The word “Shelter” in general means something that serves as a shield or barrier against attack, danger, heat etc. (As per the dictionary Skeat’s Etymological Dictionary, First Edition). In general the word “Shelter” is a small building or a covered place which is made to protect people from bad weather or danger.
Initially, when the Constitution of India was framed, the Fundamental Right to property was specifically included under Article. 19 (1) (f) read with Art.31 but, subsequently by way of amendment the said Art. 19 (1) (f) came to be omitted and now, this principle can be read under Article 38 of the Indian Constitution. Therefore, now the Right to shelter under chapter III of the Constitution of India can be read under Article 19(1) (e) with Article 21 of the Constitution of India.
In various ruling it was held by the Hon’ble courts in India The Right to ‘Shelter’, includes adequate living space, pure air and water, electricity, sanitation, safe and decent structure, clean and decent surroundings, sufficient light, and other civic amenities like roads etc. so as to have an easy access to a person’s daily life. The right to shelter under Art.21, is forming a part of the right to an adequate standard of living under Article 11 of the ICESCR. Further, the Right to adequate housing is also recognized as basic human right at the International level in various treaties and organizations like UDHR, ICESCR, CEDAW, CRC, CERD etc.
During the 1970’s and 80’s, By way of judicial activism, the Hon’ble Supreme Court of India, evolved many socio-economic rights enshrined under part IV of the Constitution of India And tried to include such socio-economical rights under part III of the Constitution of India . Therefore, by way of such judicial activism certain unenforceable rights were recognized as Fundamental Rights for ensuring a better life with dignity.
Since, the Constitution of India has not specified the right to shelter, in the landmark case of Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545, for the first-time, the court held that “right to life includes right to livelihood and shelter” under Article 21.
In the matter of, Shanti star Builders v. Narayan Khimal Totame (AIR1990 SC 630) The SC has ruled that “the right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable accommodation to live in”. The difference between the need of an animal and a human being for shelter has to be kept in view. For an animal it is the bare protection of body: for a human being it has to be a suitable accommodation which would allow him to grow in every aspect-physical, mental and intellectual
In P.G Gupta Vs State of Gujarat and Ors, in 1994, the Court held that “the Right to shelter in Article 19(1)(g) read with Articles 19(1)(e)and 21, included the right to residence and settlement. The Protection of life guaranteed by Article 21 comes within its ambit the right to shelter to enjoy the meaningful right to life. The right to residence and settlement was seen as a fundamental right under Article 19(1)(e) and as a facet of inseparable meaningful right to life as available under Article 21.”
In case of Chameli Singh v. State of U.P (1995) court held that the right to shelter is a fundamental right available to every citizen as the right to life is more meaningful. The Court observed that: (SCC pp. 555-56) “Shelter for a human being, is not mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities. Right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter is a fundamental right guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India”.
In case of U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, 1996 AIR 114, Court held that “the right to shelter has been held to be a fundamental right which springs from the right to residence secured in article 19(1)(e) and the right to life guaranteed by article 21. To make this right meaningful to the poor, the state has to provide facilities and opportunities to build houses.”
Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan (1997) 11 SCC 121. The Court allowed the removal of the pavement dwellers by the State but on the condition that alternate accommodation may be made available to them under a Scheme of the State Corporation which served to provide housing for weaker sections.
In Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664. The SC turned its back on all the developments in the area of housing rights and displayed a complete disregard for both fundamental human rights and India’s obligations under the ICESCR. The main issue in this case was the continued construction of the Sardar Sarovar Project dam and its noticeable impact on the environment and thousands of tribal people in the Narmada valley, who have been displaced with inadequate resettlement and rehabilitation plans. The major concern was that the authorities were not aware about the total number of people to be displaced and were also unable to find subsequent land which was needed for resettlement and the incomplete resettlement for those who were already displaced, the Supreme Court ruled that: “…displacement of the tribals’ and other persons would not per se result in the violation of their fundamental or other rights…” and held that the construction of the dam would continue. The judgment contradicted all previous Supreme Court rulings that have upheld the right to shelters related to the right to life, as well as the Narmada Water Disputes Tribunal decisions.
