This article is written by Aastha Verma, pursuing B.A.LL.B from Kalinga University Raipur, Chhattisgarh. The article emphasizes the rights of the citizens concerning shelter and housing.
Table of Contents
Introduction
The right to shelter is an important component of the right to life and is a fundamental right of every citizen so, this should not be violated. The case of Vora Zakir Husain Valibhai v. State of Gujarat (2021) talks about the rights of the weaker section which were violated and the authority was not ready to compensate as in their opinion petitioners were not entitled to the appropriate accommodation as they were not possessing any valid form of Identity cards. Also, the right to shelter does not confer the right to encroach. The Parliament has imposed some reasonable restrictions to it. Earlier, the right to property was a fundamental right under Part III of the Indian Constitution but later on, it was inserted under Article 300-A as a legal right because of the disputes arising between the states and individuals. The state now has the power to confiscate private land for the expansion of companies, roads, railways, and other public works projects by paying them by the 44th Constitutional Amendment Act of 1978. In the case of Olga Tellis v. Bombay Municipal Corporation (1985), for the first time, the Court held that the right to life includes the right to livelihood.
The concept of re-framing of land allotment policies
Case of Vora Zakir Husain Valibhai v. the State Of Gujarat (2021)
Brief facts about the case
The Appellant hails from a poor society where they start occupying the government’s land which is within the radius of the Gandhinagar Railway Station. They constructed their house and started living there. Also, it appears that they were living there since 1999 and possessed all documentary evidence like – voter ID, birth certificate, bank account statement, etc. in the form of valid documents. The executive engineer issued a demolition notice on 17th July 2020 because of which the Appellant took the issue to the state government and requested the alternative accommodation.
The request was denied on the basis that they do not possess valid ID cards which were given during the time of the survey in 1999 and also they are not fulfilling the necessary conditions as stipulated by the government resolution dated on 3rd July 2003. This is the second round of litigation. Also, two writ applications were filed in the Gujarat High Court which were disposed of by issuing the direction to the state government. In the present litigation, the Appellant said that the demolition is the violation of the direction issued by the court in the past two writs. Also, authorities started to demolish their houses without the hearing getting started in the court and declined to grant any relief. The interim order was passed on 19th September 2020 which declined to stay the demolition. On 5th October 2020, all the dwelling houses were demolished. The main writ application was filed where the Applicant prayed-
- To provide the writ of mandamus or any other appropriate writ to set aside the demolition notice as it is illegal and violative of Article 14,16 and 21 of the Indian Constitution.
- For rejecting the claim for alternative accommodation is arbitrary and discriminatory and without considering the government resolution.
- To sanction plans for the redevelopment of the slums as per the policy of the state government.
- To order a writ of mandamus or any other writ directing the respondent not to demolish the house, petitioner mentioned in the cause.
- For the implementation of the Pradhan Mantri Awaas Yojana to provide residence to all the petitioners.
The Petitioners in the late 80s and early 90s started living in those houses and found domestic and labour work to live their livelihood. On 27 November 2010, the Respondent demolished the slums even after the stay was given by the Gujarat High Court. Thereafter, the Respondents provided them with the place where they built their huts and started living. Along with this, the Court passed several interim orders directing the respondent to provide basic amenities as well as plots which have electricity connection, water facilities and toilets. Petitioners submitted the petition that they were residing in slums prior to 2010. They were displaced from the original slums and allowed to construct and live in the said areas. The Respondent shows the google earth image of 2003 onwards and added that the petitioner who was not living in this area is misplaced and factually incorrect.
Observation made by the Gujarat High Court
The Hon’ble High Court of Gujarat relaxed some conditions and provided some beneficial scheme of the State Government to the Petitioners. The demolition of the dwelling house will amount to the violation of Article 21 of the Constitution and can be done according to the procedure established by law. The Respondents have not shown any rule, regulation relating to the notice of demolition of the house therefore it is illegal. Further, the Court included that law prescribes the procedure to the authority to remove those who are residing there without the permission under the Land Revenue Act, (1996) and the Gujarat Provincial Municipal Corporation (GPMC, Act 1949). The demolition notice deserves to be quashed and set aside. Also, the right to shelter and adequate housing is a basic human right under the Universal Declaration of Human Rights 1948. The state government cannot adopt measures that deprive the basic human rights of the citizen. Also, the right to life under Article 21 includes the right to shelter and the right to food which are basic amenities of the person.
