Trivia of Right to Shelter and its Clash with Forced Evictions of underprivileged sections from public lands.

By:- Dushyant Mainali

Advocate

High Court of Uttarakhand

 

·  The Prologue

As per the Census of India 2011, India has more than 1.7 million homeless persons, of which 938,384 are located in urban areas. After nine long years thereafter, however, it seems to be nauseatingly misjudging the real number of homeless persons at present. Civil society organizations estimate that at least one per cent of the population of urban India (about 378 million) is homeless. Based on this estimate, it can be extrapolated that the population of the urban homeless is at least three million.[1] After a thorough study of the Zonal Integrated Police Network (ZipNet) data the Housing and Land Rights Network (HLRN) has calculated that between January 2010 and 31 May 2016, at least 23,846 homeless persons have died from a multitude of reasons: infectious diseases, chronic ailments, exposure to the cold, heat, and rain, violence, sexual abuse, murder, road accidents, and drug overdose.[2]

Living beneath open sky or in makeshift arrangements without any form of refuge seriously increases the susceptibility of the homeless to maltreatments, bloodshed, injury, disease, and untimely deaths. Many of these deaths are preventable, especially if the homeless had access to adequate

 

 

housing, food, water, sanitation, and healthcare facilities. Housing being the elementary stride towards dignified living, the shelter has been considered to be the fundamental comfort a person can have. In our Indian Society the axiom “Roti Kapda aur Makan” (food, clothing and shelter)  has been used to connote three bare minimum facilities, a human can have for a satisfactory life. Shelter despite being one of the three basic needs has always been in conflict with actions of the local administrative authorities in removing encroachments from public lands and demolishing unauthorized slums and housing structures by implication of force.

 

·    Right to Shelter ; as a social right and human right in the radiance of International Covenants/ Declarations

 

International Covenant on Economic, Social and Cultural Rights[3] recognizes the right of all individuals to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. Article 11.1 of the ICESCR obligates on the signatory nations as:-

 

“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consen

 

Right to housing has also been recognized as a human right under the Universal Declaration of Human Rights[4]. Article 25(1) of Universal Declaration of Human Rights states as under: –

 

“Article 25

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

 

·       Right to Shelter; as a Fundamental Right in judicial eyesight.

In various pronouncements, the Hon’ble Supreme Court of India has broadened the meaning of life under Article 21 of the Constitution so as to include within its realm, the right to shelter. Before discussing the principles laid down by Supreme Court of India in this regard it will be apposite to refer a recent Allahabad High Court Judgment which carries the essence of the right to shelter through the reference of various precedents which came from the Supreme Court in

last many decades. In Rajesh Yadav v. State of UP[5] decided on 01.07.2019, the Allahabad High Court has held:-

“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”.

The signpost Judgment of the Supreme Court, which in 2019 the Allahabad High Court considered, is more than three decades old Olga Telis & Ors. vs. Bombay Municipal Corporation & Others[6], where analyzing the rights of the pavement dwellers the  Hon‟ble Supreme Court observed in para 32 of the text of the verdict, as:

“32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely,

that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. 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 his right to life would be to deprive him of his means of livelihood to the point of abrogation.”

 

Thereafter in 1990 Supreme Court dealt with facets of right to life in a civilized society in Shantistar Builders vs. N.K Totame[7] and observed as under:

 

“.9. Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. 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 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. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well- built comfortable house but a reasonable home particularly for people in India can even be mud-built thatched house or a mud- built fire-proof accommodation.”

After observing about the importance of right to housing and shelter with right to life the Apex Court went further ahead and categorically held that right to life implies right to shelter and in Chameli Singh vs. State of UP[8], has held that right to life implies right to shelter. The para 8 of the judgment it held:-

 

“8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. 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. As is enjoined in the Directive Principles, the State should be deemed to be under

an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights”.

 

Thereafter in plethora of judgments the Supreme Court kept

on amplification of the Right to Shelter. In a summarized manner A reference can be made to:-

 

Ø U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd. (1996):[9]The Supreme Court affirmed that: “The right to shelter is a fundamental right, which springs from the right to residence under Article 19 (1) (e) and the right to life under Article 21.”

 

 

Ø Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors. (1997):[10] The Supreme Court directed the state to construct affordable houses for the poor.

 

 

 

Ø People’s Union for Civil Liberties v. Union of India and Others:[11] In this case, a series of orders were passed for ensuring food to the needy under various schemes. The case also included the issue of homelessness and resulted in several landmark orders regulating shelters for the homeless across India.

 

In PC Gupta Vs State of Gujarat and Ors[12], in 1994, the Court went further by holding that:-

 

“the right to residence and settlement is a fundamental right under Article 19(1)(e) and it is a facet of inseparable meaningful right to life under Article 21. Food, shelter and clothing are minimal human rights. The State has undertaken as its economic policy of planned development of the country and has undertaken massive housing schemes. As its part, allotment of houses was adopted, as is enjoined by Arts.38, 39 and 46, Preamble and 19(1)(e), facilities and opportunities to the weaker sections of the society of the right to residence, make the life meaningful and liveable in equal status with dignity of person. It is, therefore, imperative of the State to provide permanent housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities within their economic means so that they could make the payment of the price in easy installments and have permanent settlement and residence assured under Article 19(1)(e) and 21 of the Constitution”

 

Public Lands as a resource and Trusteeship of Government in scrutiny of Public trust doctrine.

If exercise of Right to shelter can be exercised is an unfettered manner and it is one of the fundamental rights then the demolitions of slums, huts and other makeshift tents on public lands can seem to be an oppression  of the poor by the state at first glance.

Then the question that occurs in forethought is, if not homeless people then who owns the Public Land?  Land being a resource like air, sea, forests and water being a gift of nature, should be made freely available to everyone irrespective of the status in life, this is the principle of ancient Roman origin Doctrine of Public Trust. The doctrine bids upon the Government to protect the resources as trustees for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.

Indian Room of public trust doctrine

Accommodating public trust doctrine from common law, the Indian courts have applied this in their Judgments. Articles 48A and 51A of the Constitution of India also furnish the principles of jurisprudence. Under this doctrine, the state has a duty as a trustee under Art 48A to protect and improve the environment and safeguard the forests and wildlife of the country. This also enjoins upon the encroachment free forests and wildlife habitats.

Putting it minimally the Public Trust Doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the reasonable use of the public. As per this Doctrine of Public Trust, the State is the trustee of all national resources which are by nature meant for public use and enjoyment. The Public at large is the beneficiary of the natural recourses including lands. The State as a trustee is under a legal duty to protect the natural resources including public lands; that says these resources including lands meant for public use cannot be converted into private ownership. This Public trust doctrine has matured from Article 21 of the Constitution of India and has been refined by the successive judicial pronouncement.

 

·       The Catastrophe of Forced Evictions from Public Lands.

