Human Rights Approach to Adequate Housing

‘The eviction of the slum-dweller not only means his removal from the house but the destruction of the house itself…[it] is the end of all that one holds dear in life. [1] ‘

The right to adequate housing [2] has a central place within the body of human rights, more so considering its universal character. The right to adequate housing or shelter was recognized as a basic human right in 1948 in the Universal Declaration of Human Rights of the General Assembly of the United Nations. [3] Article 6 of the ICCPR spoke of right to life as a non-derogable right. [4]

It is estimated that nearly a quarter of the Indian population lives in slums and squatters with insufficient access to basic needs. Housing needs of such persons are a serious cause of concern [5] . The right to shelter is implicitly stated in Articles 19 (1) (e) and 21.

The Constitution of South Africa was adopted almost fifty years after the Indian Constitution. This time gap could perhaps explain the progressive nature of the South African Constitution which has made the right to shelter a fundamental right as defined under Articles 26 and 28 of the Bill of Rights. In South Africa, the right of access to adequate housing is modeled on the right to housing in Article 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides that the State has a duty to recognize the right of everyone to adequate housing.

It is necessary to have a human rights approach to the right to adequate housing since it departs from a welfare approach to homelessness by demonstrating that homeless people are not simply objects of charity. A human rights response to homelessness would involve all levels of government committing to and taking concrete and targeted legislative, policy and budgetary steps towards the full and immediate realization of the human rights of shelter and adequate housing.

One important aspect of the issue of homelessness is whether citizens have a right to shelter, and should it be enforceable against the state. Whether squatting should be treated as unlawful occupation of land or as a socio-economic reality that has to be resolved [6] .

Chapter One

“Human” Right to Adequate Housing?

Justifiability of the right to adequate housing in courts at all levels is needed in order for States to effectively respect, protect, promote and fulfill the right to housing. [7]

1.1 Adequate Housing- Defined

Adequate Housing forms an indispensable part of ensuring human dignity. Persons who are denied such rights face gross violations of fundamental rights such as the right to an adequate standard of living, the right to education, the right to life, liberty and security, the right to privacy, social security, the right to freedom from discrimination and the right to vote [8] .

International human rights law recognizes that every person has the right to an adequate standard of living. This right includes the right to adequate housing. [9] The right to housing is more than simply a right to shelter. It is a right to have someplace to live that is adequate depending on

“legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, accessibility, habitability, location and cultural adequacy.” [10] There needs to be a mobilization of resources, distribution of space, varied social and organizational changes made by the Government. [11]

1.2 Human Rights Approach and International Agreements

Enunciated under article 25(1) [12] of the UDHR Article 11(1) of the ICESCR [13] , the right to adequate housing has been codified in other major international human rights treaties that have focused on protection of rights of particular groups, such as CEDAW, CRC and CERD; besides other General Comments specifically on housing as a fundamental human right. [14] The CESCR has issued two General Comments clarifying the scope and meaning of the right to housing as enshrined in the Covenant. The CESCR noted that the full enjoyment of other rights such as right to free­dom of expression, freedom of association, the right to freedom of residence and the right to participate in public decision-making- are indispensable to the right to adequate housing is to be realized and maintained by all groups in society.  Right to adequate housing applies to everyone and should not be interpreted in a narrow or restrictive sense, but be seen as the right to live somewhere in security, peace and dignity. In 1991 CESCR defined forced evictions and provided for obligation of the States to provide for national legislation against violation of civil and political rights, such as the right to life, security of the person, non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions. [15]

Not only must relevant international law inspire the domestic courts, but that as a signatory to the Covenants and other treaties, India is bound to uphold their principles. Reliance on international obligations in the housing rights judgements of the Indian Supreme Court has been significant but not very consistent. The courts have relied on the provisions of the UDHR and the ICESCR, but the arguments have not moved beyond these provisions besides random application. Unfortunately, most lawyers and judges in India are entirely unaware of the existence, let alone complexities and nuances, in the field of international human rights law. These international norms of ‘minimum core obligations’, even with a local interpretation, are not considered by the Indian courts to determine housing rights. [16] However The Indian Supreme Court has placed some importance on guaranteeing housing rights as part of the larger goal of achieving social, cultural and economic equality, which is also a fundamental constitutional objective.

Chapter Two

The Indian Judicial Approach to Right to Shelter

The Indian Supreme Court has fully reverted to its adjudicatory policy stance in the first three decades of Indian constitutional interpretation which entrenched contract and property above all fundamental rights of the hapless Indian citizens.

– Professor Upendra Baxi [17]

2.1 Right to Shelter: The Constitutional Basis

Since Maneka Gandhi, the nexus between Articles 21, 19 and 14 has been firmly. Justice Krishna Iyer, [18] has said that no article in the Constitution pertaining to a Fundamental Right is an island in itself. This particular case exhibits liberal tendencies that have influenced the Supreme Court in interpreting Fundamental Rights, more specifically Article 21. A great transformation has come about on the judicial attitude. Since Maneka, the Supreme Court has given to Article 21, the broader and broader interpretation so as to imply many more fundamental rights. [19]

Justice Bhagwati, [20] emphasized that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head.” [Emphasis added]

The concept of right to shelter which was first mentioned in Francis Coralie v. Delhi [21] . Right to Shelter was once again emphasized in the landmark judgment of Olga Tellis v. Bombay Municipal Corporation [22] by stating that life in Article 21 is not restricted to “a mere animal existence” but extends to all those limits and facilities by which life is enjoyed. This judgment of the late eighties brought right to shelter to the forefront.

