Rights Based Approach and Housing for the urban poor- an analysis of the Slum Rehabilitation Schemes in Mumbai
Dr Binti Singh
The present study seeks to understand and analyze the Slum Rehabilitation Schemes (hereafter SRS), designed specifically in the context of Mumbai, using a rights based approach. The SRS when studied from the rights based approach, is not merely seen as a policy of charity of providing free houses. Instead it is seen as a platform for various players to negotiate on mutually beneficial terms, in a participative manner. With the help of an empirical analysis, the study attempts to understand the translation of this approach into reality through the implementation of a particular programme, catering to a particular segment of population namely the slum dwellers of Mumbai. The study also points out the larger implications of the rights based approach to housing.
Rights Based Approach
The cornerstone of rights based approaches is the idea that people are citizens with rights. A citizen connotes someone with rights rather than someone receiving welfare or buying services. People become agents and subjects, rather than objects, of their own development. (2003) A rights-based approach to development includes the following elements: express linkage to rights,accountability, empowerment, participationanddiscrimination and attention to vulnerable groups. Rights-based approaches are comprehensive in their consideration of the full range of indivisible, interdependent and interrelated rights: civil, cultural, economic, political and social. This calls for a development framework with sectors that mirror internationally guaranteed rights, thus covering, for example, health, education, housing, justice administration, personal security and political participation.
The meaning of housing rights as understood in the study is not a literal translation in law or the fact that the State has to provide houses for one and all. The concept as derived from the rights based approach is understood more in terms of its potential to enable governments to do what they should do by providing a strong foundation for its policy and for sharpening the focus of civil society organizations as active agents in housing programmes for the poor, ensuring their participation. While realization of this right is likely to be slow, difficult and uncertain, it would be a mistake to discard it. As the issue of right to housing is still in its infancy (especially in the developing countries), certain misconceptions about its content and implications do exist in abundance. Various myths encircling the concept have been identified in this study --that the right to housing is not justifiable because it is not a political right; that housing rights require the state to build housing free of charge - for the entire population; that housing rights are only necessary in developing countries and that squatters (people who live on land not belonging to them) are criminals, etc.
At the international level, the most significant articulation of the right to housing is found in the International Covenant on Economic, Social and Cultural Rights (ICESCR). It was ratified on 3 January 1976 and is now legally binding on more than 140 countries. The right to adequate housing is found in article 11(1) and reads as “The State parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and for his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent”. By this article, the human right to housing is recognized as being of central importance for the enjoyment of all economic, social and cultural rights. Countries, which have signed ICESCR, are obliged to fully realize the right to housing as expeditiously and effectively as possible. India ratified this Covenant on 10th July 1979.
India’s Position Vis a Vis the International Covenants
Justice R. Sacchar (1999) retired Chief Justice of the Delhi High Court was appointed as Special Rapporteur on the right to housing in April, 1999. He stated that the people in India could approach the courts to compel the domestic government to grant the rights contained under Article 11 of ICESCR. He opined that the International Covenant is enforceable even though there is no national law obliging the government to provide housing. Legal opinion has now shifted from the conventional opinion. The courts can directly enforce international law provided that it does not conflict directly with domestic law. Since there is no law in India prohibiting the government from granting the right to housing, the International Covenant is enforceable by the Courts. Any violation of housing rights should be sent to the CESCR on a regular basis so that the CESCR is aware of that particular State Party’s disregard for the Covenant. CESCR could also intervene at the government level in an attempt to stop and prevent such violations.
Security of Tenure
Any study on housing rights cannot be complete without mentioning the concept of security of tenure, which is the cornerstone of the right to adequate housing. William Cobbett (1999), discusses the existence of widespread conditions of insecure tenure around the world, concentrated on the urban poor, prevents governments from meeting their commitment to enable the provision of adequate shelter for all. Shelter policies simply will not work properly without the long-term certainty provided by secure tenure. The consequences of insecure tenure are listed below:
inhibits investment in housing
hinders good governance
promotes social exclusion
distorts prices of land and services
Secure tenure protects people against arbitrary forced eviction, harassment and other threats. Most informal settlements and communities lack legal securities of tenure, hence, hundreds of millions of people do not currently live in homes with adequate secure tenure protection. Security of tenure is particularly important for women, especially where women experience domestic violence and may have to flee their homes to save their lives and for women who do not have title to their homes or lands and thus can be easily removed, especially upon divorce or death of a spouse. Those who lack security of tenure are understandably reluctant to invest in improving their homes for fear that such investments will only be destroyed or taken away from them once they are evicted. Amitabh Kundu has further reiterated this point in his empirical studies of the slums of theSonia Gandhi Camp at Sakhalinin New Delhi andPravin Nagar Gupta Nagarsettlement in Ahmedabad (Kundu, 2002) Again people without secure tenure are well aware that they are being treated differently than others simply because they cannot afford property to which secure tenure attaches. Thus it reinforces social exclusion and poverty.