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Outside of contexts where the distinction between a moral right and a legal one is itself a subject of study, the term ‘right’ is often loosely used, conflating the two. There is, however, a significant difference between articulating the substance of a moral right and determining how the law could help guarantee access to that substance. In relation to housing, there exists a vast body of literature and work on the former, drawn predominantly from disciplines outside the law. This study focussed on the latter, seeking to fulfil the relatively limited goal of thinking through the various ways in which the law impacts, and could be brought to enable, the realisation of the moral right to housing.
In the dominant imagination, the legal recognition of a right conjures visions of judgments reading the right into existing fundamental rights, a statute enacted to that effect or the constitution amended to include it in express terms. This way of thinking about legal recognition is institutional— an institution of the state performs an act that transforms a moral entitlement into a legal one. It is a perspective that is shown to come apart under scrutiny: is the right to housing already legally recognised in India, given that several judgments have stated that it is a part of the right to life; how much recognition (and from whom) is adequate legal recognition? Clearly, no one particular act transforms a moral right into a legal one. The absorption of a moral right into the law is a process that serves a particular function. The function is to create an environment that facilitates rather than obstructs the realisation of the substance of right in question. Thus, every act of dismantling existing oppressive norms, of pushing for more inclusive practice amongst implementing authorities, of introducing new entitlements in the law forms a part of this process. To that extent, a moral right is never fully ‘legally recognised’ the transformation is always underway, as the law responds to different situations across time and place. The law is an instrument that can be used towards certain ends, but the imagination of what the ends must be, as well as the impetus for legal recognition of whatever variety, needs must come from outside the law.
The poorest and most vulnerable among the rural families are those who are landless and homesteadless. An estimated 13 to 18 million families in rural India today are reported to be landless, of which about 8 million lack homes of their own. The National Sample Survey (NSS) data shows 10 per cent landlessness in the country and 5.5 per cent are houseless implying thereby 7.9 million persons without dwelling units.
It's now an accepted position globally and also as laid out in various judgements of Hon'ble Supreme Court of India, that a roof over one's head needs to be seen as a basic human right, and a fundamental right that guarantees dignity to an individual. The Government of India believes that a homestead of 10 cents provided to a poor homesteadless family shall help in enabling the family build a shelter and take up supplementary livelihood activities such as backyard poultry, goat-rearing, horticulture and vegetable cultivation. A law to guarantee minimum space to build the house and carryout supplementary livelihood activities is imperative. Access to such homesteads in addition to providing human dignity is critical as social security and social insurance measure. Such a law is also in pursuance of the Constitutional mandate to the Governments to endeavour to eliminate inequalities in status, facilities and opportunities and further that the ownership and control of the material resources of the community are so distributed as best to subserve the common good.
The National Right to Homestead Act, 2013 thus seeks to ensure that every homesteadless poor family in rural areas has a right to hold homestead of not less than ten cents. It provides that such a right to homestead shall be enforced within a time period as specified but not exceeding five years from the date of enactment of this law, and in accordance with the Plans to be made at the State level and the district levels for the purpose.
A BILL to provide for a right to homestead so as to ensure human dignity and social security to the poor landless and homesteadless in rural areas of the country by providing a human right to homestead and for matters connected therewith or incidental thereto.
In Give a Man a Fish, James Ferguson tells the tale of a housing rights workshop in Cape Town, organised by a nongovernmental organisation (NGO) in order to inform a group of shack-dwellers—who had been seeking better living conditions to no avail—of their legal entitlements:
Presentations were made and PowerPoints displayed describing in detail the constitutional right to housing. NGO workers stood up one after another, patiently explaining to the assembled crowd what rights are and who has them, what legal guarantees apply to housing, the history of housing rights in South Africa, and so on. At the end of several hours of this, a tired looking old man in the back of the room stood up, raised his hand, and said quietly: ‘I'm afraid there has been some mistake here. All I have heard about today is that I have the right to a house. Now that is all very well. But the problem is I don't want the right to a house.’ A heavy silence settled on the room, as the workshop leaders looked at one another in confusion. At last, the man continued: ‘I want a house.’
