RIGHT TO SHELTER IN INDIA: ITS AMBIT AND MISCONCEPTIONS
By: Komal* |
All over the world people spend a significant amount of time and energy acquiring shelter for themselves[i]. The shelter provides privacy and safety from humans and animals and also protects the belongings. However, a shelter for a human being is not mere protection of his life and limb. It is considered home where "he has the opportunities to grow physically, mentally, intellectually and spiritually"[ii]. The courts in India have also recognized the importance and wide ambit of shelter and have thus given some concrete judgments in this respect. In a much recent decision, the Karnataka High court on 04 December 2020 directed the state government to reconstruct the huts of migrant workers within 2 months at its own cost, which were burnt down by unknown miscreants near the Kachakaranahalli slum in Bengaluru East when the occupants had left for their native places after the announcement of lockdown. The court in this case and in various other judicial pronouncements acknowledged the importance of shelter and said that the State is bound to protect it. The right to shelter has also been recognized by the United Nations and by the International human rights law. Its evolution as a fundamental right in India is of great importance but there are also certain misconceptions attached to it which shall be discussed ahead in the article.
EVOLUTION OF RIGHT TO SHELTER AS A FUNDAMENTAL RIGHT
The right to property has always been a matter of great controversy in India and the right to shelter is considered to be closely associated with it. Right to Private Property was originally granted to the citizens of India as a fundamental right under Article 31 of the Indian Constitution but this was struck down vide the 44th constitutional amendment in the year 1978 and was made a constitutional right under Article 300A. Article 300A has empowered the state to acquire any person’s private property with due process of law. However, in the case of Olga Tellis v Bombay Municipal Corporation[iii], the court for the first time held that “right to life includes right to livelihood and shelter” as they both are important components of the right to life under Article 21. Further, in the case of State of Karnataka and Ors v. Narasimhamurthy and Ors[iv], the Supreme Court stated that: “Right to shelter is a fundamental right […]. To make the rights meaningful for the poor, the State has to provide facilities and opportunities to build a house. Acquisition of the land to provide house sites to the poor houseless is a public purpose as it is a constitutional duty of the State to provide house sites to the poor.[v]” All these judgments have expanded the ambit of Article 21 of our Constitution and interpreted rights to the citizens for their growth, nourishment and shelter[vi].
CURRENT POSITION IN INDIA
The Right to Shelter is a fundamental right guaranteed under Article 19 (1) (e) read with Article 21 of the Constitution of India. In the landmark case of Rajesh Yadav v. State of UP[vii], it was held that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor. Justice Surya Prakash Kesarwani, who pronounced this path-breaking judgment observed so while dismissing a PIL seeking eviction of four individuals who allegedly encroached a public land[viii]. The weaker section of the society like the poor and landless agricultural laborers have the basic human right and constitutional right to the residence. Thus, it becomes a duty of the state to fulfil those[ix]. But it does not give any person the right to encroach and erect structures or otherwise on footpaths, pavements or public space or at any place reserved or earmarked for a public utility[x]. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their land to make the right to life meaningful, effective and fruitful[xi].
International human rights law recognizes everyone’s right to an adequate standard of living, including adequate housing and shelter. It is regarded as a free-standing right and this was clarified in the 1991 General Comment no 4 on Adequate Housing by the UN Committee on Economic, Social and Cultural Rights. Adequate housing has also been recognized as part of the right to an adequate standard of living in the 1948 Universal Declaration of Human Rights and in the 1966 International Covenant on Economic, Social and Cultural Rights[xii]. Article 25 of UDHR clearly states that everyone has the right to a standard of living adequate for the health and well being of himself or of his family, including food, clothing, housing and medical care and necessary social services[xiii]. Also Article 11(1) of the ICESCR guarantees the same[xiv].
IMPORTANCE OF RIGHT TO SHELTER
The right to shelter is one of the most important fundamental rights which have been recognized. It provides protection against forced evictions and the arbitrary destruction and demolition of one’s home along with the right to be free from any kind of arbitrary interference with one’s home, privacy and family[xv]. The Right to Shelter includes adequate living space, safe, decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities[xvi]. The Right to Life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter[xvii].
