Protection of the Human Right to Adequate Housing under Indian Law, Policy, and Case Law
1. Constitution of India
The Constitution of India is firmly grounded in the principles of liberty, fraternity, equality and justice. While the right to adequate housing is not explicitly articulated as a human right, it is encompassed within the Fundamental Rights and Directive Principles provided in the Constitution.
The Fundamental Rights guaranteed by the Constitution of India, which are linked to the protection and guarantee of the human right to adequate housing, include:
Article 21: The right to protection of life and personal liberty except according to procedure established by law.
Article 14: The right of every citizen to be treated equally before the law or be given protection of the laws within the territory of India.
Article 15 (1): The right of every citizen to be protected against any discrimination on grounds of sex, religion, race, caste or place of birth.
Article 19 (1) (d): The right of every citizen to move freely throughout the territory of India.
Article 19 (1) (e): The right of every citizen to reside and settle in any part of the territory of India.
Article 19 (1) (g): The right of every citizen to practice any profession, or to carry on any occupation, trade or business.
The Constitution provides for Directive Principles, according to which the Indian State must formulate its policies. These include:
Article 39 (1): State policy to be directed to securing for both men and women equally the right to an adequate means of livelihood.
Article 42: Provisions to be made by the State for securing just and humane conditions of work and for maternity relief.
Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve public health.
2. Relevant National Laws
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 recognises and gives rights over forest land to Scheduled Tribes (STs) and other traditional forest dwellers in order to ensure their livelihood and food security. The Act, in its introduction, aims to give tenurial and access rights to forest dwelling Scheduled Tribes and other traditional forest dwellers, including those who were forcefully displaced due to the state's development-based activities. In the case of forced evictions, STs and other traditional forest dwellers are given specific rights to claim rehabilitation and 'land compensation' under Sections 3 (1) (m), 4 (2), and 4 (8).
Section 3 (1) (m) of the Act provides the right to in situ (on site) rehabilitation, including alternative land in cases of illegal eviction or displacement from forest land. Section 4 (8) protects the right to forest land of those who were displaced from their dwelling and cultivation without 'land compensation' as a result of state development interventions and where the acquired land has not been used within five years of acquisition.
Section 4 (2) provides that no forest rights holders shall be resettled or have their rights affected in any manner unless: (a) a resettlement or alternatives package has been prepared, which secures livelihood for the affected individuals; (b) free informed consent of the concerned gram sabhas(village councils) has been obtained, and; (c) facilities and allocation of land at the resettlement site /location are complete.
The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Actcame into force on 1 January 2014. The Act seeks to ensure a transparent and participatory process of land acquisition, and claims to provide just and fair compensation and adequate rehabilitation and resettlement to affected persons and families. The Act also aims to ensure that the outcome of acquisition should be that, "Affected persons become partners in development, leading to an improvement in their post-acquisition social and economic status."
Application of the Act
The provisions of the Act will be applicable when land is acquired by the government for its own use, hold and control, including for Public Sector Undertakings and 'public purpose.' Section 2 (1) of the Act provides a list of public purpose projects for which land can be acquired. This includes projects for sports and health care programmes; housing for low income groups; planned development of village sites or any site in urban areas; and, provision of land for residential purposes for weaker sections, and poor or landless persons, displaced persons or persons residing in areas affected by natural calamities.
Section 2 (2) states that the Act will also apply in case land is acquired for public private partnership (PPP) projects and by private companies for public purpose. In the case of acquisition for private companies, there must be prior consent from at least 80 per cent of the affected families and for PPP projects, prior consent must be obtained from at least 70 per cent of the affected families. Under Section 99 of the Act, change of the purpose or related purpose for which land is sought to be acquired is not permissible.
Social Impact Assessment Study
Section 4 of the Act states that before land is acquired for a 'public purpose,' the Panchayat (local governing council), Municipality or Municipal Corporation must carry out a Social Impact Assessment study to assess whether the proposed acquisition serves any public purpose, and to estimate the number of affected families and extent of lands, houses and common properties likely to be affected. The study must also include whether an alternative site has been considered for land acquisition. The study must consider the impact that the land acquisition may have on the livelihood of affected families, sources of drinking water, healthcare facilities, public utilities, schools and education or training facilities, electricity supply, anganwadis (crèches), places of worship, parks, burial and cremation grounds, and land for traditional tribal institutions.
Under Section 8 (1), the government must ensure that the proposed acquisition is legitimate and is meant for bona fide public purpose. The benefits of the acquisition should outweigh the social costs and adverse impacts. The government must also use land which has been previously acquired and is unutilised.
