This article is authored by Akash Krishnan, a law student from ICFAI Law School, Hyderabad. It discusses in detail the concept of the right to shelter and whether the right to government accommodation is included within the ambit of the right to shelter.

Introduction

In this modern world, it is important to understand that with changing times, the needs of the people also change. Several rights that were not explicitly included in the Constitution of India have now been incorporated into different Articles by the courts. For example, the right to lead a quality life was read into Article 21 of the Constitution in the case of Francis Coralie vs. Administrator, Union Territory of Delhi (1981). Similarly, the right to livelihood was recognised as a fundamental right in the case of Olga Tellis vs. Bombay Municipal Corporation (1985), the right to medical care was recognised in Parmanand Katara vs. Union of India (1989), and so on.

In light of the same, several other rights were included within the ambit of the right to life and personal liberty that is guaranteed under Article 21 of the Constitution. This article deals with one such right, i.e., the right to shelter and discusses in detail whether the right to claim a government accommodation falls under the right to shelter.

Right to shelter

The right to shelter means the right of an individual to claim a reasonable accommodation so that the individual could grow mentally, physically and intellectually so as to become a useful citizen of the country. Apart from an adequate living space, the right to shelter includes a clean and well-lit living space, access to electricity, roads etc, clean water and any other infrastructure that is necessary to lead a reasonable life.

Let us now look into some of the landmark cases that established that the right to shelter is a fundamental right guaranteed under the Constitution. 

Landmark cases

Shantistar Builders v. Narayan Khimalal Totame (1990)

This case was one of the first cases to deal with the question of the right to shelter. Herein, the Supreme Court stated that there are three basic needs for a man to lead his life, i.e., food, clothing and shelter. The Court, while emphasising the need for shelter, stated that for a human being to grow mentally, physically and intellectually, it is necessary that he has access to suitable accommodation. It further stated that human development is not possible in the absence of suitable accommodation and thus it is necessary that every citizen of India has access to a reasonable form of accommodation. While making the aforesaid observations, the Court held that the right to a reasonable accommodation is an indispensable necessity under the Constitution and it should be included under the ambit of right to life guaranteed under Article 21.

Shri P. G. Gupta v. State Of Gujarat (1994)

This question regarding the right to shelter again rose for consideration in this case. The Supreme Court herein while interpreting Article 19(1)(e) of the Indian Constitution observed that every citizen of India has the right to reside and settle in any part within the territory of India. The Court whilst connecting this to Article 21 stated that the following provisions should be read together so as to expand the meaning of the right to life under Article 21. The provisions have been enumerated below:

1. The Preamble of the Constitution: The Preamble declares that all citizens should have equal status and opportunity and should lead a dignified life.
2. Directive Principles of State Policy: The DPSP enshrined under Part IV of the Constitution are fundamental to the proper governance of the country.
3. Article 39(b): It is the responsibility of the State to distribute the material resources of the community so as to ensure the common good of the people.
4. Article 46: It is the responsibility of the State to protect the weaker sections of the society from any form of social injustice.

In light of these provisions, the Court held that the right to reside and settle in any part within the territory of India guaranteed under Article 19(1)(e) is an integral part of the right to life guaranteed under Article 21. The Court reiterated the principles laid down in the case of Shantisar Builders and observed that the State should ensure that the minimal human rights of food, shelter and clothing are accessible by all the citizens of the country and the State should introduce schemes for providing permanent housing accommodation to the poor so as to ensure that the right to shelter and the right to residence and settlement are not violated.

Chameli Singh v. State of Uttar Pradesh (1995)

This case laid down the fundamental principles of the right to shelter. The Supreme Court herein whilst recognising the right to shelter as a fundamental right under Article 21, made the following observations:

1. The right to live as a human being can be ensured only if all facilities for his mental and physical development are available to him.
2. The right to live in any civilised society includes the right of access to proper food and water, a clean environment, education, shelter and medical care.
3. Access to proper shelter ensures the mental, physical, intellectual and spiritual growth of a human being.
4. The right to shelter is not restricted to the right to live in an enclosed space with an overhead roof. It includes all the infrastructure that is necessary to facilitate human growth.
5. Apart from an adequate living space, the right to shelter includes a clean and well-lit living space, access to electricity, roads etc, clean water and any other infrastructure that is necessary to lead a reasonable life.
6. In the absence of the right to shelter, a human being cannot develop into a useful citizen of the society and can neither perform his fundamental duties nor participate in the democratic process.

Some other cases

In State of Karnataka vs. Narsimhamurthy (1996), the Supreme Court held that the right to shelter is a fundamental right guaranteed under Article 19(1)(e) of the Constitution. It is the duty of the State to acquire lands and provide those lands to poor and homeless people so that they can build houses for themselves.

In Kurra Subba Rao vs. District Collector of Andhra Pradesh (1986), the Andhra Pradesh High Court held that it is the fundamental duty of the State to provide shelter to the weaker sections of the society. The Court herein observed that for any individual, the right to life and liberty cannot exist without property.

In Rajesh Yadav vs. State of UP (2019), the Supreme Court observed that the right to shelter is a fundamental right embodied under Article 19(1)(e) of the Constitution read with Article 21 of the Constitution. It is the constitutional duty of the State to protect this right and to provide adequate facilities for the free exercise of this right.

Right to government accommodation

The right to government accommodation is a fictional right under which a Government servant claims that he has the right to continue to reside in the government accommodation even after leaving the public office, i.e, after resignation, superannuation or termination.  

