Constitution Protects Slum Dwellers, They Have An Equal Right To Live With Dignity, Safety And Basic Standards Of Living: Bombay High Court

In a landmark ruling, the Bombay High Court while observing that the Constitution of India is a 'living framework' held that the people living in slums or informal settlements are protected by the Constitution. 

The High Court upheld the constitutional validity of the Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations (DCPR) 2034, which provides for rehabilitation of slum dwellers on lands encroached, which are reserved as 'open spaces' under the DCPR 2034.

A division bench of Justices Amit Borkar and Somasekhar Sundaresan refused to accept the argument that the only solution to retaining the open spaces in Mumbai is to enforce the laws strictly and evict the encroachers - slum dwellers. 

"Surely, in a perfect world, free from population pressure, economic inequality, and urban poverty, this approach may well have strong constitutional support. But this Court cannot ignore the realities of urban life in Mumbai. The Constitution is not just a theoretical document; it is a living framework, and the rights it guarantees, especially under Article 21, must be understood in light of real, everyday circumstances. It is true that the right to a clean environment is part of the right to life. But it is also equally true, and clearly laid down by the Supreme Court that the right to shelter and adequate housing is also a part of human dignity and personal security, protected under Article 21," the judges said in the order. 

In its 191-page judgment, the judges held that the people living in slums or informal settlements are not outside the protection of the Constitution.

"They may not have legal ownership of land, but they have an equal right to live with dignity, safety, and basic standards of living. When they occupy land not out of choice, but due to urgent need and helplessness, their act, though not lawful, is not to be condemned but must be seen with compassion. The Constitution, through its Fundamental Rights and Directive Principles, recognises that poverty and inequality are structural problems, and asks the State to take positive steps to reduce them," reads the order authored by Justice Borkar. 

The judges said that the contention of the petitioners to treat environmental rights and housing rights as opposing each other, would be a mistake.

"Both are part of Article 21, and both protect the right to live a life of dignity. Just as polluted air and water harm human health, so too do unsafe, overcrowded, and unhygienic living conditions. It would be wrong in law and unfair in principle to protect green spaces in such a way that thousands of families are made homeless, without proper legal process or alternatives. Such an action, rather than protecting Article 21, may violate it," the bench opined. 

The current condition of slums cannot be justified as 'acceptable', the judges said, adding that most such settlements are marked by poor sanitation, no ventilation, lack of clean water, and absence of healthcare or solid infrastructure.

"They are prone to dangers such as fires, floods, disease, and pose risks not just to residents but also to neighbouring communities. Leaving them as they are is not environmental conservation. But evicting them without offering any other option is also not social justice. The real environmental issue is not the existence of slums, but that they are unregulated and unplanned. The answer lies in redevelopment—transforming these areas into formal, safe housing, while restoring open spaces wherever possible. The right to environment and the right to shelter are both fundamental. The Constitution expects us to find a balance, not choose one over the other," the bench held.

The constitutional duty of the Court is not to enforce one right by ignoring the other, the bench said, further adding that its task is to ensure that both the rights under Article 21 that is, the right to a clean environment and the right to shelter are protected together in a way that maintains constitutional balance.

"Article 21, which has been expanded through judicial interpretation, includes not just the right to life, but also the right to live with dignity. This includes both the right to a clean and healthy environment and the right to proper housing. These two rights are not in conflict in fact, they complement each other. A house without basic living conditions is not truly a shelter, and a clean city that excludes the poor from access to it cannot be called fair or just. It supports a vision of environmental well-being that also respects human dignity, and promotes a model of urban growth that includes the poor, rather than pushing them to the city's margins," the bench observed. 

The bench clarified that it was 'deeply aware' of the serious shortage of open spaces in the city of Mumbai, which is backed by the data presented sourced from official surveys and civic reports. "This shortage is made worse by increasing population, unplanned urban growth, and competing demands for land. In several city wards, the open space available per person is so low that it is measured in square feet, not square metres. The effects of this shortage are not just theoretical—they are visible in daily life through rising stress levels, poor air quality, lack of play areas for children and recreational space for the elderly, and a general decline in the overall quality of life," the bench noted. 

