legal Right to Housing in India (n 5) 79.

⁵² Olga Tellis (n 3) [53], [57].

⁵³ Khosla (n 4).

⁵⁴ Olga Tellis (n 3) [53], [57].

⁵⁵ ibid.

⁵⁶ Modern Dental College and Research Centre v State of Madhya Pradesh, (2016) 7 SCC 353.

⁵⁷ Akshay N Patel v Reserve Bank of India, CA No 6522/2021 (6 December 2021, Supreme Court of India).

⁵⁸ This refers to India’s unique identity system whereby residents are provided a 12-digit unique identity number based on their biometric and demographic data stored in a centralized database. See Reetika Khera, Dissent on Aadhaar: Big Data Meets Big Brother (Orient Blackswan 2019).

⁵⁹ Binoy Viswam v Union of India, (2017) 7 SCC 59.

⁶⁰ Puttaswamy I (n 1).

⁶¹ Justice KS Puttaswamy v Union of India, (2019) 1 SCC 1.

⁶² Madhyamam Broadcasting Limited v Union of India, Civil Appeal 8129/2022 (Supreme Court of India, 5 April 2023) [51] (“Media One”); Gautam Bhatia, ‘”Jumping into a Pit of Fire with Your Eyes Closed”: Proportionality, Sealed Covers, and the Supreme Court’s Media One Judgement’ (Indian Constitutional Law and Philosophy, 5 April 2023) <https://indconlawphil.wordpress.com/2023/04/05/jumping-into-a-pit-of-fire-with-your-eyes-closed-proportionality-sealed-covers-and-the-supreme-courts-media-one-changejudgmentchangechangejudgementchange/> accessed 30 May 2024; Khadija Khan, ‘”Natural Justice” and “Proportionality”: Why Supreme Court Ruled in Media One’s Favour’ The Indian Express (New Delhi, 6 April 2023).

⁶³ Joseph Shine v Union of India, (2019) 2 SCC 84.

⁶⁴ ibid [58] (Misra CJ and Khanwilkar J), [107] (Nariman J), [209] (Chandrachud J) and [279] (Malhotra J).

⁶⁵ ibid [279]-[282] (Malhotra J).

⁶⁶ Navtej Singh Johar v Union of India, (2018) 10 SCC 1.

⁶⁷ ibid [175] (Misra CJ and Khanwilkar J), [350] (Nariman J), [469] (Chandrachud J) and [640] (Malhotra J).

⁶⁸ The Supreme Court has a sanctioned strength of 34 judges. The established practice in the Court is for judges to sit in benches of two or three judges, rather than en banc. The Supreme Court is both a court of appeal and a constitutional court. Substantial questions of constitutional law are heard by a bench of five judges, also known as a constitutional bench. Nick Robinson, ‘The Structure and Functioning of the Supreme Court of India’ in Gerald N Rosenberg, Shishir Bail and Sudhir Krishnaswamy (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (CUP 2019).

⁶⁹ Central Board of Dawoodi Bohra Community v State of Maharashtra, 2005 (2) SCC 673.

⁷⁰ Puttaswamy II (n 61); Anuradha Bhasin v Union of India, (2020) 3 SCC 637; Internet and Mobile Association v Reserve Bank of India, (2020) 10 SCC 274; Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal, Civil Appeal 10,044/2010 (13 November 2019, Supreme Court of India) <https://indiankanoon.org/doc/101637927/> accessed 30 May 2024.

⁷¹ Surendranath (n 15) 774.

⁷² ibid.

⁷³ ibid 756.

⁷⁴ Sunil Batra (n 40).

⁷⁵ It should be noted that even when the standard of review under art 21 was ‘just, fair and reasonable’ review, torture was found to be a violation of art 21 and recognized as an absolute right. Sunil Batra (n 41) [52], [56], [197-A] (Krishna Iyer J).

⁷⁶ Chandra (n 9); Vikram Aditya Narayan and Jahnavi Sindhu, ‘A Historical Argument for Proportionality under the Indian Constitution’ [2018] 2 Indian Law Review 51, 84; Tarunabh Khaitan, ‘Beyond Reasonableness – A Rigorous Standard of Review for Article 15 Infringement’ [2008] 50 Journal of Indian Law Institute 177; Julian Rivers, ‘Proportionality and Variable Intensity of Review’ [2006] 65 Cambridge Law Journal 174, 202.