The question as to whether the right to shelter includes the right to government accommodation was raised and answered negatively in the case of Union of India vs. Onkar Nath Dhar (2021). The case has been discussed in detail below.

Union of India v. Onkar Nath Dhar

Brief facts

1. The Respondent was a Kashmiri migrant who shifted to Jammu & Kashmir in the year 1989. Thereafter, he had joined the Intelligence Bureau in Delhi and was transferred to the Bureau office in Faridabad. He was allotted government accommodation by the Bureau in Faridabad. He attained the age of superannuation and retired from service thereafter in the year 2006.
2. Post superannuation, he filed an application for extension of the facilities of government accommodation for one year and his application was accepted. After one year, he submitted yet another application for extending his stay till the situation in Jammu and Kashmir was normal and he could return to his native place. However, the same was rejected and an order of eviction was issued against him.
3. On an application filed to the District Court of Delhi, the Court stayed the order of eviction. An appeal for the same was filed in the High Court of Punjab and Haryana. The High Court held that in the present circumstances, the Respondent could not return to his home state and thus, the order of eviction should be stayed until the situation resolves. It further directed the Government to allow him to continue residing in the provided accommodation on a nominal license fee or provide him with alternative accommodation and collect a nominal license fee from him for the same. This order of the High Court was appealed by the Government to the Supreme Court of India.

The argument of the Respondent

The Respondent had again relied on the case of J.L. Koul vs. State of Jammu & Kashmir (2009). In this case, 31 retired government employees were allowed to stay in the government accommodation even after retirement. The High Court had passed the ruling in favour of the Respondent by relying on this case.

Observations of the Supreme Court

The Court held that the order of the High Court is unsound and overruled the same. In reaching this conclusion, the Supreme Court placed reliance on the following cases:

Shiv Sagar Tiwari v. Union of India (1996)

In this case, the matter related to providing residential accommodation to government employees was being examined because government houses were being allotted out of turn to employees. It was held that when it comes to residential accommodation being provided by the government, shelter cannot be denied by providing houses through a fraudulent system of allotment of houses.

S.D. Bandi v. Divisional Traffic Officer, Karnataka State Road Transport Corporation (2013)

In this case, the question for consideration was whether the period of government accommodation granted to an employee can be extended. The Court herein observed that when an individual overstays at a government accommodation, he is infringing the right of some other individual who was supposed to get the government accommodation after him. In light of the same, it was held that once an individual has completed his period of allotted accommodation, he should not be allowed to extend the same and continue to live in the government accommodation.

Lok Prahari (II) v. State of Uttar Pradesh (2018)

In this case, the provisions of the U.P. Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 were challenged on the ground that it allowed the Chief Minister and other Ministers to continue to reside in government accommodations even after they leave their office. The Court herein observed that government accommodation is a part of public property and it should be only used by current office bearers. Public property is a scarce resource and should be utilised only to serve the needs of the serving public servants.

In light of the aforesaid judgments, the Court concluded that government residences can only be claimed by officers who are currently serving the Government and no exception could be made in this regard. It further held that even though there were problems going on in Jammu & Kashmir, one cannot be allotted a government residence indefinitely. The Government had already allowed the Respondent to continue to reside in the government residence for one-year post superannuation and if the same is allowed to continue, it will defeat the very purpose for which government accommodations are in place, i.e., to serve the needs of accommodation of serving-officers.

Inapplicability of J.L. Koul v. State of Jammu & Kashmir

In J.L. Koul vs. State of Jammu & Kashmir, the retired government employees were allowed to continue residing in their government allotted residential apartments under a state-sponsored rehabilitation scheme. Under this scheme, the State was rehabilitating all those people who were victims of terrorist violence and it had allowed the retired government officials to stay in the government residences till they were rehabilitated under the scheme.

In Indian Bank v. ABS Marine Products (P) Ltd (2006), the Supreme Court had held that the Courts while giving judgements should ensure that they follow the ratio of the judgements of the superior courts and not follow the relief given under special facts. When the Court in its judgment relaxes the application of law in certain cases based on the special facts involved, such orders come under the purview of Article 142 of the Constitution. However, when such orders are passed by the Courts, they do not carry the value of an enforceable precedent.

In light of the observation made above, the Supreme Court herein held that the judgment passed in J.L. Koul vs. State of Jammu & Kashmir was based on special facts and therefore the order therein would come under the purview of Article 142 of the Constitution. Thus, the High Court cannot rely on that judgment to pass an order in this case where no special circumstances are involved.

Conclusion

What is to be noted herein is that even though the right to shelter has been recognised as a fundamental right, it has its own limitation in the form of the right to government accommodation. The main objective behind incorporating the right to shelter under Articles 19 and 21 of the Constitution was to ensure that the homeless and other weaker sections of the society do not perish. But when it comes to government residences, the resource involved is a public resource and it should be used by people who are serving the people in an official capacity. Therefore, the right to government accommodation even after leaving the public office cannot be termed as a fundamental right. 

References

• https://www.ndtv.com/india-news/right-to-shelter-doesnt-mean-right-to-government-accomodation-sc-2509155#:~:text=%22The%20right%20to%20 shelter%20does%20not%20 mean%20right%20to%20government%20accommodation.&text=A%20section%20of%20the%20 migrants,the%20top%20court%20further%20stated. 
• https://www.scconline.com/blog/post/2021/08/13/right-to-government-accommodation/ 
• https://www.barandbench.com/news/litigation/right-to-shelter-does-not-mean-right-to-government-accommodation-supreme-court 
• 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/ 

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