JUDICIAL PRONOUNCEMENTS TO RIGHT TO SHELTER
In the case of Rajesh Yadav v. State of UP[xviii], Justice SP Kesarwani said that “It is expected from the government that it will take every step necessary to ensure every citizen has a shelter/house which is necessary for the physical, mental and spiritual growth of every citizen,[xix]. The conclusion that we get is that Right to Shelter is a fundamental right and the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondents. If the State authorities find it indispensable to remove the respondents they shall provide suitable accommodation to them."[xx] Also, Right to social and economic justice conjointly commingles with the right to shelter as an inseparable component for the meaningful right to life.[xxi] In the case of Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors.[xxii], the Supreme Court directed the state to construct affordable houses for the poor thereby directing the State to perform its duty.
In another case of Sudama Singh and Others v. Government of Delhi and Anr[xxiii], the High Court of Delhi established that housing is a human right and it further laid down responsibilities of the state towards fulfilling the right to housing and the right to resettlement. All these judgments, therefore, reflect that shelter is not a mere place to live but also a place where one grows mentally and physically. Right to shelter is an integral part of the social and economic justice and is also a human right so it is the duty of the state to construct affordable houses for the needy.
One of the most common misconceptions associated with the right to shelter is that it requires the State to build houses for the entire population and that the people can demand a house from the Government. This indeed is the duty of every Government to construct houses for the people but this particular right does not oblige the Government to construct a nation’s entire housing stock. It is sometimes also believed that the right to shelter prohibits displacement of people under every circumstance but there is no such protection against the development or modernization projects that entail displacement. It is sometimes argued that the right to shelter equals to the right to land and right to property which is enshrined in the Universal Declaration of Human Rights and other human rights treaties. However, the right to shelter does not recognize or include these rights in any manner[xxiv].
The incident of Kachakaranahalli slum in Bengaluru East elucidates the misconceptions to some extent. The houses which were burnt were built by encroaching the government property. The court, however, said that the huts were destroyed by a third party and the state remained passive even after being aware of the incidents and thus had not protected the right to shelter of the workers. The court directed that as far as possible, the reconstructed structures should be built at the same place and allotted to the affected families however it clearly stated that the concerned authorities are free to take action of removal of reconstructed structures of affected families as per law. Therefore, the court directed the state to build the houses because it failed to protect the right to shelter and not because it was a general obligation for the entire population and that displacement of people was possible. Also, because the fundamental right was infringed, it was of utmost importance to ensure it before taking any other action[xxv].
Indian Constitutional courts in various judgments has linked the right to shelter with the right to life, stressing that the right to housing is implied under the right to life, and have attempted to secure access to justice for such violation of the right to life. The evolution of the right to shelter as a fundamental right and its recognition by the United Nations and as a human right indicates its value in today’s times. A shelter is indeed a place of comfort and growth for an individual and it is a duty of the State to work towards providing affordable houses to its citizens. This however must not be mistaken for that the Government is obliged to construct a nation’s entire housing stock or that it would prevent displacement of people under every circumstance. The right to shelter is distinct from the right to land and there is need to understand the essence of this right correctly and this would help the people in getting over the misconceptions and would allow them to knock the door of the court whenever actually required.
*The author is a student at the Central University of South Bihar, Gaya.
