right to shelter: a sensitive issue of...

1 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW VOLUME 3 ISSUE 9

RIGHT TO SHELTER: A SENSITIVE ISSUE OF IMPLEMENTATION

UNDER CONSTITUTION

Aman Srivastava1

INTRODUCTION

Homeless is dangerous, peril, devastating and isolating. On average, homeless causes people

to die at just 47 years old. Also, it is found that people living on street are approximately 17

times more likely to become victims of violence as compared to people, in general, who are

not homeless2. Homelessness has been a subject of conversation over the past several years at

every level around the world. Three basic needs of the life are Roti, Kapda and Makaan. The

third most crucial ingredients of life after food and clothes are shelter. Shelter not only

ensures the social security of a person but also the economic security. Homelessness has a

wide range of perspectives in which the large number of people and circumstances are

concerned. According to census (1991), people staying in open areas like roadsides,

pavements, Hume pipes, bus stops, railway platforms, under flyovers, in spaces near temples,

near drainage pipes, under staircases, in open mandaps, even many more ejusdem genesis, are

described as homeless. The apex court of India interprets the Article 21 of the Constitution of

India i.e. Right to life and personal liberty in various measures. It interprets right to shelter in

different ways according to the facts and circumstances of the case. The implementation with

regard to the right to shelter in vision of Article 21 of the Constitution of our country leads to

sometimes satisfactory but sometimes needy returns with displeasure. In many cases, apex

court gave judgements which made the people homeless as when the authority deficient in the

part of rehabilitation. Besides, the authorities and naturalists are unhappy because the slum

dwellers, when directed to move away or leave the forest or public land as they have been

allotted the apartments having good accommodation and ensure better-off, refuge to do so.

According to the authorities and naturalists if they do not occupy the apartments allotted to

them by various schemes and by concerning about their future aspects then it will be the total

waste of public money. To maintain the ecological balance and sanitation of the state, it is

very crucial in the first place to devoid the slums in a greater extent. Basically, shelter is one

of the major part in which the growth and development of the country depends. Providing

1 2nd Year BA LLB Student, Institute of Law Nirma University 2 Ab. Homl., Available at https://www.crisis.org.uk/ending-homelessness/about-homelessness (last visited Sept.

10, 2007).


sufficient shelter is still the big challenge India is facing today. It is very subjective whether

the 4 walled rooms with roof-headed is shelter or not. In Shantistar Builders3 case, as far as

the shelter is concerned, the Supreme Court of India observed the difference between the

animal and the human. It is merely a bare protection of body for animal but for a human, it

must be a suitable accommodation which allows him to grow in every aspect i.e. mental,

physical and intellectual.

PRESENT SCENARIO OF HOMELESSNESS

The population of world living homeless is estimated around 1.6 billion4. The number is still

increasing at an alarming rate. Africa, Latin America and Asia are highly concerned with the subject

of homelessness. According to the 2011 Census, there were 1.77 million homeless people in India, or

0.15% of the country's total population5. The realistic approach of the study explores that the

millions of people living in rural India are still homeless where people in plethora having

inadequate housing even after the 70th year of Independence. The majority of the states in

India face challenge of homelessness. Out of 1.77 million homeless people in India as per

census 2011, 65.3% live in five states only i.e. UP, Rajasthan, Maharashtra, Madhya Pradesh,

Gujarat and Andhra Pradesh. The homeless in Uttar Pradesh only account for 18.6% of the

total homeless population of India6. There are 146 of every 100,000 people in India are

homeless in which 100 for every 100,000 people in rural population and 249 for every

100,000 in urban population7. As per guidelines of census 2011, urban population gets a rise

in homeless population from 7.78 lakh people in 2001 to 9.38 lakh people in 2011, whereas

rural population shows a decline from 11.6 lakh people in 2001 to 8.34 lakh people in 20118.

