Right to Housing : Context and Trends in Contemporary Debates

This Paper was presented at a National Seminar on Shelterless and Houseless, organised by Council for Social Development , Delhi
Abstract

In the recent past the State of Andhra Pradesh has witnessed a sustained massive militant struggle by the poor homeless people for securing the housing rights. This is one of the struggles where the beneficiaries have directly engaged and confronted the state machinery including the brutal police firing and implicating thousands false cases on innocent people. This movement has also brought to the main political agenda the issue of lack of housing that compelled the state government to approve the housing schemes en masse. In this paper an attempt has been made to present a comprehensive analysis of the struggle, contextualizing it, in the backdrop of the national and international human rights frame work. For the purpose of convenience this paper has been divided in to five parts through light on the ICSECR, national debates on right to housing, reasons for emergence of a strong umbrella advocacy group in Andhra Pradesh to get this right enforced and in the end tried to focus on the contribution of this movement to the housing rights debate in the state in particular and in India, in general.

Contextualizing the debate on Housing Rights

A decent housing is the common and minimum need of any individual for which she/he work for generations to get it realized. Unfortunately it still remains a distant dream every where for a common man. As people’s association with a piece of land is innate since times immemorial, any government must take cognizance of it when policies pertaining them are formulated. Owning a house signifies certain degree of social as well as economic well being along with a decent standard of living. Essential to achieve this standard is access to adequate housing. Housing fulfills physical needs by providing security and shelter from different weather conditions. It fulfills psychological needs by providing a sense of personal space and privacy. It also accomplishes the social needs by providing a common community space and helps to establish human relations in society. It is the fundamental requirement to hold the members of a family together. It provides economic security to the family and functions as a centre of commercial production, apart from being the Cosmo place of self motivated economic activity.

With the advent of modern democracy and Citizenship theory , access to housing or habitation has become a synonym to the citizenship rights that in turn devolves multiplicity of rights to individuals by making them full members of a society. At the same time the denial of right to habitation excludes a family or individual from getting benefited from several governmental schemes as the beneficiaries for all the schemes are ought to be selected from among the citizens only. That means absence of a house disqualifies citizens from the benefits of governmental help and support is quit evident particularly at times of natural disasters. Therefore in view of the importance of housing for the people the UDHR declares that “Every one has the right to standard of living adequate for the health and well being of himself and his family including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” ( UDHR, Article 25(1)). This reference in UDHR has its own historical context. This is codified in the immediate context of second world war devastation which rendering crores of people homeless across the continents. If we learn the fact in USSR only more than 2 crores laid their lives, the magnitude of homelessness can be appreciated.

Ironically, despite this codification and certain nations enshrining the right to housing in their constitutions, confusion prevails over whether this is a legal right?, as the right has a multiplying character and also attaches it to a piece of immovable property. The governments are left with sufficient operating space for the States Parties to make this right legally entitled as in the case of certain European States or implement as a measure of solidarity as done by France, since governments are bound to act in a country under specific circumstances. International Covenant on Social, Economic and Cultural Rights (ICSECR) which had been duly adopted by the members of the UNO in 1966 made this a mandatory for the States Parties, under its Article 11 that says “The States Parties to the present Covenant recognize the right of every one to an adequate standard of living for himself and his family, including food, clothing and housing and to continuous improvement of living conditions. The State Parties will take appropriate steps to ensure the realization of these rights recognizing to this effect the essential importance of international cooperation based on free consent”.

Even this resolution is not without vigorous controversies on whether the right to housing is legally enforceable by the states or not. In order to clarify the meaning and scope of the right to housing as expressed in the Covenant in 1991, the Committee on Economic, Social, and Cultural Rights (CESCR) that monitor the International Covenant on Economic, Social and Cultural Rights has issued in its General Comment no.4 Para 14, where it explains that the States are required to “ take what ever steps are necessary” to achieve the full realization of the right. Measures designed to satisfy a States party’s obligation in respect of the right to adequate housing may reflect what ever mix, public or private sector.

Thus this debate finds out two approaches with regard to right to housing: 1.The basic rights approach and 2.The commoditization of housing approach. The basic rights approach interprets this right in a broad and inclusive sense like the right to live in “security, peace and dignity” while the latter takes a market oriented narrow approach. The General comment no.4 also stipulates that the right to adequate housing must be viewed in conjunction with other human rights (Paragraph 9). The comment also defines the phrase ‘adequacy’. According to the CESCR the adequacy of housing is influenced by social, economic, cultural, climatic, ecological and other factors. It also refers to security to the tenure, availability of services, materials, facilities, and infrastructure, affordability, habitability, accessibility, location, cultural adequacy (Paragraph 8) which are key factors to make the housing an effective social, cultural and economic agent that can be used as an instrument in the advancement of an individual or a family.

