Eroded Homes: Assessing the Right to Shelter in Assam’s Floods

Introduction

The mighty Brahmaputra covers a long and arduous track before it arrives in Assam. Known for its braided channels, the river flows unpredictably, clearing the old soil, replenishing them with rich nutrients and maintaining the beautiful wetlands of Kaziranga. The Brahmaputra is indeed the lifeline of Assam. However for many in the state, it is in equal measure a period of devastation. It is a period that forces them to witness their homes being attacked by the angry waters of the river as it flows through the coast. Since the flooding of the Brahmaputra is an annual event, families who sometimes have lost a chunk of their assets and their homes are forced to start from scratch over and over again. 75% of the population depend on agriculture as a means of livelihood and set up their homes close to where they cultivate, which in most cases is close to water sources. And it is exactly these regions that are prone to devastation during the floods.

Right to Shelter under Article 21

This raises the crucial question of Right to Shelter of those living in Assam’s flood prone regions. Article 21 of the Constitution guarantees the right to life and liberty, and it is well-known that the Supreme Court has consistently widened the ambit of Article 21 to include several aspects of life that ensure the dignity of a person. One such case is Olga Tellis v. Bombay Municipal Corporation, which has established that the right to shelter and livelihood is intrinsic to the right to life and personal dignity promised under Article 21. But the issue in Assam is not just one of right to shelter: it is not that people don’t have homes. It is that people don’t have access to safe and secure homes. As laid down by the Supreme Court in Chameli Singh v State of Uttar Pradesh, it is not sufficient that a person has a roof over their  head: they  should also have adequate living space, a safe and healthy environment and access to basic amenities. Similarly, in Shanistar Buildings v Narayana Khimalal Totem, the Court held that the right to life includes the right to reasonable accommodation, one that matches human dignity and development. Although these cases established the firm place of right to shelter within the larger umbrella of Article 21, it is done in the context of direct State action that results in the deprivation of shelter, most commonly through evictions, and not natural disasters.

State Obligation

What is the ambit of the Right to Shelter argument when it comes in the wake of natural disasters and not direct state action? Here, the question of dignified shelter becomes a matter of resolution and a balance of interests. In Kranti v Union of India, the court held that the State had an obligation to rehabilitate victims of a post disaster region. The Gujarat HC  in Bipinchandra J. Divan and Ors. v. State of Gujarat and Ors. went on to lay down that the right of assistance in a calamity is an enforceable right. These precedents strongly imply that the State has an obligation to protect its people from situations that threaten their right to shelter, including acts of god like floods. The line of reasoning given in all these cases and in several others also neatly fit into the internationally accepted ‘doctrine of positive obligation’ where the State is mandated to care for the welfare of its citizens. The doctrine of positive obligation imposes a constitutional duty of the state to take proactive measures to guard fundamental rights from being violated by the State or its arms. However, its enforceability remains a complex question in the current case as State action is not directly responsible for deprivation of shelter here. Having said that, courts have in the past added affirmative duties for state inaction in the context of disasters. Like in the case of PUCL v Union of India, when the court tasked the government with ensuring food security in the wake of a drought. Thus, the State of Assam does have a positive obligation even though the deprivation is a result of a natural disaster. It is obligated to provide a safe and secure shelter to all its people.

Balancing Rights

What amounts to safe and healthy housing during the monsoon season in Assam?  Given the recurrent nature of the Assam floods, it is important to put the right to safe and secure shelter at a balance with environmental concerns. The Apex Court has extensively dealt with this possibility in a catena of cases albeit not directly, through the concept of ‘sustainable development’ and enforcement of regulatory measures to ensure simultaneous development while keeping in mind preservation of the environment. The Supreme Court in Intellectual Forum, Tirupathi v. State of Andhra Pradesh, has used sustainable development to say that conservation of natural resources for the future generations cannot be compromised under the garb of ‘economic development’ today, and that there needs to be a way in which both go hand in hand. In Assam’s case, it is the question of how the State can grant its citizens with safe and secure housing in a disaster-prone area. Since the right to shelter here is obstructed by natural reasons such as avalanches, floods and cyclones, it is not possible to prevent it. Therefore, prevention is not the answer. Regulation and co-existence are.

Article 38 obligates the state to promote the welfare of people by securing social order. The right to shelter of people living in disaster prone regions such as Assam, upper reaches of Uttarakhand, coastal regions of West Bengal, Odisha and Tamil Nadu and the mountains of Wayanad in Kerala are distinct from the right that is usually exercised in this regard. Sustainable housing policies must account for the region’s economic realities. With time, homes in these regions are made using light and inexpensive materials so that it is easier to repair or rebuild. Sometimes, homes are built on mud points to create an elevated surface. Otherwise, they are built on stilts, especially seen amongst the Mishing tribe, to create an elevated base so the building is protected from direct flooding.

Proposed Solutions

The government could implement a Housing program whereby it provides for the construction of such houses by integrating flood resilient construction techniques, locally sourced and durable material and even technical assistance to communities. The state is also obligated to conduct hydrological and environmental studies to monitor flood patterns, assess risks and develop adaptive strategies for these regions. It should also ideally maintain a database of this information, forecast warnings and ensure its timely communication. For example, the Brahmaputra Board, which was previously established to study the river’s behaviour. The Court in Bipinchandra  has proposed the concept of an “Ombudsman” (meaning “tribune of the people” or an officer or Commissioner)  which seemed attractive to the Court in terms of formal non-interference. However, they can certainly be an informal party to the complaint mechanism process who can then look into the why’s and how’s of the issue at hand, and further “investigate and report” to the Parliament based on the grievances of citizens.

Conclusion

The right to shelter is a fundamental right enshrined under Article 21 of the Constitution and several case laws have reaffirmed this stance. The repeated risk of the Assam floods calls for a more sustainable and long-term solution for disaster-resilience, which is a notch above just providing rehabilitation and compensation to affected victims. Unless the State works towards a holistic approach which is inclusive of the various issues that come along with living in a disaster-prone area, the fundamental right to shelter of individuals living in such areas will continue to be violated. Therefore, even at a time of environmental adversity, the State must ensure that no individual is left roof-less or without any adequate facilities which is a foundational human rights principle.