Rejecting the argument that the scheme in question violates Article 21 i.e. right to clean environment, the judges pointed out, "Article 21 also includes within it the right to shelter, which is part of the right to live with dignity. The rights of slum dwellers to get proper housing cannot be ignored in the name of environmental protection, especially when the environmental impact is not total, and the Regulation ensures that a fixed portion of land (35%) remains reserved for public use."

Further clarifying the controversy, the judges underscored that the Regulation that has been challenged does not apply to all public open spaces blindly. It does not allow construction on parks that are free from encroachment. Nor does it dilute the general objective of preserving green zones.

"This Regulation is specifically meant for a narrow category of land that is, those open spaces which, in fact and due to long-standing circumstances, are already occupied by informal slum settlements. These are not open, unused, or untouched plots waiting for development. Instead, they are places where slum dwellers have been staying for many years, sometimes decades, often due to administrative inaction and socio-economic needs. Legally, the land may still be marked as 'reserved for recreation' but the physical condition tells a different story," the bench said.

Both environmental protection and social justice are duties under the Constitution. The Regulation in question does not ignore one for the other. It tries to bring them together through thoughtful implementation, the judges said.

"In our considered view, this Regulation is not a backward step but a constructive solution. It does not promote encroachment; instead, it tries to recover public land with fairness, dignity, and order," the bench underlined. 

These observations were made while upholding the constitutional validity of the Regulation 17(3)(D)(2) of the Development Control and Promotion Regulations (DCPR) 2034, which allows use of originally reserved open land, encroached upon by slums, for rehabilitation of the slum dwellers. The regulation permits use of only 65 per cent of such land if the said land is more than 500 square meters and mandates that 35 per cent of the said land must be kept reserved for open space, parks, gardens and/or recreational ground etc. 

The bench however, clarified that their decision should not be read as giving a free hand to the State to reduce open spaces in the city.

"The responsibility to maintain and increase open spaces continues. The State and local planning bodies must take concrete steps to improve the per capita open space availability, especially in areas where it is dangerously low. Strictly enforcing open space provisions in all layouts, residential or commercial. Preserving what remains is not enough. The city needs new and better open spaces for its growing population," the judges made it clear.

Appearance:

Senior Advocate Shiraz Rustomjee along with Advocates Gulnar Mistry, Akash Rebello, Prateek Pai, Peterasp Sasuri, and Shabbir Jariwala instructed by Jariwala Associates appeared for the Petitioners.

Senior Advocate (Special Counsel) Anil Sakhare along with Additional Government Pleader Abhay Patki represented the State.

Senior Advocate Dr Milind Sathe along with Advocates Girish Utangale, Gaurav Srivastav, Saurabh Utangale, Sarthak Utangale, Rohan Sawant and Vedant Joshi instructed by Utangale & Co. represented the SRA.

Senior Advocate Ram Apte along with Advocates Anuja Tirmali and Komal Punjabi represented the MCGM.

Advocate Netaji Gawade instructed by Sanjay Udeshi & Co. represented the Public Concern for Conveyance Trust.

Advocates Mayur Khandeparkar, Anosh Sequeiria and Joran Dwan instructed by Diwan Law Associates appeared for one of the Intervenors.

Senior Advocate Pravin Samdani along with Advocates Mayur Khandeparkar, Vikramjeet Garewal, Nitesh Ranawat, Disha Shetty, Mustaqueem Bagasaria, and Jyothi Tated instructed by Wadia Ghandy & Co. represented Naredco West Foundation

Senior Advocate Ashish Kamat along with Advocates Ranjeev Carvalho and Rishabh Murali instructed by ABA Law represented and Intervenor.

Advocates Abhishek Kothari and Rohaan P instructed by Trilegal represented Slum Redevelopers Association.

Case Title: NGO Alliance for Governance and Renewal (NAGAR) vs State of Maharashtra (Writ Petition 1152 of 2002)

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