Globalization and Right to Housing

With the onset of Globalization, that forced repositioning of the State, the debate between these two approaches aggravated and settled predominantly in favour of solidarity paradigm as well as commoditization approach, thus paving the way for a boom in real estate sector and its allied institutional setup. An other consequence of globalization, perhaps, received inadequate attention that actually deserves was the enlarged debates on the Human Rights in the context of increasing complexities. Until the 1990s the debates on Human Rights have essentially been confined to civil and political dimensions of the rights discourse. After the 1990s the ambit of the debate had been widened with the inclusion of the social and economic rights. This change may be attributed to the retreating role of the State under aegis Globalisation.

Thus the State in pre globalized democracies was seen in its full capacity in directing its energies to achieve the maximum public welfare. This strengthened the hands of State to rein Capital in to suitable channels that include human infrastructure such as housing, sanitation, etc,. But in the post 90s when the emphasis had been shifted to manage the needs of Capital, instead of social needs of the public, the state had gradually shun its capacity to provide human infrastructure. This left considerable percentage of population out of such facilities. In fact it was a time when the State in the third world countries including in India, refused to shoulder the responsibility of the society and managing the social needs. This led the formation of a number of pressure groups and advocacy groups in support of reinstating the State as an instrument to manage the societal needs. The advocacy groups, failing to compel the governments at domestic level, took shelter under international institutions, which is the precise reason for a lengthy debates between representatives of advocacy groups and representatives of State Parties to the ICSECR. Finally the advocacy groups were succeeded marginally by forcing the State Parties to accept article 11 of the covenant for the benefit of the homeless. This reflects the above contention of widening of the ambit of human rights debates by including economic and social rights. This progressive variation in understanding the significance of the right to housing in the declarations of UNDHR and ICSECR and CESCR reflects the over all dynamics of the economic polices which are fundamental to the government’s decisions vis-à-vis their interface with the aspirations of citizens.

Right to Housing in India
The constitution of India divides the rights of citizen as negative rights (where the state shall not encroach) and positive rights (where the State shall facilitate for their achievement). The negative rights are listed under part III of constitution which are famously called as the Fundamental Rights where as the positive rights are listed under part IV which are known as Directive Principles of State Policy. The Fundamental Rights are legally enforceable where as Directive Principles of State Policy are legally non enforceable. Under Fundamental Rights Article 21 which deals with Right to Life covers a vast range of issues.
In consonance with changing international discourse on human rights, India has also witnessed a change, basically in the late 1970s and early 80s, when the country has seen the height of judicial activism. This was the period when the judiciary felt Right is Might. During this period, The Supreme Court of India has engaged seriously with Directive Principles making some of them legally enforceable, thus bringing them in to the sphere of Fundamental Rights . Widening the canvass of Right to Life is one such act that happened through various judicial pronouncements, to bring about the right to work, right to equal pay and right to adequate housing. The judicial activism has thoroughly transformed the State activism in the sphere of social and economic rights. Thus the Right to Life under Article 218 also enforced an obligation on the State governments to intervene positively to ensure a better and descent living conditions, which include provision of adequate housing. In 1985, in Olga Tellis case, while recognizing the right of government to evict the pavement dwellers, Justice YV Chandrachud pronounced that only after arranging alternative accommodation, the government can undertake such eviction. In another case, The Supreme Court while considering all the issues, reiterated that: "The right to life…would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. For the animal, it is the bare protection of the body; for a human being it has to be a suitable accommodation, which would allow him to grow in every aspect _ physical, mental and intellectual. The Constitution aims at ensuring fuller development of every child. That would be possible only if the child is in a proper home. It is not necessary that every citizen must be ensured of living in a well-built comfortable house but a reasonable home particularly, can even be mud-built thatched house or a mud-built fire-proof accommodation ."
Most important judgment in this regard which combined obligations of State under Right to Life and Right to Residence and Settlement under Article 19(1)(e) and the international obligations, gave a very progressive interpretation to the Directive Principles and held that : “ The 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. As enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure for its citizens, of course subject to its economic budgeting ,” thus established the rights of citizens in securing and obligations of the State in providing the adequate housing. At a later stage, particularly in the post reform period the judiciary deviated from the Right is Might approach and gone along with that of market principles in a number of cases, thus leading and aiding to the regression of rights guaranteed by the constitution.
Struggle for homestead lands in Andhra Pradesh
The above judicial pronouncements have provided a strong base in support of the fulfillment of the right to housing by any citizen of India. As this study confines only to the developments in the state of Andhra Pradesh it would be apt to consider implementation of the housing policy and its implementation. Several studies have established that after the 1980s there was a virtual halt of the implementation of any new schemes in the state until the Telugudesam party took over the state administration for the first time. During the first term of the TDP government the state witnessed a spurt in housing schemes with the government providing matching grant to the homeless poor. Often this matching grant was in the form of material to avoid the pilferage. For instance in the Guntur district,the last construction of such colony was completed during 1985. Since then, there was hardly any scheme for a generation of weaker sections in the district. In a village called Lingarao Palem which falls under Chilakaluri Pet assembly constituency, where the present study has been carried out, there was no single dwelling unit the had been sanctioned after 1985.When government sanctioned 85 houses for the last time in 1985 the population of the village stood at 1400 where as it now reached 2200 even after the migration of about 100 families. Even after a profound increase in the total population of the village there is no sanction of new houses to the need families. This is clear indication that shows the non-implementation of the important schme by the government leading to over accumulation of demands for housing.

