In Conversation with Dr. Soham D. Bhaduri – India’s Health Policy, Primary Health Sector and National Medical Commission Bill
September 22, 2019
INTERFACE BETWEEN IPR AND FILM MEDIA
October 3, 2019

Freedom from Want: The Science of Legal Economy

“The difference between the need of an animal and [that of] a human being for shelter has to be kept in view. For the animal, it is a bare protection of the body; for a human being, it has to be suitable accommodation, which would allow him to grow in every aspect—physical, mental and intellectual…”
                                   — Hon’ble Supreme Court in Shantisar Builders v. Narayan Totame (1990)[1]
Introduction:
Freedom from Want or Right to an adequate standard of living was first recognised in Franklin D. Roosevelt’s (32nd President of the United States of America) four freedom speech in 1941. The four fundamental freedoms proposed by him were — Freedom of Speech, Freedom from Fear, Freedom of Worship and Freedom from Want. Roosevelt, through Freedom from Want, endorsed the human right to economic security in the light of the wholesome environment and sustainable ecosystem. He rightly argued that attainment of basic requirements of an individual—the right to life, right to food, right to housing, right to a healthy environment is a prerequisite for the Constitution to function in its fullest capacity. Article 25 enshrined in the Universal Declaration of Human Rights (UDHR) and Article 11 incorporated in the International Covenant on Economic, Social and Cultural Rights (ICESCR) draw inspiration from Roosevelt’s speech. It would not be an exaggeration to say that this was the first time that the relationship between the two branches of social sciences—economics and jurisprudence, was established and gained importance with the passage of time.
Interpretation of the Right in Indian Context:
The biggest blossom of Constitution makers’ bouquet to the people of India is Article 21 which grants the people (both citizens and foreigners) of India, the right to life and personal liberty. Article 21 is probably the only article in India’s constitution which covers both first and second-generation rights. Human Rights have been divided into two broad categories: (a) civil and political or ‘first generation rights’—including the right to life, the right against arbitrary arrest and detention, and the right to freedom and (b) social, economic and cultural rights or ‘second generation rights’, such as the right to health and right to social security. Article 21 has undergone various interpretations since the time Constitution of India has come into force. In Olga Tellis v. Bombay Municipal Corporation[2], the Hon’ble Supreme Court included the right to shelter within the reach of Article 21, thus attributing a new socio-economic dimension to it. The Hon’ble Supreme Court made it clear that nothing can subdue the basic human desire for dignity and courageously held that alternative accommodation must be provided to the pavement dwellers who were evicted under Sections 312 to 314 of the Bombay Municipal Corporation Act, 1888. The Hon’ble Supreme Court followed the same policy-oriented approach and reiterated the principles laid in Olga Tellis in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan[3]. In an interim order, the Hon’ble Supreme Court requested the Ahmedabad Municipal Corporation to formulate a scheme to provide alternative accommodation to the pavement dwellers who were being removed from their settlements and affirmed that fair opportunity must be given to the pavement dwellers to opt for one of a few available schemes for their rehabilitation. In another case[4], the Hon’ble Supreme Court opined that the right to shelter enshrined in Article 19(1)(e) read with Article 21 of the Indian Constitution included the right to residence and settlement and right to housing was a part and parcel of the right to life. However, in Narmada Bachao Andolan v. Union of India[5], the Hon’ble Supreme Court digressed from its approach as the Court allowed the construction of Sardar Sarovar Dam at the cost of displacement of lakhs of tribals and serious environmental degradation, thus not taking into account the right to housing and rehabilitation into consideration. The Court on examining the costs and benefits associated with the project observed that-
The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were…”
Starting from 1999, the Hon’ble Supreme Court, allowed the height of Sardar Sarovar Dam to be increased. According to one report[6], over 2,00,000 (two lakh) people affected by the construction of the dam are yet to be compensated. This judgment will always be remembered as a classic example of the Court’s myopic approach. Most recently, in the case reported as Dr.Ashwani Kumar vs Union Of India And Ors.[7], Hon’ble Justice Madan Lokur reiterated that right to shelter or right to reasonable accommodation is one of the basic rights of any human being and the same must be protected for the senior citizens of the country. In this judgment, the Court also acknowledged the fact that right to shelter, though a constitutional right, is subject to ‘economic budgeting’ and the Court cannot overlook the financial capacity of the state in this regard.
Way Ahead and Conclusion:
The focus is now on bringing the ‘third-generation rights’, such as the right to a clean and healthy environment and intergenerational equity within the scope of Article 21. Both the government and Indian judiciary must be clear of the fact that they cannot be fanciful and unreasonable in their approach but have to strategically achieve an objective that ensures the economic well-being of all the citizens.
In India, every year, citizens eagerly await the Union Budget, hoping that this time the government will have something to offer to the impecunious but there are still millions who are waiting for the economic justice to be served. The Preamble clearly states that Indian state seeks to secure the ‘justice’ which is social, political and economic. Economic justice in the simplest sense is nothing but the right to adequate livelihood. The state can be a mute spectator when the rights of the people who are at the lowest rungs of the societal ladder are about to be trampled upon but the Indian judiciary will always have to act both as an activist and advocate for the downtrodden. We need to trace a broader narrative of unification and consensus to achieve a balance between the right to shelter and economic development. This must not only be visible on papers and remain a mere cacophony.
The relation between the two subjects is definitely a science which is entirely based on logical deductions, reasonable arguments and fair interpretations. Needless to say, we live in a world where economic fulfilment (roti, kapda aur makaan) is a necessity and legal system is a need for the society to function and operate better, and hence both have to exist together.

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REFERENCES 

[1] Shantisar Builders v. Narayan Totame, (1990) 1 SCC 520.

[2] Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.

[3] Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, AIR 1997 SC 152.
[4] P.G. Gupta v. State of Gujarat, (1995 Supp (2) SCC 182).
[5] Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751.
[6] Eric Randolph, Indian protest over Narmada dam builds awareness of rights, The National (August 10, 2019, 12:35 PM)  https://www.thenational.ae/world/asia/indian-protest-over-narmada-dam-builds-awareness-of-rights-1.562690.
[7] Dr.Ashwani Kumar v. Union Of India And Ors., Writ Petition (C) No. 193 of 2016.                       

ABOUT THE AUTHOR

 

 

Daksh Aggarwal is a 2nd-year law student at Campus Law Centre, Faculty of Law, University of Delhi.

 

 

In content picture credit: gep.v-training.com

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