It is found that the significant decline in rural areas in 10 years is due to the migration of

people to urban areas. Whereas the urban population shows such a high increment because of

insufficient of state to allocate resources to such a huge population after migration. The cause

3 Shantistar Builders v. Narayan Khimalal Toitame, AIR 1990 SC 630. 4 HAB. FOR HUM., Available at https://www.habitat.org/volunteer/build-events/world-habitat-day, (last

visited Sept. 05, 2017). 5 Somesh Jha, 1.77 million people live without shelter, albeit the number decline over a decade, BUS.

STANDARD, Dec. 6, 2006. 6 Motilal Mahamallik, India Human Resource Network, WHY RE-DEF. H.: BLOG (Jun. 16, 2016), Available

at http://www.ihrn.org.in/blog/Why-Re-defining-Homelessness--and-Responding-to-Census-Data-Should-

Inform-Homeless-Policy-in-India. 7 Ibid. 8 Nikita Parekh, 68 Years of Independence & still India is home of Homeless people, ACCOM. TIMES, Aug.

22, 2014.


of the migration of people in such a huge significant ratio is due to the programmes like

Indira Awas Yojna after which people started moving away from the farm sector jobs9. The

increasing number of migrants seeking for employment and better living standards is quickly

summing up in India's homeless population10.

FACTORS CONTRIBUTING HOMELESSNESS

As far as the subject of homelessness is concerned, a large number of people are affected.

Also, the factors responsible for homelessness are also wide and large.

Poverty

Poverty and homelessness are inextricably linked. Poor people are not able to pay for housing

and thus they never get an opportunity to build their house for healthy survival. Even they

don’t manage to eat food twice a day, their child, health, education are at stake. Inside India,

both income-based poverty definition and consumption-based poverty statistics are in use11.

Also, in India each state has its own poverty line measure to deal with poverty. Outside

India, the World Bank (2009) and institutions of the United Nations take a broader definition

to compare poverty among nations, including India, based on purchasing power parity (PPP).

According to World Bank report 2016, one in five people in India is still poor. According to

United Nation's Millennium Development Goals (MDG) programme, 270 million or 21.9%

people out of 1.2 billion of Indians lived below poverty line of $1.25 in 2011-2012. India

determines poverty by adding up all the individual per capita income of each household

member. The current data of poverty line is $0.5 or Rs. 32 per day12. The person earning

below Rs. 32 a day is described as a poor. Also, 80% of India’s poor live in rural areas13.

Therefore, the poor people cannot able to build house and consequently they survive

significantly to be described as homeless under the roof of poverty.

9 Somesh Jha, 1.77 million people live without shelter, albeit the number decline over a decade, BUS.

STANDARD, Dec. 6, 2006. 10 HOML. IN IND., http://www.jaffamood.com/reality-of-new-Delhi (last visited Sept. 08, 2017). 11 Anirudh Krishna and Abusaleh Shariff , Econ Papers, 39 THE IRR. OF NAT. STRAT. 533, 549 World

Development (2011). 12 India Today Online, Planning Commission: not poor if you earn Rs. 32 a day, IND. TODAY, Sept. 21, 2011. 13 The World Bank Group, IND.’S POV. PROF., ( May 27, 2016),

Available at http://www.worldbank.org/en/news/infographic/2016/05/27/india-s-poverty-profile.


Drug Addiction

The data reveals that the alcohol and drug abuse are inextricably high among the homeless

people. The people who are very poor and much addicted must at augmented risk of

homelessness14. The factor of drug addiction towards homelessness is not as much active in

India as compared to USA. It is true that an individual with limited financial resources cannot

manage to remain in stable housing. It is obvious that to live in today’s era of expensiveness

an individual must ensure that he has to earn as to satisfy his daily basic needs. But when an

individual with very limited financial resources invests significant amount on alcohol or other

substances, then maintaining stable housing would become even more difficult15. According

to the World Drug Report, there were 81,802 treatment seekers in India in 2004-2005, 61.3%

reported use of opioids, 15.5% cannabis, 4.1% sedatives, 1.5% cocaine, 0.2% amphetamines

and 0.9% solvents.16 According to data from the Substance Abuse and Mental Health

Services Administration (SAMHSA), substance abuse is more usual among the homeless

than in the population in general17. Older homeless population is commonly known for the

alcohol abuse whereas younger population is quite familiar with the drug abuse18. The study

further indicates that 13 out of 20 participants were the children of alcoholic parents, many

had suffered drug abuse in their home itself, and 19 of the 20 had either voluntarily or

involuntarily left the home by the age of 1819. It is very huge number of children became

victim of drug addiction resulting homelessness at an early age.