The tragedy of forced eviction of poor from the public land is widespread in India. The only documented resource in this respect is the data collected by Housing and Land Rights Network, New Delhi, with the assistance of partner organizations, reveals that government authorities, at both the central and state levels, demolished more than 41,700 homes, thereby forcefully evicting at least 202,200 (over 2 lakh) people

across urban and rural India. This is in addition to the over 260,000 people evicted in 2017, the majority of whom were not resettled by the state and thus continue to live in extremely inadequate conditions characterized by high insecurity, lack of access to basic services, precarity, and fear. Furthermore, data compiled by HLRN also reveals that at least 11.3 million people across India live under the threat of eviction and potential displacement.[13]

However, this can be said to be conservative estimate and presents only part of the real picture and scale of forced evictions in the country, as they only reflect cases known to HLRN. The actual number of people evicted and displaced in India as well as those facing the risk of eviction, therefore, is likely to be much higher

 

Definition of ‘Forced Eviction’ 

 

Definition of ‘Forced Eviction’ which HLRN has used in its report uses the definition of ‘forced eviction’ provided by General Comment 7 (1997)1 of the United Nations (UN) Committee on Economic, Social and Cultural Rights[14], as:

 

“The permanent or temporary removal against the will of individuals, families or communities from their homes or land, which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”

 

The apathy of lack of Sustainable focus

Across the country, a large number of communities are struggling against projects and freeing public lands that threaten to displace them from their shleters. It is ironic that forced evictions and demolitions have continued across the country despite the much talked about central government’s Pradhan Mantri Awas Yojana (PMAY) or ‘Housing for All–2022’ scheme and other state government housing programmes that claim to focus on the provision of housing for marginalized and low-income populations in urban and rural areas.
Forced evictions violate multiple human rights and have severe impacts on the affected population, both in the short-term and long-term, as well as on social justice and the nation’s development and prosperity.

Despite the severity of the nationwide crisis, the issue of forced eviction not only continues to be ignored by both state and non-state actors, but is being intensified by multiple acts of commission and omission at various levels.

 

·       The repercussions of the Anti-encroachment & area beautification drives.

An analysis of the causes of forced evictions and home demolitions, finds that the majority occurred for reasons related to removal of houses of the urban poor, based on the perception of the state and its agencies that they are “illegal” or “encroachments.” Such “slum-clearance/anti-encroachment/city-beautification” drives, including those related to mega events and for implementation of “slum-free city” schemes, resulted in the highest number of people (over 94,000) being evicted in 2018.

 

 

 

Across the Nation, homes of the urban poor continue to be considered as “illegal/encroachments” by all branches of the government—the legislature, executive, and often the judiciary—and are demolished without any consideration that people have been living at those sites for decades, sometimes 40–50 years, and possess documents such as election and ration cards that validate their ‘legality’ and proof of residence. They work on improving the quality of the land, develop vibrant neighbourhoods and settlements, and contribute to the economy, but when the value of the land on which they live appreciates or when the state decides to commercially develop that land, they are considered dispensable and evicted.[15]

 

·       Prejudiced perception of poor posing security threat & Role of Courts in Forced Evictions

Without any strong foundation a general perception amongst many middle class and wealthy groups in Indian cities is that the urban poor pose a “security threat” to wealthier residents, it is also evident in the way that the state treats them. The Indian Courts despite recognizing Right to shelter as a fundamental right, loud and clear have always impressed upon encroachment free public lands. Sometimes they care for the displaced and often they become ignorant of their troubles.

Some examples of cases in which the High Courts in India have ordered evictions and removal of people from their place of living for encroaching upon government land and hence denying the right to housing/ shelter are the following:

 

·       Almitra Patel vs. Union of India (2000);[16]

·       Navniti CGHS vs. Lt. Governor (2004);[17]

·       Hem Raj vs. Commissioner of Police (2005);[18] and,

·       Unnamed Girl Child of 13 Days through its Mother the Natural Guardian Noori Sameer Mujavar v. State of Maharashtra andOthers, 2016: ( In this case though recognizing the housing need of those evicted, the state was absolved of its duty and obligation to provide housing to the affected families. )

 

Though the Supreme Court of India and several state High Courts have, in numerous judgments, upheld the right to housing/shelter as an incontrovertible component of the fundamental right to life, various court orders and their interpretation by state authorities have always been responsible for forced eviction. As recorded by HLRN even in a single year 2018 these Court orders resulted in the eviction of over 52,000 people, including in Chandigarh, Chennai, Dehradun, Delhi, Gurugram, Jaipur, Mumbai, Patna, Prayagraj, and Srinagar, among other locations.[19]

 

The Madras High Court, in various cases, ordered the removal of low-income houses considered as “encroachments,” primarily for the protection and “restoration of water bodies.” The order of the Madurai Bench of the Madras High Court in W.P. (MD) 20884/2018 resulted in a drive to remove 198 identified settlements along the Panaiyur Canal, during which people protesting the eviction were arrested. In W.P. 29811/2014, the Madras High Court ordered eviction in Konnur High Road, Otteri, Chennai, resulting in the removal of 315 families that had been living there for more than 50 years and who worked in the neighbourhood as domestic workers, construction workers, drivers, rickshaw-pullers, small vendors, and tailors. Similarly, in Salem, nearly

 

 

211 houses built on the water-spread area of the Vasishta River, reportedly, were demolished, on an order of the Madras High Court. In Kallikuppam, Chennai, 213 houses were demolished for the restoration of Korattur Lake despite strong protests from residents who had been living at the site for more than 30 years. The Madras High Court, in W.P. 1294/2009, had categorically prohibited the regularization of settlements situated near water bodies such as Korattur Lake, leaving no scope for in situ rehabilitation of the residents, forcing them to relocate to sites situated on city outskirts.

The Madras High Court (W.P. 36135/2015), while supporting removal of homes of the urban poor living along water bodies in Tamil Nadu, also ordered that, “In case the encroachments are not removed even after due process of law, the authorities are at liberty to remove such of those encroachments by use of force, if need be, and in such circumstances, the police authorities shall give all necessary assistance to the authorities for removal of the said encroachments.”

In Prem Nagar, Dehradun, an order of the Uttarakhand High Court in W.P. (PIL) 47/2013 led to the demolition of 50 houses. In the order dated 18 June 2018, the Court stated that, “Towns have been reduced to the status of slum areas,” and consequently, directed the authorities to remove all unauthorized encroachments on public streets “by using its might,” including the imposition of Section 144 of the Criminal Procedure Code60 to aid the demolition process and prevent any protest. In Jaurasi, Roorkee, authorities demolished 42 houses without any notice, acting on the order of the Uttarakhand High Court in W.P. (PIL) 148/2016 to remove encroachments for widening roads in order to accommodate the rise in vehicular traffic. The eviction was carried out despite clarification from the Supreme Court of India, in S.L.P. (C) 30026–30027/2018 that protocol had to be

 

 

 

followed before the eviction, including issuance of adequate notice and opportunity to be heard. Similarly, in W.P. (PIL) 170/2017, the Gujarat High Court ordered the removal of all “encroachments” without any delay from the streets of Ahmedabad to ease vehicular traffic. In its order dated 7 August 2018, the Court observed that if the “encroachers” were allowed “to remain in settled possession for a long period, they may claim a semblance of right.”[20]

These are however a mere references and not conclusive list of incidents but such actions indicate the increasing criminalization of poverty and go against the foundational principles of the Indian Republic as well as the Constitution of India that guarantees everyone the right to equality and the freedom to reside in any part of the country. They   also indicate the distortion of the notion of ‘public land,’ as the state that is entrusted with the protection of such land for the people continues to act against the people, by evicting them.

