In the Constitution of India, there is no specific right to housing spelt out separately. The Preamble highlights the guarantee of social justice, and of the right to dignity. A collective reading of the provisions relating to equality, the freedom of movement, of residence anywhere in the country, and the freedom to carry on one‘s trade or profession read with Article 21 impliedly invalidates the denial of the rights of the underprivileged to the basic survival rights. It also enjoins the State to not adopt measures that would deprive them of such basic rights.
Article 21, which guarantees that ‘no person shall be deprived of his life and liberty except according to procedure established by law’, has been interpreted by the Supreme Court of India to include a range of basic survival rights. In a famous passage in Francis Coralie Mullin v. The Administrator (1981) 6 SCC 608, the Supreme Court explained that:
“.the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self.”
The Directive Principles of State Policy in Part IV of Constitution refer to the right to work, the right to education and to just and humane conditions of work and maternity relief,even while they do not expressly speak of the right to shelter as such.
Among the early judgments of the Supreme Court acknowledging the right to shelter as forming part of the Right to Life under Article 21 of the Constitution, was the judgment in Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545.
Read also- The entire story of Olga Tellis case
The case when Supreme Court held that right to life includes right to livelihood
The Petitioners included pavement and ‘basti’ dwellers living on the footpaths/pavements or slums in Mumbai. The judgment was delivered in a batch of petitions, some of which were filed as Public Interest Litigation. They were challenging the decision of the Bombay Municipal Corporation (BMC) to forcibly evict and demolish the pavement dwellings, exercising powers under Section 314 of the Bombay Municipal Corporation Act. In fact, the constitutional validity of Sections 312, 313 and 314 of the BMC Act was challenged as being violative of Articles 14, 19 and 20 of the Constitution.
The demolition drive took place during the peak monsoon season in July, 1981. The trigger for the demolition was an announcement made by the then Chief Minister of Maharashtra on 13th July,1981 that all pavement dwellers in Mumbai would be evicted forcibly and deported to their respective places of origin or removed to places outside the city of Mumbai (then Bombay).
The Chief Minister directed the Commissioner of Police to provide necessary assistance to the BMC to demolish the pavement dwellings and deport the pavement dwellers. The justification provided by the Chief Minister was that the existence of the slum dwellers was ‘inhuman’ and that the structures were ‘flimsy and were open to the elements’. According to him, ‘during the monsoon, there is no way these people can live comfortably’.
One of the pavement dwellers, who was a Petitioner before the Supreme Court, stated that on 23rd July, 1981 his dwelling had been demolished and he and his family had been put in a bus for Salem in Tamil Nadu. While his wife and daughters stayed back in Salem, he returned to Bombay in search of a job and he got into a pavement house again.
The Supreme Court noted, ‘It is like a game of hide and seek. The Corporation removes the ramshackle shelters on the pavements with the aid of police, the pavement dwellers flee to less conspicuous pavements in by-lanes and, when the officials are gone, they return to their old habitats. Their main attachment to those places is the nearness thereof to their place of work.’
Some of the Petitioners, who lived in the Kamraj Nagar Basti, first approached the High Court of Bombay, which granted an ad interim injunction which was in force till 21st July, 1981. On that date, the Respondents agreed that the huts would not be demolished till 15th October, 1981. Nevertheless, it was alleged that on 23rd July, 1981, the Petitioners were huddled in a state transport bus to be deported out of Bombay.
The stand of the Government of Maharashtra was that ‘it neither proposed to deport any payment dweller out of the city of Bombay nor did it, in fact, deport anyone.’ According to the Government, only those pavement dwellers who opted to return to their home towns and who sought assistance from the Government, were paid rail and bus fare for the onward journey. It was pointed out that out of 10,000 hutment-dwellers who were likely to be affected by the proposed demolition of hutments constructed on the pavements, only 1024 had opted to avail of the transport facility and the payment of incidental expenses‖.
The Supreme Court first rejected the contention of the BMC that since the pavement dwellers had conceded before the Bombay High Court that they did not claim any fundamental right to construct houses on the pavement, and had undertaken before the High Court that they would not obstruct the demolition of the huts after 15th October, 1981, they were estopped from resisting the demolition.
The Supreme Court held that notwithstanding the undertaking given by the Petitioners before the Bombay High Court, ‘they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights’. It was reiterated that there could be no waiver of any fundamental right guaranteed by Part III of the Constitution.
The Supreme Court next examined whether ‘the right to life includes the right to livelihood’, and answered it in the affirmative. It was observed ‘that, which alone makes it possible to live, leave aside what makes life liveable, 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.’
The Supreme Court acknowledged that this explained ‘massive migration of the rural population to big cities’ namely that ‘they migrate because they have no means of livelihood in the villages’. Therefore, there was unimpeachable evidence ‘of the nexus between life and the means of livelihood’.
The Supreme Court then discussed Article 39-A of the Constitution, a Directive Principle of the State Policy which provided that the State shall ‘in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood’.