Notification
With regard to notifying affected communities of the proposed land acquisition, Section 11 of the Act provides that details of the land acquisition shall be published in the official gazette and two daily newspapers circulated in the locality of the area, in the local language in the Panchayat, Municipality or Municipal Corporation of the affected areas, and uploaded on the website of the appropriate government.
Compensation
Section 28 of the Act provides that compensation should be determined by the market value of the land to be acquired by including all assets attached to the land. Compensation should also take into account: damages sustained due to loss of standing crops and trees; loss of property and earnings; forced change of residence or place of business; diminution of profits of the land between the time of publication of the declaration of acquisition and the time of the Collector's taking possession of the land; and, any other ground which may be in the interest of equity and justice of the affected families.
Rehabilitation and Resettlement
Provisions for rehabilitation and resettlement are provided in Section 31 of the Act. The rehabilitation and resettlement award shall include, inter alia, a rehabilitation and resettlement amount payable to the family; particulars of the land and house to be allotted to displaced families; payment of one time subsistence and transportation allowance; payment for cattle shed and petty shops; and, particulars of any fishing rights that may be involved.
Schedules in the Act
The Act also contains three schedules dealing with compensation for land owners, rehabilitation and resettlement entitlements, and infrastructural amenities. The first schedule contains provisions on the 'minimum compensation package' to be allotted to the affected persons. The second schedule provides elements of rehabilitation and resettlement entitlements for both land owners and families whose livelihood is primarily dependent on the land acquired. For example, if a house is lost in rural areas, a constructed house must be provided as per the Indira AwasYojana rules.
The third schedule contains provisions on infrastructural facilities and basic minimum amenities to be provided at the resettlement sites. This is necessary to secure a reasonable standard of community life for the affected families. Some of the provisions include proper roads, drainage as well as sanitation facilities, provision of drinking water, panchayat ghars, post offices, playgrounds for children, primary health care centres, places of worship and appropriate security arrangements.
Scheduled Castes and Scheduled Tribes
Special provisions for Scheduled Castes and Scheduled Tribes have been made in Section 41 and 42 of the Act. It states that as far as possible, no acquisition of land shall be made in the Scheduled Areas and if the need arises, such acquisition shall be done only as a 'demonstrable last resort.' For acquisition in Scheduled Areas, the prior consent of the concerned Gram Sabha or the Panchayats or the autonomous District Councils shall be obtained, including acquisition in case of urgency. In case of involuntary displacement of Scheduled Castes or Scheduled Tribes, a Development Plan shall be prepared laying down the details of procedure for settling land rights.
The Development Plan shall also contain a programme for development of alternative fuel, fodder and non-timber forest produce resources on non-forest lands within a period of five years, sufficient to meet the requirements of tribal communities as well as Scheduled Castes. The affected families of Scheduled Tribes shall be resettled preferably in the same Scheduled Area in a compact block so that they can retain their ethnic, linguistic and cultural identity. In case the affected Scheduled Tribes, other traditional forest dwellers and Scheduled Castes have fishing rights in a river or pond or dam in the affected area, they shall be given fishing rights in the reservoir area of the irrigation or hydel project. If the affected families are relocated outside of the district, they shall be paid an additional 25 per cent rehabilitation and resettlement benefit to which they are entitled in monetary terms along with a one-time entitlement of Rs 50,000.
Unutilised land
If any land remains unutilised for a period of five years from the date of taking possession, the Act states that the same land shall be returned to the original owner or to the Land Bank of the appropriate Government under Section 101.
The Protection of Human Rights Act provides for the creation of the National Human Rights Commission and state human rights commissions in India, and also lays down their powers and functions. The origin of these commissions can be traced to the Vienna Declaration and Programme of Action adopted in June 1993 and the creation of the United Nations Office of the High Commissioner for Human Rights in December 1993.
The Act marked the Indian state's readiness to assume responsibility for realizing human rights of all its citizens in accordance with the Vienna Declaration, where it is stated (Part I, Paragraph 1) that, "(h)uman rights and fundamental rights are the birthright of all human beings; their protection and promotion is the first responsibility of Governments."
In Section 2 (d) the Act provides a definition for human rights:
... "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.
The national and state human rights commissions established by this Act have been granted the power of a civil court while trying a suit under the Code of Civil Procedure 1908. These commissions can inquire suo moto or on the basis of petitions presented to them by a victim or any person on his / her behalf, into complaints of violation of human rights or negligence in the prevention of such violation by a public servant. Following investigation, the commissions can recommend to the concerned government or authority to pay compensation, to initiate proceedings for prosecution, and / or approach the Supreme Court of India or the High Court concerned for such directions.