WAR

The destruction of land in war is very obvious. The people who are in a comfort position

suddenly inevitably lose their home. The war causes unexpected homeless. Despite having

good savings and fertile land, the people live near to the international border don’t want to

construct permanent house because the fear they develop by seeing or knowing destructions

14 CAUSE IND., http://www.causeindia.com/homelessness/homelessness.php (last visited Sept. 10, 2017). 15 James Spradley, Alcohol Use Disorders in homeless population, A STD. ON HOML. & ADD., (Jul., 2009),

http://www.michaelshouse.com/drug-abuse/study-homelessness-addiction. 16 World Drug Report, United Nations office on Drugs and Crime, (Dec. 20, 2009),

http://www.unodc.org/documents/wdr/WDR_2009/WDR2009_eng_web.pdf (last accessed on 26/7/2017). 17 James Spradley, Alcohol Use Disorders in homeless population, A STD. ON HOML. & ADD, (Jul., 2009),

http://www.michaelshouse.com/drug-abuse/study-homelessness-addiction/#_ftn3. 18 James Spradley, Substance abuse and homelessness, A STD. ON H. & ADD., (Jul. 2009),

http://www.michaelshouse.com/drug-abuse/study-homelessness-addiction/#_ftn3. 19 Scharff, Addiction among the homeless begins in childhood, PSY. TIMES, Jul. 16, 2014.


during war. If talk about India and Pakistan, Punjab has 553-km long international border

with Pakistan and 1,871 villages are notified as border area villages.20 The frequent

destructions in 1965, 1971, and 1999 during India Pakistan war, people now have feared war

with Pakistan after having seen or known destructions. They are homeless. Life near the

border is very challenging. Majority of the people make their houses by mud as they perceive

war could be anytime.

OVERCROWD AND HARRASSMENT BY LANDLORDS

If two people of the opposite sex sleep in the same room, the accommodation will be over-

crowd if the two people are not: a married or cohabiting couples, or At least one occupant is

less than ten years old.21 The harassment by landlords includes many aspects such as direct

discrimination and constructive discrimination22. The landlord discriminates on the basis of

race, colour, place or origin, sexual orientation, marital status, disability, etc.23 the people

moving to urban areas in search of job, education, employment, etc. are subject to

discrimination by the landlords. They directly refuse to give house on rent by saying I don’t

rent house to people on welfare though it is completely false. Also, owners at any time force

their tenants to leave or enhancing very high incremental percentage on rental money

unreasonably. They make their house vacant due to overdue of rent amount by tenants. The

people who are new in cities become homeless as they are not much active to search a new

house or fight against difficulties. Constructive discrimination is not discriminatory per se. It

refers to policies or practices which may not be intentionally or obviously discriminatory, but

which have a discriminatory effect on a group which are protected under the Ontario’s

Human Rights Code such as policy of not allowing internal transfers within the rental house.

The students at the age of 16 to 19 moving to cities for study basically refused to get an

apartment or house to live.

20 Kamaldeep Singh Brar, Village in India – Pakistan border areas, THE IND. EXPRESS., Sept. 24, 2016. 21 PIMS., Available at http://www.pims.co.uk/over-crowding-in-rented-property/ (last visited Sept. 11, 2017). 22 ONTARIO’S HUMAN RIGHTS CODE. 23 Ibid.