Reference was made to Article 41, which provided that the State shall, ‘within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want’. It was emphasized that the Principles contained in these two provisions ‘must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights’.
It was concluded that ‘any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21’.
The Court then drew two conclusions: one, that the right to life which is conferred by Article 21 includes the right to livelihood and two, that it is established that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. The Court rejected the plea of BMC that no notice need be given because, there can be no effective answer to it.
According to the Supreme Court, this betrayed ‘a misunderstanding of the rule of hearing, which is an important element of the principles of natural justice’. In discussing this aspect, the Supreme Court acknowledged ‘eviction of the pavement or slum dweller not only means his removal from the house but the destruction of the house itself. And the destruction of a dwelling house is the end of all that one holds dear in life. Humbler the dwelling, greater the suffering and more intense the sense of loss‖.’
The IMPORTANCE OF THE DECISION IN OLGA TELLIS (SUPRA) is TWO-FOLD:
One is the link between the right to shelter and the right to livelihood and how these cannot be separated into different compartments, as both inextricably form part of the life itself;
Second is that any attempt of deprivation of either right to shelter or right to livelihood, would mandate compliance with basic principles of natural justice i.e. providing a hearing to those sought to be evicted forcibly.
The running theme of the decision in Olga Tellis is the acknowledgement that poverty itself could constitute a barrier to the realization of fundamental rights. The Court was acknowledging the processes of impoverishment where people are forced to migrate to cities and live in squalor just to eke out their livelihood. The Court was acknowledging the need to protect the dignity of such persons since that was an inextricable part of the right to life itself under Article 21 of the Constitution.
One aspect of the decision in Olga Tellis, was the discussion by the Supreme Court of the schemes of the State for providing alternative housing to those sought to be evicted. The Court did not examine the reasonableness of the stipulations provided in such schemes for alternative housing. The later decisions of the Supreme Court, touching on the ‘right to shelter’, were precisely in the context of providing accommodation to the weaker sections of the society.
In M/s Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520, the Respondents who belonged to the weaker sections of the society, challenged the permission granted by the Government of Maharashtra under Section 20 (1) of the Urban Land Ceiling Act, 1976 (ULCA), exempting excess land from the provisions thereof in favour of a builder conditional upon his using it for making 17,000 tenements for the weaker sections.
The condition was that construction of such tenement should commence within one year; the final selling price should not exceed Rs.50 per square feet and the land should not be transferred except for a mortgage for raising finances for constructing the tenements.
The High Court dismissed the writ petition as infructuous when it was informed that the policy of the government had changed in the meantime. However, it issued directions for monitoring the housing scheme. The builders then appealed to the Supreme Court aggrieved by the above directions.
In rejecting the challenge by the builders, the Supreme Court 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 assured 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 fireproof accommodation.”
The Supreme Court further observed that “since a reasonable residence is an indispensable necessity for fulfilling the Constitutional goal in the matter of development of man and should be taken as included in ‘life’ in Article 21.Greater social control was called for and exemptions granted under Sections 20 and 21 of the ULCA should have to be ‘appropriately monitored to have the fullest benefit of the beneficial legislation’.
In Chameli Singh v. State of U.P. (1996) 2 SCC 549, the issue was discussed again. The context was the acquisition of land for the public purpose of providing houses to scheduled castes. The land of the Appellant was notified under Section 4 (1) of the Land Acquisition Act, 1894, and the enquiry under Section 5 (a) of the LAA was dispensed with by issuing notifications under Sections 17 (1) read with 17 (4) of the LAA. These notifications were challenged, inter alia, on the ground that the Appellants would be deprived of their lands ‘which is the only source of their livelihood, violating Article 21 of the Constitution’.
After the High Court dismissed the writ petition, they appealed to the Supreme Court. The issue before the Supreme Court was whether the invocation of the urgency provisions under Section 17 (4) of the LAA was justified. In answering the question in the affirmative, the Supreme Court discussed the UN General Assembly Resolution No.37/221 titled ‘adoption of the International Year of Shelter for the Homeless’;
Article 25 (1) of the Universal Declaration of Human Rights and Article 11 of the ICESCR. The acquisition proceeding was held to be in accordance with the procedure established by law and that, therefore, there was no illegality attached to the notification in question.49
It is interesting that post Olga Tellis the jurisprudence around the right to shelter developed in the context of the invocation of the LAA to provide alternative accommodation to the weaker sections of the society and not so much regarding the right to adequate housing in situ where the slum dwellers reside or even in the context of right against ‘forced eviction’. This was discussed only partly in Olga Tellis where the harshness of forced eviction was sought to be assuaged by requiring the authorities to comply with the principles of natural justice before resorting to eviction drive.
Ahmedabad Municipal Corporation
In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1997) 11 SCC 121 the Respondents were pavement dwellers in occupation of footpaths along a main road in Ahmedabad. In December 1982, when the Ahmedabad Municipal Corporation sought to remove them from the footpaths, the Respondents filed a writ petition in the Gujarat High Court. In its judgment, the High Court directed the Petitioner not to remove the Respondents’ huts before following a procedure of hearing, consistent with the principles of natural justice.
