The Right to Housing is one of all living human beings’ most critical and inherent rights. While the Indian Constitution doesn’t explicitly mention the Right to Housing or shelter, it is derived as a crucial aspect of the Right to life under Article 21. This Right is essential for the survival and well-being of every individual, providing a basic necessity for a dignified life. The recent news of the Uttarakhand High Court directing the state government to evict four thousand families allegedly encroaching on railway property brought the issue of the Right to shelter to the forefront. [1]The order left these families uncertain and sparked a nationwide debate about the legality of their living situation. However, in a ray of hope for aggrieved families, the Supreme Court stayed the High Court’s order, acknowledging the importance of protecting the Right to shelter and ensuring that these families are not left homeless.[2] This article will delve into the various provisions related to the Right to Housing, examining the relevant case laws and exploring the way forward in balancing the need for legal Housing while addressing issues of illegal encroachment. Overall the article will explore the intersection of legal and human rights issues and how they impact the larger community.
IMPORTANCE OF THE RIGHT TO HOUSING
“Home is where the heart is.” It’s a saying we’ve all heard before and speaks to the fundamental importance of having a place to call your own. The Right to Housing is more than having a roof over your head. It’s about having a sense of security, stability, and dignity. Housing also plays a vital role in social inclusion. It provides a sense of belonging and community, which is important for mental health and well-being. It also helps to prevent social isolation and provides a platform for people to engage with their neighbors and the wider community. Yet, this basic human need remains unfulfilled for millions of people worldwide. That’s why governments and communities must work together to ensure everyone has access to safe, secure, and affordable Housing.
JURISPRUDENCE OF “RIGHT TO HOUSING” IN INDIA
In India, The Right to Housing derives its fundamental legitimacy from the Right to Residence mentioned in Article 19 (1) (e) and the Right to Life under Article 21 of the Indian Constitution. [3]Similarly, Section 2(1)(d) of the Protection of Human Rights Act, 1993, grants statutory recognition for enforcement of the Right to Housing as a legal right. The Interpretation of “Housing” in India doesn’t merely include a plain roof above one’s house, but it also includes an adequate place for living with proper facilities like sanitation, electricity, Water supply, Clean Air etc. [4]
Supreme and High Courts have been proactive from the beginning in upholding the rights related to Housing. In Tukaram Kana Joshi and Others vs. MIDC and Others – Supreme Court held that – The Right to have proper Housing or shelter could be claimed not only as a Statutory or Constitutional Right but also as a Human Right. [5]In Samarpal vs. Union of India – The Delhi High Court went a step ahead in reiterating the principle of the Right to shelter. [6]The Court held that even in cases of encroachment where deprived people knock the Court of justice, the Court should sensitively apply the principles and arrive at the judgment.
In India, The State and the Central authorities have been entrusted with the responsibility to ensure that every citizen of our country has decent housing facilities. In Pursuant of it, Various schemes are being released by the government to achieve the target of “Housing for all .”Overall, In India, Rights related to Housing not only encompass a mere existence but also consider numerous constituents necessary to have a dignified human life.
ILLEGAL ENCROACHMENT AND RIGHT TO HOUSING – THE DILEMMA
The Right to Housing and Illegal Encroachment is always at loggerheads regarding applicability. There are also differing judicial interpretations in cases where-in conflict arose between the possible encroachment and the Right to have proper housing facilities. The Gujarat High Court, in the case of Bandhkaam Mazdoor Sangathan vs. the State Of Gujarat, unequivocally stated that the “Right to Shelter doesn’t mean Right to Encroach .[7]The case dealt with the slum dwellers whose houses were evacuated and demolished for the encroachment of the Railway Land. Aggrieved by the action of authorities, the slum dwellers had approached the Court wherein their pliant was rejected, and the Court gave a new dimension to the conflict wherein it held that –
“An Encroacher, in order to save himself has to prove that any enforceable legal right in his favor during his stay should not exclusively be a constitutional Right to Shelter.”[8]
However, In Suresh Tirkey vs The Governor case, the Jharkhand High Court held the – Right to Housing as supreme, and even an encroacher’s Right needs to be taken into account by following all the due procedures of the law.[9] By analysis of these two judgments, we can state that there is a thin line between the interpretation of the Right to have a proper shelter and its corresponding duty to not encroach on the land. Therefore, proper rules and procedures need to be established in place so that the public authority’s rights to safeguard their land and people’s “Right to Housing” is balanced.
