A Right to Housing?
Jayna Kothari

Commenting on the gap between written word and reality, Jayna Kothari says the Courts have been inconsistent.
April 2002: Today, India is still grappling with unmet basic housing needs of hundreds of thousands of its citizens. While we represent the world's largest democracy and have a truly remarkable Constitution, millions of people are still living in sub-human conditions on pavements, in squatter settlements, bastis, jhuggies or unauthorised slums and are under constant threat of being evicted.
'…The eviction of the pavement or the slum-dweller not only means his removal from the house but the destruction of the house itself. And the destruction of a dwelling house is the end of all that one holds dear in life.'
(J. Chandrachud in Olga Tellis v. Bombay Municipal Corporation, 1985 (3)SCC 545)
In view of the acute need for housing and the frequent and forceful evictions of so many slum-dwellers, it is important to understand how our Constitution and courts have interpreted the enforceability of social rights, especially the right to adequate housing. The Supreme Court has elaborated at great length on the right to adequate housing, shelter and livelihood as part of the all-encompassing Right to Life under Article 21 of the Constitution in the landmark case of Olga Tellis v. Bombay Municipal Corporation (BMC), as also in some of the judgements following Olga Tellis. However, in other significant recent cases, the most shocking being the Narmada judgement (October 2000), the Court has entirely failed to give due recognition to this right. Does our Constitution guarantee a right to housing for all, or are there such large loopholes in the law that despite the existence of such rights, the state can still get away with not providing its citizens their fundamental human rights?Our Fundamental Rights are listed in Part III of the Constitution, and consist mainly of civil and political rights. Part IV, on the other hand, houses the Directive Principles of State Policy. While these are not enforceable rights, they do provide guiding principles for the working of the Constitution. They cover all the socio-economic rights, such as education, right to work, equal pay for equal work, etc. These rights were considered non-enforceable or non-justiciable, as they are dependent on resources available with the state.During the 1970s and 1980s, India witnessed a very interesting phenomenon: due to strong judicial activism, several socio-economic rights were brought within the sphere of the fundamental rights. Therefore, while earlier there existed merely the negative duty not to interfere with the life or liberty of an individual without the sanction of law, activist judges now imposed a positive obligation upon the state to take steps for ensuring to the individual a better enjoyment of life and dignity.One of the first, and perhaps most important, housing rights cases to go up to the Supreme Court in India was the Olga Tellis case in 1985. This petition to the Bombay High Court was in the form of a public interest litigation by thousands of pavement dwellers of Bombay city. The petitioners argued that they could not be evicted from their squalid shelters without being offered alternative accommodation. They further argued that they had chosen a pavement or slum to live in only because it was nearest to their place of work, and that evicting them would result in depriving them of their livelihood. The petitioners (living in around more than 10,000 hutments) were to be evicted under the Bombay Municipal Corporation Act, which empowered the Municipal Commissioner to remove encroachments on footpaths or pavements over which the public have a right of passage or access.The judgement handed down in this case expanded the right to life guaranteed under Article 21 of the Constitution to include within its scope, the right to livelihood, which in this context translated into the right to be allowed to remain on the pavements. And although the final orders in Olga Tellis found that the BMC Act was valid and that pavement dwellers should be evicted, the Supreme Court also laid down that this could be done only after arranging alternative accommodation for them. In a sense, therefore, by imposing this strong condition of providing alternate accommodation before eviction, the Supreme Court was in fact upholding the right of the pavement dwellers to shelter. More interesting is the fact that more than 15 years after the Supreme Court judgement in 1985 was passed, due to the strong activism and pressure from NGOs and the pavement dwellers themselves, most of them have still not been evicted by the BMC!Developments since the Olga Tellis judgementHowever, after this remarkable judgement, later decisions of the Supreme Court and some High Courts of the country have not been very consistent. While many judgements have vigorously upheld this ruling, there have been some rulings which have completely disregarded the basic right to housing and shelter that has been interpreted to be a crucial part of an individual's right to life.In the 1990s, there was a whole spate of cases that upheld the Olga Tellis judgement, the most important ones being Shantistar Builders v. Narayan K. Totame, Chameli Singh v. State of UP and Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan. In all these cases, the Supreme Court reiterated the right to adequate housing as a distinct constitutional obligation of the state, both under the right to life and under Article 19(1)(e), which guarantees the right of every citizen to reside and settle in any part of the country. These judgements particularly upheld the housing rights of the weaker sections of the population, such as dalits and scheduled castes. They also