This observation is corroborated by a reply of government in its reply to Loksabha in 1996 ( question no. 186) informing that as on 1990, March 1st, total housing shortage in India is to the tune of 30.3 million units. According to one estimation, the housing shortage during 1991-2001 is @ 0.89 million. The graph below, state wise picture of rural housing shortage where the State of Andhra Pradesh occupied 3rd place from the top.

In 1998, government of India formulated Housing Habitat Policy 1998, with a slogan “ Shelter for All”, we witnessed an escalation in housing activity under various schemes. The second graph reflects the escalated activity in implementing IAY since 1998-1999. Even after tremendous growth in implementing the housing schemes, Planning Commission while finalizing its annual plan for the year 1999-2000, estimated that the total housing shortage is to the tune of 9.4 million. Where as 11th plan working group report informs us that still India is short of 148.33 lakh units, where as the planning commission document confines this figure only up to 8 million. This shows the inconsistency either in estimation or brings more serious issues to the forefront. The terms and references of the said working group ( Annexure I) does not allow to find out the reasons for this shortage. With out looking in to the reasons, how they can suggest any viable policy for the fulfillment of the constitutional obligation, I am unable to understand. Thus I strongly believe that there is a need for a comprehensive study to identify the reasons for such shortage in urban as well as rural India to make the right to housing a reality.

The situation has reached an alarming state where the poor home less masses are forced to undertake a huge mass movement against the state. Thus paving ground for mobilization. There was no progress on the housing front spite of the lofty promises that include housing for every one by the late YS Rajasekhar Reddy in the general elections of the 2004, in which the congress government came to power . Delay in the implementation of such schemes have forced the advocacy groups in the state, where 92 groups came under single umbrella organization, to pressurize the government for the execution of the right to housing. These advocacy groups formed a coordination committee to monitor the struggle and provide them required background and propose alternatives. The struggle basically relied on the Koneru Ranga Rao committee report that was set up by the government to look into the conditions of the poor people a few months ago., This was the most militant, sustained struggle after the movement against electricity charges in the year 2000 . This movement was very significant in view of the direct participation of then beneficiaries in terms of identifying the vacant government land and its occupying as well as its protection from evictions organized by the government.

According to one estimation the movement has occupied 3,08,101.15 acres of cultivable land and 16,148.05 acres of habitable government waste land. These figures refutes the state government argument of non availability of land to distribute the poor people. Government camedown with a heavy arm of repression and arrested 81853 agitaters, registered cases against 24464 persons and remanded 6738 activists . Though these activities have spread across the state huge numer of people have mobilized from the urban areas. The movement sustained on the voluntary contributions made by the participants and on the support structures put up by Communist Party of India (Marxist). This movement forced government of Andhra Pradesh to conceive a new scheme called Indiramma, to provide houses to the rural as well as urban poor. This movement has also brought several other issues in to the political agenda. The wide ranging participation of ordinary citizens irrespective of party affiliations confirms the fact that a large number of potential beneficiaries have not been covered by the government schemes so far.

Issues brought in to focus by the movement

1. This movement refuted the government campaign that large numbers have been covered by the housing schemes government.
2. The movement forced the state government to make public the Koneru Ranga Rao commission report.
3. The movement brought the issue of housing / denial of housing rights in the political as well as public agenda.
4. Usual reply from the government for the demand for housing sites is that there is no land available for distribution. This movement explicitly showed the availability of the land for such purpose.
5. Movement also brought in to focus the complicity and nexus between the government and real estate companies in the urban areas.
6. Movement also dispelled the argument that due to enlarged opportunities under globalization, people are capable of securing the basic needs and are not willing to participate in militant struggles for the same.
7. The movement also re-established the mass movements as influencing agents on the policy formation.
8. Recently the state government admitted that there are cases of unfavorable inclusion of ineligible beneficiaries and promised to weed them out.

Conclusion

The above study helps us to conclude that there is a need to study a fresh about the reasons for shortage of housing in India. At the same time, it focuses on the ad-hoc of the government from time to time. The main aspect of providing housing is acquiring the required land. The government does not have any policy to that effect as it is evident from the reports produced by its agencies. To see that the housing rights are realizable rights in India, government also needs both existing shortage as well as the new shortage arising out of development induced displacement. This paper also recognizes the need for an advocacy movement in securing the right. The movement for homestead lands in Andhra Pradesh also establishes the need for social audit in case of scheme where huge amount of investment is involved to see that the pilferage be minimized and to ensure the selection of genuine beneficiaries. Nationwide experiences shows that all the schemes are formulated in a manner that those who already have a piece of land gets the benefit of the schemes, thus excluding a major chunk of eligible beneficiaries from the purview of the schemes, which needs an urgent reconsideration if the country has to ensure the shelter for all.