INTERPRETATION OF UTTARAKHAND HIGH COURT JUDGEMENT IN HALDWANI RAILWAY “ENCROACHMENT” CASE
The Tussle for land ownership between Gafoor Basti residents and the Railways has been a point of contention since the pre-independence period.[10] The Residents of Gafoor Basti claim that they have right over the land based on the year 1907 government record, which declared the disputed land to be a non-agricultural land used for public purposes. [11]However, The Railways took defense based on the notification released in 1959, land surveys and revenue records explicitly stating that land was to be vested with the Railways. [12]
The decision of the Uttarakhand High Court on December 20th, 2022, based on the PIL filed by Chandra Khulbe, gave a new dimension to the entire controversy. The two-judge bench of the Uttarakhand High Court in Ravi Shankar Joshi vs. Union Of India And Others dismissed the claim of the residents who claimed ownership based on the notification released in 1907.[13] The Court held it to be a mere “Office Memorandum,” and no transactions arising from it will be deemed valid. Additionally, the Court rejected the “Uninterrupted possession” claim of the residents and held that – “A Legal Right doesn’t arise to claim ownership merely because something is uninterruptedly possessed when the document itself is not legally valid .”Ultimately, The Court favored the arguments of the Railways and directed the state authorities to evict the families in the encroachment area within a week and also take the help of para-military forces if needed. [14]
POSSIBLE CONCERNS WITH THE UTTARAKHAND HIGH COURT JUDGMENT
Even Though The Judgment of the Uttarakhand High Court is based on merits, it still fails to take into account crucial aspects of the established legal framework –
1. The Court completely ignores the “Right to Housing” aspect in this issue, indirectly denies it and violates various supreme court judgments uplifting the shelter jurisprudence under the Right to life.
2. The High Court fails to consider the Supreme Court’s interpretation in Olga Tellis vs. Bombay Municipal Corporation. [15]In this case, the apex court allowed the eviction of jhuggi jhopri dwellers, but a proper rehabilitation mechanism was established.
3. The reference to Para-military force is further problematic as it may pave the way for human rights violations.
4. The established time frame for the eviction is “draconian” as the judgment fails to consider the period spent by the residents in the place.
5. The Failure of the state machinery is not enunciated in the judgment as it is the State’s main responsibility to ensure that all its citizens have the right to have proper shelter and its allied rights as per the Supreme court’s judgment Ajay Maken vs Union of India.[16]
RATIO DECIDENDI OF SUPREME COURT IN GRANTING RELIEF TO THE RESIDENTS
The Uttarakhand High Court’s decision to evacuate nearly four thousand people within a week with no rehabilitation evoked protests throughout the country.[17] Under it, many petitions were filed in the Supreme Court seeking relief for the aggrieved residents. Finally, on January 4th, 2023, the two-judge bench of S.C. heard the matter and granted the stay on the Uttarakhand High Court Judgment. [18]
The Court raised concerns that – The main point that needs to be considered here is whether the Railways are claiming a part of the complete area, which affects the residents’ rights. There are also issues related to residents claiming that they have purchased the land on lease and through many private agreements; additionally, many of the residents were still paying taxes and electricity charges which needs to be considered. The apex court also stressed the practical solution and objected to the H.C.’s evacuation order of nearly four thousand residents without proper rehabilitation facilities. Further, the H.C. failed to consider the fundamental “Human Issue” and generalized its decision. Ultimately, the Apex Court stayed the H.C.’s order because it lacked a proper “reasoning” and granted the residents relief until the next hearing.[19]
IMPLICATIONS OF THE SUPREME COURT JUDGEMENT IN UPHOLDING THE “RIGHT TO HOUSING”
By granting a stay on the immediate evacuation of the residents in the alleged railway encroachment, the Supreme Court rightly recognized the importance of “Housing” as a fundamental factor under the Right to Life. The apex court’s verdict further throws light upon “Rehabilitation” under the ambit of the housing jurisprudence, which is a crucial factor for relocating individuals. Even though the previous records of the rehabilitation process are not fruitful regarding its applicability, there is still hope that the Supreme Court will delineate rehabilitation norms in future hearings. The criticism of the apex court on the High Court’s para-military forces intervention is further noteworthy considering the due process of the law in place. Ultimately, In the era of “bulldozer justice,” the judgment serves as a major precedent that ensures that state authorities cannot exploit the rights of the individuals to have their constitutional Right of shelter.
