Reconstructing The 'Right To Shelter'

The Indian Constitution guarantees every individual a dignified life without any external exploitation. Article 21 which has been the grundnorm of personal liberty under Part-III, also the Right to Shelter is implied a fundamental right under the garb of Article 21 itself. Recently, an incident took place around January, which continued up to March- April in the State of Karnataka where some poor migrant labours (who were mainly migrated from districts of North Karnataka, Hubli and other States) were evicted from their native houses/shelters and the concerned huts were demolished. On 19^th January, this happened in daylight that too in presence of the BBMP and Marathahali Police (as contended by the Petitioners in the Writ Petition). These migrants were targeted and rumors were circulated that they are living illegally with a Bangladeshi identity, in pursuance of this misinformation the authorities took such coercive steps.

Right to Shelter has been one of the most important facet of Article 21 and there having been some landmark decisions by the Supreme Court which have upheld it as a fundamental right. When the Karnataka High Court got to know about the incident, it took Suo Moto cognizance and directed the authorities to provide the concerned information. Lately, when the matter was posted before the bench, it was observed by the court that: "Prima facie it appears to us that this is a very high handed action on the part of the interested persons of destroying the huts, thereby, violating the fundamental rights under Article 21 of the Constitution of India of the hut-dwellers."

Ignorance is not a 'bliss'

There were more than 300 slums which were burnt down, along with them, the hope, ray of light and livelihood of many shredded away. A student, Thimmappa B, told the Times of India that he lost of all his belongings, including the uniform, study material and all the concerned accessories. The bench noted that the State is obliged to compensate these hut-dwellers accordingly and opined that "The State must make inquiry to ascertain the whereabouts of the occupants of the huts which were destroyed in the fire. The State will have to ensure that compensation is paid to them on account of destruction of their goods, they will also have to be rehabilitated. The statement of objections should state steps taken in this behalf. "Apart from compensation to the affected families for loss of household articles, there was no genuine effort by the state to rehabilitate the families. The huts were destroyed by third parties, thus the state ignored high handed conduct on part of miscreants who were interested in destructing the huts."

On December 4, the High Court directed the State to reconstruct the huts at its own cost, and such compensation should be paid without any restraints. The time limit which has been given is two months, within which the construction should take place. Coming down heavily on the State, the court had rightly observed that "The State government remained passive for a long time and made no effort in order to take action against miscreants who destroyed the structures/huts. Houses were erected on lands vested with the state government, therefore in our view prima facie, the state failed to uphold Fundamental Rights, governed under Article 21 of Constitution." On the other side, the State pleaded that it had no knowledge about the said destruction, to which the court retaliated and observed that - "It is not as if houses were destroyed in one day. On March 28, some huts were burnt and on March 30, few more huts were burnt. This is not a case of solitary incidents. All this was done while the state was aware of this incident. Till this court intervened there was no attempt made for compensating the persons affected."

The whole incident was based of 'presumption', the concerned authorities presumed that these poor migrants are illegal Bangladeshi residents. For instance, even if they were, is this the procedure to evict anyone who's residing somewhere in an unorganized sector? The same incident took place in Delhi, where 100-150 Jhuggies were demolished without any notice being served, also in such cases, is it not the duty of the authorities to keep a check that whether these poor migrants are able to understand the conditions of the said notice or not? Apart from eviction, there are statutes which call for rehabilitation of such dwellers, if their land is taken, but no such policies are implemented in reality. For instance, Under the Delhi Slum and JJ Rehabilitation and Relocation Policy, 2015 there are certain conditions which have been prescribed for those who are residing in these Jhuggies. The relocation policy states that if - JJ clusters which have come up before 01 January 2006 shall not be removed without rehabilitation.

The 'Shelter-jurisprudence' at par

In the times when the world is tackling against the global virus, such decisions are always welcoming and acts as the ray of hope for these sinking dwellers. The observations made by the Supreme Court in Chameli Singh v. State of U.P,^[1] is pertinent to note, which was also referred by the Karnataka High Court during the course of hearing. The Supreme Court had rightly observed that "Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, 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 his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but right to all the infrastructure necessary to enable them to live and develop as a human being. 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."

Everyone has the right to fair hearing, and the other party should always be heard without any restraints. The Supreme Court in, Shakthivelnagara Gudisalu Nivasigala Kshemabhivrudhi Sangha, Bangalore v. State of Karnataka, had rightly observed that even those who are living in an unorganized sector are entitled to 'notice' or 'fair-hearing'. It was noted by the bench that:

"I therefore see no reason to confine the right of hearing or notice only to those who own either the land or the buildings in the slum area. If what is important for any such right to accrue is a possible prejudice on account of the issue of a notification, there is no denial that such a prejudice is bound to be suffered even by a person who does not own the land nor even a building in the strict sense of the term but is simply surviving more often than not in sub human conditions, in some hut or such other structure which he may have put up for a shelter. After all how can we forget that a slum takes birth almost invariably by the poorest finding some open space for a small tent, a mud hut, or a wooden or other structure to take shelter in. Merely because such a structure may not be capable of being described as a 'building' can hardly warrant denial of a right which must belong to all no matter there station in life."

In one of the landmark cases, the Supreme Court dealt with the poor dwellers in Mumbai who were residing on the pavements. In Oliga Tellis v. Bombay Municipal Corporation, the court observed that --

"An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which people their desertion of their hearths and homes in the village s that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat." ^[4]

Hence, the directions laid down by the Karnataka High Court to the State government accelerates the 'Shelter-jurisprudence' and it has also been directed to pay a compensation of Rs. 14,000 per family, those who have been suffering or are at a loss because of the said eviction. It is important to note that previously, the State finalized the compensation at Rs. 6,000 which was not accepted by the High Court and the bench retaliated accordingly: "Prima facie it appears to us that for an act of violation of fundamental rights under Article 21 of the Constitution of India, the destruction of the houses of poor people, the compensation is unreasonably low. The State must reconsider the decision to pay only Rs. 6,100 and we make it clear that the reconsideration shall be done within two weeks accordingly. 

To conclude, it is noteworthy to note that shelter is something which is really an essential element of one's life, one may live without a job, but without a shelter, the dignity hits back. As the court had rightly observed in Shantistar Builders v. Narayan Khimalal Totame, that "the right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and a 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 the animal it is the bare protection of the 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."^[5]