UNHEALTHY RELATIONSHIP BETWEEN YOUNG PEOPLE AND THEIR

PARENTS

In the late 1980s, one of the most responsible factors of homelessness was the unhealthy

relationships between young people and their parents or guardians. It includes the failure of

sharing arrangements in lodging and joblessness24. The period between end of education and

step towards the first job is called the school-to-work transition. If such a transition is

passive, youth unemployment or at least youth labor market inactivity can be observed25. The

root of the unhealthy relation is lack of money and joblessness. If either the parent or the

child is not able to feed others in the house then the situation gets worsen provided that the

child is at the stage of school-to-work transition. If any of them remains in the house when

they are supposed to earn then obviously the relation between them gets weak. They don’t

want to see each other for life-long. From there, the unhealthy relationships between young

people and parents emerge and the factor of homelessness contributes.

Unemployment

After 1960s unemployment is enhanced as an essential ground of homelessness. Till now, it

is one of the foremost causal factors in U.S.A. In India it is been following in the same

manner as of U.S.A. Unemployment is increased as an imperative ground of homelessness

from the 1960s onwards. Till now, unemployment has continued as an important factor

related with homelessness. Whether by losing a job or unable to find a job in the first place,

unemployment is the major causes of homelessness26. If a person has no income or less

income, he is bound to live homeless. In recent years, reports released by media of a growing

economy and low unemployment mask a number of reasons why homelessness persists since

more than sixty decades, and even in some areas of the country, is worsening. It is happened

because stagnant or falling of income, and less secure jobs that offer fewer benefits. As the

United States experiences the worst financial crisis since the Great Depression in the country,

the homeless population has increased significantly. The worsening economy and rising

24 CAUSE IND., Available at http://www.causeindia.com/homelessness/homelessness.php (last visited Sept. 10,

2017). 25 BURGESS S., C. PROPPER, H. REES & A. SHEARER, THE CLASS OF 81: THE EFFECTS OF EARLY-

CAREER UNEMPLOYMENT ON SUBSEQUENT UNEMPLOYMENT EXPERIENCES (2003). 26 Meghan Murphy, Why do people become homeless, HAND U., (Nov. 05, 2015), Available at

http://blog.handup.org/posts/why-do-people-become-homeless


unemployment are the reasons why homelessness continues to exist and continues in

exponential numbers in the United States.27

Divorce

Divorce is seen as one of the important cause of homelessness. Anyone in a family whether

mother, father or child can become homeless due to separation. Single parents with

dependent children are mostly at risk of homelessness28. According to the National Law Centre

on Homelessness and Poverty (NLCHP), more than 90% of homeless women are the victim of

domestic violence that compels them to escape from their homes. Growing tendency of such

crisis was previously perceptible in the late 1950s and early 1960s. Homelessness in family

issues is also related to age. Since the late 1950s, there are many women reported by local

authorities as homeless are under the age of thirty, about half under twenty-five years, and a

large percentage under twenty years of age29. Individuals with an established support

network and steady income can be forced into homelessness if a major health issue or family

problem like divorce arises.30 Divorce can quickly converted into homelessness as it draws

impact on income significantly. These homeless issues are often short-term and transitional31.

Natural Disaster

When discussing the foremost causal factor of homelessness, natural disaster emerged as a

power cause of homelessness. Cyclone, Tsunami, earthquake and other calamities totally

destroy the region.32 Natural calamity is the major cause of the mass destruction of land. It

takes away the lives of people in plethora. Also it includes the destruction of shelters which is

drastic. About 150 major natural disasters affected millions of people worldwide in 2015.

Floods continue to be the most frequently occurring natural disasters and also affect the most

people worldwide33.In year 2001, Gujarat faced the wrath of earthquake, also known as Bam

earthquake, which was of 7.7 magnitudes. The earthquake killed around 20,000 people and

27 NAT. COALT. FOR THE HOML., Available at

http://www.nationalhomeless.org/factsheets/employment.html (last visited Sept. 08, 2017). 28 CAUSE IND., Available at http://www.causeindia.com/homelessness/homelessness.php (last visited Sept.

10, 2017). 29 Ibid. 30 Meghan Murphy, Why do people become homeless, HAND U. (Nov. 05, 2015), Available at

http://blog.handup.org/posts/why-do-people-become-homeless (last accessed on 26/7/2017) 31 Ibid. 32 CAUSE IND., Available at http://www.causeindia.com/homelessness/homelessness.php (last visited Sept.

