ADJUDICATING THE HUMAN RIGHT TO ADEQUATE HOUSING Analysis of Important Judgments from Indian High Courts HOUSING AND LAND RIGHTS NETWORK Adjudicating the Human Right to Adequate Housing Analysis of Important Judgments from Indian High Courts 01 Suggested Citation: Adjudicating the Human Right to Adequate Housing: Analysis of Important Judgments from Indian High Courts, Housing and Land Rights Network, New Delhi, 2019 Conceptual Framework, Analysis, and Editing: Shivani Chaudhry and Miloon Kothari Legal Research and Analysis: Aishwarya Ayushmaan [with inputs from Ikshaku Bezbaroa for the initial draft] Published by: Housing and Land Rights Network G-18/1 Nizamuddin West Lower Ground Floor New Delhi – 110 013, INDIA +91-11-4054-1680 [email protected] www.hlrn.org.in New Delhi, April 2019 ISBN: 978-81-935672-2-7 This publication is printed on CyclusPrint based on 100% recycled fibres ADJUDICATING THE HUMAN RIGHT TO ADEQUATE HOUSING Analysis of Important Judgments from Indian High Courts HOUSING AND LAND RIGHTS NETWORK ii Housing and Land Rights Network PREFACE “The arc of the moral universe is long, but it bends towards justice.” ~ Theodore Parker While justice should be an inherent component of the law and, incontestably, is its end, in many parts of the world, law and justice, unfortunately, are not synonymous. Even where just laws exist, they are often not implemented, or selectively used. The judiciary, too, does not always ensure the uniform administration of justice. However, for the poor and marginalized, who find their rights being violated by state and non-state actors, the judiciary, at times, is the only hope for the pursuit of justice. With regard to protection of the human right to adequate housing in India, this is even more significant as India does not have a law—either at the state or national level—that explicitly safeguards the human right to adequate housing. Laws deal with land acquisition, land revenue, tenancy. They cover rights of home and land-buyers. Multiple laws exist to “clear slums,” to zone city spaces, and to govern property and real estate development, but not to respect, protect, and fulfil the right to adequate housing as a human right in India. International laws, which India has ratified—including the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities—recognize and guarantee the right to housing as a human right. It is, thus, binding on the Government of India to implement its international legal obligations by ensuring that all its schemes and housing-related interventions are grounded in the ‘human right to adequate housing’ framework. India, however, has not adopted a human rights approach to housing. On the contrary, the state is responsible for multiple violations of the right to housing, especially of marginalized and low- income groups. India’s housing crisis is marked by the lack of state investment in social and low-cost housing, which is further exacerbated by forced evictions, real estate speculation, and market-driven solutions to meet the national housing shortage. In the absence of the provision of legal security of tenure, self-constructed housing of the urban and rural poor continues to be viewed by the state as an ‘encroachment’ and is routinely demolished, without due process, and in violation of international human rights standards. Human rights are also violated when people’s land is forcibly acquired or appropriated, when they are forcefully relocated to remote settlements without basic services and adequate housing, or when they are displaced from their homes and habitats and rendered homeless. The vast majority of the affected population has limited access to justice and effective remedy for violations of the right to housing. Against this backdrop of impunity for state and non-state actors, and the absence of a rights-based legal framework to uphold the right to housing in India, the judiciary’s role is critical. The Indian judiciary, however, has not been consistent in safeguarding the right to housing as a human right and in ensuring its fulfilment for the most marginalized. Judgments from the Supreme Court of India, High Courts, and district courts have often ordered demolitions of low-income settlements and the forced eviction of marginalized communities, thereby disregarding their fundamental rights. On several occasions, the judiciary has also created artificial conflicts of rights, for instance pitting the rights of local communities against the rights of the environment, thus failing to uphold the principle of ‘indivisibility of human rights.’ On the other hand, the Supreme Court of India and several other courts have expanded the Fundamental Right to life, guaranteed by Article 21 of the Constitution of India, to include the right to housing, and endorsed it on numerous occasions. Rationale for this Publication While landmark Supreme Court judgments related to the right to housing are cited widely, including internationally, important judgments from states are not known. As an organization that strives to ensure the realization of everyone’s right to a safe and secure home to live in peace and dignity, Housing and Land Rights Network, India (HLRN) Adjudicating the Human Right to Adequate Housing Analysis of Important Judgments from Indian High Courts iii decided to compile and analyse progressive judgments from High Courts that have upheld the human right to adequate housing– either directly as guaranteed by international law or through an expansive interpretation of the right to life, or indirectly by recognizing key elements of adequate housing essential for the realization of the right to an adequate standard of living and the right to live with dignity. We have used a human rights lens to shortlist cases that have dealt with housing and related rights of the marginalized. Some of these cases have interpreted the right to housing as a human right with auxiliary directions and also reinforced the positive obligation of the state to protect the right. In other instances, though the final orders may not reflect a positive protection of the right, if the judgment has recognized the right to housing as an independent right or upheld its elements, we have included it in our analysis. This publication, however, does not cover cases related to disputes over private property or land acquisition, unless they have referred to important and interlinked rights of resettlement, compensation, consent, and procedural rights. While we have made efforts to select key judgments, this compilation is not exhaustive; neither does it encompass the entire body of Indian case law on the right to housing. It is intended to demonstrate trends and reflect the judiciary’s treatment of the human right to adequate housing, which though linked to the realization of several economic, civil, social, political, and cultural rights, is not explicitly protected in national law. Structure of this Publication The first section of this publication provides the reader with an overview and analysis of the nature of judgments and relief provided by courts, while also highlighting the often contradictory and inconsistent role of the judiciary when adjudicating the right to housing. The prevalent polarity in society between those who view the poor as “encroachers” and those who recognize them as equal citizens with equal rights also percolates to decisions of judges; this trend, to some extent, is reflected in this compilation of case law. The second section briefly presents landmark Supreme Court of India judgments that have upheld and recognized housing as a human right, essential to the fulfilment of the fundamental right to life. Several of these judgments have been referred to and used as precedent by High Courts, thereby strengthening Indian jurisprudence on the right to housing. The final section of the publication presents a summary and analysis of significant judgments from Indian High Courts that are related to the right to housing. We hope that this publication will be a useful resource for lawyers, academics, independent institutions, non- government organizations, human rights defenders, judges, and anyone interested in the positive role of the Indian judiciary in adjudicating the human right to adequate housing. Housing and Land Rights Network believes that publications of this nature could be helpful in publicizing positive court orders, even among different levels of the judiciary, and that could be a powerful means to strengthen the use of legal precedent, especially in promoting human rights of the most marginalized. We also hope this will help the judiciary realize its incontestable importance and moral responsibility in furthering social justice, reducing poverty and deprivation, and strengthening the realization of human rights in the country, especially when national law and policy fail to do so. Ultimately, we turn to the courts to uphold the rule of just law and to deliver justice. And positive judgments reinforce our faith in the judiciary and give us the hope to pursue justice within the judicial system. It is, however, important to keep in mind that just because a court does not uphold human rights, they do not cease to exist. In this regard, Mahatma Gandhi’s words serve as a powerful reminder: “There is a higher court than the courts of justice. It is the court of conscience. It supersedes all courts.” Shivani Chaudhry Executive Director, Housing and Land Rights Network New Delhi, April 2019 iv Housing and Land Rights Network CONTENTS 1. Overview and Analysis of Jurisprudence from High Courts of India on the Human Right to Adequate Housing 1 2. Landmark Judgments from the Supreme Court of India on the Human Right to Adequate Housing 13 3.