Constitutionality Of The Right To Shelter And Legal Mechanisms For Affordable Housing In Urban Areas
Author: LawSphereX
Category: Constitutional & Human Rights
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CONSTITUTIONALITY OF THE RIGHT TO SHELTER AND
LEGAL MECHANISMS FOR AFFORDABLE HOUSING IN
URBAN AREAS
Aashi Aggarwal, Symbiosis Law School, Noida, Symbiosis International University
ABSTRACT
The Right to Shelter is an essential aspect of human dignity and meaningful livelihood recognized under Article 19(1)(e) and Article 21 of the Indian Constitution. It ensures access to adequate housing, protecting personal liberty, safety, privacy and the well-being of an individual. This paper examines its constitutional scope and legal mechanisms for ensuring affordable urban housing. Keywords: Shelter, Right to shelter and adequate housing, Right to life and Livelihood, Protection of personal liberty, Right to reside and settle, Affordable housing.
INTRODUCTION
Besides water and air, every Individual whether rich or poor needs a roof or shelter over his head. A secure and safe place to live in is a basic necessity, that every human being desires, and works hard to build it in order to attain and enjoy a healthy and peaceful life to live with his family. Besides this, safety, security, prevention from extreme weather conditions, privacy, and adequate location of the house with the workplace, health and well-being are essential concerns of every rational human being. Over the past few years, we have seen a rise in the number of homeless people, not having a place to stay, working, and living in the extremely horrible conditions of the streets.
Thus, to eradicate the situation of homelessness 1and keeping in mind the above concerns, the courts encompass every individual with a “Right to Shelter” also known as the “Right to Housing” under the ambit of the fundamental Right guaranteed under the Constitution of India. This right has also been recognized by the “United Declaration of Human Rights”2 and by the “International Covenant on Economic, Social, and Cultural 1 Wikipedia, “Homelessness”, https://en. wikipedia. org/wiki/Homelessness (last accessed on 1 February 2025)
2 United Declaration of Human Rights, art. 25
Rights”.3 Though it is not considered an expressed human right, but embodies under the realm of basic fundamental rights. This study paper examines and analyses the constitutionality of the Right to Shelter and adequate Housing and explores the legal mechanisms for ensuring affordable housing in Urban areas.
CONSTITUTIONAL PERSPECTIVE OF THE RIGHT TO SHELTER IN INDIA
The evolution of Right to shelter has been seen from the controversy of right to property which is closely associated with each other. Earlier, “Right to property” was a fundamental right under “Article 31 of Constitution of India” but later on it was struck down to a constitutional right by “44th Amendment Act, 1978” under “Article 300A of Constitution of India” which states that “No person can be deprived of his property except the authority of law”. 4 In consequence, it provides individuals with the sense of legal security and safety with respect to their property. Primarily to the above fact, every individual should have a certain habitable space to reside to preserve their dignity and safety which paves the way for “Right to Shelter and Adequate Housing”.
Through certain significant judicial precedents and rulings, the courts introduced, discussed and interpreted the scope of “The Right to Shelter” under the ambit of fundamental rights for growth, nourishment and development of our nation and its citizens. The legislation has provided that “Right to Shelter” is an implied fundamental right which is nowhere expressly provided by the Constitution of India but is covered under the expanded realms of “Article 19 and Article 21 of Constitution of India”. India is a welfare state which focuses on the welfare and well-being of its citizens.
It is the very responsible duty of the state to take every necessary and possible step to provide with adequate accommodation facilities to the citizens with the bare requirement of shelter for their nourishment, growth, mental and physical well-being or protect their livelihood or the shelter from any unreasonable and illegal eviction. 5 In other words, the state shall provide the citizens with adequate facilities of shelter and housing and opportunities to build their habitable place6.
3 International Covenant on Economic, Social, and Cultural Rights, art. 11(1)
4 Komal, “Right to Shelter in India: Its Ambit and Misconceptions” https://www.samvidhi.org/post/right-toshelter-in-india-its-ambit-and-misconceptions
5 Rajesh Yadav v. state of U.P. 2019 SCC OnLine SC 2256
6 Sudama Singh and Others v. Government of Delhi and Anr, 2010 SCC OnLine Del 612
RIGHT TO SHELTER UNDER THE AMBIT OF ARTICLE 19 OF CONSITUTION
OF INDIA
“Article 19(1)(e)” deals with the right of residence and settlement in any part of the territory of India. This means that the citizens have the right to reside and settle as per his choice in any part within the territorial boundaries of India. The word “reside” and “settle” in the article infers to the interest of a citizen to permanently live and create a life of his own choice with due safety and security in a particular area. In this context, having, creating or building a house or a shelter in order to reside is a primary task which needs to be followed. Due to this sole purpose, the Supreme Court of India marked the significance of the “Right to shelter and Construct houses” in order to securely reside, live and maintain a healthy lifestyle7.