LANDMARK JUDGEMENTS RELATED TO THE “RIGHT TO HOUSING” IN INDIA
- Olga Tellis v. Bombay Municipal Corporation (1985): In this case, the Supreme Court held that the Right to life under Article 21 of the Constitution includes the Right to proper livelihood and the Right to shelter. The Court directed the State to provide alternative accommodation to the slum dwellers facing eviction.[20]
- Chameli Singh v. State of U.P. (1996): In this case, the Supreme Court held that the Right to Housing is a fundamental right and is essential part of Right to life. The Court further held that the Right to life does not include mere animal existence, but it encapsulates all other ancillary rights attached to it, including the “Right to Housing”which is necessary for the dignified life of human beings.
- Shantistar Builders v. Narayan Khimalal Totame (1990): In this case, the Supreme Court held that – A place for a proper accommodation is a requisite necessity under Article 21 of the Indian Constitution, and the State must ensure that all citizens have access to basic human rights such as food, shelter, and clothing. It further directed the State to introduce schemes for providing permanent Housing to the poor to safeguard the Right to shelter and residence.[21]
- Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Others: The Supreme Court in this case emphasized the constitutional obligation of the State and local authorities to provide socio-economic and political justice to the weaker sections, including Scheduled Castes and Scheduled Tribes, and to prevent their exploitation and injustice. In addition, the Court directed the Ahmedabad Municipal Corporation to provide alternative accommodation to the people facing eviction.[22]
- Ajay Maken v. Union of India: In this case, The Delhi High Court took an extended view of the Right to Housing and included the “Right to the city” under the ambit of a fundamental human right. In addition, The Court took a humanistic view of rehabilitation and ensured the need for the due procedure of law in eviction cases.[23]
- Sudama Singh & Others vs. Government Of Delhi & Anr: In this case, The Delhi Court directed the state government to chalk out the rehabilitation plans for jhuggi dwellers who encroached upon the government land. Further, the judge emphasized the Right to life and dignity as basic rights in ensuring the proper housing facilities.[24]
- Millennium Educational Trust v. State of Karnataka: The Karnataka High Court in this case reiterated the position of the “Right to Housing,” which also includes the “Right to Adequate Living .”This case further elaborates on the imposition of an obligation on the State to secure its citizens in having a proper living space. [25]
- P.T. Munichikkanna Reddy v. Revamma: The Supreme Court, in this case, held that the Right to Housing is not only a statutory or a constitutional right but also a broader right under the Human Right Principles. The Court further added that – The Concept of Human rights has varied dimensions, and the Right to Housing is one of the parts of it; therefore, concepts of adverse possession need to be taken into account while deciding the cases. [26]
- P.K. Koul v. Estate Officer: The Delhi High Court, in this case, took the route of international law in stressing the concept of the Right to Housing. The Court added that financial stringency should not be grounds for not enforcing an obligation of housing facilities to citizens. If the State fails in its duty, the aggrieved persons are liable for adequate compensation and damages.[27]
- Udal v. Delhi Urban Shelter Improvement Board: In this case, The Delhi High Court held that “Inadequacy of specific documents” cannot be ground for denial of rehabilitation for the evicted families as long as sufficient proof of residence. [28]
CONCLUSION AND RECOMMENDATION
The Right to Housing is one of the most fundamental elements in the life of all human beings. It is not just a human right but a collective social responsibility to ensure a dignified life for everyone. The Judgment of the Supreme Court in the alleged Haldwani railway encroachment case is praiseworthy as it upheld the Right to housing jurisprudence and protected the lives of nearly four thousand families. At the same time, It is requisite now to have proper codified laws related to rehabilitation and resettlement principles so that the rights of the affected parties are protected. Therefore, The Judiciary and the Executive bodies should work in tandem and bring a diligent solution to the problem of encroachment and ensure the proper housing needs of the people.
