The recent decision of the Bombay High Court on the issue of fundamental rights of senior citizens in respect of their shelter entitlement has stirred a debate on the need for explicit recognition of the right to a standard of living and housing for those in their old age. This recognition intersects with the constitutional rights of the citizens, including senior citizens, under Articles 14, 19, and 21 of the Constitution.
In its recent order, the HC said "entitlement to a shelter" is a fundamental right, and that this right of senior citizens could not be taken way "in their twilight years". The court was hearing a case in which the 65-year-old petitioner claimed that she had been deprived of a house because the residential society they lived in has been "under redevelopment" since 2019, when they vacated it. The builder appointed to construct the new building apparently could not start work due to financial issues. The court said senior citizens cannot be made to suffer forever due to such delayed redevelopment.
In India, the right to adequate housing is an integral part of our legal system, but in any codified law, this right has not been specifically mentioned. The Constitution of India provides many rights, like the right to life and personal liberty under Article 21 and the right of every citizen to reside and settle in any part of the country under Article 19. Article 41 of the Directive Principles of State Policy also discusses the rights of senior citizens and persons of old age as it directs the state to secure the right to work, education and public assistance in certain cases such as unemployment, old age, sickness, and disablement.
Parliament passed the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, to provide more effective provisions for the maintenance and welfare of parents and senior citizens, casting a legal obligation for children and heirs to provide maintenance to senior citizens and parents in the form of a monthly allowance. Realising the need to protect the rights of senior citizens, the legislation provides a simple, speedy, and inexpensive mechanism for the protection of the life and property of older persons.
In this light, a discussion of the international law position and judicial jurisprudence on the issue of adequate housing for citizens, including senior citizens, is of paramount significance.
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As India is a party to the International Convention on Economic, Social, and Cultural Rights (ICESCR), it has a responsibility to abide by the covenant. The ICESCR bestows the responsibility upon the states under Article 11 (1) to take appropriate steps to ensure the right to an adequate standard of living for the health and well-being of individuals, including those in their old age, to prevent homelessness, forced evictions, and ensure everyone's right to adequate housing.
Interestingly, the UN Committee on Economic, Social and Cultural Rights that monitors the implementation of this convention has laid down seven components that form part of the human right to adequate housing. These include legal security of tenure; availability of services, materials, and facilities; affordability; habitability; accessibility; location and culturally adequate. In 1991, the UN General Assembly adopted the UN Principles for Older Persons, a resolution that aims to ensure the independence, participation, care, self-fulfilment, and dignity of older persons.
On December 20, 2012, the UN General Assembly adopted another resolution calling for strengthening the international protection regime for older adults. However, there is still no international treaty compelling states to protect the rights of older persons even when there is an increasingly ageing population, which is a global phenomenon due to the demographic shift.
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The Supreme Court of India, in several judgments, has held that the human right to adequate housing is a fundamental right emanating from the right to life protected by Article 21 of the Constitution of India.
The Supreme Court, in the case of Francis Coralie vs The Union Territory of Delhi, had held that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing, and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
In the case of Chameli Singh and Others vs State of Uttar Pradesh (1996), the Supreme Court declared that shelter for a human being is not merely the protection of his life and limb but a place where one has opportunities to grow physically, 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.
In the case of Ahmedabad Municipal Corporation vs Nawab Khan Gulab Khan and Others, the Supreme Court directed the state to construct affordable houses for the poor as the State has the constitutional duty to provide shelter to make the right to life meaningful.
One of the most significant cases is the Olga Tellis v. Bombay Municipal Corporation, which was filed on behalf of Mumbai's slum and pavement dwellers. In this case, the municipal corporation had sought to evict a large community of informal dwellers without notice or compensation. The court ruled that the eviction of pavement dwellers using unreasonable force without giving them a chance to explain is unconstitutional as violative of their right to livelihood and encouraged alternative resettlement.
Similarly, in the case of PG Gupta vs the State of Gujarat, the Supreme Court ruled the right to shelter in Article 19(1), read with Articles 19 (1) (e) and 21, including the right to residence and settlement. Further, the protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life.
Seen in this light, the Supreme Court of India needs to come up with reforms focusing not only on ensuring the right to adequate standard of housing but also on initiating reforms and laying down guidelines in the implementation of this right and specifying the criteria on which it should be implemented, similar to the ones listed by the UN Committee on Economic, Social and Cultural Rights.
Abhinav Mehrotra is an Assistant Professor and Amit Upadhyay an Associate Professor at Jindal Global Law School, O.P. Jindal Global University, Sonipat, India.
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