The Supreme Court of India has elaborated on the Right to adequate Housing and Shelter which are now covered under the umbrella of Art. 21. This was explicitly mentioned first in the case of K. Chandru v. State of Tamil Nadu [23] which stated that the right to life under Article 21 includes the right to livelihood and since the right to life and the right to work are interdependent eviction of a person puts his right to life in danger, which consequently violates of Article 21 and 19(1)(e) and (g) of the constitution.

Olga Tellis v. Bombay Municipal Corporation [24] portrayed the plight of lakhs of persons who live on pavements and slums in Mumbai. They relied on Article 21 of the Constitution and contended that that they have a right to live, a right which cannot be exercised without the means of livelihood. They argued that they have no option but to come to big cities, which provides them some means of bare subsistence. Pavement/slum is nearest to their place of work. The right to life can only be taken away by a procedure established by law, which has to be “fair and reasonable”. They also relied on their right to reside and settle in any part of the country which is guaranteed by Article19(1)(e). Justice Chandrachud, recognized the right to livelihood but went on to say that public streets and pavements can be used for passing but a person does not overreach the limited purpose for which pavements are made and overstretch his limited right to trespass.

In Chameli Singh v/s. State of U. P. & Anr [25] the court elaborated on the right to shelter and opined that shelter for a human being, is not a mere protection of his life and limb but includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air, water, electricity, sanitation, and other civic amenities such as roads, etc. so as to have easy access to his daily work.  The right to shelter, therefore, does not mean a mere right to roof over one’s head, but to the entire infrastructure necessary to enable them to live and develop as a human being.  Right to shelter when used as an essential requisite to the right to life should therefore be guaranteed as a fundamental right and a human right.

The Supreme Court in affirmed in Prabhakaran Nair v State of Tamil Nadu [26] the need for a National Housing Policy and observed that “shelter is one of our fundamental rights.” It also observed that there is a serious housing shortage in India. [27]

2.2 Change in Judicial Trend

In a PIL filed by Almitra Patel [28] the issue before the court concerned solid waste disposal. Justice Kirpal blamed the nexus between the landowning agencies and municipal authorities stating that establishment of slums is a well organized business where large areas of public land are usurped for private use free of cost and it linked the issue of non disposal of waste to the establishment of slums in cities.

The Almitra Patel verdict made a grave impact; that in the case of Okhla Factory Owners Association v. Government of National Capital Territory of Delhi, the Delhi High Court used Justice Kirpal’s opinion to lay down that encroachers were ineligible for alternative accommodation.

The judgement of the Supreme Court in Narmada Bachao Andolan v. Union of India [29] however came as a complete shock to the previous progressive human right judgments about adequate housing and shelter. This petition was filed by the Narmada Bachao Andolan (NBA), a people’s movement, against the displacement caused by the construction of the massive Sardar Sarovar dam that was going on since 15 years. It concerned with the plight of thousands of tribals, who had been displaced with inadequate resettlement and rehabilitation options. Justice Kirpal in the Supreme Court ruled that, ‘displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights.’ Thus the court permitted that height of the dam to be raised. This single judgement contradicted all previous Supreme Court rulings that have upheld the right to housing and shelter as an integral part of the fundamental right to life.

In Azaadi Bachao Andolan vs Union of India, [30] the Supreme Court even refused to examine the question whether the Land Acquisition Act in so far as it allowed compulsory acquisition of land from persons who are dependent upon that land for their livelihood is violative of their fundamental rights, since the act does not obligate the government to provide them with alternative land or an alternative means of livelihood.

Similarly, in the case of Hemraj v Commissioner of Police Justice Ruma Pal stated that “if you are occupying a public land, there is no legal right, let alone fundamental right.” [31] The Bench suggested that people need not come to Delhi, unless they can afford to live in the city. The effects of these judgments on the urban poor extend not only to complete deprivation of shelter but also deprivation of basic livelihood as the two are inextricably connected.

The recent trend of frivolous Public Interest Litigation and the abuse of the judicial system by the same has led the court to buy in the ideology underlying the economic reforms – an ideology which venerates the virtues of the free market and undermines the role of the state in providing education, jobs, and the basic amenities of life to its citizens. Such an ideology runs counter to the court’s earlier expansive interpretation of Article 21. This hypothesis does seem to offer the simplest explanation for the above decisions of the court. [32]

2.3 The South African Experience: Lessons to be Learnt

The Constitution of the Republic of South Africa has made the right to shelter a fundamental right as defined under Articles 26 and 28 of the Bill of Rights. In South Africa, the right of access to adequate housing is modeled on the right to housing in Article 11 (1) of the ICESCR, which provides that the State has a duty to recognise the right of everyone to adequate housing.

