08, Nov 2017 | Sushmita
For activists and human rights defenders, engaging with issues of settlements, housing and eviction, has always posed a challenge. While there may be an understandable revulsion to the increasing brutality and violence with which most local authorities have been carrying out demolitions or evacuations, the sense of entitlement in the middle and professional classes fails to comprehend the basic issues of dignity, survival and access that these issues raise.
Here we try to look at the role of both ‘State’ and ‘Non State’ actors in the formulation of policies, as well as their interventions and subsequent impact. We also try to trace jurisprudence on the housing policy in India. And lastly, we discuss the human rights perspective to housing.
Shelter – A human need
Shelter is a basic human need. This is now the more or less accepted international parlance arrived at after great variations in the public discourses. Opinions have varied in trying to arrive at a universal definition of housing, seen differently from just the four walls, called a house. The particular historical circumstances of the 1950s made it hard to come to a common minimum definition of a house. However, since then, on the basis of standards established by various committees and missions, a two roomed house with adequate sanitary and housing facilities has been considered the barest minimum definition to ensure healthy living.
Prafull C. Mishra in his paper, “Right to Shelter: A Human Right Perspective”, discusses how “Sub-standard housing is but a step towards slums- the visible manifestation of the urban housing crisis in India.“
Right to Shelter: A Human Right
The establishment of the United Nations Organisation in 1945 helped in acknowledging the dignity of the human being; this established that the State had the obligation towards its citizens and must allow them areas of personal freedom.
Article 25 (1) of the UN Declaration of Human Right outlines the right to housing:
“Everyone has the right to a standard of living, adequate for the well-being of himself and of his family, including food, clothing, medical care and necessary social services, and the right to security event of unemployment, sickness, disability, widowhood, old lack of livelihood in circumstances.”
This acknowledgment in an international context made a compelling distinction between a house and housing! It emphasised the fact that providing a solid house with a solid roof to each family is not simply the matter of providing a roof over their heads but also peace of mind, work, good health and much more.
The economic and social rights of human beings are intertwined with their political and civil rights. The International Covenant on Economic, Social and Cultural Rights considered the obligation of States under the Charter of the UN to promote universal respect for, and observance of, human rights and freedoms that:
“The State 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…”
Pursuant to this statutory recognition of the right to shelter, the UN general Assembly proclaimed 1987 as the International Year of Shelter (IYSH) for the Homeless. This then became the basis for a programme of action for many years to come.
Role of the state in India’s housing policies
In conformity with article 3 of the Universal Declaration of Human Rights which declares that “everyone has the right to life, liberty and security of person,” article 21 of the Indian Constitution states that “No Person shall be deprived of his life or personal liberty except according to procedure established by law.”
The first five year plan came into effect in 1951 and in the initial phases the focus of the government was on providing finished social housing schemes and other programs. Some of these included, the Housing Scheme for Industrial Workers (1952), Housing for Low Income group(1954) and Housing for Plantation Workers(1956). However, the outcomes of these state schemes left much to be desired. Though these policies were seemingly pro-poor, they often landed the homes in the hands of middle and higher income groups. The dwellings constructed under these schemes were beyond the means of what the target, poor people could afford. Besides, in any case, the total number of houses built were far less than required.
The second five year plan saw government (1956-61) indulging in the policy of slum clearance and rehabilitation. This policy — directly borrowed from the Western experience — did not consider that it was destroying the already available stock, while building new ones. The plan failed badly, especially so since the relocation disconnected the people from their sources of livelihood. It also disturbed the social fabric.
In 1972, the Government launched schemes for environmental protection and upgrading of slums based on the theories of “self -help“propounded by Turner (1967, 1972, 1976), Mangin (1967), Abrams ( 1964 ). The impact of these schemes was mixed.
Another major policy move during the 1970s was related to land for housing. The policy was only adopted in Delhi for large scale land acquisition for urban development. The success of this policy in Delhi itself can be contested. Despite the suggested financial gains made by the Delhi Development Authority (DDA) it failed to acquire, develop and release plans as per actual needs and to meet specific quantitative requirements.
In the fifth five year plan (1975-80) schemes for high income groups with the said objective of cross subsidisation were introduced. Subsequent to this policy announcement, the State Housing Boards and Development Authorities began to implement composite housing schemes incorporating all income brackets – EWS (Economically Weaker Sections), LIG (Lower Income Groups), MIG ( Middle Income Groups ) and HIG ( Higher Income Groups ).