The Slum Areas (Improvement and Clearance) Act 1956 aims to "provide for the improvement and clearance of slum areas in certain Union Territories and for the protection of tenants in such areas from eviction." Since the Act is a central government legislation, it is only applicable in areas under control of the centre, which are the Union Territories of India. Several other states, such as Tamil Nadu, have enacted similar laws or extended the Act to their states.
The Act contains provisions for notification and compensation in case of demolition or improvement of buildings 'unfit for human habitation.' Section 19 of the Act specifically pertains to the protection of tenants in notified slum areas from eviction, and provides for procedures for adequate notification and alternative accommodation.
The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act 2014 was promulgated as a law in February 2014 by the Indian Parliament. It provides for the creation of Town Vending Committees that are required to conduct a survey of all street vendors within their jurisdiction and ensure that identified vendors are accommodated in vending zones. It states that no street vendor shall be evicted till the survey has been completed. The Act proposes that relocation of street vendors should be exercised as a last resort.
Accordingly, a set of principles to be followed for 'relocation' is proposed to be provided for in the second schedule, which states that: (i) relocation should be avoided as far as possible, unless there is clear and urgent need for the land in question; (ii) affected vendors or their representatives shall be involved in planning and implementation of the rehabilitation project; (iii) affected vendors shall be relocated so as to improve their livelihoods and standards of living or at least to restore them, in real terms to pre-evicted levels; and, (iv) natural markets where street vendors have conducted business for over fifty years shall be declared as heritage markets, and the street vendors in such markets shall not be relocated.
3. Relevant National Policies
Several national policies also recognise the need of the government to provide improved housing and shelter, and resettlement and rehabilitation in instances of eviction and displacement.
The stated focus of India's National Urban Housing and Habitat Policy 2007, is the, "Provision of 'Affordable Housing for All' with special emphasis on vulnerable sections of society such as Scheduled Castes / Scheduled Tribes, Backward Classes, Minorities and the urban poor." The Policy also seeks to ensure equitable supply of land, shelter and services at affordable prices. It gives preference to provision of shelter to the urban poor at their present location or near their work place, and also adopts an approach of in situ (on site) rehabilitation.
The Policy claims to make special provisions to include women at all levels of decision-making for ensuring their participation in the formulation and implementation of housing policies and programmes. It also addresses the special needs of women-headed households, single women, working women, and women in difficult circumstances with regard to housing serviced by basic amenities.
b) Draft National Slum Policy (2001)
India still does not have a national slum policy. What exists is a draft that contains few provisions related to resettlement. These include:
- State / Urban Local Bodies (ULB) should explore alternatives to resettlement before a decision is taken to move people;
- Relocation distances should be minimised to reduce the impact on livelihoods;
- Resident dwellers must be provided with some choice of alternative sites, and where feasible, an alternative rehabilitation package;
- All resettlement sites should be adequately serviced and provision should be made for public transportation prior to resettlement;
- The livelihoods of affected persons must be sufficiently compensated within a fixed period;
- Participation of primary stakeholders, particularly women, in planning and decision-making is a prerequisite for any resettlement process;
- Any urban development project that leads to involuntary resettlement of communities must make provisions to cover the costs of resettlement and rehabilitation; and,
- The timing of interventions must also reduce dislocation and discomfort, especially during periods of inclement weather.
Announced in 2009, Rajiv AwasYojana (RAY) is a national scheme of the Ministry of Housing and Urban Poverty Alleviation that intends to, "build a 'slum free' country while providing shelter and basic services to the urban poor." The scheme is being implemented in 20 states across the country, in different ways. The Rajiv AwasYojana Guidelines 2013-2022 list the major components and operationalisation elements of the scheme. While RAY has the potential to improve housing conditions for the urban poor through in situ (on site) upgrading and the provision of legal security of tenure, it is important that state governments work to ensure that RAY does not, in any way, facilitate evictions and the takeover of public land for private profit.
Communities need to be informed of any RAY projects being undertaken in their cities, and their participation should be guaranteed in them. The provisions for legal security of tenure under RAY must ensure a guarantee against forced evictions. States must not use arbitrary classifications such as 'tenable' and 'untenable' slums as a means to evict residents. The human right to adequate housing framework should be adopted by state governments for implementation of all RAY projects.
4. Court Judgements
a) Judgements of the Supreme Court of India
The Supreme Court of India, in several judgements, has held that the human right to adequate housing is a fundamental right emanating from the right to life protected by Article 21 of the Constitution of India ("No person shall be deprived of his life or personal liberty except according to procedure established by law"). There have been several important court judgments that have clearly established the relation between the right to housing and the right to life, as guaranteed by Article 21.
In the case of U.P. AvasEvamVikasParishad vs. Friends Coop. Housing Society Ltd. (1996), the Supreme Court affirmed that:
The right to shelter is a fundamental right, which springs from the right to residence under Article 19 (1) (e) and the right to life under Article 21.
