Recently Allahabad HC also held that Right to shelter is a fundamental right, a right to all infrastructure necessary to live and develop as a human being in [Rajesh Yadav v. State of UP, 2019 SCC OnLine All 2555, decided on 01-07-2019]

Article 21- “No person shall be deprived of his life or personal liberty except according to the procedure established by Law”

EVOLUTION OF RIGHT TO SHELTER AS A FUNDAMENTAL RIGHT THROUGH LANDMARK JUDGMENTS.

Right to Private Property was originally granted to Indian citizens as a fundamental right under Article 31 of the Indian constitution which was struck down during the time of emergency with 44th constitutional amendment in the year 1978 and this right was made a constitutional right under 300A rather than a fundamental right. Article 300A has empowered the state to acquire any private person’s property with due process of law. After this, many cases raised in front of the supreme court about the shelter where the court had to enlarge the definition of Article 21 of the Indian Constitution.

Most important Supreme court judgments on right to shelter.

In case of Olga Tellis v. Bombay Municipal Corporation[1] for the first-time court held that “right to life includes right to livelihood and shelter” as they both are an important component of the right to life under article 21. This landmark judgment has expanded the scope of article 21 to right to livelihood and shelter.

In the case of Shantistar Builders v. Narayan K Totame[2] the court held by upholding the importance of the right to reasonable accommodation and to a decent environment.

“The right to life would take within its sweep the right to food, the right to clothing, the right to decent environment and reasonable accommodation to live in. The difference between the need for 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 a mud-built thatched house or a mud-built fireproof accommodation.

In case of In U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited[3], Court held that the right to shelter has been held to be a fundamental right which springs from the right to residence secured in article 19(1)(e) and the right to life guaranteed by article 21 to make this right meaningful to the poor, the state has to provide facilities and opportunities to build houses.

In case of In Chameli Singh v. State of U.P[4] court held that a Bench of three Judges of Supreme Court had considered and held that the right to shelter is a fundamental right available to every citizen and it was read into Article 21 of the Constitution of India as encompassing within its ambit, the right to shelter to make the right to life more meaningful. The Court observed that:

“Shelter for a human being, therefore, is not mere protection of his life and limb. It is however 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 the right to all the infrastructure necessary to enable them to live and develop as a human being.”

P.G. Gupta v. State of Gujarat and others[5] In this case, the Supreme Court ruled that the right to shelter in Article 19(1)(g) read with Articles 19(1) (e) and 21 included the right to residence and settlement. Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life.

Narmada Bachao Andolan v. Union of India[6] the Supreme Court ruled that:

“displacement of the tribal and other persons would not per se result in the violation of their fundamental or other rights” and held that the construction of the dam would continue. The judgment contradicted all previous Supreme Court rulings that have upheld the right to shelters related to the right to life, as well as the Narmada Water Disputes Tribunal decisions.

In the case of PUCL vs. UOI[7], the Supreme Court ordered that all the shelter homes shall remain open and operating for 24/7 and 365 days. In every major urban area, one shelter per 100,000 population should be provided to the urban homeless people to meet their essential needs.

All these judgments have expanded the definition of article 21 of our constitution. this article has given so many rights to the citizens for their growth, nourishment and shelter. All the basic necessities and requirement for a person to grow. Right to life is a fundamental right of citizens without this right a human being shall be of mere animal existence, this right provides all citizen to have a meaningful life.

Along with the above provisions, the Indian Constitution also provides for the following safeguards to homeless people

Article 39 (1): it’s a state duty to protect both women and men to have an equal adequate means and quality of livelihood[8].

Article 42: State provisions to be made for protecting just and humane conditions of work and for maternity relief[9].

Article 47: Duty of the State t
o raise the level of nutrition and the standard of living and to improve public health[10].

PRE-PANDEMIC SITUATION:

According to the census report of 2011, approximately 13.75 million households or approximately 65-70 million people reside in urban slums[11]. Even after right to shelter is a fundamental right, constitution imposes a duty on state and various schemes still this problem of shelter is aggravated due to various reasons like poverty, natural calamities like floods and earthquakes. In the year 2019, 5 major floods hit the states of India which killed more than 1500 people and many lost their shelter causing a long-term impact over their lives.

Government various schemes for providing shelter:

1.     The Shelter and Sanitation Facilities for the Footpath Dwellers in Urban Areas’ which was implemented through Housing & Urban Development Corporation Ltd in the year 1992 this scheme’s objective is to ensure that every homeless person could have basic shelter to live a better quality of life. This scheme was renamed as ‘Night Shelter for Urban Shelterless’ in the year 2002. However, this scheme failed and was withdrawn by almost all states in the year 2005.