There is nothing surprising about this disillusionment with the language of the law, especially in contexts where the presence of a legal right does not translate to the enjoyment of the substance of the right. Most human rights lawyers likely have at least one such anecdote at hand at any given point of time. What this story made me think about, however, was the fact that conversations about legal rights are not efforts at constructing inviolable obligations which prevent the breach of duty. Instead, they are conversations about the construction of remedies to be invoked in the face of widespread violations. This is to say that the existing socio-political context obstructs access to the substance of the right. When the right has already been legally articulated, the inability to check its violations is predominantly chalked down to political unwillingness and tardy implementation. It is not usually acknowledged that a legal right is constructed within an existing legal landscape that has, more often than not, posed as a hindrance to the realisation of the right.
Evolution and Drafting of the ‘Housing Rights Bill’
The National Campaign for Housing Rights (NCHR) is an independent coalition of organisations and individuals from several States in the country. The Campaign believes that housing is a basic right for all—a secure place to live in peace and dignity and this right must be declared a Fundamental Right and campaigning for:
(a) the right to housing to be declared as a Fundamental Right,
(b) a comprehensive Peoples’ Bill of Housing Rights.
For the NCHR the very process of drafting the Bill is as important as the substantive part of the Bill itself. At the formative meetings in 1986 it was decided that it would be useful and necessary to first prepare and circulate as widely as possible a Draft Approach Paper—Towards a Peoples’ Bill of Housing Rights. For this purpose a ‘Housing and Law’ Working Group which came to be called the Legal Working Group was constituted by the NCHR in early 1987. This Approach Paper would be the basis on which a nation-wide awareness, discussion and solidarity was built up by inviting suggestions and issues from mass organisations, trade unions, activist groups, political parties, mass movements, voluntary organisations, professionals and other individuals and groups. This was conceived of as a process of popular democratic consultation and drafting of the Bill of Rights by the inadequately housed and homeless people themselves through their representative organisations.
The first Draft of this Approach Paper (DAP I, April 1987) was prepared by the Legal Working Group of the NCHR and published in April 1987. The DAP I was presented at the First National Consultation of the NCHR held at Bombay from 5-8 May, 1987. With the help of translations this preliminary document was widely discussed and the suggestions, issues, and amendments that emerged from these discussions were consolidated in a separate paper. Both these documents were circulated and discussed in several parts of the country through the NCHR Regional Campaign Centres, and the Campaign Secretariat. The Legal Working Group at its meeting in June 1987 consolidated and integrated the views emerging from the NCHR Consultation with DAP I.
The first question that we are faced with when we think about defining a legal right to housing is: what legal instrument are we defining it for? In India, when we speak of a legal right, we are referring to one or more of three possibilities in a hierarchy of rights: a fundamental right, which is a constitutional right listed in Part III of the Constitution; a constitutional right, which is a right listed anywhere else in the Constitution (outside of Part III); or a statutory right, which is a right established by statutory law enacted by the legislative bodies at the Centre or any of the states. Each of these three sorts of legal rights comes associated with an existing jurisprudence, and certain possibilities and limitations in terms of what it can achieve and what sorts of remedies it affords a rights claimant alleging a violation of the right. Within constitutions, rights (especially socio-economic ones) are usually articulated in aspirational terms, while more programmatic realisation is achieved through statutory law. Hence, the construction of a legal right usually involves an attempt at both constitutional recognition and the enactment of a statute.
The very fact that our Constitution includes a chapter called ‘Fundamental Rights’ creates a hierarchy between rights listed in that part (such as the freedom of speech and expression, and the right to life and personal liberty) and rights listed outside the chapter (such as the right to vote, the right not to be taxed except under authority of law and the right to property). Given that all law in the country is expected to be compliant with the Constitution, there is technically just one difference between a fundamental right and any other constitutional right: A right-holder (any person or a citizen, based on the language of the right) can challenge the violation of a fundamental right either directly before the Supreme Court or before the appropriate High Court. In the case of a constitutional right, there is no option of directly approaching the Supreme Court.
However, when the jurisprudence that has built around these two categories of rights is considered, a somewhat stark difference appears.
When lawyers study rights, one maxim that finds necessary mention is ubi jus ibi remedium —where there is a right, there is a remedy. This is to say that it is incumbent upon an equitable legal system to devise accessible remedies when rights are violated. Of course, seeing as this is a maxim developed in courts of law, the rights being referred to are legal rights. In common parlance, though, the term ‘right’ does not necessarily have a legal connotation; the Oxford English Dictionary, for instance, defines a right as ‘a moral or legal entitlement to have or do something’. Yet, often, when we speak of a moral right we seem to do so to make the case that the law is lacking morally unless it recognises and protects the right in question. This presumes that the concept of a moral right is of little significance in itself, except as a bargaining chip, and that incorporation into the law is a necessary and desirable consequence once it is agreed that a moral entitlement exists. The many struggles to include particular rights (like rights to education and food) and the rights of particular identities (for example, trans persons and persons with disabilities) within constitutional or statutory frameworks speak to this point.