Right to shelter under the Indian Constitution
The right to shelter is a fundamental right guaranteed to citizens under Article 21 of the Indian Constitution. In the case of Rajesh Yadav v. State of Uttar Pradesh, 2019, the Allahabad High Court held that the right to shelter is a fundamental right which extends to all infrastructure necessary to live and develop as human beings.
Right to private property was originally granted under Article 31 of the Indian Constitution but by the 44th Constitutional Amendment Act, 1978 it was removed from here and made a constitutional right under Article 300A which empowered the state to acquire the private property by due process of law.
In the case of Shantistar Builders v. Narayan K Totame (1990), the Court held that it is important to have reasonable accommodations and a decent environment. The Court further stated that for animals it is bare protection of the body whereas for human beings there should be a proper accommodation which helps them to grow physically, mentally and intellectually and our Constitution aims at providing these facilities for the development of the child.
In the case of PUCL v. Union of India (1996), the Supreme Court held that all the shelter homes shall remain open 24/7 and in urban areas one shelter house should be provided for one lakh population to meet their basic necessities.
All these judgments have expanded the definition under Article 21 of the Indian Constitution which gives the right to citizens for their growth, nourishment, and shelter. The right to life is a fundamental right which does not merely mean animal existence but the right to a dignified life, and this Article provides the right to live a meaningful life.
Part IV of the Constitution deals with the directive principle of state policies under which Articles 39, 42, and 47 provide the duties of the state to provide safeguards to the homeless people.
According to the census report of 2011, approximately 13.75 people reside in urban slum areas. Even after the right to shelter is a fundamental right and the Constitution also imposes a duty on the state to protect the people from being homeless there is a violation of the fundamental right and the reasons are poverty, and natural calamities like floods, earthquakes, etc.
Right to shelter does not confer a right to encroach
Weaker sections of the society have the right to live in a shelter and it’s the duty of the state to provide shelter to them, but that doesn’t mean they have the right to encroach and erect the structures on footpaths, pavement or the places of public use or misuse this right. Therefore, the Apex Court restricted the right and imposes some reasonable restrictions so that it is not misused by the people. After the Independence of India, the right to property was included under Article 19(1) and Article 31 of the Constitution under Part III as a fundamental right, but lately it has became a matter of conflict between the State and the individuals as to acquire the private property for the public purpose like the expansion of industries, roads, and railway etc.
Therefore, the Parliament passed the Constitutional 44th Amendment Act, 1978 which made the right to property a legal right under Article 300-A by which the State can acquire an individual’s property for the public purpose by compensating them.
A brief overview of the case of Olga Tellis v. Bombay Municipal Corporation (1985)
In this case, the Bombay Municipal Corporation tries to evict the person from the footpath, pavement, etc. and deport them to their original place from where they came from during the monsoon season. The eviction proceeded under Section 314 of the Bombay Municipal Corporation Act, 1888. A writ petition was filed in the Bombay High Court for the order of injunction as it is violative of Article 19 and Article 21 of the Constitution. Also, they further added that Section 312, 313, 314 of the Bombay Municipal Corporation Act,1888 is violative of Article 14, 19 and 21 of the Constitution.
The observation of the Court in the case
The Supreme Court held that the right to life includes the right to livelihood. It can be restricted but should be in accordance with the procedure established by law. In this particular case, the Apex Court allowed the eviction and was silent about the resettlement because of which it is widely criticized. The Court also stated that no person has the right to encroach the public place and the provision of Section 314 is not unreasonable in this case and the slums which have existed for more than 20 years cannot be removed except for the public purpose and under these circumstances, alternative accommodation should be provided.
Conclusion
It is the duty of the state government to provide housing to the poor. The right to shelter is a fundamental right that is conferred under Article 19(1)(e) and Article 21 of the Constitution. Right to shelter includes a healthy living environment, electricity, sanitation, and all other basic amenities so that the person can protect his life and limb and be able to physically, mentally, intellectually protect himself. It is the duty of the state to construct the house at minimum cost so that the poor can access it. Article 38, 46 of the Constitution directs the state to promote the welfare of the people by eliminating inequality in status. No person has the right to construct the structures on the footpath or the place which is for public purposes. Adequate facilities and opportunities should be provided by distributing the wealth and resources for the settlement of life.
References
- 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/
- https://caselaw.in/gujarat/vora-zakirhusain-valibhai-vs-state-of-gujarat-on-20-february-2021/30328/
- https://lawtimesjournal.in/olga-tellis-and-ors-vs-bombay-municipal-corporation-and-ors/
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