Above: A slum-dweller rests amid the rubble of her home, demolished by the authorities in Delhi/Photo: UNI

The Allahabad HC has done well to reiterate the expanding new frontiers of the right to shelter. The realisation of the fullest human flourishing is thus the broad mandate of Articles 19 and 21

 

By Prof Upendra Baxi

Justice Surya Prakash Kesarwani of the Allahabad High Court has added a new chapter in the interpretive history of Article 21 of the Constitution, when he affirmed in Rajesh Yadav v State of UP (July 1, 2019) that the State had a duty to the petitioners corresponding to the right to shelter. In this, the Allahabad Court followed a binding decision of the Supreme Court in the 1977 Olga Tellis v. Bombay Municipal Corporation, most valiantly argued by Indira Jaising. The Court ruled (as per Justice Yeshwant Chandrachud) that “slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or accommodation will be provided to them”. Olga Tellis strictly dealt not with the rights of the pavement dwellers but with their powers to encroach on public lands, which the Court denied, or at best only upheld for slum dwellers who have occupied public land for 20 years or more.

I have always written and said that we still await, in strict law, a judgment on the right to shelter under Article 21 because I consider a legal judgment to be a unity between judicial reasoning and result. Disunity reigned judicial discourse in this case and whatever actual relief that was meagerly available was more due to the fasting unto death by activist film star Shabana Azmi (as late as September 4, 2018, she said that “if we leave the affordable housing to the private sector, we are in deep trouble”) than from the normative discourse of the Supreme Court. But courts and commentators have resolutely bypassed my view, thus installing Olga Tellis as the font of the right to shelter and housing. I have been thus been proved wrong even in my studied opinions!

The right to housing and shelter are primarily derived from Article 21’s rights to life and liberty (as described recently in my contribution to India Legal, April 8, 2019, issue). There are not too many decisions outlining the contours of the right to shelter, according to Article 19(1)(e) guaranteeing the right to residence and settlement. These rights are as important as the rights contained in Article 21.

Justices K Ramaswamy, S Mohan and N Venkatachala ruled in P.C.Gupta  v. State of Gujarat (1955Supp (2)SCC 182) that these rights will “remain more a teasing illusion unless the State provides them the means to have food, clothing, and shelter so as to make life worth living  with dignity”. What remains equally important is the invocation of Article 11(1) of the International Covenant on Economic, Social and Cultural Rights. Justice Kesarwani also invoked this ruling which clearly held that it “is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor” as per the “principles…expressly embodied and inbuilt in our Constitution to secure socio-economic democracy.” The current Pradhan Mantri Awas Yojana seems based on these very principles, and the perspectives of international and constitutional human rights to shelter and housing would be helpful. But the Yojana has not yet had the benefit of full judicial inputs through the processes of social action adjudication, unlike some other schemes aspiring to promote nutrition for the impoverished (such as the Antyodaya Anna Yojana, Sampoorna Grameen Rozgar Yojana and the public distribution system).

Perhaps, the South African Constitution goes the farthest in declaring: “Everyone has the right to have access to adequate housing”, and makes this enunciation justiciable. Of course, it also says that the “state must take reasonable legislative and other means, within its available resources, to achieve the progressive realization of this right”. But there is also an additional guarantee that no one “may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances” and no “legislation may permit arbitrary evictions”. This has enabled the South African Constitutional Court to exercise more superintendence than the Indian Supreme Court, though it has been amongst the finest constitutional pedagogues.

We must also recall that the UN Committee on Economic, Social and Cultural Rights in its General Comment 4, adopted in 1991, stated that “instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law”. The Indian Bar should not be found wanting, in this recourse to international conventions and global comparative human rights law, at least as aid to the construction of Article 51 of the Constitution which enjoins respect for international law.

The Allahabad decision would not have been remarkable had it merely implemented the earlier directions and decisions of the Supreme Court of India. But Justice Kesarwani goes further to say that “shelter for a human being is not a mere protection of his life and limb”. Rather, it is a “home” providing “opportunities to grow physically, mentally, intellectually and spiritually”.  Thus, the 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 like roads etc. so as to have easy access to … daily avocation”. Further, it extends to “all the infrastructure necessary to enable them to live and develop as a human being”. Right to shelter stands again declared as “an essential requisite to the right to live… deemed to have been guaranteed as a fundamental right”.

This valiant judicial enunciation, one hopes, will reach the constitutionally impaired hearing of the administration, thus far making the tasks of human rights defenders in areas such as forced eviction, night shelters and slum dwellers even more uphill.

Just to ensure this, Justice Kesarwani also holds the PIL petitioner liable for exemplary damages “for filing this frivolous petition as PIL and abusing the process of court”. The damages of Rs 10,000, however, are puny compared to the grave violation of rights involved. These included not just the right to shelter involving Articles 19 and 21 but also the Directive Principles contained in Article 38 and 39 (duties of creating and maintaining a just social order, which redistributes the resources of the society for the common good) and the Preamble. Yet, the award of exemplary damages makes a good deal of constitutional sense in principle.

In fact, in this case, the residential lease of very small plots was granted to poor and landless agricultural labourers of backward classes by the competent authority in 1995; these respondents (No 6 to 10) constructed their houses over it and lived there (since 1995). The Court also held that they have the protection of Section 67A of the Code, 2006, which “provides a preference in allotment to agricultural labourer or a village artisan residing in the Gram Sabha and belonging to a scheduled caste or scheduled tribes or other backward classes or a person of general category living below poverty line”. That Section disables the Court from issuing any direction to the respondent authorities to remove the shelter (houses) of respondents. Yet, the question arises as to why such a petition was allowed in the first place, despite it “suppressing the material facts particularly those mentioned in paragraphs 4 and 5 of the counter affidavit” of the learned standing counsel.

The right to shelter stands again declared as “an essential requisite to the right to live… deemed to have been guaranteed as a fundamental right”.  The realisation of the fullest human flourishing is thus the broad mandate of Articles 19 and 21.

The routine admission of a PIL petition is as dangerous for constitutional justice as the routine denial of SAL (a social action litigation) petition. Our courts will do well to maintain this distinction and ensure that it is always observed through the jurisdictional hierarchy.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer