Preliminary report by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination in this regard, Leilani Farha, who visited India from 11 to 22 April 2016 on the invitation of the Government of India:
India is the second most populated country in the world, with over 1.3 billion people. It is proudly known as the ‘largest democracy in the world’. Everyone with whom I met celebrates and values its Constitution, and many of its laws and policies as iconic of its post-independence democratic evolution. India continues to struggle with the legacy of deeply entrenched and centuries-old social exclusion and discrimination of particular groups of people, such as Scheduled Castes, Scheduled Tribes and women. While reservations and legal measures have been developed to combat exclusion, direct and indirect discrimination is still prevalent. As a Federal state, with constitutionally devolved powers in the area of housing, there are many variances between states that must be considered in developing a national picture.
India is marked by stark contrasts: extreme poverty and deprivation in the face of extreme wealth, a gap which is steadily growing and overtly visible. Nowhere are glaring inequalities more evident than in urban housing. On many streets when you glance down you see the poorest of the poor – women, men and children – eating, sleeping and playing on sidewalks; look up and your gaze meets luxury glass and steel skyscrapers purchased and inhabited by the wealthy.
While the speed of urbanization has been slower than in other emerging economies, India has on its horizon large scale urbanization for at least the next decade. During the period 2010-15, the urban population has grown at a steady 2.4% annual average, while the rural average is just 0.7 annually, indicating the trend towards migration and forced displacement to urban and peri-urban centers.
India’s population is very young with close to 30%, approximately 380 million people, aged 14 and below. The average size of household is estimated at 5 members, with variations between rural and urban settings.
India is also a flourishing economy, with estimates of real GDP growth rate at over 7.3 per cent for 2016. Some predict that India’s GDP will continue to grow by over 7 per cent annually over the next decade. In other words, in terms of its maximum of available resources, India has the economic capacity to ensure the right to adequate housing is enjoyed by the most marginalized and vulnerable groups.
Housing and Land Context
India has the largest number of urban poor and landless people in the world. According to the 2011 census, approximately 13.75 million households or approximately 65 – 70 million people reside in urban slums. In some cities, such as Mumbai, those residing in slums represent closer to 50% of the urban population and cities like Mumbai, Chennai, Hyderabad, and Kolkata account for more than 50% of total households living in slums in India. Data on the number of homeless people based on the 2011 census appears to under-represent the figure at 1.8 million, while researchers have indicated that the figure may be closer to 3 million people.
I met with slum dwellers and homeless people in Delhi, Mumbai and Bengaluru. From a human rights perspective, I can say that their housing and living conditions are often inhumane, and an affront to human dignity – the essence of the right to adequate housing.
In the cities I visited, I was struck by the sometimes overbearing presence of development of high-end real estate. Newspapers and billboards scream of the better life to be had in new residential complexes, and skylines dotted with cranes attest to the march forward in this regard. There is no doubt that construction of this nature plays a significant role in India’s growing economy, but it also creates divisions on socio-economic grounds.
Thirteen per cent of rural households live in homes known as “katcha”, one room makeshift places with low quality materials, with no ventilation or sanitation facilities and not protective of rain, wind or dust. It is estimated that there is a shortage of 40 million rural housing units and that 90% of rural households that require housing are living below the poverty line.
Amidst this housing landscape, there are a number of recent developments and crucial steps taken by the central and state governments that deserve mention.
The Central government has initiated two flagship programs of particular relevance – a national housing scheme and the “Clean India scheme” – that could have an important positive bearing on the enjoyment of the right to adequate housing if they are fully and effectively implemented. Both schemes are implemented by States, on a cost-shared basis with central government. The urban housing scheme, Pradhan Mantri Awas Yojana (Housing for All) is ambitious in scope aiming to house approximately 20 million households (100 million people) in urban areas and 30 million in rural areas by 2022.
