Right to Adequate Housing in India

Malnourished babies, wasted mothers, emaciated corpses in the streets of Asia have definite and definable reasons for existing. Hunger may have been the human race’s constant companion, and ‘the poor may always be with us’, but in the twentieth century, one cannot take this fatalistic view of the destiny of millions of fellow creatures. Their condition is not inevitable but is caused by identifiable forces within the province of rational human control [1] .

The picture that conjures up in our minds when we think of the word ‘slum’ is that of a dirty, unhygienic group of make shift shanties with long lines of people waiting at the Municipal water pump, bawling babies literally left on street corners to fend for themselves and endless cries of help. However, what needs to be seen is a far more sensitive and realistic picture of these hapless people who have been denied their Right to shelter and adequate housing, something which is viewed as an essential component of Article 21 of our Constitution [2] , which assumes paramount importance in the sphere of individual liberties [3] .

It is vicious cycle of population growth, opportunities in the cities leading to migration to the cities, poverty with low incomes, tendency to be closer to work hence occupying any land in the vicinity which lead to the eventual formation of such slums. [4]

The definition of “slum” varies from country to country. In India, each state has its own definition of slum. The National Definition of ‘Slum areas’ was set by the Slum Areas Improvement and Clearance act of 1956.1 It defines them as places where buildings:

are in any respect unfit for human habitation;

are by reason of dilapidation, overcrowding, faulty arrangement and design of such buildings, narrowness or faulty arrangement of streets, lack of ventilation, light, sanitation facilities or any combination of these factors which are detrimental to safety, health and morals.

However, epithets such as ‘squatters’ and ‘encroachers’, and attributes such as ‘illegality’ characterize perceptions about the lives and habitations of slum dwellers and are being used to justify the evictions of lakhs of people by the government and shockingly, also the judiciary. [5] A slum in law is, therefore the control that the government has over ‘public’ lands. [6]

The important questions to be considered in the present paper are:

1. How does the right to shelter or adequate housing find its place in the international sphere?

2. How has this right originated and developed in the Indian law?

3. How can the Indian situation be redressed- A comparative study?

Right to adequate housing-international developments

The right to housing is recognised in a number of international human rights instruments. [7] Article 25 of the Universal Declaration of Human Rights recognises the right to housing as part of the right to an adequate standard of living. It states that:

“Everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family, including food, clothing, housing and medical care and necessary social services”

Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) [8] also guarantees the right to housing as part of the right to an adequate standard of living. The significance of this right was noted in 1991, in the General Comment No 4 on Adequate Housing by the UN Committee on Economic, Social and Cultural Rights. [9] The Committee noted that the right to adequate housing applies to everyone. While the reference to ‘himself and his family’ reflects assumptions as to gender roles and economic activity patterns commonly accepted in 1966 when the Covenant was adopted, the phrase cannot be read as implying any limitations upon the applicability of the right to individuals or to female- headed households or other such groups. Thus, the concept of “family” must be understood in a wide sense. Further, individuals, as well as families, are entitled to adequate housing regardless of age, economic status, group or other affiliation or status and other such factors. In particular, enjoyment of this right must, in accordance with article 2 (2) of the Covenant, not be subject to any form of discrimination. It also said that “adequate” as per both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000, means “… adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost”. [10] Further States shall a) take all necessary legislative, administrative and other measures to ensure security of tenure and access to affordable, habitable, accessible, culturally appropriate and safe housing, including shelters and other emergency accommodation, without discrimination on the basis of sexual orientation, gender identity or material or family status; b) take all necessary legislative, administrative and other measures to prohibit the execution of evictions that are not in conformity with their international human rights obligations, and ensure that adequate and effective legal or other appropriate remedies are available to any person claiming that a right to protection against forced evictions has been violated or is under threat of violation, including the right to resettlement, which includes the right to alternative land of better or equal quality and to adequate housing, without discrimination. [11]

The right to housing is also enshrined in Article 16 of the European Social Charter (Article 31 of the Revised European Social charter) and in the African Charter on Human and Peoples’ Rights. [12]

The issue of the right to adequate housing is all the more pertinent as observed by the United Nations where the General Assembly has adopted it as one of the UN Millennium Declaration Goals in September 2001. [13]

Right to Adequate housing: The Indian Scenario

Though there is no legal right in India which guarantees adequate housing, the courts in India, especially the Supreme Court, has expanded the scope of Article 21 of the Constitution to include right to housing in it.