⁷⁷ Rivers (n 76); Cora Chan, ‘Proportionality and Invariable Baseline Intensity of Review’ [2013] 33 Legal Studies 1.

⁷⁸ Chan (n 77).

⁷⁹ AK Gopalan (n 36) [247] (Das J).

⁸⁰ ibid.

⁸¹ ibid.

⁸² Resham v State of Karnataka, WP 2342/2022 (Karnataka High Court, 15 March 2022).

⁸³ ibid 99–100.

⁸⁴ ibid.

⁸⁵ Puttaswamy I (n 1); Puttaswamy II (n 61); Binoy Viswam (n 59).

⁸⁶ Constitution of India 1950, art 141. For more on this argument, see Farrah Ahmed and others, ‘Prohibiting Hijab in Educational Institutions: A Constitutional Assessment’ (2022) 34–35 <file:///C:/Users/lw1rsx/Downloads/prohibiting-hijab-in-educational-institutions-corrected −412,364pdf> accessed 15 June 2023.

⁸⁷ Buckley v UK (1993) 23 EHRR 101; Chapman v UK (2001) 33 EHRR 18; Connors v UK (2005) 40 EHRR 9; Yordanova v Bulgaria, Application No 25,446/06 (24 April 2012) (European Court of Human Rights). For more on recognizing the right to housing through the right to privacy under the European Convention, see Fredman, Comparative Human Rights Law (n 16) ch 9.

⁸⁸ Puttaswamy I (n 1); Navtej (n 66); Joseph Shine (n 63); Kalpana Kannabiran and Swethaa S Ballakrishnen, Gender Regimes and the Politics of Privacy: A Feminist Re-Reading of Puttaswamy vs. Union of India (Zubaan 2021).

⁸⁹ Ahmed and others (n 86) 35.

⁹⁰ Susan Moller Okin, Justice, Gender, and the Family (Basic Books 1989); Catharine A MacKinnon, Toward a Feminist Theory of the State (Harvard University Press 1989); Ratna Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (Permanent Black 2005); Frances Olsen, “Constitutional Law: Feminist Critiques of the Public/Private Distinction” (1993) 10 Constitutional Commentary 319; Kannabiran and Ballakrishnen (n 88).

⁹¹ Narayan and Sindhu (n 76).

⁹² ibid.

⁹³ Fredman, Comparative Human Rights Law (n 16) ch 3; Sandra Fredman, Human Rights Transformed (OUP 2008) ch 3.

⁹⁴ Olga Tellis (n 3).

⁹⁵ Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (40th Anniversary, Princeton University Press 2020) 52; Fredman, Comparative Human Rights Law (n 16) ch 3; Fredman, Human Rights Transformed (n 93) ch 3; Sandra Liebenberg, ‘Grootboom and the Seduction of the Negative/Positive Duties Dichotomy’ [2011] 26 South African Public Law 37.

⁹⁶ Shue (n 95) 52; Fredman, Comparative Human Rights Law (n 16) ch 3; Fredman, Human Rights Transformed (n 93) ch 3; Liebenberg (n 95).

⁹⁷ Fredman, Comparative Human Rights Law (n 16) 271; Malcolm Langford, ‘Housing Rights Litigation’ in Malcolm Langford (ed), Socio-economic Rights in South Africa: Symbols or Substance? (CUP 2014) 207.

⁹⁸ Matthias Klatt, ‘Positive Obligations under the European Convention of Human Rights’ [2011] 71 Heidelberg Journal of International Law 691; Aharon Barak, Proportionality: Constitutional Rights and Their Limitations (CUP 2011) ch 15.