 

·       Right to shelter, evictions and observance of due process.

Although most of the incidents of the forced evictions are carried out under court orders, the judiciary has also upheld the right to housing in a few progressive orders and has taken care that even an encroacher be given opportunity of being heard. For instance, in W.P. (C) 11616/2015[21], the High Court of Delhi regularly monitored the condition of people evicted in 2015 in Shakur Basti (West), Delhi, and passed orders for the provision of electricity and installation of toilets. In its final judgment of 18 March 2019, the Court strongly affirmed the right to housing as a human right, held that forced evictions without due process, including survey, notification, and resettlement are illegal, and declared that the urban poor could not be viewed as “encroachers” or illegal occupants of the land. The Delhi Court held that forced eviction without following due process established in the case of Sudama Singh Vs. Government of Delhi[22] and other relevant policies would be illegal.

It stated therein that: “Once a JJ basti/cluster is eligible for rehabilitation, the agencies should cease viewing the JJ dwellers therein as ‘illegal encroachers.’ The decisions of the Supreme Court of India on the right to shelter and the decision of Delhi High Court in Sudama Singh[23] require a Court approached by persons complaining against forced eviction not to view them as ‘encroachers’ and illegal occupants of land, whether public or private, but to require the agencies to first determine if the dwellers are eligible for rehabilitation in terms of the extant law and policy. Forced eviction of jhuggi dwellers, unannounced, in co-ordination with the other agencies, and without compliance with the above steps, would be contrary to the law explained in the above decisions [emphasis added].”

 

The High Court of Delhi also affirmed the ‘right to the city’ of the urban poor, in strong contrast to judgments which presume “illegality” of urban settlements and order eviction. The Court held that:

 

 

 

“The ‘Right to the City’ acknowledges that those living in JJ clusters in jhuggis/slums continue to contribute to the social and economic life of a city. These could include those catering to the basic amenities of an urban population, and in the context of Delhi, it would include sanitation workers, garbage collectors, domestic help, rickshaw pullers, labourers and a wide range of service providers indispensable to a healthy urban life. Many of them travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life. Prioritizing the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution [emphasis added].”

 

The Supreme Court of India, in an ongoing case (W.P.(C) 55/2003)[24], has passed a series of positive orders to safeguard the rights of homeless persons across the country. In an order dated 7 September 2018, passed in these proceedings the Court reiterated that “housing is a basic need of everybody” and required all states / Union Territories to formulate a Plan of Action for the urban homeless which would include the methodology for identification of homeless persons, nature of shelters, and identification of land.

 

 

·                      Conclusion

 

Though, as it apparently comprehensible that the Supreme Court and several state High Courts have, in numerous judgments, have upheld the right to housing /shelter as an inalienable component of the fundamental right to life, but its travesty lies in the non foresighted state actions in demolitions

 

without prior rehabilitation of the poor encroachers. The due process is mostly not adopted in the encroachment removal drives and housing of the poor is demolished without providing them adequate shelter which renders them homeless and displaces and vulnerable to various diseases and sufferings and infringing their Right to Shelter.

Despite all judicial spotlights, on inalienable Right to Shelter the Governments have not taken any concrete measures to address this crisis of homeless and landless people. The adequate housing is a crisis in India, due to high cost of the land rights which are inaccessible for the poor population, which precludes the approach of the human right to adequate housing for the vast majority of population. In the welfare state, course of action of drawing balance  between public trust of public lands, and Right to shelter need to be re- visualized in order to respect and uphold the Right to shelter of the poor marginalization and destitute sections of the society.

******************

[1] Special Rapporteur on the Right to Adequate Housing, Housing and Land Rights Network (India)
[2] http://zipnet.in/
[3] International Covenant on Economic, Social and Cultural Rights Adopted by General Assembly resolution 2200A (XXI) of 16 December 1966 (https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx)

[4] The Universal Declaration of Human Rights proclaimed by the United Nations General Assembly in Paris on 10  December 1948 (https://www.un.org/en/universal-declaration-human-rights/)

 

[5] 2019 SCC OnLine All 2555
[6] (1983) 5 SCC 545
[7] (1990) 1 SCC 520
[8] (1996) 2 SCC 549
[9] (1996) AIR 114 1995 SCC.
[10](1997) 11 SCC 121.
[11]People’s Union for Civil Liberties v. Union of India, W.P. (C) No. 196 of 2001.
[12] JT 1995 (2) 373
[13] Forced Evictions in India in 2018: An Unabating National Crisis, Housing and Land Rights Network, New Delhi, 2019
[14] The right to adequate housing (Art.11.1): forced evictions : . 20/05/97. CESCR General comment 7. (General Comments) (https://www.refworld.org/docid/47a70799d.html)
[15]  Ibid 13
[16] (2000) 2 SCC 679.
[17] WP (C) 5697/2002, High Court of Delhi, August 2004.
[18]WP (C) 3419/ 1999, High Court of Delhi, 14 December 2005.
[19]  Ibid 13
[20]  For Reference Official websites of the respective High Courts (ecourts.gov.in)
[21] ecourts.gov.in
[22] (2010) 168 DLT 218 (DB))
[23] supra
[24] E.R. KUMAR vs. UNION OF INDIA (https://sci.gov.in/case-status)

 

Right To Shelter A Fundamental Right; State Has Constitutional Duty To Provide House Sites To Poor: Allahabad High Court

It has to be remarked with consummate ease that in a latest, landmark and extremely laudable judgment titled Rajesh Yadav Vs State of UP And 9 Others in Public Interest Litigation (PIL) No. – 775 of 2019 delivered on July 1, 2019, the Allahabad High Court has very rightly held that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor. Justice Surya Prakash Kesarwani who authored this path breaking judgment observed so while dismissing a PIL seeking eviction of four individuals who allegedly encroached a public land. Very rightly so!

                                   To start with, the ball is set rolling in para 1 of this noteworthy judgment which first and foremost states that, “The petitioner claiming himself to be a bonafide citizen, has filed the present public interest litigation (for short PIL) for removal of encroachment and illegal possession of respondent Nos. 6 to 10 from khasra plot No. 325/350 area 0.20 decimal, khasra plot No. 325/351 area 0.08 decimal and khasra plot No. 325/348 area 0.10 decimal of village Pakhanpura, Pargana Kopachit, Garvi, Tehsil Rasara, District Ballia, which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.”

                                     To recapitulate, it is then pointed out in para 2 that, “Briefly stated facts of the present case are that by order dated 14.02.1994, the Sub-Divisional Magistrate, Rasara exchanged aforesaid khasra plot No. 325/351 area 0.08 decimal, khasra plot No. 325/348 area 0.10 decimal and khasra plot No. 325/350 area 0.20 decimal, total area 0.38 decimal with plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 decimal and 324M area 0.20 decimal. Mutation was accordingly made in the revenue records and accordingly the above noted areas of khasra plot No. 325/348, 325/350 and 325/351, were recorded as banjar and the exchanged khasra plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 and khasra plot No. 324M area 0.20 were recorded in the revenue records as ‘khalihan’,  ‘khad ka gaddha’ and khel ka maidan’ respectively.”