2.     Deendayal Antyodaya yojana – National Rural Livelihoods Mission

This mission aims to create an effective and efficient institutional platform to rural poor, enabling them to increase household income through sustainable livelihood enhancements and improved access to financial services. This mission was renamed in the year 2015 as DDY[12].

3.     NULM (National Urban Livelihoods Mission)

This mission has replaced the Swarna Jayanti Shahari Rozgar Yojana in 2013. This mission focuses on organizing urban poor in creating strong grassroots level institutions, creating opportunities for skill development leading to market-based employment and helping them to set up self-employment venture by ensuring easy access to credit. This mission is aimed at providing shelter equipped with essential services to the urban homeless in a phased manner[13].

However, the main criticism of this policy is that its approach towards the problem was only temporary. This policy has not addressed how can a homeless person render for a permanent shelter.

Present Government’s stand is to achieve ‘Housing For All’ by the end of 2022. To fulfil this plan, the central government has launched schemes.

1. Pradhan Mantri Awas Yojana (PMAY)

This scheme was launched by our Hon’ble Prime Minister Shri Narendra Modi to fulfil the objective of Housing for All by 31st March 2022, on the occasion of 150th birth anniversary of Mahatma Gandhi. This is Categorized into two parts Urban and Rural/Gramin. 

PMAY-Urban: This scheme is for the overall development of urban areas, for individuals who are economically weaker, lower-income group, Middle-income group 1 and 2 shall avail this scheme, it is a credit link subsidy scheme, the interest subsidy shall be provided while constructing a house. This scheme also includes industrial development authority, special development authority and all such other authorities which helps in planning the regulations for urban development. This scheme focuses on all states including union territories. 

PMAY- Rural/Gramin: This scheme aims to provide houses at low cost for people who are living in rural areas, this scheme shall provide home loans of up to Rs.2 Lakhs. This scheme provides a concession for either upgrading their existing house or for constructing a new house. People who can avail this scheme are free bonded labourers, ST&SC, non-ST&SC who shall be coming under BPL category, the family who does not have a pucca house, Widows of paramilitary forces, retirement scheme and ex-servicemen.     

PANDEMIC SITUATION:

We all are aware of the pandemic situation i.e. COVID 19 which hit us in the month of March. This is a global disease which is easily spreadable through touch. The Indian government on March 24th, 2020 has declared complete lockdown in order to prevent India from the spread of COVID 19. During this period all sectors are affected as everything is at stake which slowly moved to financial slowdown. Due to this lockdown every migrant worker, employees and students are affected as there is no transportation facility. They are unable to travel back to their native town.

Migrant workers:

Migrant workers were facing a lot of hardship due to shutdown of many factories and workplaces as they work on a daily wage basis, they had to deal with many problems such as loss of income, food storage and uncertain shelter to live. Hence, thousands of workers began to walk back to their homes with no means of transportation. Many of these workers died as a result of starvation while travelling, committed suicide as they were unable to handle this pressure, road and train accidents, exhaustions, police cruelty and lack of medical facilities on time. Later on, the state and central governments took various measures to help them by providing various means of transportation. A PIL was filed on March 30th on behalf of those migrant workers in the supreme court. The court ordered the central government to file a report and status of migrant workers. On 16th May, the Supreme Court imposed a duty on all state governments to provide free transportation and reliefs. On 26th, May the supreme court observed that still, migrant workers problems have not solved hence, court-ordered centre and state governments to provide shelter, free food and transportation to migrant workers.

Central Government Action During Lockdown:

Building and Other Construction worker’s welfare fund:  The central government has instructed all states to utilize the welfare fund which has a corpus of Rs. 31,000 Crores to help the construction workers during this lockdown period. 

Employees and Students:

Employees working in other states for private organizations had either lost their job or were sent home to work remotely. Due to which they failed to pay their rent for their accommodations. The landlords demanded these people pay entire rent amount in spite of not staying at their respective rented homes or to vacate the house which was not possible by them due to limited financial situations. Also, many students and employees were stranded in other states or midway to their homes in different towns or cities and faced hardships in finding food and shelter. The Supreme Court on 6th May Justice Ashok Bhushan by dismissing the plea through video conference, he stated that the supreme court cant direct the centre to ensure compliance with Ministry of Home Affairs order on March 29, 2020, that “ restraining landowners to force students and labourers to vacate the premises for failing to pay t
he rent.”