The most important judgment that has set the precedent and trend with reference to the interpretation of right to housing and shelter is the Grootboom [33] judgment given by the Constitutional Court where Justice Yacoob ruled that the state is obliged to take reasonable legislative and other measures, within its available resources and to achieve the progressive realization of the right to adequate housing. Access to adequate housing indicates the presence of land, services, and a dwelling. A right of access to adequate housing also suggests that it is not only the state that is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing. The state must create the conditions for access to adequate housing for people at all economic levels in society.

The decision had a major impact on housing policy in South Africa.  Most municipalities put in place a “Grootboom allocation” to address the needs of those in dire straits. Such people provided with basic amenities. [34]

Therefore, as evidenced from the above judicial approach it is sufficiently clear that in India the right to adequate housing has been read by some positive jurists into the right to life under article 21.However the shift in judicial trend indicates that right to shelter is still elusive as a fundamental and human right.

As held in Shantistar Builders’ Case “the basic needs of man traditionally been food, clothing and shelter [35] .” For the homeless poor globalization has made no significant difference, there still exists a wide gap between income groups, in terms of the availability, affordability and habitability of houses and access to utilities, resulting in an increase in the number of people in inadequate and insecure housing and living conditions [36] .

Chapter Three

Building Houses for Everyone- Concluding Remarks

The motive force which propels massive migration of the rural population to big cities is the struggle for survival, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood [37] .

Socio-economic rights are inchoate rights and cannot only be enforced through Courts because their enforcement requires constant supervision and administrative directions to supervise their implementation.  Implementation of these rights involves decisions relating to policy that are budgetary considerations. The composition of the Courts increasingly consists of affluent judges and lawyers who are reluctant to consider such rights as judicially enforceable. They believe that the Court cannot provide a remedy for every injustice, particularly in the matter of socio-economic rights. [38]

If right to shelter is left to the political and administrative will of the State, and if slums are allowed to be demolished, every day, what will be left of that right?  And if at any stage the rights are abrogated for some, and sustained for the others, would not the Court be required to intervene, at least on the ground of discrimination?  In other words, is it not possible to eliminate judicial role or supervision to ensure that the State lives upto its affirmative obligations as contained in ICESCR. Whenever there is any breach of any right, be it Civil, political, social, economic or cultural there has to be a remedy.  The judiciary is still the best guarantee for a just remedy.

The extreme insensitivity of the Supreme Court with regard to housing in the October 2000 Narmada judgement and the poor and casual use of well-developed international law, suggest that the regressive attitude of the courts might well be an indication that law may be one means but certainly not the definitive route to social justice. It must be recognised that with the equality principle as the backbone of the right to life, the right to housing acquires the status of a justiciable fundamental right. Perhaps it is time that we began to rethink and revive our commitment to the right to adequate housing, both nationally and internationally.

3.1 Housing Rights Too Vague to be defined?

Whenever the right to housing is violated by forced evictions, a number of other rights are also affected. The rights to freedom of movement and to choose one’s residence, recognized in many international laws and national constitutions, are infringed when forced evictions occur.  The right to security of the person, widely established, means little in practical terms when people are forcibly evicted with violence, bulldozers and intimidation.  Arrests or killings of community leaders opposing forced evictions are common and violate the right to life, freedom of expression and the freedom to join organizations of one’s choice. [39] Children lose their right to education. Men and women lose their source of employment, and their right to work is breached.  When they are thrown on the street, their right to health is affected.  When families and communities are torn apart by eviction, the right to family life is infringed. When the eviction squads enter one’s home, the right to privacy which is a part of the right to life, and the right to security of the home are violated.

Thus the situation leads to a series of violation of human rights of all kind.  The Government has a constitutional obligation to see that people are all properly rehabilitated, before any eviction takes place.  In fact, the South African Courts have gone far ahead of all other Courts in the world.  They have repeatedly said that the State has a constitutional obligation to provide for access to adequate housing, and people in desperate circumstances, or people in crisis, cannot be evicted unless the Government “finds a place where they could lawfully live”. [40]

Although it has been said that “The right to an adequate standard of living, including food, clothing and housing does exist under international law, however no ‘right to adequate housing’ exists as an independent right [41] “; the steps taken by the government and Judiciary of South Africa to alleviate the living conditions of the population are highly commendable. Although the South African Constitution has been modeled along the lines of the Indian Constitution, yet the interpretation of Article 21 in India to cover right to shelter has only been half hearted and the Supreme Court’s attitude can at best be said to be discouraging.

The progressive steps taken in South Africa can only be emulated, along with changes to suit Indian conditions.

Perhaps the solution to the problem of rapidly growing populations in urban cities can be found in better planning of the development of these metros by the civic authorities. The South African Grootboom judgment also suggests that every case be analysed in the proper context and a solution be found accordingly. The growth of Indian cities needs to be channeled and appropriate steps must be taken to utilize the available space effectively. Most importantly, if Indian cities are to support a burgeoning population, the Judiciary needs to be active in ensuring actual implementation of the Master Plans of the cities.