The right to housing, with its deeply ambiguous position in Indian law, complicates in many ways our understanding of rights as such, and, more specifically, this seemingly direct link between moral and legal rights. Shelter has been recognised by Indian courts as a part of each person's right to life, but always in a rhetorical manner. Housing is not specifically mentioned in the schedule of the Constitution that details the subjects on which states, the Centre or both can legislate, ensuring that questions of jurisdiction plague all proposed legislative interventions. A large body of statutory law exists that can be, and has been, used to systematically deny people the right. Even as the moral right to housing is acknowledged across all limbs of government, it is impossible to tell at a glance whether there exists a legal right to housing in India, and what its contours are.
Much of the rights language evolved at a time when socio-economic rights were not given primacy as rights, leaving several situations open where it is difficult to fit said rights into existing conceptual categories.
Without claiming it to be a universal generalisation, I need to begin this foreword by referring to the Indian ambivalence towards the rule of law. At one end, we encounter a dismissive cynicism on the power of the law and how it is no more than a plaything of the powerful, on the other a legal solution is sought for every social problem. In fact, only when a legal solution is attempted, it is believed that a problem is being accorded serious consideration. On similar rationale, the conversion of every moral right into a legal entitlement is viewed as an inevitable course of action, if the realisation of a right is honestly intended. That such conversion may itself impede the realisation is a consequence that is not accorded much attention. Even though the failure of legal implementation is the most common lament that one encounters in both legal and non-legal circles, the concomitant question of whether the law was made taking the implementation travails into account is rarely, if ever, asked. This, despite the fact that it is obvious that for laws to be implemented they should be made in implementable form, and strategies should be evolved to deal with expected and unexpected obstacles. What is encountered, however, is a naïve belief that just the enactment of a law would result in its implementation because legal norms carry within them the threat of force. Hence, once enacted they would become the prevailing norm because they can be enforced.
It is this belief which prompts the move to seek juridification of socio-economic rights. Such juridification, it is believed, would give the hapless a redress forum when the government fails to fulfil its duties. The Courts, it is believed, would make the government act in accordance with the law. In drawing this connection, what is often missed is that, as a rule, Courts are not self-activating: they have to be moved by aggrieved persons. The process of activation requires resources of time, money and expertise. This resource is often not possessed by people for whom the juridification of socio-economic rights is being obtained. The provision of a judicial remedy, without more, does not improve the chances of actual realisation if the government chooses to be recalcitrant. Further, activating justiciability is not restricted to the beneficiary of the right.
While there is no express articulation of the right to housing in Indian law, there is a substantial body of law and policy dealing with different constituents of the right, both directly and otherwise. This existing law and policy on housing operates through an almost bewildering array of state and non-state actors, whose inter se dynamics can sometimes be rather opaque. If just those that have a direct bearing on the right to housing are to be considered, the list would include the judiciary at different jurisdictions, three levels of government, constitutional and statutory planning authorities, housing boards and corporations, other parastatal bodies with varied functions and community-based organisations. A person staking a claim upon the state in the name of housing is called upon to navigate through this labyrinth of sorts. This complexity is a double-edged sword: it can sometimes work to the advantage of the claimant, but often it is a source of utter mystification.
It is a bane of Indian legislative and executive action that state-institutions are created with almost reckless disregard for what came before. For this reason, in practically every state, it is possible to trace different institutions with seemingly overlapping functions, find defunct institutions that have not been taken off the law books despite having been functionally replaced, or institutions that exist on paper but have not actually been set up. In part, it is this predilection for expedient, instead of reflective, law-making that creates the complex web of institutions mentioned. For the legal right to housing to be articulated in any meaningful manner, it is imperative that this web be understood to the greatest extent possible. Given that a substantial portion of the law relating to housing operates at the level of the district or the city, the reality of housing law and the dynamics involved amongst state and non-state actors varies across states, and even within states. It is unlikely that any one text can capture all of this difference, but the challenge before any movement seeking legislative intervention would be to learn from these diverse realities in order to create broader norms that speak to and enable the realisation of local requirements.