                                     Furthermore, it is then envisaged in para 3 that, “The Land Management Committee, Pakhanpura passed a resolution dated 19.01.1994 and 10.04.1994 for allotment of the aforesaid newly recorded banjar land for residential purposes to 19 persons. The allotments were made by Sub-Divisional Officer by order dated 28.10.1995. After allotment of land for residential purposes, the respondent No. 6, 7, 8, 9 and 10 constructed their houses (huts and tinshed) and they are still residing. Undisputedly, the respondent Nos. 6 to 10 are landless agricultural labourers and are very poor persons and have no shelter except the aforesaid shelter.”

                      What’s more, it is then disclosed in para 4 that, “As per report of the lekhpal dated 29.01.1994 forwarded and affirmed by Sub-Divisional Officer, Tehsil Rasra, District Ballia, the exchange of land was made on account of the fact that khasra plot No. 325/348 area 0.10 decimal, 325/350 area 0.20 decimal, 325/351 area 0.08 decimal, total area 0.38 decimal had converted in abadi long back and consequently the proposal for exchange was made. After exchange as aforesaid, allotments to poor landless agricultural labourer in possession were made for residential purpose after following due procedure of law. Area of the land allotted to the respondent Nos. 6 to 10 is as under:

Sl.     Name of the               Khasra plot No.   Area in

No.   allottee                                                           Decimal

1. RespondentNo.6-Indradev    325/350M    0.02

2. Respondent No.7-Abhay        325/348M    0.03

3. Respondent No. 8-Durgawati 325/348M    0.03

4. Respondent No. 9-Teswari      325/350M    0.03

5. Respondent No. 10-Budhan     325/350M    0.02 ½”

                                      To be sure, para 5 then reveals that, “As per conversion table, 1 decimal area is equivalent to 48 square yard. Thus, the allotments of very small pieces of land for residential purposes to poor labourers being respondent Nos. 6 to 10 were made over which they had constructed long ago their huts by brick-walls and tin-shed and still they are residing therein.”

                                       Be it noted, para 6 then discloses that, “It appears that at the instance of the petitioner, a Case No. 59/2007 under Section 115P of the U.P. Z.A. and L.R. Act was registered by the Additional District Judge (F/R), Ballia and by ex parte order dated 07.09.2007, aforesaid residential leases granted to 19 persons including the respondent Nos. 6 to 10 were cancelled. Thereafter, the petitioner moved an application dated 13.01.2015 before the District Magistrate followed by application dated 24.05.2016 by his son Pankaj Yadav for removal of shelters of the respondent Nos. 6 to 10. According to the petitioner, since no action was taken, therefore, he has filed the present petition as PIL.”

                            More significantly, it is then emphatically held in para 23 that, “Thus, shelter for a human being, 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 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. To make the right meaningful to the poor and landless agricultural labourers, particularly of the weaker section of the society, the State has to provide the facilities to build houses. It is the duty of the State to fulfill the basic human and constitutional rights to residence so as to make the right meaningful. Basic needs of man have traditionally been accepted to be three – namely food, clothing and shelter. That 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. But no person has a right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their land to make the right to life meaningful, effective and fruitful.”

                                      As things stand, it is then illustrated in para 24 that, “In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10. In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their houses in question.”

                             To put things in perspective, it is then pointed out in para 25 that, “From the pleadings in this PIL as briefly noted above, it is evident that the petitioner has not denied the facts stated in paragraph-10 of the counter affidavit that the representation has been moved by the petitioner’s son namely Pankaj Yadav in his personal interest and not by the villagers. It has also not been denied by the petitioner that the respondent Nos. 6 to 10 leaseholders are very poor and needy labourers and they are residing in the houses over the land in question, which were constructed about 24 years ago on the leased land granted by the competent authority. The order of cancellation of lease was passed ex parte by ADM (F/R) after more than 12 years of the grant of lease. Even in the ex parte order of cancellation, there is no allegation of any fraud or manipulation against the respondent Nos. 6 to 10 in grant of lease to them. The petitioner has merely stated that he is bona fide citizen. He has not disclosed his credential. Thus, non-denial by the petitioner the averments of paragraph-10 of the counter affidavit to the effect of personal interest of the petitioner’s son, clearly indicates abuse of process of court by the petitioner in filing the present PIL and suppression of material facts particularly those mentioned in paragraphs 4 and 5  of the counter affidavit of the State respondents. Therefore, exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court, in view of the law laid down by Hon’ble Supreme Court in the case of Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal (2014) 13 SCC 666 (para 14) and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar (2017) 5 SCC 496 (paras 9 to 14).”

                                       It cannot be lost on us that it is then pointed out in para 26 that, “In Dnyandeo Sabaji Naik (supra), Hon’ble Supreme Court has observed that it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forum of the law to defeat or delay justice. Hon’ble Supreme Court commended all courts to deal with frivolous filings, firmly and impose exemplary costs.”

                                         As a corollary, it is then laid down in para 27 that, “The principles laid down in the case of Dnyandeo Sabaji Naik (supra), have been reiterated by Hon’ble Supreme Court in the case of Haryana State Co-op. L&C Co-op. Society Ltd., (2018) 14 SCC 248 (Paras 16 and 17) while dismissing the appeal of the Haryana State Coop. L&C Federation Ltd. (supra) with exemplary cost of Rs. 5 lacs.” Also, it is then observed in para 28 that, “In the case of Punjab State Power Corporation Ltd. (supra), Hon’ble Supreme Court emphasised that imposition of exemplary costs should be in real terms and not merely symbolic.”

                        Conclusions

                                 Most importantly, it is now time to dwell upon the conclusions drawn by the Allahabad High Court in this noteworthy and commendable judgment. Para 29 sets the pitch by first and foremost pointing out that, “The conclusions reached by me and the principles of law laid down by Hon’ble Supreme Court discussed above are briefly summarised as under:

(i)                         Right to shelter is a fundamental right, which springs from the right to residence assured in Art. 19(1)(e) and right to life under Art. 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor.

(ii)                      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 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. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights. There could be not individual liberty without a minimum of property. The objective of ‘facilitating adequate shelter of all’ also implies that direct Government support should mainly be allocated to the most needy population groups.

(iii)                   Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its Preamble. Articles 39 and 38 enjoins the State to provide facilities and opportunities. Article 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavor to eliminate inequalities in status. Basic needs of man have traditionally been accepted to be three namely- food, clothing and shelter. The right to life is guaranteed in any civilised society. It is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor.

(iv)                   No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter to make the right to life meaningful, effective and fruitful.

(v)                      In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10.

(vi)                   In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State-authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their house in question.

(vii)                Exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court.”