⁹⁹ Sandra Fredman, ‘New Horizons: Incorporating Socio-Economic Rights in a British Bill of Rights’ [2010] Public Law 297, 317; Xenophon Contiades and Alkmene Fotiadou, ‘Social Rights in the Age of Proportionality: Global Economic Crisis and Constitutional Litigation’ [2012] 10 International Journal of Constitutional Law 660; David Bilchitz, ‘Socio-Economic Rights, Economic Crisis, and Legal Doctrine’ [2014] 12 International Journal of Constitutional Law 710; Katharine G Young, ‘Proportionality, Reasonableness, and Economic and Social Rights’ in Mark Tushnet and Vicki C Jackson (eds), Proportionality: New Frontiers, New Challenges (CUP 2017).

¹⁰⁰ Ahmed and others (n 86) 36–37.

¹⁰¹ Resham (n 82).

¹⁰² Aishat Shifa v State of Karnataka, Civil Appeal No 7095/2022 (Supreme Court, 13 October 2022).

¹⁰³ ibid [191] (Gupta J). Bhatia argues more generally that Gupta J failed to apply the proportionality test to check limitations on any rights involved in the case, not just education. See Gautam Bhatia, ‘Discipline or Freedom: The Supreme Court’s Split Verdict in the Hijab Case’ (Indian Constitutional Law and Philosophy, 13 October 2022) <https://indconlawphil.wordpress.com/2022/10/13/discipline-or-freedom-the-supreme-courts-split-verdict-in-the-hijab-case/> accessed 30 May 2024.

¹⁰⁴ ibid [82]-[83] (Dhulia J).

¹⁰⁵ ibid [65]-[68] (Dhulia J).

¹⁰⁶ ibid [67] (Dhulia J).

¹⁰⁷ Gujarat Mazdoor Sabha v State of Gujarat, (2020) 10 SCC 459.

¹⁰⁸ ibid.

¹⁰⁹ Modern Dental (n 56) [60].:

¹¹⁰ Internet and Mobile Association of India v Reserve Bank of India, (2020) 10 SCC 274 [207] (“Internet and Mobile Association”); Vivek Narayan Sinha v Union of India, WP (Civil) No 906/2016 (Supreme Court of India, 2 January 2023) [266]-[267] (demonetization decision); Media One (n 62) [76]; Association for Democratic Norms v Union of India, 2024 INSC 113 [105].

¹¹¹ In Puttaswamy II, Sikri J modified the Modern Dental test. See Puttaswamy II (n 61) [155]-[158] (Sikri J). In Anuradha Bhasin, the Supreme Court referred to both the Modern Dental as well as the Puttaswamy II version of the test, and it is not clear which version it ultimately applied. See Anuradha Bhasin v Union of India, (2020) 3 SCC 637 [67], [74] (’Anuradha Bhasin’). In Internet and Mobile Association of India, the Supreme Court only referred to the Modern Dental test. See Internet and Mobile Association of India v Reserve Bank of India, (2020) 10 SCC 274 [207] (’Internet and Mobile Association’). In some cases, the Supreme Court added a fifth step to the proportionality test. See Ramesh Chandra Sharma v State of Uttar Pradesh, Civil Appeal No 8819/2022 [48]; Gujarat Mazdoor Sabha v State of Gujarat, (2020) 10 SCC 459 [9]. Yet, this fifth step could easily be incorporated within the four steps of the Modern Dental test. See Rudraksh Lakra, ‘Proportionality’s Fifth Prong – A Reassessment’ (Indian Constitutional Law and Philosophy, 7 March 2023) < https://indconlawphil.wordpress.com/2023/03/07/guest-post-proportionalitys-fifth-prong-a-reassessment/#:~:text=Specifically%2C%20the%20judgement%27s%20introduction%20of,stages%20of%20the%20proportionality%20test.> accessed 30 May 2024.

