The Right To Housing As An Unenumerated Fundamental Right: Testing India's Eviction Jurisprudence Against Article 21

Full Text Link

Ms. Shamayeeta Dey, LLM (Human Rights, AIALS, Amity University, Noida, Uttar Pradesh.

ABSTRACT

The Supreme Court has told India, more than once and in increasingly forceful language, that the right to shelter lives inside Article 21. It said so in 1985, when it linked pavement dwellers' evictions to the right to livelihood. It said so again in 1996, dropping the hedge entirely and calling shelter a fundamental right in its own name. And it said so with real teeth in November 2024, when it labelled bulldozer demolitions of mere criminal suspects’ homes “wholly unconstitutional” and imposed nationwide procedural guardrails notice, hearing, video graphed compliance before any structure could legally come down. The problem this essay takes on is not that the doctrine is thin. It's that the doctrine is selectively deployed. Courts reach for the full force of Article 21 when a demolition can be framed as extrajudicial punishment of a person the state has singled out and reach for almost nothing when the exact same deprivation happens to a slum settlement labelled “encroachment.” The families losing their homes are, in both cases, losing exactly the same thing. Only one of them gets the benefit of a constitutional bench calling it unconstitutional. Drawing on Olga Tellis, Chameli Singh, Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, Sudama Singh, and the 2024 demolition guidelines, this essay traces how a single, well-established doctrine of unenumerated constitutional rights has come to protect some evictees far more than others, not because the law distinguishes between them, but because the label attached to the bulldozer does.

In doing so, the essay resists the temptation to treat this as a simple story of judicial failure. A right that expands sharply for the politically visible and stalls for the politically invisible is not, this essay argues, functioning as an unenumerated fundamental right, it is functioning as a discretionary courtesy.

Keywords: Right to Shelter; Article 21; Unenumerated Fundamental Rights; Eviction Jurisprudence; Encroachment Doctrine; Bulldozer Justice

111. THE RIGHT TO HOUSING AS AN UNENUMERATED FUNDAMENTAL RIGHT- TESTING INDIA'S EVICTION J

Download THE RIGHT TO HOUSING AS AN UNENUMERATED FUNDAMENTAL RIGHT- TESTING INDIA'S EVICTION J • 245KB