The Right to housing was first mentioned in the case of Francis Coralie v. Delhi [14] , where Justice Bhagwati stated that [15] , “We think 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 and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

The right gained prominence even before the Olga Tellis case, in the K. Chandru v. State of Tamil Nadu. [16] In this case, the State of Tamil Nadu enacted the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 in order to eradicate slums which are likely to become a source of danger to public health or sanitation. Acting in pursuance of the provisions of the said Act, about 450 huts situated on the Canal Bank Road adjoining the Loyola College were demolished on November 17, 1981. On the following day, the Chief Minister of Tamil Nadu made a statement that the Government had decided to demolish slums which had come into existence after June 1977. On November 19, 1981 the Chairman of the Tamil Nadu Slum Clearance Board made a statement that alternative accommodation had been provided to persons who were evicted from the slums situated on the Canal Bank Road. This judgment given in the mid-eighties by Chief Justice Chandrachud went on to say,

“The right to life includes the right to livelihood. The sweep of the right to life conferred by Article 21 is wide and far reaching…..Since the right to life under Article 21 includes the right to livelihood and since the right to life and the right to work being integrated and interdependent, the eviction of a person from a Slum or a pavement under the provisions of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 read with provisions of the Tamil Nadu Land Encroachment Act, 1905 the Madras City Municipal Corporation Act, 1919 and the Tamil Nadu Town and Country Planning Act, 1971 there by putting his very right to life in jeopardy, is violative of Article 21 and 19(1)(e) and (g) of the constitution.”

The Court has clearly recognized the relationship between the right to livelihood and right to shelter. The next judgment however, makes a radical shift [17] .

The Judgment of the Court in Olga Tellis [18] was also delivered by Justice Chandrachud. In this case, the petitions relate to pavement dwellers and Basti or Slum dwellers, those who have made pavements their homes exist in the midst of filth and squalor. It is these people who went to the Supreme Court to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation. Their contention was that they have a right to live, a right which cannot be exercised without the means of livelihood. They only choose a pavement or a slum which is nearest to their place of work. The right to life can only be taken away or abridged by a procedure established by law, which has to be fair and reasonable, not fanciful or arbitrary such as was prescribed by the Bombay Municipal Corporation Act or the Bombay Police Act. They also relied upon their right to reside and settle in any part of the country which is guaranteed by Article 19(1) (e) [19] .

On July 13, 1981 the then Chief Minister of Maharashtra, made an announcement that all pavement dwellers in the city of Bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of Bombay. The apparent justification which the Chief Minister gave to his announcement was: “It is a very inhuman existence. These structures are flimsy and open to the elements. During the monsoon there is no way these people can live comfortably.” [20]

The counter-affidavit said that no person had any legal right to encroach upon or to construct any structure on a footpath, street or on any place over which the public has a right of way. Numerous hazards of health and safety arise if action is not taken to remove such encroachments. The lack of proper environment leads to increased criminal tendencies, resulting in more crime in the cities. It is, therefore, in public interest that public places like pavements and paths are not encroached upon.

The judgment, given by Justice Chandrachud, recognized the right to livelihood and said that, “An equally important facet of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes like livable, must be deemed to be an Integral component of the right to life”. However, it went on to say that, “In the first place, footpaths or pavements are public properties which are intended to serve the convenience of the general public. They are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. The main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security….So long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. But, if a person puts any public property to a use for which it is not intended and is not intended and is not authorized so to use it, he becomes a trespasser [21] .”

Following the Olga Tellis case, in the nineties and early years of this decade, there were several other petitions which went before the Supreme Court seeking a re-iteration of the right to housing as a fundamental right. Unfortunately, the precedent set by this judgment has been seen to be followed in Gainda Ram v. M.C.D Town Hall [22] , Sodan Singh v. New Delhi Municipal Corporation [23] , State of Andhra Pradesh v. Khudiram Chakma [24] .

In another case, Chameli Singh v State of Uttar Pradesh, [25] it was held that right to live guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. Right to shelter includes adequate living place, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to provide an easy access to daily avocations. To bring the Dalits and Tribes in to the mainstream of national life, providing of these facilites and opportunities to them was held to be the duty of the State as fundamental to their basic human and constitutional rights.

The effects of these judgments on the urban poor extend not just to complete deprivation of shelter but also deprivation of basic livelihood as the two are inextricably linked to each other and to the notion of a developed welfare state [26] .