¹¹² Chandra (n 9); Mariyam Kamil, ‘Puttaswamy: Jury Still out on Some Privacy Concerns?’ [2017] 1 Indian Law Review 190; Mariyam Kamil, ‘The Aadhaar Judgment and the Constitution II: On Proportionality’ (Indian Constitutional Law and Philosophy Blog, 30 September 2018) < https://indconlawphil.wordpress.com/2018/09/30/the-aadhaar-changechangejudgmentchangechangejudgementchangechangechangejudgementchange-and-the-constitution-ii-on-proportionality-guest-post/#:~:text=The%20majority%20speech%20in%20the,modified%20version%20of%20this%20test.> accessed 30 May 2024; Ankush Rai, ‘Proportionality in Application – An Analysis of the “Least Restrictive Measure”’ (Indian Constitutional Law and Philosophy Blog, 8 May 2020) < https://indconlawphil.wordpress.com/2020/05/08/guest-post-proportionality-in-application-an-analysis-of-the-least-restrictive-measure/> accessed 30 May 2024; Abhinav Chandrachud, ‘Wednesbury Reformulated: Proportionality and the Supreme Court of India’ [2013] 13 Oxford University Commonwealth Law Journal 191; Ashwita Ambast, ‘Where’s Waldo? Looking for the Doctrine of Proportionality in Indian Free Speech Jurisprudence’ [2015] 9 Vienna Journal on International Constitutional Law 344; Rudraksh Lakra, ‘Building a Bridge to a Culture of Justification: Guidelines for Designing the Standard of Proportionality in India’ [2023] 8 Cambridge Law Review 104.

¹¹³ Puttaswamy I (n 1) [310] (Chandrachud J).

¹¹⁴ Barak (n 98) 131; Robert Alexy, A Theory of Constitutional Rights (Julian Rivers tr, OUP 2002); Robert Alexy, ‘Proportionality and Rationality’ in Vicki C Jackson and Mark Tushnet (eds), Proportionality: New Frontiers, New Challenges (CUP 2017).

¹¹⁵ Rivers (n 76) 195; Madhav Khosla, ‘Proportionality: An Assault on Human Rights?: A Reply’ (2010) 8 International Journal of Constitutional Law 298, 300; Kai Moeller, ‘Proportionality: Challenging the Critics’ [2012] 10 International Journal of Constitutional Law 709, 727.

¹¹⁶ Mordechai Kremnitzer, Talya Steiner and Andreja Lang (eds), Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice (CUP 2020) 555.

¹¹⁷ ibid.

¹¹⁸ Romesh Thappar v State of Madras, AIR 1950 SC 124; Shreya Singhal v Union of India, (2015) 5 SCC 1.

¹¹⁹ Puttaswamy I (n 1).

¹²⁰ For details on the difference between ‘equally well’ and ‘as well in a real and substantial sense’ see, Alberta v Hutterian Brethren of Wilson Company 2009 SCC 38 [55] (Canada); David Bilchitz, ‘Necessity and Proportionality: Towards A Balanced Approach?’ in Nigel Bowles, Christopher McCrudden and Liora Lazarus (eds), Reasoning rights: comparative judicial engagement (Hart Publishing 2014) 55; Virgilio Afonso da Silva, ‘Standing in the Shadows of Balancing: Proportionality and the Necessity Test’ [2022] 20 International Journal of Constitutional Law 1738.

¹²¹ Chandra (n 9) 58.

¹²² Bilchitz (n 120); da Silva (n 120); Kremnitzer, Steiner and Lang (n 116).

¹²³ Moeller (n 115); Ahmed and others (n 86); Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ [2008] 47 Columbia Journal of Transnational Law 72.

¹²⁴ Kremnitzer, Steiner and Lang (n 116).

¹²⁵ Kremnitzer, Steiner and Lang (n 116).

¹²⁶ ibid.

¹²⁷ Chan (n 77); Chandra (n 9); Rai (n 112).

¹²⁸ Chan (n 77); Chandra (n 9); Rai (n 112).

¹²⁹ Media One (n 62) [51].

¹³⁰ ibid [45].

¹³¹ See n 95.

¹³² Paschim Banga Khet Mazdoor Samity v State of West Bengal, (1996) 4 SCC 37.

¹³³ Khatri (II) v State of Bihar, (1981) 1 SCC 627.

¹³⁴ City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties, [2011] ZACC 33 [69].

¹³⁵ See Alexy’s weight formula. Alexy (n 114) 17.

¹³⁶ Fredman, Comparative Human Rights Law (n 16) 90; Sandra Fredman, ‘Adjudication as Accountability: A Deliberative Approach’ in Nicholas Bamforth and Peter Leyland (eds), Accountability in the Contemporary Constitution (OUP 2014).