Despite this, the schemes for LIG and EWS sections saw low government expenditure (only 8% and 7 % respectively, while the rest went to HIG and MIG groups. The fifth plan onwards, there was a change in governments approach to provide housing. The approach to Housing in public sector in this period was to subsidise it. And it was based on the capacity of the people to repay. This approach continued till the seventh five year plan. The Seventh Five Year plan unequivocally stated – “in fulfilling the basic needs of the population, housing ranks next only to food and clothing in importance”. The Eighth( 1992-1997 ) and Ninth( 1997- 2002) Five Year Plans placed the focus on policies that would enable the market to produce housing by acting like a facilitator and not through direct involvement in the construction of houses.
Headed by Charles Correa, the National Commission on Urbanisation, in its 1988 report stressed the importance of informal sector housing. This was followed upon by the National Housing Policy of 1988 by the Government of India. Subsequent modifications were made to the policy in 1994 and by 1998, the National Housing and Habitat policy was formulated. This policy aimed to facilitate the construction of 20 lakh dwelling units each year with an emphasis on the poor.
The most significant aspect of the Eighth plan was that it was set against a definite National Housing Policy, the basic objective of which was to assist all people in securing affordable shelter, in particular the homeless, inadequately housed and vulnerable sections.
However, in spite of the government’s efforts to meet the demand through various schemes, the housing supply in general remained far lower than what was required. The government has not been able to fully cater to growing needs of the urban poor. Actually resources at the disposal of public agencies have been too meager to play an effective role. However, instead of an increase in financial allocations, a consistent decline in the rate of investment is noticeable. The government has been gradually withdrawing from its role of directly investing in programs. Also the experience with NHP showed that for subsequent years the objective of NHP had changed towards an enabling policy.
Article 21 of the Indian Constitution read with Article 19(1)(e) provides a mandate for the human right to shelter. Article 39(B) enjoins the State that the ownership and control of the material resources of the community are so distributed as to promote welfare of the people by securing social and economic justice to the weaker sections of the society. Article 46 directs the State to promote with social care social, economic and educational interests of the weaker sections of the society particularly scheduled castes and tribes. Article 46 directs the State to promote with special care social, economic and educational interests of the weaker sections of the society particularly scheduled castes and tribes. The right to social and economic justice and the right to shelter can not be separated from each other and form the essence of the right to life itself.
Several court rulings have emphasised on a number of occasions about the right to shelter being a fundamental right.
In Prabhakaran Nair, Etc vs State Of Tamil Nadu And Ors on September 3, 1987, the Supreme Court held that the Right to Shelter is a Fundamental Right guaranteed under Article 21 of the Constitution of India. In P.G. Gupta v. State of Gujarat the Court opined that it is imperative of the State of provide permanent housing accommodation to the poor in the housing schemes undertaken by it or its instrumentalities within their economic means so that they could make the payment of the price in easy installments and have permanent settlement and residence assured under Article 19(1)(e) and 21.
In Chameli Singh vs State Of U.P on December 15, 1995 the Supreme Court has observed:
“Shelter for a human being, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically mentally, 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 once 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.”
In another historic judgement, Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180, the Supreme Court considered the right to dwell on pavements or in slums by the indigent. It declared that the ejectment of pavements and slum dwellers from the places nearer to their work would be deprivation of their livelihood. Their eviction is tantamount to the deprivation of their life. The Court ruled:
“ It is true that the pavement dwellers and slum dwellers are using pavements and other public properties for an un authorised purpose. But their intention or object in doing so is not to commit an offence or intimidate, insult or annoy any person, this is the gist of the offence of criminal trespass under section 44 of the Indian Penal code. They manage to find a habitat in places, which are mostly filthy or marshy out of sheer helplessness. “
The Imagination of Shelter as a Right and its Implementation
Despite several policy measures and constitutional mandates, India has seen a rise in the number of slums and the slum population
- As per the 69th Round (July 2012-December 2012) sample survey conducted by the National Sample Survey Organization (NSSO), estimated number of slums in the country is 33510 which include 13761 notified and 19749 non-notified slum State-wise details are at Table-I. The State-wise details of slum population in the country, as per the Census 2011, are at Table-II.
- A total of 4,66,236 low cost houses have been constructed during the last three years and current year under Jawaharlal Nehru National Urban Renewal Mission (JNNURM) and Pradhan Mantri Awas Yojana (Urban) including the subsumed projects of Rajiv Awas Yojana (RAY).
- As on date, out of 11,44,473 houses constructed under JNNURM and PMAY(U) including the subsumed projects of RAY, 9,64,577 houses are occupied and 2,00,677 houses are unoccupied.
State wise Estimated Number of slums in India ( in numbers )
Source: Urban Slums in India‐ 2012, 69th Round, Reports No. 561 of NSSO.
*: Number of sample slums less than 10, hence estimates not presented
**: Based on all States and UTs, including States and UTs not shown in this statement
State wise Slum Population in India as per Census‐2011
Note: ‘NS’ indicates slum not reported.
