The Right to Housing – The Preserve of the Rich

The Right to Housing – The Preserve of the Rich

By Colin Gonsalves¹
Yamuna Pushta² looks like a battle zone. The tiny houses of the poor lie in ruins as far as the eye can see. Naked children sit in disarray among their belongings.
The demolition began with hardly any notice. In a scene reminiscent of the Emergency,³ policemen were everywhere as bulldozers moved in and crushed homes.
On visiting Holambi Kalan, the area to which the displaced residents are supposedly to be relocated, one finds a dump with overflowing toilets, no electricity or schools, and mosquitoes everywhere. In reality, however, barely one fifth of residents will actually be relocated.
What public interest spurs these demolitions? The Yamuna Pushta demolition is being carried out to make way for a tourist complex including shopping malls and a golf course, the demolition at Lajpat Nagar⁴ to provide space for a statue of Lala Lajpat Rai.⁵ It is no accident that the jhuggies⁶ in both these cases had sizeable Muslim populations, considered more likely to provide voter support to non-ruling parties than to the then-incumbent BJP in the May 2004 elections.
Anti-Muslim prejudice was also evident in the resettlement process. In the Lajpat Nagar demolition, for instance, Muslim residents entitled to alternative accommodation were refused it and told that they would have to obtain a police verification prior to making a claim for such.⁷
The cases described above belie the fact that the right to housing is a Fundamental Right guaranteed under Article 21 of the Indian Constitution.⁸ In the Chameli Singh⁹ and Shantistar Builders cases,¹⁰ the Supreme Court held the right to housing to be part of the fundamental right to life, stating that the right to shelter includes adequate living spaces, safe and decent structures and clean surroundings.
The right was further particularised in the 1997 case of Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan & Ors.,¹¹ where the Supreme Court said that:
[I]t is the duty of the State to construct houses at reasonable rates and make them easily accessible to the poor. The State has the constitutional duty to provide shelter to make the right to life meaningful.
Dealing with the issue of encroachers, the Supreme Court stated that:
[T]he mere fact that encroachers have approached this court would be no ground to dismiss their cases. Where the poor have resided in an area for a long time, the State ought to frame schemes and allocate land and resources for rehabilitating the urban poor.
The duty of the State to provide for the housing needs of the poor also forms part of India’s obligations under various international conventions. The Universal Declaration of Human Rights (UDHR) states that:
[E]veryone has a right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, medical care and necessary social services …¹²
Furthermore, India has ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), which “commits all state parties to the present Covenant to recognise the right to an adequate standard of living … including housing”¹³ and obliges States Parties “to take appropriate steps to ensure the realisation of this right.”¹⁴ In its 1993 resolution on forced evictions, the UN Commission on Human Rights emphasised that “the practice of forced eviction constitutes a gross violation of human rights, in particular, the right to housing”.¹⁵
This prohibition on forced evictions was recently reaffirmed by the Commission in Resolution 2004/28.¹⁶
In accordance with these international obligations, in 1988 the Government of India framed the National Habitat and Housing Policy, which warned that:
After 50 years of independence most of us still live in conditions in which even beasts would protest. The situation is grim and calls for nothing else than a housing revolution.
However, despite Supreme Court decisions identifying and outlining the obligations imposed by the right to housing, the commitments set out in the National Habitat and Housing Policy, and India’s international obligations, slum dwellers who have lived in the same location for years have their homes demolished without notice, without alternative accommodation being provided, and for no real public purpose.
The experience of the slum-dwellers differs sharply from that of the inhabitants of the illegal development of Sainik Farms. This is an unauthorised private colony on the outskirts of Delhi that is primarily occupied by the rich. The approach of the administration and the judiciary to this unlawful development is very different to that adopted towards those described above. Unlike the official response to the jhuggie villages, where the State adopted an uncompromising, brutal approach, here notices are given and legal proceedings commence. While orders are granted by the courts, they are rarely, if ever, implemented.
The demolition at Lajpat Nagar was so ‘urgent’ that a request by residents that the demolition be postponed for a few weeks, so that their children could finish their studies and sit examinations, was refused. In contrast, at Sainik Farms, years pass, the illegal constructions remain and then the Government considers their regularisation.

There is a right to housing in India. And it is a Fundamental Right. But for the rich, not the poor.

1Colin Gonsalves is Executive Director of the Human Rights Law Network, India.

2A slum in Delhi, India.

3This refers to the Government’s imposition of an Emergency under the Constitution, when Fundamental Rights were suppressed.

4A residential colony in South Delhi.

5A freedom fighter who fought the British during India’s struggle for independence.

6Slums.

7The police verification would entail proving that they were Muslim citizens of India and not from Bangladesh.

8Art. 21 guarantees the right to life.

9Chameli Singh v State of Uttar Pradesh (1996) 2 SCC 549 (1996) 2 SCC 549.

10M/s. Shantistar Builders v Narayan Khimalal Totame (1990) 1 SCC 520,

http://www.elaw.org/resources/text.asp?id=1064

11(1997) 11 SCC 121.

12Art. 25, UDHR.

13Art. 11(1), ICESCR.

14Ibid. The Committee on Economic Social and Cultural Rights has dealt with the issues of forced evictions and the right to adeuqate housing in detail in its General Comment No. 7 on Forced evictions and the right to adequate housing, U.N. Doc. E/1998/22, http://www1.umn.edu/humanrts/gencomm/escgencom7.htm

15Resolution 1993/77 on Forced Evictions, UN Doc. E/CN.4/RES/1993/77 (1993), para 1, http://www.jca.apc.org/nojukusha/general/law/resolution1993_77_e.html

16Resolution 2004/28 on Forced Evictions, UN Doc. E/CN.4/RES/2004/28 (2004).