As a consequence, the state expanded the scope of Article 19(1)(e) by including the facet of “Right to Shelter” under this specific Article 19(1)(e) thereby, making it as a fundamental human right. In the case of Chameli Singh and Others Etc. vs State of U. P. And Another (1996)8, The court held that the right to social and economic justice to weaker sections and lower income groups of the society and welfare to them conjointly aligns with the responsibility of state to provide them with adequate housing facilities in order to uplift these marginalised sections of society and speed up the sense of fraternity among all the sections of the country. 9
RIGHT TO SHELTER UNDER THE AMBIT OF ARTICLE 21 OF CONSTITUTION
OF INDIA
Article 21 protects the life and personal liberty of an individual. It is a very broad fundamental right that covers all those aspects necessary to make a life of a rational man meaningful and worth-living while at the same time, protecting and preserving the dignity and all such elements related to the personal liberty, peace and freedom of an individual. From all essential aspects, one main aspect which is necessary for an individual to live a meaningful life is “Right to Shelter or Adequate Housing”, which covers every element with it such as safety, security, privacy, protection of physical and mental well-being, adequate lighting, ventilation, electricity, pure food and water, sanitations, necessary for a healthy lifestyle of a human being. Observing a direct relation between the two, the court through its certain rulings and judgements,
7 U.P. Avas Evam Vikas Parishad & Anr vs Friends Coop. Housing Society ltd. & Anr (1995) 2 SCJ 255
8 Chameli Singh And Others Etc. vs State of U.P. And Another AIR 1996 SC 1051
9 Indian Kanoon, Chameli Singh and Others Etc. vs State of U.P. And Another on 15 December, 1995,
https://indiankanoon.org/doc/64823282/ (last accessed 2 February, 2025)
expanded the scope of this article by impliedly including the “Right to Shelter” as an essential fundamental right significant for the enjoyment of life for each and every citizen, whether of lower income group or of marginalised and weaker section of society. In the case of Olga Tellis v. Bombay Municipal Corporation (1985) 10, the Bombay Municipal Corporation and State of Maharashtra decided and ordered to evict all the pavement and slum dwellers. The petitioner filed a PIL against them alleging and arguing that the eviction is a violation of the fundamental right “Protection of Life and Personal Liberty” guaranteed under Article 21 of the Indian Constitution as it leads to the loss of their shelter and livelihood which is a basic essential for a purposeful and meaningful life.
Therefore, Supreme Court of India in this case held that the above actions are clear violation of “Article 21 of Indian Constitution” as their loss of shelter due to eviction violates Right to Shelter guaranteed under Right to Life and Livelihood under the same. Therefore, in this case it is the duty of the state either to stop the eviction or provide these slum dwellers with adequate and alternate housing and shelter facilities11.
LEGAL MECHANISMS FOR AFFORDABLE HOUSES IN URBAN AREAS
Ø Government Schemes: Keeping in mind the state responsibility, various schemes have been initiated by government for affordable housing in urban areas such as Pradhan Mantri Awas Yojana12 which provides interest subsidies on housing loans, making it beneficial for lower income groups of the society in urban areas to buy an affordable home in urban areas. Further, The Real Estate (Regulation and development) Act, 2016 13also ensures transparency and accountability of sellers and brokers in property and housing matters. Therefore, they cannot unreasonably sell the properties on higher rates or do any other activity which illegally impacts buyers and their income. Ø Slum Rehabilitation Authority Schemes and Private Developers Incentives: In this regard, the government collaborates with private entities to provide slum dwellers with
10 Olga Tellis & Ors vs Bombay Municipal Corporation & Ors., 1986 AIR 180
11 Indian Kanoon, Olga Tellis & Ors vs Bombay Municipal Corporation & Ors. Etc on 10 July, 1985
https://indiankanoon.org/doc/709776/ (last accessed 2 February, 2025) 12 Wikipedia, Pradhan Mantri Awas Yojana, https://en.wikipedia.org/wiki/Pradhan_Mantri_Awas_Yojana, (last accessed 6 February 2025)
13 Kotak, How RERA is improving the demand for Affordable Housing in India?,
https://www.kotak.com/en/stories-in-focus/loans/home-loan/how-rera-is-improving-the-demand-for-affordablehousing-in-india.html, ( last accessed 7 February 2025)
affordable housing known as Public- Private Partnership and these developers are encouraged through increased Floor- space Index, and other incentives.14 This, on a one hand, provides with affordable housing to slum dwellers in urban areas and on the other hand provides incentives and profits to private developers thus encouraging developments in both manners.
CONCLUSION
To conclude, The Right to Shelter is an essential element of human dignity and well-being, closely connected to the right to life as stated in “Article 21” and the right to live and settle as outlined in “Article 19(1)(e) of the Constitution of India”. Acknowledged by global agreements and supported by legal interpretations, this right guarantees that every person has a safe and secure living environment. Legal frameworks and governmental programs such as Pradhan Mantri Awas Yojana (PMAY-U), Slum Rehabilitation Authority (SRA) initiatives, and Public- Private Partnerships significantly contribute to realizing affordable housing in urban regions.
Although substantial progress has been achieved, ongoing commitment and the responsibility from the government, legal system, and private industry remains essential to eliminate homelessness and make the right to shelter a tangible reality for everyone, especially for the marginalized communities. 14 World Bank, “Slum Rehabilitation Scheme, Maharashtra, India” https://ppp. worldbank. org/public-privatepartnership/subnational-and-municipal/slum-rehabilitation-scheme-maharashtraindia#:~:text=It%20is%20a%20PPP%20scheme,coordinate%2C%20and%20approve%20the%20SRS. (last accessed 7 February 2025)
REFERENCES:
1. https://www.samvidhi.org/post/right-to-shelter-in-india-its-ambit-and-misconceptions
2. https://www.ohchr.org/en/special-procedures/sr-housing/human-right-adequate-housing
3. https://en.wikipedia.org/wiki/Homelessness
4. https://en.wikipedia.org/wiki/Right_to_housing
5. https://indiankanoon.org/doc/64823282/
6. https://indiankanoon.org/doc/709776/
7. https://en.wikipedia.org/wiki/Pradhan_Mantri_Awas_Yojana
8. https://www.kotak.com/en/stories-in-focus/loans/home-loan/how-rera-is-improving-thedemand-for-affordable-housing-in-india.html 9. https://ppp.worldbank.org/public-private-partnership/subnational-and-municipal/slumrehabilitation-scheme-maharashtraindia#:~:text=It%20is%20a%20PPP%20scheme,coordinate%2C%20and%20approve%20 the%20SRS.