referred to the provisions regarding housing and shelter in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Social and Cultural Rights (ICESCR).Inconsistent InterpretationsThe courts, however, have not been very consistent in interpreting housing as a fundamental human right of all citizens. In some recent judgements, not only have they failed to uphold this right, but have actually regressed on their earlier rulings!A case in point is the petition filed in 1995 in the Bombay High Court. Filed by the Bombay Environmental Action Group (BEAG), the petition was to 'remove forthwith' informal settlement dwellers (described as 'encroachers') adjacent to the Sanjay Gandhi National Park, to ensure protection of 'the environment and all its aspects'. In its judgement on 7 May 1997, the Bombay High Court directed the relevant authorities to evict persons from their homes, pursuant to various wildlife protection and conservation laws, effectively depriving them of their livelihood. The Indian People's Human Rights Tribunal on Sanjay Gandhi National Park, determined that the BEAG petition clearly showed its vision of a 'clean environment' excludes vast sections of the population who were 'unpropertied' and living in abject poverty. Additionally, it held that the Court's summary eviction order would eventually affect half a million slum-dwellers. Particularly disturbing was the fact that the Court not only ordered this mass eviction, but it explicitly ordered the demolition of homes and the destruction of all belongings and construction materials that, in the first wave of evictions, were gathered and burnt by the demolition squad.However, a judgement in 2000 that shows complete disregard for fundamental human rights and international obligations, is the one by the Supreme Court in India in NBA v. Union of India. This case concerned the continued construction of the Sardar Sarovar Project dam and its significant impact on both the environment and hundreds and thousands of tribal people in the Narmada valley, who have been displaced with inadequate resettlement and rehabilitation options. Despite full knowledge of the concerned authorities' failure to determine the total number of people to be displaced or find adequate land for their resettlement, and the incomplete resettlement of those already displaced, 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…' and held that the construction of the dam would continue. The judgement contradicted all previous Supreme Court rulings that have upheld the right to shelter related to the right to life, as well as the decisions of the Narmada Water Disputes Tribunal.Part of larger goalSo what does the right to housing ultimately mean for the people on the streets, tribals, dalits and slum-dwellers, who are being evicted arbitrarily and forcefully everyday? Is this right, as we believe, a distinct, enforceable, justiciable human right which citizens can demand from the state if not fulfilled? Or are we to continue to depend on the whims and fancies of our esteemed judges to interpret this right sensitively?Internationally, the right to housing has a significant place in several instruments. On the basis of the provisions established in the UDHR, the right to adequate housing occupies a significant place in the ICESCR of 1966. Article 11.1 of the Covenant states that:'The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.'The right to adequate housing is also recognised internationally in several other instruments that have focused on the need to protect rights of particular groups, such as CEDAW (Committee on the Elimination of Discrimination against Women), CRC (Committee on rights of the child) and CERD (Committee on the Elimination of Racial Discrimination), and there are even a few General Comments specifically on housing as a fundamental human right.Therefore, not only is it crucial that relevant international law must provide guidance to domestic courts, but that as a signatory to the Covenants and other treaties, India is bound to uphold the principles therein. Reliance on international obligations in the housing rights judgements of the Indian Supreme Court has been significant but unfortunately not very consistent. The courts have relied on the provisions of the UDHR and the ICESCR, but the arguments have not proceeded beyond these provisions. The use of these provisions is random and not regularly practiced by the courts. Sadly, most lawyers and judges in India are entirely unaware of the existence, let alone complexities, of 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.Not only is the right to adequate housing an important component of the right to live with dignity, but also therefore an obvious component of the right to equality. The right to equality is symbiotically linked with our social and economic rights - the one set of rights providing some of the context within which the other set can be understood. The Indian Supreme Court has placed great emphasis on guaranteeing housing rights as part of the larger goal of achieving social and economic equality, which is also a fundamental constitutional objective.The extreme insensitivity of the Supreme Court with regard to housing in the October 2000 Narmada judgement and the poor and random 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. Unless, of course, it is 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. In the light of these various arguments, it is perhaps time that we began to rethink and revive our commitment to the right to adequate housing, both nationally and internationally.Jayna Kothari
April 2002 Jayna Kothari is a practising advocate at Bangalore. This article was written in 2001, and is published by India Together in arrangement with VOICES, Bangalore.