Based on the principle that in so far as possible slum rehabilitation should occur in situ, under the urban rehabilitation and redevelopment portion of Housing for All, eligible slum dwellers are provided temporary accommodation in transit camps. Once new houses are constructed, households are provided with a unit with all basic services and amenities, requiring the payment of a one-time fee. Maintenance costs are covered for 10 years by the developer after which time residents become responsible and become full owners of their units.
I visited several residents currently living in rehabilitated units in Mumbai and Bengaluru – a young professional couple hoping to have children, a multi-generational family, and an older couple, for example. In terms of basic adequacy, these units were all far superior to their slum ‘shacks’. The positive impact on residents who, for the first time, are experiencing security of tenure, cannot be underestimated. Some expressed a new sense of self, having been transformed from an “encroacher” to a rightful resident. Many indicated they were better treated within their broader community as a result of their rehabilitated accommodation.
An overarching principle in some rehabilitation and redevelopment schemes, in compliance with international human rights law, is the slight shift away from treating residents as “encroachers”, “squatters” or otherwise illegal occupants, towards the notion that at least some slum dwellers are deserving of property rights and a decent – and formalized – place to live. The government is encouraged to fully embrace this shift and to encourage others to do so as well. Also in keeping with international human rights law, the schemes appear to be based in the notion that in situ rehabilitation should be the goal in so far as possible. In other words, the schemes recognize that most often it will be in the best interest of slum dwellers to remain on the lands where they have been resident for more than fifteen or twenty years (a condition for rehabilitation) close to where they are employed, and attend school.
I was interested to learn about the recent passing of the Real Estate Regulation and Development Bill (March 2016). While I am mindful that this bill is not be a panacea, it is essential that controls, regulatory frameworks and clearer procedures are established to help protect property buyers. For a society that is highly market-driven and where the flourishing housing sector is catering to home ownership primarily, it is crucial that the central and state level government have a firm hold on their obligation to protect individuals and households from private actors and that due diligence is exercised.
Though implementation has been a problem, the Protection of Women from Domestic Violence Act has human rights oriented provisions, providing women in a domestic violence situation with security of tenure through the right to reside in their home and barring the violent household member from remaining on the premises.
India’s Constitution and its interpretation by courts also bears mention. While the courts have taken divergent decisions with respect to the recognition of the right to housing and have recently sanctioned numerous demolitions, the Supreme Court and several High Courts have issued progressive judgements in keeping with the right to adequate housing under international human rights law.
For example, in 2010 the Delhi Court released two judgments affirming Constitutional protections for the right to housing, noting that “adequate housing serves as the crucible for human well-being and development” and affirming that prior to an eviction rehabilitation sites with access to infrastructure, services and amenities and a decent living must be found. The Supreme Court has also issued several important judgements affirming the right to housing. In the ‘right to food case’, as it is commonly known, the Supreme Court took urgent notice of the denial of the right to housing for persons living in the streets in Delhi, recognizing the threat this poses to the right to life. The Supreme Court has established detailed guidelines for states to establish shelters with adequate and appropriate facilities, and to remain accountable to the court with respect to progress on this front.
While there are indeed these aspects to commend, my conversations with a variety of stakeholders have assisted me in identifying a number of housing issues of grave concern requiring immediate attention, as follows:
Discrimination and social exclusion
My mandate includes a focus on non-discrimination in the context of housing. Discrimination, whether direct or indirect, and inequality were raised on numerous occasions with me as bedrock issues with respect to housing and land in India. I wish to underline that under international human rights law, there is an obligation by all Government authorities to ensure protection from discrimination by private actors, such as for example private landlords and developers.
India’s legacy of discrimination against scheduled castes and tribes and so-called backward classes as well as women, particularly single and widowed women, and various religious minorities remains apparent. The majority of those who are homeless or are residing in slums with the worst housing conditions are members of these and other vulnerable groups. Scheduled castes and tribes comprise 22% of India’s population but are over-represented amongst the poor. Despite affirmative action programs and “reservations”, these groups continue to be stigmatized and discriminated against. Manual scavenging, though outlawed many years ago, continues to be a reality for some with implications for their housing status.