[1] Explained: What is the railway land controversy happening in Haldwani? (2023) IndiaTimes. Available at: https://www.indiatimes.com/explainers/news/explained-what-is-the-railway-land-controversy-happening-in-haldwani-589549.html (Accessed: February 25, 2023)
[2] SC order in Haldwani case: What the Apex Court said on Uttarakhand HC ruling (2023) The Indian Express. Available at: https://indianexpress.com/article/explained/sc-order-in-haldwani-uttarakhand-hc-ruling-8363281/ (Accessed: February 25, 2023).
[3] 1995 SCC Supl. (3) 456
[4] (1996) 2 SCC 549
[5] (2013) 1 SCC 353
[6] W.P.(C) 4785/2008 & CM APPL. 9216/2008
[7] C/WPPIL/59/2021
[8] Varsha (2021) “right to shelter doesn’t mean right to encroach”: Gujarat HC denied relief to slum dwellers, BnB Associates LLP. Available at: https://bnblegal.com/news/right-to-shelter-doesnt-mean-right-to-encroach-gujarat-hc-denied-relief-to-slum-dwellers/ (Accessed: February 25, 2023).
[9] LPA No. 143 of 2022
[10] ‘we are being made scapegoat’: Haldwani evictions reveal long trail of clashing claims (2023) https://www.outlookindia.com/. Available at: https://www.outlookindia.com/national/when-naintital-high-court-declares-50-000-citizens-encroachers-on-railway-land-magazine-254791 (Accessed: February 25, 2023).
[11] Khan, K. (2023) Haldwani case: How did the Uttarakhand High Court arrive at its ruling?, The Indian Express. Available at: https://indianexpress.com/article/explained/explained-law/haldwani-case-how-did-the-uttarakhand-high-court-arrive-at-its-ruling-8364274/ (Accessed: February 25, 2023).
[12] Upadhyay, S. (2023) Haldwani evictions : Reasons given by Uttarakhand High Court to order evictions in Gafoor Basti near Railway Land [read judgment], Live Law. Live Law. Available at: https://www.livelaw.in/news-updates/haldwani-evictions-reasons-given-by-uttarakhand-high-court-to-order-evictions-in-gafoor-basti-near-railway-land-read-judgment-218051 (Accessed: February 25, 2023).
[13] WPPIL/30/2022
[14] Supra Note 11
[15] 985 SCR Supl. (2) 51
[16] W.P.(C) 11616/2015
[17] Uttarakhand: Protests erupt after eviction notice served to people living in ‘unauthorized colonies’ in Haldwani (2023) https://www.outlookindia.com/. Available at: https://www.outlookindia.com/national/uttarakhand-protests-erupt-after-eviction-notice-served-to-people-living-in-unauthorized-colonies-in-haldwani-news-250691 (Accessed: February 25, 2023).
[18] SC order in Haldwani case: What the Apex Court said on Uttarakhand HC ruling (2023) The Indian Express. Available at: https://indianexpress.com/article/explained/sc-order-in-haldwani-uttarakhand-hc-ruling-8363281/ (Accessed: February 26, 2023).
[19] ‘Can’t uproot 50,000 people in 7 days’: Sc stays HC Order on Haldwani Eviction (2023) The Wire. Available at: https://thewire.in/law/supreme-court-haldwani-stay-uttarakhand-high-court (Accessed: February 25, 2023).
[20] Supra Note 15
[21] (1990) 1 SCC 520
[22] (1997) 11 SCC 123
[23] Supra Note 16
[24] W.P. (C) Nos. 8904/2009
[25] ILR 2013 KARNATAKA 1452
[26] 2007 ALL SCR 1582
[27] W.P. (C) No. 15239/2004
[28] W.P.(C)–5378/2017
Author: Akash. S. Kharvi
Juris Centre 