The High Court also directed the Appellant to provide suitable alternative accommodation to the Respondents before removing their huts.
The Ahmedabad Municipal Corporation filed an appeal in the Supreme Court, challenging the judgment of the High Court. Two issues arose for the consideration of the Court:
“Whether the Respondents are liable to ejectment from the encroachments of pavements of the roads and whether the principle of natural justice, viz., audi alteram partem requires to be followed? If so, what is its scope and content?
Whether the appellant is under an obligation to provide permanent residence to the hutment dwellers and, if so, what would be the parameters of the same?”
The Court referred to Articles 19 (1) (e) and 21 of the Constitution; Article 25 (1) of the UDHR and Article 11 (1) of the ICESCR; the Supreme Court’s decisions in Olga Tellis, M/s. Shantisar Builders, Chameli Singh and P.G. Gupta v. Union of India 1995 SCC (L&S) 782 and answered the second question in the affirmative in the following terms:
“It would…be clear that though 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 over their heads to make the right to life meaningful, effective and fruitful…It would be the duty of the State to provide right to shelter to the poor and indigent weaker sections of the society in fulfilment of the Constitutional objectives.”
The Court was further of the view that apart from the aforesaid Constitutional mandate, the Appellant Municipality was also statutorily obligated under the Bombay Municipal Corporation Act as:
“Section 284 (1) of the Act…imposes a statutory duty on the Corporation to make provision for accommodation enjoining upon the Commissioner, if it is satisfied that within any area or any part of the City it is expedient to provide housing accommodation for the poor classes and that such accommodation can be conveniently provided without making an improvement scheme, it shall cause such areas to be defined on a plan…Under the Urban Ceiling Act, the excess urban vacant land is earmarked to elongate the above.”
In respect of the first issue of whether the principle of audi alteram partem was required to be followed, the Court while reiterating that the Municipality was under a “statutory obligation to have the encroachments removed” noted that:
“the Commissioner should ensure that everyone is served and if it is not possible for reasons to be recorded in the file, through fixture of the notice on the hutment, duly attested by two independent panchas. This procedure would avoid the dispute that they were not given opportunity, further prolongation of the encroachment and hazard to the traffic and safety of the pedestrians.”
As regards the violation of the hearing requirement in the instant case, the Court found that the Municipality was providing 21 days’ notice, before taking action for ejectment of the encroachers. According to the Court, that procedure was fair and, therefore, the right to hearing before taking action for ejectment was not necessary.
 The Preamble to the Constitution of India, 1950 speaks of ‘the People of India having solemnly
resolved to constitute India into a Sovereign Socialist Secular Democratic Republic’ securing to
all its Citizens inter alia ‘Justice, social, economic and political’ and promoting among them
‘Fraternity assuring the dignity of the individual and the unity and integrity of the Nation’.
 Article 14 guarantees to all persons equality before the law and equal protection of the law. Article 15 underscores the ‘non-discrimination’ facet of the right to equality. It manifests ‘horizontal’ application of the right to equality.
 Article 19(1)(d): ‘All citizens shall have the right to move freely throughout the territory of India’.
 Article 19(1)(e): ―All citizens shall have the right to reside and settle in any part of the territory
 Article 19(1)(g): ―All citizens shall have the right to to practise any profession, or to carry on
any occupation, trade or business.‖
 Article 38 (2) of the Constitution states that the ‘The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.’
In a speech in the Constituent Assembly on 22nd November 1948, Dr. B.R. Ambedkar, its Chief Architect, explained that the word ‘strive’ was used because ‘our intention is that even where there are circumstances that prevent the Government, or which stand in the way of the Government giving effect to these Directive Principles, they shall, even under hard and unpropitious circumstances, always strive in the fulfilment of these Directives.’
 Constitution of India, Article 41: Right to work, to education and to public assistance in certain cases ‘The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.’
 Constitution of India, Article 45: Provision for free and compulsory education for children— ―The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years‖.
Article 46: Promotion of educational and economic interests of Schedules Castes, Scheduled Tribes and other weaker sections— ―The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation‖
 Constitution of India, Article 42: Provision for just and humane conditions of work and
maternity relief—―The State shall make provision for securing just and humane conditions of
work and for maternity relief‖
 Constitution of India, Article 42
 The lead petition was by a journalist (Olga Tellis) and two pavement dwellers, while others
were the residents of the Kamraj Nagar Basti near the Western Express Highway in Mumbai.
Another petition was filed by the persons residing in structures constructed on Tulsi Pipe Road,
Mahim, Bombay. The Peoples Union for Civil Liberties, Committee for the Protection of
Democratic Rights and other journalists were also Co-Petitioners.
 The challenge was on the basis that the above condition did not actually address the needs of
the weaker sections of the society; that the real estate speculators had formed a ‘racket’ to
exclude the weaker sections, in genuine need of housing. Instead, it helped the builders to make
illegal profits by transacting on the lands in question. They also challenged the sanction of price
escalation i.e. allowing the builder to escalate the price.
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