Rajesh Yadav Vs State of UP, 2019 SCC online All 2555 Justice Surya Prakash Kesarwani , authored this path breaking judgment that “the right to shelter is a fundamental right, a right to all infrastructure necessary to live and develop as a human being and the State has a Constitutional duty to provide house sites to the poor”.
The Supreme Court of India, in several judgments, has held that the human right to adequate housing is a fundamental right emanating from the right to life protected by Article 21 of the Constitution of India. In Chameli Singh v. State of U.P. (1995), the Supreme Court held that the: “Right to shelter when used as an essential requisite to the right to live, should be deemed to have been guaranteed as a fundamental right.
Now, coming to the matter of M.C Mehta v. UOI ( DELHI SLUM DWELLERS’ CASE)
On August 31st 2020, the Supreme Court had directed the Indian Railways to remove the 48,000 slums situated in the railway’s safety zone within three months. The Solicitor General told a bench headed by the Chief Justice of India that there won’t be a removal of ‘jhuggis’ near rail tracks until the Railways in consultation with the Ministry of Housing and Urban Affairs discuss and find a solution within 4 weeks. The Railways further stated that following the directions passed by the National Green Tribunal, Principal Bench, in October 2018, a Special Task Force for removal of encroachments from the Railway Property has already been constituted.
On this 70 km route length of track and there are many jhugies jhopris affecting about 48,000 members residing close to the tracks. It noted that a Special Task Force for removal of encroachments from the Railway Property has already been constituted by the Railways in terms of directions and order dated October 1, 2018 passed by the National Green Tribunal, New Delhi. The railways in its affidavit has pointed out that there seems to be some political intervention against removal of such encroachments which are coming in the way and there are certain encroachments which are within the safety zone of the Railways. The Railways has placed on record the task of cleaning tracks which can be done in a phased manner and with the cooperation of the statutory authority like DUSIB, Corporations and the State Governments. Other steps taken by the Railways have also been delineated. There is involvement of law and order issues also, the bench noted in its order. It had directed that a joint meeting be held by all stakeholders and a comprehensive action plan and time-frame be placed before the court. Railways shall bear 70 percent of the expenses and the rest will be given by the Delhi government, the court directed.
India is the second most populated country in the world, with over 1.3 billion people, with the ‘largest democracy in the world’. From a human rights perspective, their housing and living conditions are often not up-to the mark, and an affront to human dignity. Housing is at the center of an ensemble of life issues, including the child’s right to be brought up in a safe environment. The rights to housing and security are interconnected. While poor housing conditions affect health, homelessness and frequent displacements leading to impair the child’s learning.
On the contrary, the Fundamental Right to shelter is not an absolute right, but the said rights cannot be just surpassed. The property in the present case in hand is an exclusive property of the railways which we cannot ignore. The property of railway is considered as a public property, therefore, the rule of adverse possession does not arise in the present case. The railway is though at fault in not allowing enchroacers to occupy the premises for their shelter but it ought to have informed encroachers that making shelter is not only illegal user of land but also unsecured for their survival. Since, nobody is entitled to reside within specified area where railway is travelling on its path. Since, the encroachers/ occupiers are claiming to be the slum dwellers then the rights of such dwellers can be protected by the local government under its local act. It may be noted that the local government can provide alternate shelter accomodation. However, in any case and at any rate under the provisions of Railways act 186 which has an overidding effect, Therefore in order to protect the legislative provisions it cannot allow to perpetuate illegality in allowing the slum dwellers to reside at the same place as under the garb of shelter guaranteed under Art 21 of The constitution of India.
The railway authority and the state government came forward to relocate the slum dwellers. The honorable Supreme Court is right in holding that the slum dwellers near the railway tracks are living their life with a great risk. Therefore, to avoid any problematic situations’ and to protect their right to life it is very necessary to vacate the entire encroached arena near to railway tracks. If the people living in the slums get proper housing facilities and preserve their fundamental rights then it will be beneficial and will prove to be very essential for the all-round development of the individuals and the country as well.
The Hon’ble Supreme Court, particularly, in the Delhi slums dwellers’ case has ordered for removal of the people who were residing near the railway tracks for protection of their fundamental rights enshrined under Art.21
However, it is an uncertain that The Right to shelter along with Art21 is an indefinite right that could be enforceable. On the contrary, in various other contexts the courts have refused to recognize any such absolute right.