¹³⁷ Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal (Supreme Court of India, 13 November 2019) [111] (Chandrachud J) <https://indiankanoon.org/doc/101637927/> accessed 30 May 2024; citing Campbell v MGM Limited [2004] UKHL 22 [140] (Baroness Hale); Gautam Bhatia, “The RTI Judgment: On Proportionality” (Indian Constitutional Law and Philosophy Blog, 15 November 2019) <https://indconlawphil.wordpress.com/2019/11/15/the-rti-changechangejudgmentchangechangejudgementchangechangechangejudgementchange-on-proportionality/> accessed 30 May 2024; Klatt (n 98).

¹³⁸ ibid.

¹³⁹ Association for Democratic Norms v Union of India, 2024 INSC 113 [157].

¹⁴⁰ Housing and Land Rights Network, ‘Forced Evictions in India in 2020: A Grave Human Rights Crisis During the Pandemic’ [2021] <https://www.hlrn.org.in/documents/Forced_Evictions_2020.pdf> accessed 30 November 2021.

¹⁴¹ Housing and Land Rights Network, ‘Forced Evictions in India: 2021’ [2022] <https://www.hlrn.org.in/documents/Forced_Evictions_2021.pdf> accessed 15 June 2023.

¹⁴² Rishika Sahgal, [The Illegality of the Jahangirpuri Demolitions] (Indian Constitutional Law and Philosophy Blog, 28 April 2022) <https://indconlawphil.wordpress.com/2022/04/28/guest-post-the-illegality-of-the-jahangirpuri-demolitions/> accessed 30 May 2024.

¹⁴³ M Jannani, ‘The Illegality of the Khargone Demolitions’ (Indian Constitutional Law and Philosophy Blog, 9 May 2022) <https://indconlawphil.wordpress.com/2022/05/09/guest-post-the-illegality-of-the-khargone-demolitions/> accessed 30 May 2024.

¹⁴⁴ Vaibhav Jha, ‘Fortnight after Ram Navami Clash, Demolition Drive Begins in Gujarat’ The Indian Express (Ahmedabad, 27 April 2022) <https://indianexpress.com/article/cities/ahmedabad/fortnight-after-ram-navami-clash-demolition-drive-begins-in-gujarat−7,888,928/> accessed 15 May 2022.

¹⁴⁵ Sudama Singh (n 21).

¹⁴⁶ Ajay Maken (n 22).

¹⁴⁷ Sahgal, ‘The Supreme Court’s Eviction Order Ignores the Rights of Jhuggi Dwellers’ (n 7).

¹⁴⁸ Ravi Shankar Joshi v Union of India (Uttarakhand High Court, 20 December 2022) [257] <https://indiankanoon.org/doc/176036831/> accessed 30 May 2024.

¹⁴⁹ Bhatia, ‘Evictions and the Right to Housing: The Uttarakhand High Court’s Haldwani Judgment’ (n 7); Sahgal, “The Supreme Court’s Eviction Order Ignores the Rights of Jhuggi Dwellers” (n 7).

¹⁵⁰ Zoya Mateen and Dilnawaz Pasha, ‘Nuh Violence: Is Bulldozer Punishment Trampling Justice in India?’ BBC News (8 August 2023) <https://www.bbc.co.uk/news/world-asia-india−66,391,485> accessed 30 May 2024.

¹⁵¹ ’How G20 Preparations Left Thousands Homeless in India’ Frontline (New Delhi, 28 July 2023) <https://frontline.thehindu.com/news/commissioned-citizens-report-g20-preparations-leave-thousands-homeless-in-india/article67131721.ece#:~:text=According%20to%20the%20findings%2C%20the,%2C%20and%20Ghiyaspur%2C%20among%20others.> accessed 30 May 2024.

¹⁵² Contiades and Fotiadou (n 99); Stephen Gardbaum, ‘Positive and Horizontal Rights: Proportionality’s Next Frontier or a Bridge Too Far?’ in Mark Tushnet and Vicki C Jackson (eds), Proportionality: New Frontiers, New Challenges (CUP 2017); Young (n 99).

¹⁵³ Khosla (n 4).

¹⁵⁴ Housing and Land Rights Network (n 140).