Muslims represent 14% of the overall population. Discrimination against Muslims in housing manifests in different parts of the country in different ways. For example, studies on access to private rental accommodation in the NCR shows that discrimination against Muslims (as well as Dalits) is a barrier to housing access. Private landlords, real estate brokers, and property dealers will often refuse to rent to someone who is Muslim, or impose unfair conditions. It is also the case that in some parts of the country Muslims have felt compelled to leave their homes and migrate to places where other Muslims are living, often in slums. I visited one such slum. Residents are living on public lands meant to be serviced by the Municipality. The conditions were extreme due to, overcrowding, an absence of sanitation facilities and the lack of garbage collection.
Widows and single women also continue to suffer discrimination with respect to housing. I was surprised to learn that even some government officials do not always see the linkages between domestic violence and women’s housing conditions. Conversely, I met many women who had fled violent households and, with few housing options, were left destitute living on the side of a road. Women face multiple layers of and intersecting discrimination with respect to access, control and ownership and inheritance of housing, land and property. Though some efforts have been made by governments, and schemes set in place, to ensure women can become property owners, for example, tax incentives and joint ownership of housing, inheritance practices continue to be used to deny women title to housing, land and property.
Still often referred to as “encroachers”, or people illegally occupying lands, homeless people living on the pavements are commonly regarded as “outsiders” because so many are rural migrants. As such they are often not welcomed by governments. These discriminatory attitudes are not just part of common parlance in policy circles, but have also found their way into legal judgements, making it increasingly difficult for vulnerable groups to win injunctions against forced evictions; it has meant that homeless persons are denied access to long-term housing solutions; and suggests that the interests of the marginalized never trump the interests of developers and development.
Discrimination against other groups such as persons with disabilities, street involved children, persons with HIV/Aids, sex workers, and LGBTI were brought to my attention and will be discussed in my final report.
Homelessness demands urgent attention in India. Mostly identified as ‘pavement dwellers’, all homeless people live in extremely poor conditions and exposed to many forms of brutality, violence and health hazards. Information I have received points to the majority of homeless people coming from disadvantaged groups.
They endure extreme weather. Mortality rates are 6 or 7 times higher than for non-homeless populations. Women and children experience particular forms of violence. Medical services, which are often simply denied to homeless women because of their homelessness, has a disproportionate effect on women, particularly those who are pregnant, including during child birth. Children suffer severe malnutrition.
Beyond the absence of any and all services necessary for a life of dignity such as food, sanitation and health care services, I have been told that the most difficult aspect of homelessness is the stigmatization, hostility and indifference homeless people feel from everyone in society: passersby, police officers, media and government officials.
The neglect of homeless populations in India has been well documented by the Commissioners of the Supreme Court appointed to track the implementation of the court decision and subsequent orders on the right to food nationally. Government at central and state level appear to treat this very visible population as invisible. They have shown little interest in addressing the immediate needs of homeless people, let alone reflecting on the causes of homelessness and adequate policy responses. Despite the fact that those who are homeless are the “city makers”, providing the informal labour and services that sustains urban activity, Governments are reluctant to provide housing, land and basic services to this population.
As a result there are not nearly enough shelters to meet the need, and when shelters exist they are not always sufficient and rarely cater to specific population such as children, women, persons with disabilities or persons who need treatment for addictions.
That being said, through a series of orders, the Supreme Court has provided detailed guidelines for states with respect to the number of shelters that must be constructed and the services and amenities that must be provided to residents therein. The Ministry of Housing and Urban Poverty Alleviation has also established the National Urban Livelihood Mission – Shelter for the Urban Homeless.
I also note that there is no national law, policy or programme in place to ensure homeless people have access to medium and long-term housing options. They are not, for example, included in the Housing for All Scheme. I did learn that Rajasthan has adopted a progressive policy whereby emergency shelters are the first step toward rehabilitation, offering skill training to residents and assisting them to transition to employment and long-term housing options, a model that other city authorities are taking on board as well, for example in Delhi.