                                              Going forward, it is then held in para 30 that, “For all the reasons afore-stated, this petition is dismissed with cost of Rs. 10,000/- which the petitioner shall deposit with the High Court Legal Services Committee within six weeks from today.” Finally, it is then held in the last para 31 that, “It is expected that the Government shall take appropriate steps in the light of the observations made in para-29 {(i), (ii), (iii) and (iv)} above.”

                            All said and done, it is a very progressive and extremely laudable judgment which bats openly in favour of the fundamental right of poor to have a shelter of his own! Not stopping here, the Allahabad High Court has also held the petitioner guilty for attempting to infringe the fundamental right of the individual and therefore dismissed the petition by imposing costs of Rs. 10,000/-. It has also very rightly and eloquently quoted several landmark judgments of the Supreme Court to substantiate its valid stand that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor! Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A-82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Right To Shelter A Fundamental Right; State Has Constitutional Duty To Provide House Sites To Poor: Allahabad High Court

It has to be remarked with consummate ease that in a latest, landmark and extremely laudable judgment titled Rajesh Yadav Vs State of UP And 9 Others in Public Interest Litigation (PIL) No. – 775 of 2019 delivered on July 1, 2019, the Allahabad High Court has very rightly held that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor. Justice Surya Prakash Kesarwani who authored this path breaking judgment observed so while dismissing a PIL seeking eviction of four individuals who allegedly encroached a public land. Very rightly so!

                                   To start with, the ball is set rolling in para 1 of this noteworthy judgment which first and foremost states that, “The petitioner claiming himself to be a bonafide citizen, has filed the present public interest litigation (for short PIL) for removal of encroachment and illegal possession of respondent Nos. 6 to 10 from khasra plot No. 325/350 area 0.20 decimal, khasra plot No. 325/351 area 0.08 decimal and khasra plot No. 325/348 area 0.10 decimal of village Pakhanpura, Pargana Kopachit, Garvi, Tehsil Rasara, District Ballia, which according to him were recorded in the revenue records as ‘khel ka maidan’, ‘khalihan’ and ‘khad ka gaddha’ respectively.”

                                     To recapitulate, it is then pointed out in para 2 that, “Briefly stated facts of the present case are that by order dated 14.02.1994, the Sub-Divisional Magistrate, Rasara exchanged aforesaid khasra plot No. 325/351 area 0.08 decimal, khasra plot No. 325/348 area 0.10 decimal and khasra plot No. 325/350 area 0.20 decimal, total area 0.38 decimal with plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 decimal and 324M area 0.20 decimal. Mutation was accordingly made in the revenue records and accordingly the above noted areas of khasra plot No. 325/348, 325/350 and 325/351, were recorded as banjar and the exchanged khasra plot No. 314 area 0.08 decimal, khasra plot No. 324M area 0.10 and khasra plot No. 324M area 0.20 were recorded in the revenue records as ‘khalihan’,  ‘khad ka gaddha’ and khel ka maidan’ respectively.”

                                     Furthermore, it is then envisaged in para 3 that, “The Land Management Committee, Pakhanpura passed a resolution dated 19.01.1994 and 10.04.1994 for allotment of the aforesaid newly recorded banjar land for residential purposes to 19 persons. The allotments were made by Sub-Divisional Officer by order dated 28.10.1995. After allotment of land for residential purposes, the respondent No. 6, 7, 8, 9 and 10 constructed their houses (huts and tinshed) and they are still residing. Undisputedly, the respondent Nos. 6 to 10 are landless agricultural labourers and are very poor persons and have no shelter except the aforesaid shelter.”

                      What’s more, it is then disclosed in para 4 that, “As per report of the lekhpal dated 29.01.1994 forwarded and affirmed by Sub-Divisional Officer, Tehsil Rasra, District Ballia, the exchange of land was made on account of the fact that khasra plot No. 325/348 area 0.10 decimal, 325/350 area 0.20 decimal, 325/351 area 0.08 decimal, total area 0.38 decimal had converted in abadi long back and consequently the proposal for exchange was made. After exchange as aforesaid, allotments to poor landless agricultural labourer in possession were made for residential purpose after following due procedure of law. Area of the land allotted to the respondent Nos. 6 to 10 is as under:

Sl.     Name of the               Khasra plot No.   Area in

No.   allottee                                                           Decimal

1. RespondentNo.6-Indradev    325/350M    0.02

2. Respondent No.7-Abhay        325/348M    0.03

3. Respondent No. 8-Durgawati 325/348M    0.03

4. Respondent No. 9-Teswari      325/350M    0.03

5. Respondent No. 10-Budhan     325/350M    0.02 ½”

                                      To be sure, para 5 then reveals that, “As per conversion table, 1 decimal area is equivalent to 48 square yard. Thus, the allotments of very small pieces of land for residential purposes to poor labourers being respondent Nos. 6 to 10 were made over which they had constructed long ago their huts by brick-walls and tin-shed and still they are residing therein.”

                                       Be it noted, para 6 then discloses that, “It appears that at the instance of the petitioner, a Case No. 59/2007 under Section 115P of the U.P. Z.A. and L.R. Act was registered by the Additional District Judge (F/R), Ballia and by ex parte order dated 07.09.2007, aforesaid residential leases granted to 19 persons including the respondent Nos. 6 to 10 were cancelled. Thereafter, the petitioner moved an application dated 13.01.2015 before the District Magistrate followed by application dated 24.05.2016 by his son Pankaj Yadav for removal of shelters of the respondent Nos. 6 to 10. According to the petitioner, since no action was taken, therefore, he has filed the present petition as PIL.”

                            More significantly, it is then emphatically held in para 23 that, “Thus, shelter for a human being, 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 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. To make the right meaningful to the poor and landless agricultural labourers, particularly of the weaker section of the society, the State has to provide the facilities to build houses. It is the duty of the State to fulfill the basic human and constitutional rights to residence so as to make the right meaningful. Basic needs of man have traditionally been accepted to be three – namely food, clothing and shelter. That 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. But no person has a right to encroach and erect structures or otherwise on footpaths, pavement or public space or at any place reserved or earmarked for a public utility. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their land to make the right to life meaningful, effective and fruitful.”

                                      As things stand, it is then illustrated in para 24 that, “In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10. In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their houses in question.”

                             To put things in perspective, it is then pointed out in para 25 that, “From the pleadings in this PIL as briefly noted above, it is evident that the petitioner has not denied the facts stated in paragraph-10 of the counter affidavit that the representation has been moved by the petitioner’s son namely Pankaj Yadav in his personal interest and not by the villagers. It has also not been denied by the petitioner that the respondent Nos. 6 to 10 leaseholders are very poor and needy labourers and they are residing in the houses over the land in question, which were constructed about 24 years ago on the leased land granted by the competent authority. The order of cancellation of lease was passed ex parte by ADM (F/R) after more than 12 years of the grant of lease. Even in the ex parte order of cancellation, there is no allegation of any fraud or manipulation against the respondent Nos. 6 to 10 in grant of lease to them. The petitioner has merely stated that he is bona fide citizen. He has not disclosed his credential. Thus, non-denial by the petitioner the averments of paragraph-10 of the counter affidavit to the effect of personal interest of the petitioner’s son, clearly indicates abuse of process of court by the petitioner in filing the present PIL and suppression of material facts particularly those mentioned in paragraphs 4 and 5  of the counter affidavit of the State respondents. Therefore, exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court, in view of the law laid down by Hon’ble Supreme Court in the case of Punjab State Power Corporation Ltd. Vs. Atma Singh Grewal (2014) 13 SCC 666 (para 14) and Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar (2017) 5 SCC 496 (paras 9 to 14).”