[i] Shelter, BRITANNICA KIDS ( https://kids.britannica.com/students/article/shelter/277027 [ii] Devika, All HC Right to shelter is a fundamental right, a right to all infrastructure necessary to live and develop as human SCC ONLINE, (July 11, 2019), (https://www.scconline.com/blog/post/2019/07/11/all-hc-right-to-shelter-is-a-fundamental-right-a-right-to-all-infrastructure-necessary-to-live-and-develop-as-human-being/ [iii] Olga Tellis v Bombay Municipal Corporation, (1985) 3 SCC 545. [iv] State of Karnataka and Ors v Narasimhamurthy and Ors, (1995) 5 SCC 524. [v] State of Karnataka and Ors v Narasimhamurthy and Ors, (1995) 5 SCC 524. Indian Kanoon, https://indiankanoon.org/doc/1715884/ [vi] Vaishnavi. Peddibotla, Right to Shelter: A Need of Hour in Pandemic, DESIRE, (July 14, 2020), https://legaldesire.com/right-to-shelter-a-need-of-hour-in-pandemic/ [vii] Rajesh Yadav v State of UP, (2019) 3 UPLBEC 1853. [viii] Sanjeev Sirohi Advocate, The Right to Shelter a Fundamental Right; State has Constitutional Duty to provide House sites to poor, (Jul 09, 2019), http://www.legalservicesindia.com/law/article/1244/8/Right-To-Shelter-A-Fundamental-Right;-State-Has-Constitutional-Duty-To-Provide-House-Sites-To-Poor-Allahabad-High-Court#:~:text=Right%20to%20shelter%20is%20a%20fundamental%20right%20guaranteed%20under%20Article,of%20the%20Constitution%20of%20India.&text=But%20no%20person%20has%20a,earmarked%20for%20a%20public%20utility [ix] Jitendra Sarin, Right to Shelter a fundamental right: Allahabad High Court, (Jul 06, 2019), https://www.hindustantimes.com/cities/right-to-shelter-a-fundamental-right-allahabad-high-court/story-PUKSYbxtp6rA8nEYIghPfK.html [x] Ibid. [xi] Ibid. [xii] Office of the UN High Commissioner for Human Rights, Right to Adequate Living, UN Fact Sheet No. 21, Rev 1, 01, 01 (2014), https://www.ohchr.org/documents/publications/fs21_rev_1_housing_en.pdf [xiii] Universal Declaration of Human Rights, UDHR Articles, United Nations, https://www.un.org/en/universal-declaration-human-rights/#:~:text=Article%2025.&text=All%20children%2C%20whether%20born%20in,enjoy%20the%20same%20social%20protection. [xiv] International Covenant on Economic, Social and Cultural Rights, ICESCR Articles, United Nations Human Rights Office of the Commissioner, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx [xv] Office of the UN High Commissioner for Human Rights, Right to Adequate Living, UN Fact Sheet No. 21, Rev 1, 01, 01 (2014), https://www.ohchr.org/documents/publications/fs21_rev_1_housing_en.pdf [xvi] Ibid. [xvii] Chameli Singh v State of UP, (1996) 2 SCC 549. [xviii] Rajesh Yadav v. State of UP, 2019 SCC OnLine All 2555, decided on 01-07-2019 [xix] Ashok Kini, Right to Shelter a Fundamental Right; State has Constitutional Duty to Provide House Sites to Poor: Allahabad High Court, (Jul 7, 2019), https://www.livelaw.in/top-stories/right-to-shelter-a-fundamental-right-146155?infinitescroll=1 [xx] Rajesh Yadav v. State of UP, 2019 SCC OnLine All 2555, decided on 01-07-2019. [xxi] Chameli Singh v State of UP, (1996) 2 SCC 549. [xxii] Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors., (1997) 11 SCC 121. [xxiii] Sudama Singh and Others v. Government of Delhi and Anr., W.P. (C) Nos. 8904/2009, 7735/2007, 7317/2009 and 9246/2009, High Court of Delhi, 11 February 2010. [xxiv] Office of the UN High Commissioner for Human Rights, Right to Adequate Living, UN Fact Sheet No. 21, Rev 1, 01, 01 (2014), https://www.ohchr.org/documents/publications/fs21_rev_1_housing_en.pdf [xxv] Mustafa Plumber, ‘State duty bound to protect right to shelter’: Karnataka High Court directs government to reconstruct migrants’ huts burnt down during lockdown, (04 Dec 2020), https://www.livelaw.in/news-updates/right-shelter-migrants-huts-burnt-karnataka-high-court-166826?infinitescroll=1