The Delhi High Court in case of Ramanand and others vs. Dr Soni and others[15] clarified that the period of lockdown and not using the premises can’t be an excuse for non-payment of rent. Rent shall be paid.

A single bench Judge Justice Pratibha M Singh said that tenants are liable to pay rent, they can’t avoid be invoked under the doctrine of suspension of the rent on the basis of force majeure event. However certain relaxations shall be imposed in the form of postponement in payment of rent.

CONCLUSION:

This pandemic is difficult for everyone, it has affected various sectors globally. The Indian government is taking necessary measures to prevent the spread of the virus. Also “P.M. Fund” raised fund through google pay, internet banking etc. Aarogya application was implemented for ensuring the safety of every individual of the country.

Every state government shall take all necessary measures in order to preserve these migrant workers in their states providing them with food and shelter also to see to that after this pandemic, they are given their job back so that they could come back and live again a normal life.

During this pandemic, few companies which are operational earned profits can come forward and provide shelter to these vulnerable people. Companies which are operating remotely during this pandemic such as software companies, drug stores, wine stores, sanitizer companies who have earned a lot of profit could give a hand to help these workers along with the government. Even those factories or industries who have hired these migrant workers can also provide shelter and other basic amenities.

The government shall make strict policies and rules in order to protect these migrant rights and also see to it that these are being properly implemented and not misused. Various NGOs who are working for Human rights and natural calamities help the community can also rescue these workers by providing them with basic amenities like shelter, sanitation, food and clothes also medical facilities.

Workers shall also strictly follow and cooperate with the authorities and shall not violate any rules.

However, No Government body can ensure shelter for all the sections of the society in all situations. it is expected, when a person is earning he/she should have a habit of saving money for unexpected situations like this, these provisions can be provided to weaker sections but it is difficult to provide to every section of the society.

REFERENCES:

1.     https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/#_ednref35

2.     https://www.newindianexpress.com/nation/2020/mar/23/over-17-million-homeless-residents-across-india-struggle-to-fight-coronavirus-2120322.html

3.     https://architexturez.net/pst/az-cf-172139-1442534382

4.     https://blog.ipleaders.in/homeless-india-schemes/

5.     https://www.hlrn.org.in/documents/Shelters_Urban_Homeless_Handbook.pdf

6.     https://www.thehindu.com/news/national/coronavirus-lockdown-dont-charge-migrant-workers-bus-or-train-fare-says-supreme-court/article31695545.ece

7.     https://www.osha.gov/Publications/OSHAFS-3747.pdf

8.     https://www.scconline.com/blog/post/2019/07/11/all-hc-right-to-shelter-is-a-fundamental-right-a-right-to-all-infrastructure-necessary-to-live-and-develop-as-human-being/

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Diplomatic Agents are those agents who reside in foreign countries for a specified period of time as a representative of their state from which they have been dispatched. These diplomatic agents have various functions, powers and immunities and they establish a friendly relationship and carry out political and legal transactions between home state (the state from where they have been dispatched) and accredited country (to the country where the diplomat is accredited). They provide an important link between both states.

HISTORY 

This custom of sending their agents and receiving agents from states has been in practice since the ancient period in India and they are called as Doots, these doots were sent to states for a specific purpose on a temporary basis and would return after the purpose is fulfilled. This practice was not uniform nor they were sent permanently to the accredited state. The practice of sending diplomatic agents permanently/specified long period started since the British period when they wanted to establish trade and business with ‘Foreign European Powers’. In 1783, September 23, the East India Company’s board of directors passed a resolution to establish an Indian foreign department for conducting trade, secrets and business politics. This continued to expand as diplomatic representation, wherever the Britishers needed themself to be represented for their benefits. 

In 1935, the GOI Act has elaborated clearly on political and foreign sector functions in the Indian foreign department, but they realised that it was administratively imperative hence a separate external affairs department was set up. The Indian government in the year 1946, decided to form Indian foreign services to be commercially represented overseas through diplomats and consular which we now call as the ministry of external affairs and commonwealth relations^[1].