10, 2017). 33 Chris Huber, Worst natural disaster of 2015, WOR. VISN, (Dec. 15, 2015),Available at

https://www.worldvision.org/disaster-response-news-stories/worst-natural-disasters-2015 (last accessed on

26/7/2017)


destroyed nearly 400,000 homes34. Also, South Asia floods forced millions of people from

their homes35. The magnitude of 7.8 massive earthquake struck Nepal on April 25, 2015

killing more than 8,800 people. It destroyed nearly 900,000 buildings, created much

avalanches in the Himalayas. Major aftershocks, of magnitude 7.3 tremor just three weeks

later, added to the devastation.36

GOVERNMENT INITIATIVES

Overview of Schemes

The Central government has been taking all necessary actions to meet the shortage of houses

in India. Talking about the earliest known scheme for housing in India was the

“REHABILITATION OF DISPLACED PERSONS” immediately after the partition of

country37. After Independence, the people were migrated from Pakistan to India and

dispersed widely across states in search of permanent houses. After that, the government has

launched other initiatives for the rural and urban population. The rural housing scheme in true

sense was firstly launched with INDIRA AWAAS YOJNA (IAY) in 1985 which was

explored as the sub-scheme of RURAL-LANDLESS EMPLOYMENT GUARANTEE

PROGRAMME (RLEGP) introduced on 15, August, 1983. Further in April 1989 IAY

became a sub-scheme of JAWAHAR ROJGAR YOJNA (JRY) introduced on 1, April, 1989.

However, since 1996, IAY finally became an independent scheme38. Further also, IAY was

modified and restructured as PRADHAN MANTRI GRAMIN AWAAS YOJNA

(PMGAY)39. Also, in June 2015 a similar scheme was launched for urban poor as HOUSING

FOR ALL by 2022 in the PRADHAN MANTRI AWAS YOJNA (urban)40. Earlier in June,

2009 a scheme called RAJIV AWAAS YOJNA (RAY) was launched by the president

34 USGS Earthquake Hazards Program, Preliminary Earthquake Report, GUJ. EQ., (Nov. 20, 2007), Available

at http://research.omicsgroup.org/index.php/2001_Gujarat_earthquake (last accessed on 26/7/2017) 35 Haroon Siddique, South Asian flood, THE GUARDN., Aug. 31, 2017. 36 Chris Huber, Worst natural disaster of 2015, WOR. VISION, (Dec. 15, 2015), Available at

https://www.worldvision.org/disaster-response-news-stories/worst-natural-disasters-2015 (last accessed on

26/7/2017) 37 CHAPTER-38, FIRST FIVE YEAR PLAN (1951-1956). 38 INDR. AW. YOJ, https://www.revolvy.com/topic/Indira%20Awaas%20Yojana&item_type=topic (last

visited Sept. 08, 2017). 39 Ruchika Chitravanshi, Modi government to rename new-look Indira Awaas Yojana to Pradhan Mantri Awaas

Yojana, THE ECO. TIMES, Jan. 12, 2016. 40 PTI, Urban houses under PM Awaas Yojana must belong, THE ECO. TIMES, May 30, 2016.


focuses on slum dwellers and urban poor41. In addition, HOUSING AND URBAN

DEVELOPMENT CORPORATION LIMITED (HUDCO) was also launched by government

to provide loans to economically weaker people for construction of houses42.

SCHEMES AND ITS ASPECTS

Indira Awaas Yojana (Iay)

IAY was launched in 1985 with the initial objective of providing dwelling units without any

cost to the SC’s, ST’s and bonded labourers living below poverty line (BPL). Further when

IAY was linked with JRY in 1989, after four years its scope of objective has been extended to

cover non-SC and non-ST. Also, it was further extended to families of servicemen of the

paramilitary and armed forces killed in action43. The achievement of IAY was quite

satisfactory as the number of houses constructed had significantly increased over the years

when it launched to till 2007. Also, in the year 2006-07 nearly 14.5 lakh houses were

constructed under IAY and the achievement was 93.6% of the expected target44. The recent

developments in IAY have been brought by the PM. When it was restructured in PMGAY its

scope and implementation have also been modified. Under PMGAY scheme, a financial

assistance of Rs. 1,20,000/- in plain areas and Rs. 1,30,000/- in hilly areas will be provided

for construction of homes45. Under the new scheme, the government aims to construct 4

Crore (previously 3 crore) homes for rural poor by year 2022 across the country46.