Right to Shelter: The South African Experience

It is now noteworthy to consider the legislations of another country, South Africa, of a level of economic development which is at par with India to bring to light glaring misapplication by Indian judiciary.

At the outset, it is of vital importance to note that the Constitution of the Republic of South Africa has made the right to shelter/housing a fundamental right as defined under Articles 26 [27] and 28 [28] of the Bill of Rights.

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 [29] judgment given by the Constitutional Court.

Mrs Grootboom and the other respondents previously lived in an informal squatter settlement called Wallacedene. A quarter of the households of Wallacedene had no income at all, and more than two thirds earned less than Rs. 500 per month. About half the population were children; all lived in shacks. They had no water, sewage or refuse removal services and only 5% of the shacks had electricity. Faced with the prospect of remaining in intolerable conditions indefinitely, the respondents began to move out of Wallacedene at the end of September 1998. They put up their shacks and shelters on vacant land that was privately owned and had been earmarked for low-cost housing. They called the land “New Rust”. They did not have the consent of the owner and on 8 December 1998 he obtained an ejectment order against them in the magistrates’ court. The order was served on the occupants but they remained in occupation beyond the date by which they had been ordered to vacate. Mrs Grootboom said they had nowhere else to go: their former sites in Wallacedene had been filled by others. The eviction proceedings were renewed in March 1999. Negotiations resulted in the grant of an order requiring the occupants to vacate New Rust and authorizing the sheriff to evict them and to dismantle and remove any of their structures remaining on the land on 19 May 1999. The magistrate also directed that the parties and the municipality mediate to identify alternative land for the permanent or temporary occupation of the New Rust residents [30] .

Mrs Grootboom and the other respondents applied for an order directing the appellants forthwith to provide:

(i) adequate basic temporary shelter or housing to the respondents and their children pending their obtaining permanent accommodation;

(ii) or basic nutrition, shelter, healthcare and social services to the respondents who are children.

The judgment given by Yacoob J clearly stated that Section 26(2) imposes an obligation upon the state to take reasonable legislative and other measures to ensure the progressive realisation of this right within its available resources .It conferred a general right of access to adequate housing. The state is obliged: (a) to take reasonable legislative and other measures; (b) within its available resources; (c) to achieve the progressive realization of this right.

The judgment went on to say that housing entails more than bricks and mortar. It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing of all of these, including the building of the house itself. For a person to have access to adequate housing all of these conditions need to be met: there must be land, there must be services, there must be a dwelling. Access to land for the purpose of housing is therefore included in the right of access to adequate housing in section 26. 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 of our society…The poor are particularly vulnerable and their needs require attention.”

Conclusion: What can India learn from South Africa?

In light of all of the above, the contrast in the available rights to housing to the citizens of both countries is evident. 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 modelled 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.

It can be reasonable concluded that the Indian judiciary seems to have become increasingly more conservative on issues of socio economic rights and distributive justice post liberalization period in Indian history. Many scholars feel that the remedies suggested in the cases of Shantistar Builders v. Narayan K. Totame, [31] Chameli Singh v. State of UP [32] and Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, [33] can be said to be examples of judicial activism at its best because of the sensitivity of the Court in dealing with them. [34] Further, despite remedies being suggested, there has been poor implementation of the same.

Though there is the National Housing Policy of India, 1988, there is no National Urban Policy in place. Despite so many laws, judicial activism, the problem of adequate housing in India has not been addressed properly by the States. The rapid growth of congested slums in urban India speaks volumes about problems faced by the dwellers. The opinion of Professor Baxi [35] on the Supreme Court decisions in the nineties is rather encouraging.

“Some recent judicial performances go so far as to fully suggest a total reversal of human rights to dignity and livelihood, which the Court itself since the Eighties indeed not too long so painstaking evolved. Some court orders go so far as to mandate, under the pain of contumacious conduct, any human rights- oriented intervention against the enforced demolitions.

The bulldozers remove the last sight of their existence as documented citizens; all evidence of title and occupation (including the only ‘passport’ they posses by way of pattas, their inchoate ‘title’ deeds, and prominently their ration cards) stand maliciously and wantonly destroyed. Not too long ago during the 1975-76 imposition of the internal Emergency, such happenings were poignantly described as emergency excesses. Today, these somehow constitute the badges of good governance! Surely, structural adjustment of judicial activism, or judicial globalization Indian-style, thus with a single- minded consistency, now produces with some irreversible human rights destructive globalizing intendment some new judicial productions of the estates of Indian human rightlessness”.