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In view of the acute need for housing and the frequent and forceful evictions of so many slum-dwellers, itis important to understand how our Constitution and courts have interpreted the enforceability of socialrights, especially the right to adequate housing. The Supreme Court has elaborated at great length on theright to adequate housing, shelter and livelihood as part of the all-encompassing Right to Life underArticle 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, themost shocking being the Narmada judgement (October 2000), the Court has entirely failed to give duerecognition to this right. Does our Constitution guarantee a right to housing for all, or are there such largeloopholes in the law that despite the existence of such rights, the state can still get away with notproviding its citizens their fundamental human rights?

Our Fundamental Rights are listed in Part III of the Constitution, and consist mainly of civil and politicalrights. Part IV, on the other hand, houses the Directive Principles of State Policy. While these are notenforceable rights, they do provide guiding principles for the working of the Constitution. They cover allthe socio-economic rights, such as education, right to work, equal pay for equal work, etc. These rightswere considered non-enforceable or non-justiciable, as they are dependent on resources available withthe state.

During the 1970s and 1980s, India witnessed a very interesting phenomenon: due to strong judicialactivism, 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 anindividual without the sanction of law, activist judges now imposed a positive obligation upon the state totake 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 Indiawas the Olga Tellis case in 1985. This petition to the Bombay High Court was in the form of a publicinterest litigation by thousands of pavement dwellers of Bombay city. The petitioners argued that theycould not be evicted from their squalid shelters without being offered alternative accommodation. Theyfurther argued that they had chosen a pavement or slum to live in only because it was nearest to theirplace 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 CorporationAct, which empowered the Municipal Commissioner to remove encroachments on footpaths orpavements 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 theConstitution to include within its scope, the right to livelihood, which in this context translated into the rightto be allowed to remain on the pavements. And although the final orders in Olga Tellis found that theBMC Act was valid and that pavement dwellers should be evicted, the Supreme Court also laid down thatthis could be done only after arranging alternative accommodation for them. In a sense, therefore, byimposing this strong condition of providing alternate accommodation before eviction, the Supreme Courtwas in fact upholding the right of the pavement dwellers to shelter. More interesting is the fact that morethan 15 years after the Supreme Court judgement in 1985 was passed, due to the strong activism andpressure from NGOs and the pavement dwellers themselves, most of them have still not been evicted bythe BMC!

Developments since the Olga Tellis judgement

However, after this remarkable judgement, later decisions of the Supreme Court and some High Courts ofthe 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 shelterthat 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 importantones being Shantistar Builders v. Narayan K. Totame, Chameli Singh v. State of UP and AhmedabadMunicipal Corporation v. Nawab Khan Gulab Khan. In all these cases, the Supreme Court reiterated theright to adequate housing as a distinct constitutional obligation of the state, both under the right to life and

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under Article 19(1)(e), which guarantees the right of every citizen to reside and settle in any part of thecountry. 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 inthe Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Socialand Cultural Rights (ICESCR).

Inconsistent Interpretations

The courts, however, have not been very consistent in interpreting housing as a fundamental human rightof all citizens. In some recent judgements, not only have they failed to uphold this right, but have actuallyregressed on their earlier rulings!

A case in point is the petition filed in 1995 in the Bombay High Court. Filed by the Bombay EnvironmentalAction 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 andall its aspects'. In its judgement on 7 May 1997, the Bombay High Court directed the relevant authoritiesto 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 SanjayGandhi National Park, determined that the BEAG petition clearly showed its vision of a 'cleanenvironment' 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 millionslum-dwellers. Particularly disturbing was the fact that the Court not only ordered this mass eviction, but itexplicitly ordered the demolition of homes and the destruction of all belongings and construction materialsthat, 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 andinternational obligations, is the one by the Supreme Court in India in NBA v. Union of India. This caseconcerned the continued construction of the Sardar Sarovar Project dam and its significant impact onboth the environment and hundreds and thousands of tribal people in the Narmada valley, who have beendisplaced with inadequate resettlement and rehabilitation options. Despite full knowledge of theconcerned authorities' failure to determine the total number of people to be displaced or find adequateland for their resettlement, and the incomplete resettlement of those already displaced, the SupremeCourt 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. Thejudgement contradicted all previous Supreme Court rulings that have upheld the right to shelter related tothe right to life, as well as the decisions of the Narmada Water Disputes Tribunal.

Part of larger goal

So 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 tocontinue to depend on the whims and fancies of our esteemed judges to interpret this right sensitively?

Low-income housing The unbearable lightness

Imaginary cities The right to housing Mumbai's tragedy Forget Shanghai, try Mumbai Cut-off by the date Credible low-income housing policyInternationally, the right to housing has a significant place in several instruments. On the basis of theprovisions established in the UDHR, the right to adequate housing occupies a significant place in theICESCR of 1966. Article 11.1 of the Covenant states that:

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'The States Parties to the present Covenant recognise the right of everyone to an adequate standard ofliving for himself and his family, including adequate food, clothing and housing, and to the continuousimprovement of living conditions. The States Parties will take appropriate steps to ensure the realisationof this right, recognising to this effect the essential importance of international co-operation based on freeconsent.'

The right to adequate housing is also recognised internationally in several other instruments that havefocused on the need to protect rights of particular groups, such as CEDAW (Committee on the Eliminationof Discrimination against Women), CRC (Committee on rights of the child) and CERD (Committee on theElimination of Racial Discrimination), and there are even a few General Comments specifically on housingas 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 hasbeen significant but unfortunately not very consistent. The courts have relied on the provisions of theUDHR and the ICESCR, but the arguments have not proceeded beyond these provisions. The use ofthese provisions is random and not regularly practiced by the courts. Sadly, most lawyers and judges inIndia are entirely unaware of the existence, let alone complexities, of the field of international humanrights 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 alsotherefore an obvious component of the right to equality. The right to equality is symbiotically linked withour social and economic rights - the one set of rights providing some of the context within which the otherset can be understood. The Indian Supreme Court has placed great emphasis on guaranteeing housingrights as part of the larger goal of achieving social and economic equality, which is also a fundamentalconstitutional objective.

The extreme insensitivity of the Supreme Court with regard to housing in the October 2000 Narmadajudgement and the poor and random use of well-developed international law, suggest that the regressiveattitude of the courts might well be an indication that law may be one means but certainly not the definitiveroute 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 ofthese various arguments, it is perhaps time that we began to rethink and revive our commitment to theright to adequate housing, both nationally and internationally.