Housing For All By 2022

The scheme PRADHAN MANTRI AWAAS YOJANA (PMAY) was launched in June, 2015

with the subject of Housing for All by 2022 to urban poor. The initiative was driven by PM to

ensure that urban poor will be provided affordable houses47. The target has been set to 2

41 General Knowledge Today, Rajiv Awas Yojana, GK. TODAY , Jul. 06, 2009. 42 MHUPA, Available at http://mhupa.gov.in/User_Panel/UserView.aspx?TypeID=1348 (last visited Sept. 14,

2017). 43 Bikramjit Sinha and Indranil Biswas, Shelter: A big challenge for rural India, S&T FOR RU. IND. & INC.

GRW., (2008), http://www.nistads.res.in/indiasnt2008/t6rural/t6rur6.htm. 44 Ibid. 45 Central Government, Pradhan Mantri Gramin Awaas Yojana, SARK. YOJ. ( Apr. 26, 2016), Available at

https://www.sarkariyojna.co.in/pradhan-mantri-gramin-awas-yojana-replaces-indira-awas-yojana/ 46 SARK. YOJ., https://www.sarkariyojna.co.in/tag/pradhan-mantri-gramin-awas-yojana/ (last visited Sept. 10,

2017). 47 Ruchika Chitravanshi, Modi government to rename new-look Indira Awaas Yojana to Pradhan Mantri Awaas

Yojana, THE ECO. TIMES, Jan. 12, 2016.


crores houses to be constructed for urban poor by 2022 at the rate of 30 lakh houses per

year48. Also, the aim is to construct affordable pucca houses with the facility of water, toilet

and 24x7 electricity49. According to Ministry of Housing and Urban Poverty Alleviation (MHUPA),

around 18 million people spend their life in slums and 2 million people will be substituted

homeless in near future. That’s why there is an objective of 2 crores urban houses by 2022.

The scheme aims to make India a slum-free country by 2022 by giving shelter free of cost to

the needy people50. The target group of urban poor is divided urban households into two

technical groups of Economically Weaker Sections (EWS) and Lower-income Groups (LIG).

The data estimated that 88% of the urban housing shortages come from EWS and around

11% come from LIG 51. The Ministry of Housing and Urban Poverty Alleviation (MHUPA)

defines the people of category falls under EWS and LIG are having annual per capita income

is less than Rs. 3 lakh and Rs. 3,00,001 to Rs. 6 lakh respectively. As far as achievement is

concerned, the government has identified the total of 2,508 cities and towns for the purpose

of construction houses to urban poor52.

HOUSING AND URBAN DEVELOPMENT CORPORATION LIMITED (HUDCO)

HUDCO was founded on 25, April, 1970. It is the government owned corporation and is

under the administrative control of the MHUPA53. It aims to build affordable house and

carrying out development of urban area. According to Housing and Urban Development

Corporation, the objective of HUDCO includes long term finance loans for the construction

of houses for residential purposes and for the urban development in the country. It provides

long term loans for housing purpose mainly to Economically Weaker Sections (EWS) which

comes under the category when monthly income is less than Rs. 2,50054. Also, HUDCO

covers the area of rural houses affected in natural calamity. It provides assistance for

reconstruction of damaged rural houses. It also covers the three aspects of assistance towards

48 Tojo Jose, What is housing for All by 2022 mission, IND. ECO., (Feb. 19, 2017), Available at

http://www.indianeconomy.net/splclassroom/348/what-is-housing-for-all-by-2022-mission (last accessed on