In 1981, the Supreme Court, in the case Francis Coralie vs. Union Territory of Delhi, stated:
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 necessaries 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 beings.
In the case of Chameli Singh and Others vs. State of Uttar Pradesh (1996),the Supreme Court provided a holistic understanding of the right to shelter and adequate housing. It declared:
Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, 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 have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over one's head but right to all the 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 live should be deemed to have been guaranteed as a fundamental right…
Want of decent residence therefore frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself.
In 1990, in the Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and Otherscase, the Supreme Court directed the state to construct affordable houses for the poor:
The State has the constitutional duty to provide shelter to make the right to life meaningful.
Significantly, in 1990, the Supreme Court recognised the right of children to adequate housing. In the case Shantistar Builders vs. Narayan KhimalalTotame, the Court observed:
The Constitution aims at ensuring the full development of every child. That would be possible only if the child is in a proper home.
The Supreme Court has also upheld the right to property. In the case of Tukaram Kana Joshi and Others vs. MIDC and Others, the Court noted that:
The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi-faceted dimension. The right to property is considered, very much to be a part of such new dimension.
b) Judgements from State High Courts
Certain interim orders and judgements from High Courts across the country have also upheld the human right to adequate housing, and condemned the practice of forced evictions without due process and adherence to human rights standards.
The High Court of Delhi, in the case of P.K. Koul and Ors. vs. Estate Officer and Anr. and Ors. (2010), upheld the right to adequate housing and affirmed that:
40 (…) right to residence and to settle in any part of the country is assured to every citizen as a fundamental right under Article 19 (1) (e) of the Constitution of India… The right to shelter springs from this right and has been considered to be an integral part for a meaningful enjoyment of right to life under Article 21 of the Constitution of India.
56. It is essential to note that in fact no new right is being created, recognized or reiterated by the international instruments or the said guidelines. The right to shelter of every person has been recognized as an essential concomitant of right to life under Article 21 of the Constitution of India. It would clearly be covered under the definition of a "human right" under Section 2(1)(d) of the Protection of Human Rights Act, 1993, which includes rights relating to life, liberty, equality and dignity. The right to shelter, an essential part of right to life, would therefore also be a statutorily recognized right under Section 2(1)(d) of the Act of 1993 and enforceable as such also.
170. In 1995 (2) SLR 72 P. G. Gupta vs. State of Gujarat the Supreme Court had further declared that it was the duty of the state to construct houses at reasonable costs and make them easily accessible to the poor, and that such principles have been expressly embodied in our Constitution to ensure socioeconomic democracy so that everyone has a right to life, liberty and security of the person.
171. The Supreme Court has repeatedly reiterated the well settled position that the state has the constitutional duty to provide adequate facilities and opportunities to all including the disadvantaged and the displaced, by distributing its wealth and resources for the settlement of life and erection of shelter over their heads. The court has emphasized the constitutional right of every citizen to migrate and settle in any part of India for better employment opportunity and it would be the duty of the state to provide right to shelter to the disadvantaged in society (Ref: Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan &Ors).
175. It is the constitutional duty of the state to protect human rights and the fundamental rights of all persons. The distinction between such rights and legal rights which may require adjudication in appropriate proceedings has also been emphasised on several occasions.
182. The expansion and interpretation by the courts has affirmatively established a positive right to housing and shelter for every person as part of the fundamental right. Human rights and fundamental rights are inalienable; their violations are indefensible. The state is under a constitutional obligation and duty to protect these rights. When violated, a citizen is entitled to their enforcement. The constitutional mandate upon it, is coupled with the statutory duty and public law obligations to ensure the protection of the fundamental and basic human rights to all, in addition to its obligation under the several international instruments noticed above. This essentially remains in the exclusive domain of state functions. Failure to protect the citizens from eminent loss of life and property as well as maintenance of public order, implicates the state for culpable inaction.
In the case of Sudama Singh and Others vs. Government of Delhi and Anr.(2010), the High Court of Delhi also established that housing is a human right. It stated:
26. Adequate housing serves as the crucible for human wellbeing and development, bringing together elements related to ecology, sustained and sustainable development. It also serves as the basic unit of human settlements and as an indicator of the duality of life of a city or a country's inhabitants.
34. The recognized importance of the right to housing over time has led to its ratification and reinforcement through other international declarations, conventions and conferences, in which more precise and complex objectives have been developed.
39 (…) Protection of life guaranteed by Article 21 encompasses within its ambit the right to shelter to enjoy the meaningful right to life. The right to residence and settlement was seen as a fundamental right under Article 19 (1) (e) and as a facet of inseparable meaningful right to life as available under Article 21.