During my short stay in India three evictions were brought to my attention and serve as a snapshot of a reality suffered by many poor people across the country. These evictions took place or were announced: 1) pavement dwellers living for 30 years on a stretch of Baba Kharah Singh in Connaught Place had their belongings confiscated and were forced off the footpath, replaced with potted plants; 2) in Maharashtra, the Mangrove Cell of its Forest Department announced the eviction of 1500 families, allegedly without rehabilitation. This site has faced evictions for a year, and a total of 4000 households have suffered as a result; 3) reportedly, 100 families were forcefully evicted with police batons (lathi) by the Municipal Corporation in Indiranagar, Shivajinagar, Govandi, Mumbai.
Forced eviction appears to happen frequently in India – a regularized practice used most often to move forward the economic development agenda of the country. The central Government does not collect national data on the number of households evicted each year, and neither do specific states. Information collected by civil society suggests it is extensive, showing that between 2010-2015, for example, close to 250,000 people in urban areas have been forcibly evicted from their homes.
I have been told that evictions are most often carried out against the most vulnerable populations most of whom are living below the poverty line. Forced evictions are often implemented without any consultation with residents, without sufficient or any notice, and commonly result in homelessness.
Genuine consultation with those affected, and rehabilitation and relocation prior to eviction are seldom guaranteed. While this may vary from state to state, when rehabilitation occurs, it has often been on the peripheries of cities. A study conducted in Baprola, a rehabilitation site on the outskirts of Delhi, found that the housing being provided to those who had been evicted was basically uninhabitable. The site has no transportation services and distance from prior employment, schools, healthcare or any sources of livelihood was over 30kms. The flats are in a state of disrepair, lacking potable water and other basic services. Many of the units, as a result, have been abandoned.
Access to legal remedies or recourse to justice for forced eviction appears to be scant in India. In other words, in most cases, forced evictions occur in India without a hearing and with impunity. In other cases, the community may only have a few hours to secure a stay of the eviction.
All of this is contrary to international human rights law under which forced evictions are considered a gross violation and must be avoided except in the most exceptional of circumstances and, when implemented, must be done so in strict compliance with international norms.
I learned that while a few judicial decisions at the High Court level have delineated the manner in which evictions must be carried out, and the Delhi government has issued an order that places a moratorium on forced evictions, no such legislation or order exists at the national level.
There is a serious inconsistency within India’s policies. On the one hand, the government is committed to addressing the scourge of inadequate housing across the country through its “housing for all” policy. On the other, its drive to become an economic giant through real estate investment and development of infrastructure is in fact creating homelessness and housing disadvantage. It becomes a zero-sum game: for every luxury unit created, an untold number of households may be evicted and rendered homeless.
Many stakeholders with whom I met indicated frustration with the failure by governments to include human rights standards in housing schemes and policy, such as those articulated in General Comment 4 and 7 of the UN Committee on Economic, Social, and Cultural Rights. Stakeholders also expressed concern with the single emphasis on homeownership in the Housing for All scheme to the exclusion of other policy options. For example, schemes recognizing different types of tenure beyond homeownership, such as rental housing schemes or usufruct rights over land, have not yet been put in place. I have been informed that there is currently a draft rental housing policy in process as well as a draft model tenancy act which provide an excellent opportunity to include right to housing standards, and I look forward to their adoption.
Moreover, while the ambitious Housing for All scheme signals national level interest in addressing the enormous housing shortage and housing needs of the weakest economic segment, several aspects of the scheme could be improved upon. For example:
- Some question the affordability of the program for slum dwellers. This can mean longer stays in transition camps which are meant to be temporary in nature.
- In most schemes units are of a uniform size (for example: 25 sq. metres), regardless of family size. Concerns have been raised that these units are far too small for families with 5-8 members, the average size of most slum households. Overcrowding, it is feared, will quickly lead to slum-like conditions in the rehabilitation sites.