26/7/2017) 49 Ibid. 50 Asian News Agency, CCEA approves launch of Rajiv Awas Yojana, BUS. STANDARD, Sept. 03, 2013. 51 Tojo Jose, What is housing for All by 2022 mission, IND. ECO. (Feb. 19, 2017),

http://www.indianeconomy.net/splclassroom/348/what-is-housing-for-all-by-2022-mission. 52 PTI, Pradhan Mantri Awas Yojana: 2,508 cities selected under Modi’s scheme, FIN. EXPRESS, May 04,

2017. 53 L. AHEAD, http://www.hudco.org/ (last visited Sept. 10, 2017). 54 Bikramjit Sinha and Indranil Biswas, Shelter: A big challenge for rural India, S&T FOR RU. IND. & INC.

GRW., (2008), http://www.nistads.res.in/indiasnt2008/t6rural/t6rur6.htm


rural housing. First, scheme related to landless persons (EWS). Second, scheme related to

land owning persons. Third, house repair in Village Abadi scheme55.

SUPREME COURT’S INTERPRETATION ON RIGHT TO SHELTER UNDER

ARTICLE 21 OF THE CONSTITUTION OF INDIA

Surprisingly but absolutely correct, there is no specific law in India which guarantees

adequate housing. That’s why the Supreme Court of India extends the scope of Article 21 of

Constitution of India, which stated that: No person shall be deprived of his life or personal

liberty except according to procedure established by law

And thus prescribes “right to shelter” in it. The word “life” means a life of dignity as a

civilized human being and not just animal survival56. If law permits depriving a life or liberty

of person then it must be reasonable, fair and just57. The greatest achievement of Supreme

Court is, during the six decades (even more) after constitution came into force, the expansion

of the scope of Article 21 so as to bring most of the basic rights within its ambit. As stated in

case58 that it is not necessary that the fundamental right should be expressly stated in part III

of the constitution when treat a basic right as a fundamental right. The apex court has given

series of judgements with reference to right to shelter which sometimes proved satisfactory

and sometimes displeasure to the marginalised people. Both the aspects would be dealt in

brief by perusal of various judgements. If think broadly, today, all over the country, the slums

and homes of poor are being demolished by the court for the overall development and well-

being of the state. Surprisingly, the apex court sometimes does not recognise the right to

shelter as a part of the right to life. Likewise, in the case59, it was held that slums were fully

responsible for unhygienic conditions in Delhi. Similarly, in the case of Hemraj v.

Commissioner of Police (2006), it was observed that no one has legal right to occupy public

land. Further said, if encroachments on public land will be allowed then there will be

anarchy. The melancholy part is that after the court’s verdict no poor man will ever try to

occupy the public land but rich can utilise the public land in his own way and even occupy

55 Ibid. 56 Francis Coralie Mullin v. The administrator, Union Territory of Delhi and others, AIR 1981 SC 746. 57 Olga Tellis v. Bombay Municipality, AIR 1986 SC 180. 58 Unnikrishnan v. State of Andhra Pradesh, AIR 1993 2178. 59 Almitra H. Patel v. UOI, (2000) 8 SCC 19.


the mansions either legally or illegally. In case60, it took a wide social movement and

Supreme Court verdict’s terribly impacted on the lives of people near Narmada River. The

construction of dam started in 1987 on Narmada River. A large number of people displaced

and could not get any relief while the dam was being constructed. There were 70,000 of

population affected. Almost 40% of those displaced are tribal people. Even less than 50% of

people were rehabilitated by large project. However, Supreme Court stated that the

displacement of tribal people and others would not per se a violation of fundamental rights.