Simultaneously in the international platform, permanent legation became a general institution by the second half of the seventeenth century. Later, the state has given certain duties, privileges and rights to them which were almost similar in nature. This led to the development of customary rules of international law. For the first time, the customary rules of the international law on the ranks of diplomatic representatives were codified in the Congress of Vienna in the year 1815.  But that was not the end. The institution of diplomatic agents kept continuing even after 1815. After the establishment of united nations, the international law commission was given a task to codify the laws relating to diplomatic agents and they submitted their draft in the UN assembly. UN Assembly called up for a conference at Vienna in the year 1961 on April 18 about diplomatic relations, eighty-four states have participated in the conference and this conference was named as Vienna convention which came into force in the year 1964 after twenty-four states ratifying this convention. However, this convention doesn’t solely to be considered an instrument for having diplomatic agents’ other customary laws are governed where this convention has not expressly mentioned those of few provisions^[2]. The institution of diplomatic representatives has come to be the principal machinery by which intercourse between states is conducted at present.

AMBASSADORS:

Vienna Convention has classified diplomatic agents into 3 classes, in which Ambassadors are highest in rank, considered as personal representative of their home state and hence, they enjoy highest, special honours then other two classes. Oppenheim (German Jurist, regarded as the father of the modern discipline of international law) says that Ambassadors are also called a mouthpiece of his/her home state and to the foreign department, for communications made to the accredited state.

The home state sends these ambassadors to reside in the accredited state in order to maintain diplomatic relations with the accredited state and these ambassadors have to represent in benefit/ interest of the home state on a wide variety of issues both at home and at abroad. Ambassadors are sent along with diplomatic staff such as technical staff, administrative and service staff. These staff shall be from the home state only. Ambassadors claim the title of excellency and they shall have various important functions to perform while having access to the various honours and immunities available to them. Presently, India is maintaining diplomatic ties with Afghanistan, Iran, Israel, USA, Russia, Japan, Bhutan etc.

FUNCTIONS OF AN AMBASSADOR:

1. REPRESENTATION:  Ambassadors shall represent in benefit/interest of their home state in the accredited state on a vast variety of issues both at home and at abroad which includes trade and investment promotion, cultural interaction, political and economic cooperation, media and press, military involvement between both countries and also hosting in multilateral issues.
2. PROTECTION: Ambassador’s utmost priority is to protect its home state’s national security in the accredited state and protecting legal rights, properties and providing consular facilities of its citizens/national who are residing in the accredited state^[3]. Help out the refugees who are stuck in dangerous situations, providing passports, legalization of signatures, registration of birth, marriage and death subject related to his/her home state.
3. NEGOTIATION:  Negotiation is the most important function of ambassador to perform. Ambassadors negotiate on various aspects with the accredited state on behalf of the home state in order to maintain peace and have friendly relations between two states. The negotiation outcome shall be intimated to the home state on a time to time basis. 
4. OBSERVATIONS: The ambassador shall observe the regular happening of events in the accredited state especially with the events which might affect relations with his/her home state and he/she shall update by sending periodical or special reports to the foreign department of the home state.
5. PROMOTION OF FRIENDLY RELATION: Ambassadors shall always promote friendly relationship and develop social, cultural and economic relations between the two states.
6. WORK FOR PEACE: Under the coordination of head of the state and defence ministry of the state, the diplomatic agents’ the mission is to work together peacefully and fight against illegal, immoral acts like international bribery, human trafficking, drug trade and international terrorism^[4].

Apart from these functions, they shall be appointed with other specific functions and shall be performed only by them. These ambassadors are been protected with various immunities provided them by the home state such as the inviolability of diplomatic agents include staff and family members, inviolability of premises, immunity from the local jurisdiction, giving witness, immunity from taxes and custom duties, immunity from inspection of personal baggage, right to worship, freedom of movement and travel, freedom of communication, immunity from social security, local and military obligations.

Ambassadors play an important role in passing confidential communication with foreign countries and in shaping the foreign policy of their home state.

SOURCES:

1.     https://www.tutorialspoint.com/what-is-the-role-of-an-ambassador-in-a-foreign-country
2.     http://www.legalserviceindia.com/legal/article-1173-role-of-ambassadors-and-high-commissioner.html
3.     https://law.jrank.org/pages/4281/Ambassadors-Consuls-Powers-Duties.html
4.     https://www.mea.gov.in/indian-foreign-service.htm
Book reference – International law and human rights by Dr H.O. Agrawal, 22 edition 2019, central law publications, Chapter 21- Diplomatic agents, page no. 311.

Author: P. Vaishnavi, Legal Intern at Legal Desire (June 2020)

P. Vaishnavi, a dynamic individual and an academic scholar pursuing her BA.LLB(Hons.) degree at ICFAI Law School, Hyderabad. Her interest lies in media and environmental laws. 

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