- I learned of cases where residents have been left to reside in transit camps for over 3 years awaiting rehabilitation and worse yet, where residents await rehabilitation and developers, despite having received the tender from the government, have failed to build the rehabilitation units.
- As a nationally driven scheme with State level implementation there is some concern that there will inconsistencies in terms of quality and efficiency of implementation between States.
Landlessness and Displacement in Rural areas
In relation to land, two pieces of legislation have been brought to my attention numerous times. First, in order to protect scheduled tribes, the Forest Rights Act of 2005 recognizes forest-dwellers rights to land title and its use, as a collective right; it determines a prohibition against evictions without adequate rehabilitation. Second, the Land Acquisition Act of 2013 requires social impact assessments prior to acquisitions and to ensure rehabilitation and resettlement of affected households in case of eviction.
I was told that despite this legislation, displacements due to infrastructure projects, and extractive industries regularly occurr. The pressure on rural land seems to be growing; some refer to instances of land grabbing, including in areas where Scheduled Tribes have protected rights.
The construction of large-scale dams, for example, has resulted in millions of displaced people and of households being rendered landless, many of whom remain in rural areas.
They live in the most precarious situation as the housing schemes require a house site in order to be eligible, or they migrate to the urban areas. Since the majority of these new comers to the cities only are able to access low-skill manual work and have little or no education, they are often living in dire conditions and increasing the ranks of those who are most inadequately housed in the cities. In 2011-2012, the Parliamentary Standing Committee on Rural development had reported that “only a third of displaced persons of planned development had been resettled”.
Another critical issue to underline is the lack of a national policy that includes the provision of housing sites and homestead not just construction incentives and grants. Considering that the majority of the over 780 million rural inhabitants are landless, there seems to be an urgent need to address their housing situation in a more comprehensive way, acknowledging that a plot of land (even as small as 0.10 acres) can play a crucial role in ensuring both access to adequate housing, and also to a livelihood.
Access to Justice
Most inadequately housed people and homeless people have relatively little legal knowledge, particularly about human rights related to housing The legal aid system for those living in poverty is only marginally effective, which means access to courts is limited to the availability of public interest representation by civil society litigators, of which there is a limited number. Pending cases across the board in the judicial system, which takes years to resolve, has rendered access to justice for the poor, a continuing challenge.
Based on the information I have received, it seems that there are very few avenues to challenge government decision-making with respect to housing matters. For example, slum dwellers who are deemed ineligible for the Housing for All Scheme have no complaint mechanism. This makes it difficult to hold governments accountable for their decisions.
In the context of eviction, access to justice in India is particularly limited. There is no clear national policy or legislation on due process requirements prior to eviction, compliant with international human rights law. Persons who have been evicted have no avenue of redress if they are denied rehabilitation nor do they have access to a complaint mechanism regarding inadequate rehabilitation.
I was alarmed to learn that in recent years those struggling to defend or claim the right to housing and land have been targeted by the state and subjected to violence, defamation, arbitrary arrests, and illegal detention. It appears that those defending their homes and lands against large-scale projects like hydro-electric dams and mining projects have been particularly targeted.
Preliminary conclusions and recommendations
India is at a critical juncture. In my view some important steps have been taken that, if vigorously and vigilantly pursued, could result in more than just “housing for all”. It could result in the realization of the right to adequate housing for hundreds of millions of vulnerable people. This more robust goal will, however, require governments to make a firm commitment to human rights in the face of other interests such as real estate development.
In this regard, as an overarching recommendation, I suggest that it is time for India to adopt national housing legislation based in both its national and international human rights commitments.
Under international human rights law key principles and guidelines have been developed that can be used as tools to strengthen and inform housing schemes and policies. I recommend closer attention to and full incorporation of human rights principles in the design and implementation of housing-related legislation and schemes, in line with Article 11 of the International Covenant on Economic, Social and Cultural Rights, and General comments 4, 7 and 20 of the Committee on Economic, Social and Cultural Rights. I also encourage the use of two guidelines elaborated by my predecessors: Guiding Principles on Security of Tenure for the Urban Poor (A/HRC/25/54), and Development Based Displacement Guidelines.