                                       It cannot be lost on us that it is then pointed out in para 26 that, “In Dnyandeo Sabaji Naik (supra), Hon’ble Supreme Court has observed that it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forum of the law to defeat or delay justice. Hon’ble Supreme Court commended all courts to deal with frivolous filings, firmly and impose exemplary costs.”

                                         As a corollary, it is then laid down in para 27 that, “The principles laid down in the case of Dnyandeo Sabaji Naik (supra), have been reiterated by Hon’ble Supreme Court in the case of Haryana State Co-op. L&C Co-op. Society Ltd., (2018) 14 SCC 248 (Paras 16 and 17) while dismissing the appeal of the Haryana State Coop. L&C Federation Ltd. (supra) with exemplary cost of Rs. 5 lacs.” Also, it is then observed in para 28 that, “In the case of Punjab State Power Corporation Ltd. (supra), Hon’ble Supreme Court emphasised that imposition of exemplary costs should be in real terms and not merely symbolic.”

                        Conclusions

                                 Most importantly, it is now time to dwell upon the conclusions drawn by the Allahabad High Court in this noteworthy and commendable judgment. Para 29 sets the pitch by first and foremost pointing out that, “The conclusions reached by me and the principles of law laid down by Hon’ble Supreme Court discussed above are briefly summarised as under:

(i)                         Right to shelter is a fundamental right, which springs from the right to residence assured in Art. 19(1)(e) and right to life under Art. 21 of the Constitution. It is a constitutional duty of the State to provide house sites to the poor.

(ii)                      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 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. To bring the Dalits and Tribes into the mainstream of national life, providing these facilities and opportunities to them is the duty of the State as fundamental to their basic human and constitutional rights. There could be not individual liberty without a minimum of property. The objective of ‘facilitating adequate shelter of all’ also implies that direct Government support should mainly be allocated to the most needy population groups.

(iii)                   Socio-economic justice, equality of status and of opportunity and dignity of person to foster the fraternity among all the sections of the society in an integrated Bharat is the arch of the Constitution set down in its Preamble. Articles 39 and 38 enjoins the State to provide facilities and opportunities. Article 38 and 46 of the Constitution enjoin the State to promote welfare of the people by securing social and economic justice to the weaker sections of the society to minimise inequalities in income and endeavor to eliminate inequalities in status. Basic needs of man have traditionally been accepted to be three namely- food, clothing and shelter. The right to life is guaranteed in any civilised society. It is the duty of the State to construct houses at reasonable cost and make them easily accessible to the poor.

(iv)                   No person has a right to encroach and erect structures or otherwise on footpath, pavement or public streets or any other place reserved or earmarked for a public purpose. The State has the Constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter to make the right to life meaningful, effective and fruitful.

(v)                      In the present set of facts, the relief sought by the petitioner in this PIL is an attempt to infringe fundamental rights of the respondent Nos. 6 to 10 guaranteed under Article 19(1)(e) read with Article 21 of the Constitution of India inasmuch as the residential lease of very small plots were granted to the respondents No. 6 to 10 (poor and landless agricultural labourers of backward classes) by the competent authority in the year 1995 and they raised their houses over it and are still residing therein since the year 1995 and thus, they have the protection of Section 67A of the Code, 2006. Therefore, no direction can be issued to the respondent authorities to remove the shelter (houses) of the respondent Nos. 6 to 10.

(vi)                   In any case, if the State authorities still want to remove the respondent Nos. 6 to 10 from their residential houses over the plot in question, on the ground of abadi being earlier a public utility land before exchange, then the State-authorities shall first provide suitable accommodation to the respondent Nos. 6 to 10 before removal of their house in question.

(vii)                Exemplary cost is necessary to be imposed upon the petitioner for filing this frivolous petition as PIL and abusing the process of court.”

                                              Going forward, it is then held in para 30 that, “For all the reasons afore-stated, this petition is dismissed with cost of Rs. 10,000/- which the petitioner shall deposit with the High Court Legal Services Committee within six weeks from today.” Finally, it is then held in the last para 31 that, “It is expected that the Government shall take appropriate steps in the light of the observations made in para-29 {(i), (ii), (iii) and (iv)} above.”

                            All said and done, it is a very progressive and extremely laudable judgment which bats openly in favour of the fundamental right of poor to have a shelter of his own! Not stopping here, the Allahabad High Court has also held the petitioner guilty for attempting to infringe the fundamental right of the individual and therefore dismissed the petition by imposing costs of Rs. 10,000/-. It has also very rightly and eloquently quoted several landmark judgments of the Supreme Court to substantiate its valid stand that the right to shelter is a fundamental right and the State has a Constitutional duty to provide house sites to the poor! Very rightly so! There can be no denying it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A-82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Domestic Implementation of Human Rights

Human RightsKAUSHIK DHAR

1. UNIVERSAL DECLARATION OF HUMAN RIGHTS AND INDIAN CONSTITUTION

India was a signatory to the Universal Declaration of Human Rights. The Indian constitution was adopted by the constituent Assembly on Dec 26, 1949, which came into force from Jan 26, 1950. Our Indian constitution was greatly influenced by the Universal Declaration of Human Rights, 1948. Provisions of Part III which stands for Fundamental Rights and Part IV for Directive Principles of State Policy bear a close resemblance to the Universal Declaration of Human Rights. As a result, a number of fundamental rights guaranteed in Part III of the Indian Constitution are similar to the provision of Declaration.

Name of the Rights Universal Declaration Indian Constitution

Equality before law Art. 7 Art. 14

Prohibition of discrimination Art. 7 Art. 15(1)

Equality of opportunity Art 21(2) Art. 16(1)

Freedom of speech and expression Art. 19 Art.19(1)(a)

Freedom of peaceful assembly Art. 20(1) Art. 19(1)(b)

Right to form association or unions Art. 23(4) Art. 19(1)(c)

Freedom of movement within the border Art. 13(1) Art19(1)(d)

Protection in respect of conviction for offencesArt.11(2) Art. 20(1)

Protection of life and personal liberty Art. 9 Art. 21

Protection of slavery and forced labour Art. 4 Art. 23

Freedom of conscience and religion Art. 18 Art. 25(1)

Freedom of enforcement of rights Art. 8 Art. 32

The above chart shows that the Universal Declaration which was adopted just before the Indian Constitution widely held to have provided the model for Indian Constitution human rights guarantees. It appears that the founders of the Constitution were conscious about the contents of the Declaration and therefore they gave due recognition to its provisions.

In Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461), the Supreme Court observed that the Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of the Human Rights at the time the Constitution was adopted. Thus, although the Supreme Court has stated that the Declaration cannot create a binding set of rules and even international treaties may at best inform judicial institutions and inspire legislative action, constitutional interpretation in India has been strongly influenced by the Declaration.

In Chairman, Railway Board and others v Mrs. Chandrima Das (AIR 2000 SC 988), the Supreme Court observed that the Declaration has the international recognition as the “Moral code of Conduct” having been adopted by the General Assembly of the United Nations. In a number of cases the Declaration has been referred to in the decisions of the Supreme Court and High Courts.

DOMESTIC IMPLEMENTATION OF HUMAN RIGHTS

India has ratified the International covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights on March 27, 1979. By ratification it has established on the international plane its consent to be bound by them. It has an obligation to provide to the individuals the rights contained in the two Covenants.

3. COVENANT ON CIVIL & POLITICAL RIGHTS AND THE INDIAN CONSTITUTION

The Indian constitution provides a number of rights which are called ‘fundamental rights’. The expression ‘fundamental rights’ denotes that these rights are inherent in all human beings and they are required for blossoming of the human personality and soul. These rights have been given a place of pride in the Constitution. These rights are therefore necessary to protect the dignity of individual and to create conditions in which a person can develop to the fullest extent.

In A.D.M., Jabalpur v Shukla (AIR 1976 SC 1207), Beg J. Observed that the object of making certain rights as fundamental as to guarantee them from the illegal invasion by executive, legislature and judicial organ of the state. The Supreme Court of India has recognised these fundamental rights as ‘natural rights’ or ‘human rights’.

Fundamental rights guaranteed under the Indian Constitution may be divided for the sake of convenience in two categories, i.e. specified fundamental rights and other fundamental rights. The specified fundamental rights are those rights which are there in the Covenant as well as these rights are specifically enumerated in the Indian constitution. This division is helpful in order to make them comparable with the human rights guaranteed to the individuals under the International Covenant on Civil and Political Rights.

Name of the Rights Covenant on Civil and Political Rights Indian Constitution

Forced Labour Art. 8(3) Art. 23

Equality before law Art.14(1) Art. 14

Prohibition of discrimination Art. 26 Art. 15(1)

Equality of opportunity Art. 25(c) Art. 16(1)

Freedom of speech and expression Art. 19(1) & (2) Art. 19(1)(a)

Freedom of peaceful assembly Art. 21 Art. 19(1)(b)

Right of freedom of association Art. 23(4) Art. 19(1)(c)

Right to life and liberty Art. 6(1) &9(1) Art. 21

Freedom of conscience and religion Art. 18(1) Art. 25

However, there are a number of rights which, though are not specified in Part III of the Constitution by name as fundamental rights have been regarded as fundamental by the Supreme Court by enlarging the meaning and scope of the fundamental rights.

Although in A.D.M., Jabalpur v Shukla (AIR 1976 SC 1207), the Supreme Court held by a majority of 4:1 that the Constitution of India did not recognise any natural or common law rights other than that expressly conferred in the Constitution, the trend of the Supreme Court has changed especially after 1978. The Courts on many occasions, by accepting the rule of judicial construction, that regards must be paid to international conventions and norms for constructing domestic law, held that the rights which are not specifically mentioned in the constitution may be regarded as fundamental rights if it is integral part of the fundamental right.

The following are the rights which are contained in the Covenant on Civil and Political Rights are available to the citizens of India in spite of their not being specifically mentioned in the Constitution.

1.1. Right to privacy

By the expression right to privacy we mean the right to be left alone to live one’ s own life with minimum degree of interference. The right to privacy is stipulated in the Covenant on Civil and political Rights under Art. 17(1) which says that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. But this right is not guaranteed in the constitution.

However, in Kharak Sing v State of U.P., [(1964) 1 SCR 33] it was held by the Supreme Court that the domiciliary visits is an infringement of the right to privacy and is violative of the citizen’ s fundamental right guaranteed under Art.21 of the Indian Constitution.

In Govind v State of Madhya Pradesh [1996 (0) MPLJ 649] the right to privacy was assumed to be a part of the personal liberty guaranteed under Art. 21 of the Constitution, by stating that although the right to privacy is not explicitly provided in the Constitution, it is ingrained in the fundamental right of life and personal liberty.

In People’s Union for Civil Liberties v Union of India [1997 AIR (SC) 568], commonly known as telephone tapping case, the Supreme Court held that right to life and personal liberty includes telephone conversation in the office or home and thus telephone tapping is violative of Art. 21.

1.2. Right to travel abroad

The right to travel abroad is a guaranteed right under Art.12 Para 2 of the Covenant; however it is not specifically recognised under Part III of the Constitution as a fundamental right. The Supreme Court in Satwant Sing v Asst. Passport Officer, New Delhi [AIR 1967 SC 1836] held that the right to go abroad is a part of the person’ s personal liberty within the meaning of Art. 21.

In Maneka Gandhi v Union of India [AIR 1978 SC 597] the Supreme Court upheld the decision of the Satwant Sing’s case.

1.3. Right to speedy trial

The Covenant on Civil and Political Rights laid down under Art. 9 Para (3) that anyone arrested or detained on a criminal charge shall be brought before judge….and shall be entitled to trial within a reasonable time or to release. But the Constitution has got no provision for a person to be tried without undue delay.

In Hussainara Khatun v Home Secretary, State of Bihar(no.1) [(1980) 1 SCC 98] it was held by the Supreme Court that though the right to speedy trial is not directly mentioned in the fundamental right but is implicit in the broad sweep of Art.21 which deals with right of life and personal liberty.

In the case Raj Deo Sharma v State of Bihar [(1998) 7 SCC 507] the Supreme Court after having recognised that the speedy trial is the right of the accused, issued certain directions for effective enforcement of this right. The Court directed that in cases where the trial is for an offence punishable with imprisonment for a period not exceeding two years and if the offence of the under trial is punishable with a period exceeding 7 years, the court shall close prosecution evidence on completion of 3 years from the date of recording of the plea or framing of the charge. The whole idea was to speed up the trial in criminal case to prevent the prosecution from becoming a persecution (harassment).

1.4. Right to provide legal assistant

The Covenant on Civil and Political Rights provides under Para 3(d) of Article 14 that everyone shall be entitled to be tried in his presence, and to defend himself in person or through his legal assistance of his own choosing, to be informed, if he does not have legal assistance assigned to him, of this right; and to have legal assistance assigned to him, in any case where the interest of justice so requires, and without payment by him in any such case if he has no sufficient means to pay for it.

In M.H. Hoskot v State of Maharashtra [(1978) 3 SCC 544] that the right to free legal service is an essential ingredients of reasonable, fair and just procedure for a person accused of an offence and is implicit in Art.21 of the Constitution.

In Khatri v State of Bihar [AIR 1981 SC 928] the Supreme Court directed the state of Bihar that it cannot avoid the constitutional obligations to provide free legal services to a poor by pleading feeding financial and administrative inability.

1.5. Right of prisoners to be treated with humanity

Article 10 of the Covenant on Civil and Political Rights under Para (1) lays all person deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. But the Indian Constitution there is no such provision in Part III which can safeguard the brutal treatment given to the prisoners.