The Government has declared on pledge that it has no land to re-settle the affected people by

large. Not only this, there were around 33 million people displaced by big dams alone in the

last fifty years. In Mumbai the same thing happened61, over 4 lakh people (mainly slum

dwellers) were evicted from and around the Sanjay Gandhi National Park by the orders of

High Court. It was stated that the land has been shown as “forest land” in the revenue record

and thus it is only for wild animals and trees and not for the human habitation. When the

appeal was filed in Supreme Court, the slum dwellers were thrown out. Hence, the right to

life includes not only physical existence but the quality of life as well. Likewise, if discuss

the case of people who live in hilly areas then from their perspectives, access to good road

connectivity is access to life per se62.On the different side of interpretation of Article 21 by

the Supreme Court of India, it includes various judgements which proved much satisfactory

from the perspective of marginalised and poor people. In the case63, it was stated by the

Supreme Court that right to shelter does not merely a right to roof over one’s head. Also, it

was held in case64 that, right to life embraces within its ambit not only physical existence but

the quality of life also. In the case65, when government wanted to evict all pavement dwellers,

Supreme Court not only recognised their right to dwell on slums and pavements as a right to

life but also observed that there right would be infringed by evicting them. Hence, what needs

to be taken into consideration is a far more sensitive issue of these hapless people who have

been deprived of their right to shelter and adequate housing, which is something an essential

ingredient of the extended scope of Article 21 of our Constitution.

60 Narmada Bachao Andolan v. UOI, AIR 2000 SC 3751. 61 Aruna Chakravorty, India Invisible, THE IND. EXPRESS, Nov. 05, 2000, at 6. 62 Himachal Pradesh v. Umed Ram, AIR 1986 SC 847. 63 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051. 64 Confederation of Ex- Servicemen Associations v. UOI, AIR 2006 SC 2945. 65 Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.


CONCLUSION

India needs a strong “Right to Shelter” law after right to privacy has been prescribed as a

fundamental right in the Constitution of India. It is a basic right of human to possess shelter

for normal survival of life. If there is no home, there is no life. Without home, right to life has

no meaning. The slum dwellers are living like an animal. Without shelter, they are left open

to face the terrible weather of burning heat, storms, freezing cold, incessant rains and many

more. Frankly speaking, most of the states in India like Maharashtra want slum-free city and

they demolish the houses of poor by an empty promise of rehabilitation. The evictions of

poor and marginalised people occur by tagging them with most commonly legal word

“encroachers” by which no one can raise voice against judiciary and government authorities.

However, if even agrees with the authorities that they are subject to evict as they are

encroachers then it should be taken into consideration that they do not acquire slum as a

choice but they are in slum due to compulsion by the society. The stereotypes persist in the

society that they are mainly tribal people, they are subject to untouchables, they are not the

general humans, they are made by the god to always live in backwardness, they are always

engaged in an unfavourable work like manual scavenging etc. But the people of society

forget that everyone has basic human rights and no one can snatch those rights from them

because people born with those rights and those rights are given and protected by our

Constitution. Unfortunately, their basic human rights have been infringed by the authorities at

large. They are not much active as to raise a voice against the authorities. Also, they are very

much economically weaker thus; the house is highly unaffordable for them. That’s why

government has brought many schemes to adequate housing but the actual benefits are not

reaching to the needy people. There is provision for loan sanction under government’s

scheme but they cannot even pay the minimum EMI due to no financial assistance from any

source. In India, a large number of people as a daily wage earner exist. Seasonally they

migrate to city for earning but due to unavailability of a shelter, they are compelled to live on

footpaths. There is also the exploitation of children. Due to frequent evictions and

homelessness, they are not in a position to take benefits of government’s scheme of

schooling. A bench comprising of Chief Justice of Delhi High Court and Justice Dr. S. Murlidhar66

held that- When a family lives in a ‘Jhuggi’ or slum is compelled to evict, then each member

loses a bundle of rights like right to livelihood, to shelter, to education, to health, to access to

civic amenities and above all, the right to live with dignity.

66 Sudama Singh v. Government of Delhi, 168 (2010) DLT 218.


Finally, concluding, the problem of inadequate housing can never be eradicated by a

governmental scheme only which is basically an empty promise that will never be kept. But

there should be a practical policy and a strong law. There should be call for a national

legislation to make the stringent laws that must protect and ensure “Right to Shelter”. There

should be a separate clause in the Constitution which must ensure that adequate shelter

should be provided to each and every one who cannot afford to buy or rent a house and they

should be entitled to live a dignified life with all basic amenities of life.

right to shelter: a sensitive issue of...

Documents