In this context, I invite the Central government to do more to ensure all its institutions as well as all states are meeting their obligations on the right to adequate housing and non-discrimination under international law. I further invite the judiciary, public interest litigators, and government lawyers to use international human rights law principles in their Constitutional interpretation and in litigation.
Addressing several of the most complex housing issues from a human rights perspective, as a matter of urgency and priority, by all stakeholders would not only have positive implications for the current housing backlog, the life of millions of excluded residents, and the increasing unaffordability of adequate housing, but it would also set India on track for addressing inequality and rapid urbanization in the years and decades to come. It would also be timely in light of India’s commitment to implementing the 2030 Agenda (Sustainable Development Goals) and the upcoming world conference on human settlements (Habitat III) where a New Urban Agenda will be adopted.
I also wish to offer the following recommendations:
- Homelessness should be dealt with on an urgent priority basis with a view to eliminating it by 2030, in keeping with Target 11.1 of the Sustainable Development GoalsIn this regard:
- The structural causes of homelessness must be identified and addressed by governments.
- The National Urban Livelihoods Mission guidelines must be implemented with regard to the construction of shelters for the urban homeless.
- Shelters for different and particular client populations (eg: families, women leaving violent relationships, street connected children and youth) must also be established.
- Homeless shelters must be understood in the context of a housing continuum which includes a range of housing options and supports.
- A national moratorium on forced evictions and demolitions should be introduced by central government on the basis that they constitute a gross violation of human rights and can only occur in the most exceptional of circumstances, in strict compliance with international human rights law.
- Enhanced policy coherence and convergence between housing schemes in urban and rural areas and schemes for the provision of water and sanitation.
- Central and state governments should put in place effective and timely mechanisms to collect data on evictions, including with disaggregation of the persons who are evicted by age, gender, disability, caste, religion. Similarly, effective collection of data on homelessness, on residents of slums and on living conditions should be systematically updated. This information should be made public and serve as a basis for policy design and monitoring of compliance with national and international human rights law.
- The National Right to Homestead Bill (2013) should be reviewed for compliance with international human rights standards on the right to adequate housing and adopted forthwith to provide homestead land to the 8 million poor, landless and homestead-less people estimated to be living in rural areas.
- Schemes and programmes for rural housing should include the provision of plots of land and not only construction grants, to ensure that the most deprived and poorest (landless) can adequately ensure their right to housing and to a livelihood.
- Survey and recognize all existing slums, including those where Muslims or other religious minorities reside, and provide to the best of ability in-situ upgrading and rehabilitation, with secure tenure for all inhabitants. Provide existing slums, especially where rehabilitation is not planned, with regular garbage collection, proper latrines and access to water.
- The National Human Rights Commission and other national commissions should enhance their attention, within their thematic jurisdictions, to the dire housing issues confronting millions across the country.
- Enact legislation to curb all forms of de facto housing discrimination against any individual or groups, especially religious and ethnic minorities, women, dalits and migrants, both for rental and house ownership.
- With respect to India’s engagement with the international human rights system I strongly recommend that India submits its report to the Committee on Economic, Social and Cultural Rights; that recommendations related to housing, living conditions and poverty alleviation from the 2nd round of Universal Periodic Review be implemented, and that its national report for the 3rd round (scheduled for 2017) refer explicitly and specifically to achievements and obstacles to realizing the right to adequate housing for the most excluded and marginalized.
There were a number of additional issues brought to my attention requiring additional recommendations but which I am unable to comment here for lack of time. My final report will be presented to the Human Rights Council at its 34th session in March 2017, in Geneva.
Based on the Special Rapporteur’s spot visits in New Delhi, Mumbai and Bengaluru, meetings with senior Government of India officials, and interaction with activists and experts from West Bengal, Tamil Nadu, Gujarat, Madhya Pradesh, Manipur, Uttar Pradesh, Andhra Pradesh, Odisha, Bihar and Telangana