However, the Supreme Court in Charles Shobraj v Suerintendent, Central Jail, Tihar, New Delhi recognised that ‘right to life’ is more than mere animal existence. Even iin prison person is required to be treated with dignity and enjoy all those right mentioned in Art.19 and 21.

In Francis Coralie Mullin v The Administrator, Union Territory of Delhi [(1981) 2 SCR 516], it was again observed by the Supreme Court that even a convict is entitled to the protection of the precious right guaranteed by the Art 21 of the Constitution.

In Sunil Batra v Delhi Administration (no 1) [1979 SCR (1) 392], the practice of keeping under trials with convicts in jail was regarded by the Supreme Court as inhuman and violation of Art 21.

In Bandhua Mukti Morcha [1992 AIR SC 38] case, the Supreme Court held that the right to life guaranteed by Art. 21 included the right to live with human dignity free from exploitation.

In D.K. Basu v State of West Bengal [AIR 1997 SC 610], the Supreme Court held that the precious right guaranteed by the Constitution of India cannot be denied to convicts, under trials, detenues and other prisoners in custody except according to the procedure established by law.

1.6. Right to compensation

The Covenant on Civil and Political Right under Art 9 Para 5 laid down that ‘anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.’ This right has not been specifically guaranteed by the Constitution but the court ruled that a suit for compensation against the state is maintainable and the state has no right to take any action which may deprive the citizen of the basic fundamental rights except in accordance with the law which is reasonable, just and fair.

In Rudal Shah v State of Bihar [AIR 1983 SC 1086] the Supreme Court held that Art 21 which says about right to life will be denuded of its significant content if the power of this court were limited to passing orders of release from illegal detention.

1.7. Right to information

The Covenant on Civil and Political Rights laid down under Art 19, Para 2 that everyone shall have the right to freedom f speech and expression. The Indian constitution under Art 19(1) (a) guarantees the right to free speech and expression as fundamental right, the right to information is not specifically mentioned in Part III of the Constitution.

In S.P.Gupta v Union of India [AIR 19S2 SC 149], Justice Bhagwati stated that the concept of open government is the direct emanation from the right to free speech and expression. Therefore disclosures of information in regard to the functioning of government must be the rule and secrecy an exception justified only where the strictest requirement of public interest is required.

Therefore it may be concluded that a number of rights which are not specifically provided in the Constitution in Part III as ‘fundamental rights’ have been regarded as fundamental and are available to the individual because of the bold interpretation given by the Supreme Court of those rights which are specifically provided in the Constitution. We can say the judiciary has been a zealous guardian of the human rights.

4. COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND INDIAN CONSTITUTION

Economic, Social and Cultural Rights of human beings are contained in the Economic, Social and Cultural Rights. The Covenant has significant feature which makes it different from the Covenant on Civil and Political Rights. Under the Covenant on Civil and Political Rights the states are under an obligation to respect and to ensure to all the individual the rights stipulated therein, but under the Covenant on Economic, Social and Cultural Rights the states are not bound to do so. Rights stipulated in the Covenant on Economic, Social and Cultural Rights do not find place in Part III of the Constitution but they are provided in Part IV of the Constitution which stands for the Directive Principles of State Policy. This Part contains a list of directives and instructions to be followed by the present and future governments irrespective of their political complexion. The directive principles are fundamental in governance of the Country. Thus Part IV cast upon the states the duties which they are required to follow. The directive principles which broadly incorporate the economic and social rights are as much as a part of human rights. Many rights enshrined in the Covenant on

Economic, Social and Cultural Rights are incorporated in the directive principles.

Thus we can see that all rights like right to equal pay for equal work for both men and women, the right to protect the childhood of work and for maternity work, the right to work, right to adequate standard of living, etc are recognised in the Covenant as well as in our Indian Constitution. However, these rights being stated in Part IV of the Constitution are not enforceable in the court of law. But recently some of these rights are considered as fundamental by the Supreme Court by enlarging the scope of the ‘fundamental rights’ stipulated in Part III of the constitution. This has done by broadening the ambit of the ‘right to life’ under Art.21 of the Constitution. Some of these rights are as follows:

4.1. Equal pay for equal work

The Covenant of Economic, Social and Cultural Rights under Art 7(a) lays down that fair wages and equal remuneration fro work of equal value without distinction of any kind in particular women being guaranteed conditions of work not inferior to those enjoyed by men. Under the Indian constitution clause (d) of Art.39 of the Directive Principles of State Policy states about the equal pay for equal work for both men and women.

In Randhir Sing v Union of India [1982 AIR 879], the Supreme Court held that the principle of equal pay for equal work though not a fundamental right is certainly a Constitutional gaol and capable through enforcement through Constitutional remedies available under art 32 of the Constitution.

4.2. Right of workmen to medical benefits

‘Safe and healthy working conditions and the creation of conditions which would assure to all medical service and medical attention in the event of sickness’ are the rights which are stated in Art.7, Para (b) and Article 12, Para 2(d) under the Covenant on Economic, Social and Cultural Rights. Right to workmen to medical benefits under the Indian Constitution finds place under Art.38 and Art.39 which is not enforceable. But the Supreme Court in the Regional Director, ESI, Corporation and another v Francis De Costa and another [1996(6) SCC 1] held that under Art. 21 read with Art. 38 and 39 the right to medical and disability benefit to workmen is his fundamental right.

4.3. Right to livelihood

Art. 6 of the Covenant of Economic, Social and Cultural Rights says right to work including the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. The right to livelihood has been incorporated in Art 39(a) and Art 41 of the Indian Constitution.

The Supreme Court in Olga Tellis v Bombay Municipal Corporation [(1985) 3 SCC 545], popularly known as the pavement dwellers, held that right to livelihood is an integral facet of the right to life guaranteed under Art 21 of the Constitution.

4.4. Right to shelter

The Covenant on the Economic, social and Cultural Rights under Art 7 Para (a)(ii) lays down that the States parties recognise the right of everyone for decent living for themselves and their families and Art. 11 they recognise the right of everyone to an adequate standard of living for himself and his family including housing. It shows that right to shelter finds a place in the Covenant but it has not been enumerated specifically in the Indian Constitution. However, the Supreme Court in Chameli Sing v State of U.P. [AIR 1996 SC 1051] it was held that by the Supreme Court that the right to live includes the right to food, water, decent environment, education, medical care and shelter. As of right to shelter is concerned the court held that it includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity and other civil amenities like roads, etc.

BIBLIOGRAPHY

i. Prof. M.P.Jain, INDIAN CONTITUTIONAL LAW, Fifth edition reprint 2009, LexisNexis Butterworths Wadhwa, Butterworths Wadhwa, Nagpur

ii. Prof. Narendra Kumar, CONTITUTIONAL LAW OF INDIA, 5th edition, 2006, Allahabad Law Agency

iii. V. Para Brahma Sastri, RIGHT TO LIFE AND PERSONAL LIBERTY(COMMENTARY AND CASE MATERIALS), 1st edition, 2005, Asia Law House, Hyderabad