The illegal and forced squatting began in 2069 under the powerful government of Prime Minister Baburam Bhattarai, who was in the throes of a ten-year Maoist war. The state created a narrative against the landless community calling it ‘illegal and public land encroachers’. Under that banner, the landless community has been criminalized. The landless poor community has been further demonized using the emotional rhetoric of ‘return of public land’ and ‘asset protection’. The then mayor of Kathmandu Metropolitan City and current Prime Minister Balendra Shah, who did not directly communicate with the people, further increased the tendency to criminalize them in the name of ‘public land encroachment’. This has pushed the marginalized community into a cycle of fear, insecurity and displacement.

The Prime Minister's direct order on the 'Garib Safai Mahabhiyan', the crisis caused by the state to the poor landless citizens, what are its legal loopholes and errors?  

The legal status of landless squatters is official  

The landless community is the equal and powerful people of Nepal . The landless community has been given legal status by clearly defining the terms 'landless Dalit' under Article 40 (1) of the Constitution of Nepal, 'landless squatters' under Sub-section 11 (a) of Section 52 (b) of the Land Act, 2021 (Eighth Amendment) and 'unorganized settlements' under Sub-section 9 (a) of Section 52 (c) of the same Act   According to the Act, a landless squatter is defined as ‘a person who does not own land or land belonging to him or her within the State of Nepal and is unable to manage the land through his or her own income, resources or efforts, and this term shall also include family members dependent on him or her.’ In the same Act, an unorganized settler is defined as ‘a person who has been classified as a forest in accordance with sub-section (3) of the said section for a long time, even if he or she is declared a forest in the official, private or government records, and this term shall also include family members dependent on him or her.’ The Act has given legal recognition by explaining that the term ‘unorganized settler’ means a person who has been classified as a forest in accordance with sub-section (3) of the said section for a long time, and the term ‘who has reduced the area and built houses and huts and settled there’ means a person dependent on him or her.’ The historical background of the landless community has been recognized.

Not only that, but it has also ensured that ‘land with ownership will be provided to landless Dalits and landless squatters for a single time’, considering the responsibility of ensuring the rights of their community. The right of unorganized settlers has been confirmed by saying that ‘the Government of Nepal may provide land to those who have been settling for at least 10 years at the time of the enactment of the said Act, for a period of time, not exceeding the specified area in the place where they have been settling.’ In addition, Article 17 (e) of the Constitution of Nepal has ensured the right to freedom of residence in any part of Nepal.

Article 37 clearly states that ‘no person shall be evicted or encroached upon from the dwelling he owns under any circumstances’. This condition also applies to the Government of Nepal. Basically, the fundamental rights of a person include the right to live with dignity in Article 16, the right to property in Article 25, and the right to food in Article 36. These provisions have also been supported by various acts of Nepal, national laws and international human rights documents. That is, the right to housing is not only ownership of land titles but is multifaceted.

Not only this, the legality of the landless squatter community is also supported by the house number, voter ID card, citizenship certificate, house map, electricity connection, etc. provided to the community by bodies such as the local government, land revenue, electricity authority. Therefore, landlessness is not illegal for the community and squatters. The issue of the landless community is the legal and binding obligation of the state. Ironically! The culture of blaming the poor people to cover up the state's inability and negligence in fulfilling its responsibility towards the people continues in every forced and inhumane sit-in.

The landless are not encroachers

Another false fact that all Nepalis have been lied to or deceived about is – ‘Landless squatters are encroachers who have occupied government or public land.’ This statement is wrong and objectionable even in terms of historical, legal, moral, practical and social justice.

According to Nepal's laws on property rights, privacy rights, and other prevailing interpretations, there are certain conditions for an act to be 'encroachment'. Encroachment is defined as 'the act of encroaching on or occupying or forcibly taking control of someone's rights, authority, or boundaries, or of occupying or obstructing the rights of another by going beyond the rights granted by law.' Here, the purpose and act of encroachment are clear. There is the use of force or power and the act of violating the rights of others. However, in the case of landless Dalits, landless squatters, and unorganized settlers, the presence of these elements is zero. Landless squatter settlements are not a situation where people settle on government, public, public, or vacant land with the intention of violating or encroaching on someone's rights.