Note: * : Andhra Pradesh means the erstwhile State of Andhra Pradesh i.e., the area now comprising the present-day
State of Andhra Pradesh and Telangana.
@ Slum Population estimated for 2613 slum reported cities/towns (includes 20 Census towns) out of 4041 statutory towns in Census 2011.
The factsheet on Right to Adequate Housing prepared by Working Group on Human Rights discussed how in 2012, the national urban housing shortage was 18.78 million houses; 95 per cent for economically weaker sections (EWS) and low-income groups (LIG). This is projected to increase to 34 million units by 2022. The macroeconomic framework promotes commercial development of housing for the rich, often at the expense of investment in housing for EWS/LIG. The recent focus on ‘affordable housing’ in the Union Budget 2017–18 and increase in allocations for PMAY are welcomed; however, these measures are not sufficient to ensure adequate housing for the homeless and EWS/LIG.
It further indicates that Government housing schemes largely rely on the private sector to deliver. While the commitment to provide ‘housing for all’ is commendable, it is estimated that 90 per cent of funds for the scheme would need to be generated from the private sector. India has allocated Rs 480 billion (USD 7.5 billion) for the Smart Cities Mission, which aims to develop 100 ‘smart cities’ by 2020. States have to generate half the funds from public-private partnerships (PPP). An analysis of the 60 shortlisted Smart City Proposals reveals a lack of priority for EWS/LIG housing. In some cities, SCM is promoting evictions.
Despite three macro-level programmes of housing being in force, namely Jawahar Lal Nehru National Urban Renewal Mission (2005-Extended till March 2017), Rajiv Awas Yojana (2011-2015) and Pradhan Mantri Awas Yojana (urban), all of these only provided 1.1 million units of housing. The lack of success of these programs can be attributed to the lack of integration of the “ hardware and software” aspects of the issue. The elements of success in any kind of support strategy for housing is the local response to the settlements, decentralisation, participation of the community in the changing rules. The inputs of a support strategy for shelter development are ‘security of tenure’, housing support services, credit, supporting legislations, institutional recognisation and project support communications.
The experience of Mumbai tells us that more than 20,000-odd families are still living in around 60 transit camps which were set up by the Maharashtra Housing and Area Development Authority (MHADA) across the city. Since the 1970s MHADA started shifting people from dilapidated buildings in south Mumbai into transit camps. They were to move back once the old structures were built, however till today these constructions have not been completed. Moreover, the quality of these constructions is extremely poor. Many such camps are now being destroyed. After 8 years of its construction and an expenditure of Rs. 1.5 crores, MHADA started demolishing the transit camp at the Bandra reclamation near Rangasharda auditorium. In a similar case around 117 tenants living in a transit camp near Gorai were reportedly shunted from camp to another. The Bombay High court had asked MHADA why it was not giving permanent homes to these residents.
All such failed experiments also indicate that what the poor need is not subsidies, but a piece of land with a right of tenure, accompanied by small loans or credit for building material. The state and various agencies should reconsider their role from provider to facilitator. In all cases where the state has been a facilitator, what has been witnessed, unfailingly, is that the relocation sites have been not conducive for livelihood sources and other social and community networks of the urban poor who have been displaced. Often such relocated sites lack even basic requirements like water facilities and are located in dingy and dirty neighbourhoods. The most recent and glaring example being that of residents relocated for Tansa pipelines to Mahul area.
Finally, housing in its broadest sense is the entire process by which people can obtain adequate shelter which involves planning, budgeting, developing, operating and maintaining a plan of action by the government. Lately countries like India have come to realise that the the poor are the real city. However, the methods adopted to relocate them after displacing remain questionable. There are many a cases of people who were subsequently evicted from the land in which they were settled by the government. While both the government and the private sectors want cheap labour, for their many projects, when it comes to their right to a dignified shelter, they turn a blind eye to them. In such a situation the role of state as an enabler and an entity that can make private sector accountable becomes important. However in most cases one observes that the state becomes complicit in displacing its poor in the most brutal way possible.
(With special inputs from Hussain Indorewala, an urban researcher with the Collective for Spatial Alternatives and an assistant professor at the Kamla Raheja Vidynidhi Institute of Architecture in Mumbai.)
References and Related Reads:
- Role of state and market in housing delivery for low-income groups in India
- Lives in the Rubble at Kathputli Colony: Demolition Drive
- Forcible Displacement of Adivasis in Narmada basin : : SC intervenes
- 48 Lakh Indians Displaced by Violent Conflict: Norway Report
- Bombay HC order misused, houses of poor demolished, for saving private builder: CPDR report
Photo: Binita Desai Feature Image: Amir Rizvi