First, the landless community is an equal sharer and rightful owner of every piece of land in Nepal. The exercise of this right is legitimate. Second, an important issue that cannot be ignored is the background of landlessness and squatter settlements. The majority of landless people are victims of natural disasters, poverty caused by health problems, loss of everything due to metered rates, and extreme poverty. Exclusion due to caste-based untouchability and inter-caste marriages. Looking at history, the unification of Nepal and political conflicts are important factors. The squatter settlements of Kathmandu are the result of the government's inability or unwillingness to address the 10-year Maoist conflict in Nepal. Laws such as the Land Reform Act introduced by the state and the so-called development projects implemented indiscriminately are another basis for squatters and landlessness.

Ultimately, being forced from their homes and living in this city built for the landless, playing with the flood on the riverbank to eat and hide their heads, adopting the stench of Aryaghat and Masanghat, and accepting the scorn and abuse of society, embracing the landless and squatters is not a desire but a compulsion. Therefore, squatting is not an encroachment on government or public property, but a historical and structural error, a policy maneuver of the state, a lack of knowledge or neglect of political weaknesses and social complexity. It is a product of unbalanced power structures and strategic class structures.

The state is an encroachment and a criminal.

Looking at the latest developments, the campaign of the Nepal government to remove the so-called unauthorized and encroached structures and return government land is the 'Garib Safai Abhiyan'. The forced evictions of landless squatters, including settlements, are an encroachment on the rights, land and existence of the poor by the state. This is an illegal and criminal act that is being carried out by the state. The state cannot violate or cause to be violated the rights of citizens, including housing, food, clothing, education, employment, etc. under any circumstances. Torturing someone is a serious violation of human rights and humanitarian law. The state must stand in the dock of legal accountability for such acts. Moreover, if such acts are carried out by the state, it is understood that it portrays the authoritarian character of the state and poses a crisis on democratic values, which in itself is a moral crime, an affront to the trust of the people and public opinion. The forced uprising of 2083 is an example of this, in which procedural, procedural and legal errors are clear. It is a mandatory procedure to publish public information in a place accessible to all and to provide fair concessions. The landless squatter community's uprising began not on the government's official information party, website or official letter, but on the basis of personal Facebook statuses.

The government spokesperson said, 'The uprising is a false rumor, do not believe it', and less than 24 hours later, the house was miked to vacate the house at night. The next day, on a holiday, from 5 am onwards, the Nepal Police, Armed Police Force, Municipal Police and Nepal Army, armed with weapons, wreaked havoc in the poor, landless settlements of Kathmandu and Bhaktapur in a terrorist manner for three consecutive days. This work continues for weeks. This wave of forced squatters without alternatives spreads throughout Nepal. Which is against the Constitution of Nepal, the current government's hundred-point pledge, the Land Act and the global guidelines on squatters. The procedures specified in the law such as data collection, investigation, alternative management have been completely ignored in this uprising. The indiscriminate eviction has violated the procedural law and dealt a major blow to its legitimacy. This is defined as a crime under Nepal's law.

The act of using a bulldozer in a terrorist manner to evict the houses of the poor landless squatters, who are legally recognized as 'unauthorized and encroached structures', is a crime. In fact, the encroaching party is the state. The school was demolished on the eve of the new academic session and exams. A complaint of abetment of suicide has been filed against the government. The Indra Bahadur Rais who were killed by the eviction are accused of the crime of abetment of suicide committed by the state. And, each of those Indra Bahadur Rais is clear evidence of this crime.

The government says that the squatter eviction campaign was peaceful and successful, and it plays on the media. However, using the army against the unarmed poor, crushing their morale and self-respect, and forcing them to demolish their own homes is a shameful defeat not of the people, but of the state. To cover up this shame, the media hype about a 'peaceful uprising' is another rumor. Spreading misleading information and media hype in this way is a punishable act.

In addition, the Supreme Court of Nepal, while giving a clear order to stop the uprising in an ongoing case led by various activists and advocates, including the victims, while ignoring the Supreme Court, is a contempt of court for the brutal dozer rampage on landless settlements including Kohalpur.